The Monstering of Human Rights from UK The Human Rights Blog Adam Wagner

The Monstering of Human Rights

On Friday 19 September I spoke at a very interesting conference at the University of Liverpool on Human Rights in the UK Media: Representation and Reality. My talk was entitled The Monstering of Human Rights. You can download it by clicking here (PDF). It is also embedded below.

As always, comments are welcome. There is quite a lot in there tying together some of the themes I have been writing about over the past few years. As a number of people pointed out in Liverpool, it is too easy to point to errors in human rights reporting as proof that all criticisms of the human rights system are bogus, which is clearly wrong. But nonetheless, misinformation and exaggeration is an important feature of the public debate on human rights and it is interesting to consider why that might be the case, and – a question which has troubled me over the past few years – how to stop it happening.

I expect the issue of human rights reform will arise again now that the Scottish referendum process has concluded and the political parties are setting out their agendas for 2015. It seems pretty clear that the Conservative Party will promise to repeal the Human Rights Act but what they will do in relation to the EuCropean Convention on Human Rights is still very much an unknown. My expectation is that they will not promise to withdraw from the ECHR. Not yet, anyway. Labour and the Liberal Democrats are likely to retain the existing system, with a few tweaks. But whoever wins the election, there is a huge amount of work to be done to repair the reputation of human rights laws in the UK and convince the public that they are, on balance, a good thing.

PS. if any kind soul would like to turn the PDF version into a HTML linked blog-ready post, I would be eternally grateful! Email me if you would be interested, you would of course get full credit in the ensuing post/s.

Comments

The judges ruin human rights with perverse interpretations !Article 8 promises us a private family life undisturbed by public authority.Clearly intended to protect the family from State intrusion. Judges prefer to interpret it as protection of the State FROM the family ! Jailing any parents daring to protest publicly using their own names,when their children are taken by the State on the grounds that heir children’s privacy has been breached !

Nice one Adam! I have linked it to every social media site I know.

For those interested in the dynamics of the way in which the UK Press operates, may I recommend a reading of Nick Davies’s book: “Flat Earth News” which is also available on audiobooks (unabridged). You will never pick up a newspaper again!

What a succinct and powerful piece. I’ve just completed a masters in human rights at Birkbeck, and although I’m not a lawyer, I find the generally-held misconceptions about human rights both baffling and infuriating. I’ll circulate your speech widely….

Many thanks,

Judith Perle

Your courageous efforts to take on the ‘mighty’ Sun empire and other unscrupulous media regarding matters of Human Rights is a huge resource and act of inspiration for many of us who admire your works in literature and lectures on human rights. Thank you very much

A well written and interesting speech, but one where I feel an opportunity was missed.

Reading through it there was a clear narrative that the newspapers, general media and, via these organisations views, the public were being mislead on all things ECHR and HRA. In fact the speech became a little repetitive in this regard with the point made over and over again, which did spoil it a little. The examples used were pretty fair and pointed out the negativity well, although with regards to The Sun and its 3 out of 5 losses claim I was surprised you included this as in your original blog I though the readers gave a pretty good defence of the Sun. Each of you used essentially the same statistics in a different way producing differing views. Was the Sun wrong to do so? I and others thought not.

So what of the missed opportunity?

As I read on I couldn’t help but feel that you and your views were also partially to blame for the public perception. You briefly mention in the body that the ECHR has faults and you finally mention these in your conclusion. On each occasion you had the opportunity to expand and provide some sort of balance, but sadly did not do so. For the casual reader it was perhaps an opportunity to see some critical thinking on how to improve the legislation, the quality and experience of the judges and the system as a whole, as these form a major part of the negative public perception.

There is also another critical point missed. The ECHR was formed in the wake in the atrocities of war and the brutal suppression of the citizens of some countries, but to the public the ECHR and HRA have morphed into something completely different. Do I as a British citizen feel oppressed, brutalised or scared to express my views? Certainly not, and herein lies a serious disconnect with the public view of what the ECHR should be for and what it is actually used for. Some of the cases are an anathema for the public, such as votes for prisoners. Many would take the view that you forego your rights when you commit a crime against a society which gave you those rights. It seems there are never ending appeals, one after another and the perception is the criminals, terrorists, murderers etc just keep appealing until they win. All this largesse is paid for out of the public purse of course.

Do newspapers make the news or report it? That’s the perennial question we try to answer. Either way politicians will reflect on what news is and how that news is perceived by the public. If, in all sincerity they are trying to legislate for the good, but find the ECHR and judiciary constantly overruling them (tanks on the lawn), there is bound to be some friction.

The opportunity was to say to the audience that the ECHR is not perfect, there are issues and problems, and here are some of the poor judgements it has made against governments all over Europe, but that’s no excuse for media exaggeration and myth. Instead we had a myopic diatribe against newspapers, politicians and anyone else who dares criticise this institution or full report the judgement to your satisfaction.

 

Captain Sensible, I’m not sure I agree that the decisions of the ECtHR should necessarily accord with public opinion. Surely one of the reasons for human rights legislation is to protect those who do not have the support of the majority. In fact, it is likely then that decisions will not be popular. If they were popular, the infringing act would probably not have been carried out in the first place.

Human rights legislation was put in place in recognition of the flaws of uninhibited majority rule. It creates judicial protection against state (and majority) excesses. It is therefore essential that the decisions are well reasoned and well communicated so as to convince a likely skeptical public. The problem of communication that Adam is complaining about is therefore critical and deserves to be highlighted – without getting into the nitty gritty of individual poor judgments or legislative changes. The problem of communication is in fact evident even from your comment, which discusses “votes for prisoners” – the ECtHR has only judged that the blanket ban on votes for prisoners is a breach of human rights – not that all prisoners should have the vote. On the former characterisation, the decision may be more palatable to the general public.

A worthy, lawyerly, comment piece.
But politically deficient?

The expression “distraction policies” is new, but the idea has been around for a long time.
-Government recognises that some people are concerned by homelessness and the absence of non-“market” solutions: government solution, the bedroom tax..
-Government recognises that it hasn’t an answer to public concern on net immigration: solution, fine landlords who don’t check the status of tenants…
-Government doesn’t like any legal restraint upon its wider neo-liberal agenda: solution, blame “Europe” and/or the HRA for anything and everything.

Adam is too civilised a chap to be investigating political debate-framing.

A superb post — but does it really end with tabloids that want to pry into private lives and governments that don’t want the law looking over their shoulders?

Daniel Isenberg, writing on this blog, noted that “the House of Lords decided […] to block plans to allow employees to trade certain rights (including unfair dismissal, redundancy, training and flexible working) for shares in their company”. Yes, the government was bending to commercial interests and actually hoped to entice employees to sell their human rights for a mess of pottage.

And it’s not just employees who are threatened by moves to curtail human rights, but also the clients of privatised social services. Sanchita Hosali and Helen Wildbore have deplored the loophole that exempted private providers from having to abide by section 6 of the HRA. [2] And Allen Norman has noted that “human rights have been airbrushed out” of social work. [3]

Cui bono? Providers such as companies or charities that have taken over many services previously provided by the state may find it more profitable if they don’t have to treat their clients in accordance with human rights legislation. And for faith-based social agencies there is the added incentive to deny their vulnerable clients the human rights protections that forbid proselytising. [4] In fact, a major provider, the Church of England, made clear in 2009 its fundamental opposition to human rights. It called legislation to enforce them a “tool of secular liberalism” and even warned Christians not to base arguments on human rights. [5]

In other words, any government which favours employers over employees, and which wants to let religious groups take over social services would seem to have a special interest in vilifying and ultimately curtailing those pesky human rights.

1. http://ukhumanrightsblog.com/2013/03/25/echr-lite-secret-supreme-court-and-levesonline-the-human-rights-roundup/#more-17792
2. http://ukhumanrightsblog.com/2013/04/09/human-rights-have-disappeared-from-working-together-allan-norman/
3. http://ukhumanrightsblog.com/2013/05/22/closing-the-loophole-care-services-and-human-rights-protection-sanchita-hosali-and-helen-wildbore/
4. http://www.concordatwatch.eu/kb-38064.834
5. http://www.churchofengland.org/media/38559/gsmisc898a.pdf

THE MONSTERING OF HUMAN RIGHTS
Adam Wagner, 19 September 20141
Adam Wagner is a barrister specializing in human rights and public law. He is the
founding editor of the acclaimed UK Human Rights Blog and regularly writes for The
New Statesman, The Guardian and The Times on public law and human rights issues

https://adam1cor.files.wordpress.com/2014/09/the-monstering-of-human-rights-adam-wagner-2014.pdf
Introduction
Monster / verb trans
1. Make a monster of […]
3. Depict as monstrous; defame, disparage2
Born as an idealistic response to atrocities of the Second World War, the European
Convention on Human Rights (ECHR) is now seen by many to have betrayed the people
it was designed to protect. The country’s most popular newspaper calls human rights
law a ‘charter for criminals and parasites’; apparently, 75% of the British public agree.3
As the 2015 General Election approaches, at least one of the major political parties will
propose major reform of human rights law and perhaps withdrawal from the ECHR.
How has this happened?
The current human rights system is relatively new, born only around 60 years ago.
But some of the rights protected by the 1950 European Convention on Human Rights
(ECHR) were long guaranteed under English common law, reaching back at least almost
eight centuries to Magna Carta. This is no coincidence. The ECHR was largely drafted by
British lawyers in an attempt to impose British democratic values upon the states it had
defeated in the Second World War. That explains why the UK has until fairly recently
been a strong supporter of the European Convention system. It also justifies some of the
bewilderment when the European Court of Human Rights (ECtHR) has ruled against the
UK. The ECtHR has transformed almost beyond recognition since its own modest
beginnings, but, like an unruly teenager, it has also began to rebel against its parent.
In October 2000 the UK experienced a constitutional revolution, bringing human
rights firmly in to the popular consciousness. The Human Rights Act 1998 came into
force. For the first time, public authorities were legally obliged to protect human rights
1 Talk to University of Liverpool Conference on Human Rights in the UK Media: Representation and Reality
2 Shorter Oxford English Dictionary, Sixth Edition
3 Human rights laws are a charter for criminals, say 75% of Britons’, Daily Mail, 16 April 2012,
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 2
and, as importantly, individuals could bring a claim against those authorities at their
local court for a breach of their human rights. This was a major shift in the balance of
power between individuals and the state.
But now, only a few years later, human rights are under attack. Criticism is so
constant and the debate so polarised that the UK may soon, with full public approval,
repeal the Human Rights Act and withdraw from the longstanding international human
rights system which it was instrumental in creating.
The press bears a significant portion of the blame. The right wing newspapers have
enthusiastically promoted the narrative that the HRA is a charter for terrorists and
criminals. Rather than a bulwark for ordinary people against the power of the state, the
HRA is said to be a Trojan Horse which has brought terrorists to our shores and allowed
convicted prisoners to live in luxury. Between 2000 and the present day, each new court
success by a suspected terrorist or imprisoned criminal was eagerly reported and
presenting as mounting evidence that the HRA was a dangerous menace which needed
to be repealed.
But much of what the papers report is wrong. And other cases are either ignored or
reported without mention of human rights. When Christopher Jeffries was wrongly
implicated in the murder of 25-year-old Joanna Yeates in 2010, his solicitor said the
stories were designed to “monster” his client4. Human rights law has been monstered
too. Human rights myths and fabrications have proliferated: the fleeing criminal suspect
given takeaway fried chicken by police to protect his human rights; the prisoner granted
access to hardcore pornography so as not to subject him to inhuman or degrading
treatment; the illegal immigrant who avoided deportation because he had a pet cat; the
ECtHR ruling against the UK in three out of four cases. There are many more.
This paper will explore some of the underlying dynamics behind poor press
coverage of human rights. I do not seek to carry out an study of every story about
human rights, but rather to present some of the worst examples and explore the common
themes. Human rights misreporting is not entirely responsible for public antipathy
towards human rights, perhaps not even predominantly responsible, but it is a serious
problem and one which may have caused irreparable damage to human rights
protections in the UK.
The Skewed Politics of Human Rights
4 Eight newspapers pay libel damages to Christopher Jefferies, Roy Gleenslade, The Guardian, 29 July 2011;
http://www.guardian.co.uk/media/greenslade/2011/jul/29/joanna-yeates-national-newspapers (accessed 18
March 2013)
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 3
It is impossible to understand the media’s approach to human rights without first
understanding the political context. Opposition to human rights has become a familiar
rallying call for politicians of every hue. The Prime Minister says it would make him
‘physically ill’ to implement a 2005 European Court of Human Rights judgment on
prisoner votes;5 the Home Secretary tells her party conference about the illegal immigrant
who couldn’t be deported because ‘he had a pet cat’, even though this is a description of
a legal judgment so inaccurate6 that her (then) front bench colleague and Justice Secretary
called it a ‘complete nonsense example’.7 Anti-human rights policies are so popular that
the Conservative Party has promised to repeal the Human Rights Act (‘HRA’) 1998 if it
obtains a majority at the 2015 election, and has threatened to withdraw from the ECHR8.
Senior politicians war with judges for ruling in ‘defiance of Parliament’s wishes’9 whilst
top judges call their comments ‘inappropriate, unhelpful and wrong’.10
Labour has had an inconsistent relationship with human rights, despite passing the
HRA in 1998. The party has not always supported arguably its major legislative
achievement. The increased threat of terrorism extinguished early enthusiasm for human
rights. The HRA was quickly seen by many as a terrorists’ Trojan Horse, with the
government constrained by judges over its anti-terror law plans. In particular, the courts
sometimes prevented the deportation of suspected and actual terrorists and blocked
detention without trial. Less than three years after it came into force, New Labour’s
Home Secretary David Blunkett was already ‘fed up with having to deal with a situation
where Parliament debates issues and judges overturn them.’11 In the same year, Prime
Minister Tony Blair said that he was considering ‘fundamentally looking at the
obligations we have under the convention of human rights’12 in response to problems
deporting failed asylum seekers. And, after the 2005 London terrorist bombings, he told
5 Hansard Official Report, 3 November 2010; Vol. 517, c. 921
6 Adam Wagner, ‘What the first #catgate appeal judgment actually says’, UK Human Rights Blog, 6 October 2011)
(http://ukhumanrightsblog.com/2011/10/06/what-the-first-catgate-appeal-judgment- actually-says/ accessed 9
March 2013)
7 Nicholas Watt, ‘Conservative conference badge Clarke ‘regrets’ accusing May of laughable attack on Human
Rights Act’, Guardian.co.uk, 6 October 2011 (http://www.guardian.co.uk/politics/2011/oct/06/clarkecondemns-
may-attack-human-rights-act accessed March 2013)
8 (http://www.dailymail.co.uk/news/article-2287183/A-great-day-British-justice-Theresa-May-vows-UKEuropean-
Court-Human-Rights.html – accessed 13 April 2013)
9 ‘Judges ‘sabotaged’ MPs’ bid to deport rapists and thugs… but Theresa May vows to crush judges’ revolt by
rushing through tough new laws’, Daily Mail, 16 February 2013, (http://www.dailymail.co.uk/news/article-
2279842/Theresa-May-Home-Secretary-vows-crush-judges-revolt-rushing-tough-new-laws.html); ‘Theresa May:
Tories to consider leaving European Convention on Human Rights’, Daily Mail, 9 March 2013,
http://www.bbc.co.uk/news/uk-politics-21726612 (accessed 14.3.13)
10 ‘Britain’s top judge attacks Theresa May’s criticism of judiciary’, Daily Telegraph, 4 March 2013
(http://www.telegraph.co.uk/news/uknews/law-and-order/9908528/Britains-top-judge-attacks-Theresa-Mayscriticism-
of-judiciary.html – accessed 13 April 2013)
11 ‘Blunkett to fight extradition ruling’, BBC News website, 20 February 2003;
(http://news.bbc.co.uk/1/hi/uk/2779343.stm – accessed 13 April 2013)
12 ‘Prime Minister prepares for war’, BBC News Website, 26 January 2003,
http://news.bbc.co.uk/1/hi/programmes/breakfast_with_frost/2695903.stm
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 4
the country that the ‘rules of the game are changing’ and that ‘should legal obstacles [to
deportations] arise, we will legislate further including, if necessary, amending the
Human Rights Act’.13 Jack Straw, one of the HRA’s chief architects, now argues that the
European judges have ‘exceeded the limits of their proper authority’14. However, despite
these tough words, whilst in Government Labour resisted tinkering with the HRA and
seems to have little appetite for doing so if it forms a government in 2015.
The Liberal Democrats have been the HRA’s most consistent supporters. Had the
Conservatives won an outright majority in the 2010 election, the HRA is likely to have
been repealed and replaced with a bill of rights, as the Conservatives have promised for
some time.15 Instead, the Coalition agreement resulted in a very uneasy freezing of the
status quo.
It is striking how few MPs now openly support human rights, and how many of
them misrepresent human rights judgments. I have already mentioned the example used
by Theresa May at the 2011 Conservative Party Conference – there are plenty of others.
Human rights law protects everyone, including unpopular groups which are vulnerable
at the hands of the state: immigrants, asylum seekers, criminals, benefits claimants,
terrorists and sex offenders. The most notorious human rights judgments have been
about those groups, and it is therefore no surprise that politicians are fond of attacking
the judges who decided the cases, as well as the act of Parliament which required them
to do so. Although the major attacks on human rights law are confined to a relatively
small minority, there is also a silent majority who refuse to speak up in response. Few
MPs wish to be tarnished as a human rights defender, a label which has become as toxic
here as ‘Liberal’ has in the United States.16
To some extent judges it is true that judges have moved their tanks onto Parliament’s
lawn, although Parliament invited them to do so by passing the HRA.17 It is therefore
unsurprising that Government ministers feel increasingly threatened by lawyers. They
seem to ‘attend every Whitehall meeting’, reported Frances Gibb of The Times. She was
13 ‘Blair to curb human rights in war on terror’, The Telegraph, 6 August 2005
(http://www.telegraph.co.uk/news/uknews/1495605/Blair-to-curb-human-rights-in-war-on-terror.html)
14 Specifically over prisoner votes: David Davis and Jack Straw, ‘We must defy Strasbourg on prisoner votes’, The
Telegraph, 24 May 2012 (http://www.telegraph.co.uk/news/uknews/law-and-order/9287633/We-must-defy-
Strasbourg-on-prisoner-votes.html – accessed 13 April 2013)
15 ‘… to protect our freedoms from state encroachment and encourage greater social responsibility, we will replace
the Human Rights Act with a UK Bill of Rights’ Invitation to Join the Government of Britain, Conservative Party
Election Manifesto 2010
(http://www.conservatives.com/~/media/Files/Activist%20Centre/Press%20and%20Policy/Manifestos/Mani
festo2010 – accessed 14 April 2013)
16 See e.g. Hendrick Hertzberg, ‘Walking the Walk’, The New Yorker, 4 February 2013: ‘A quadrennial feature of the
past half century has been the spectacle of some liberal grandee indignantly denying that he is anything of the
kind.’(http://www.newyorker.com/talk/comment/2013/02/04/130204taco_talk_hertzberg#ixzz2PihnV4hn
accessed 13 April 2013)
17 Lord Donaldson, then Master of the Rolls, warned the Government to ‘get your tanks off my lawn’ in a debate
over reforms to the legal profession in 1989: Richard L Abel, English Lawyers Between Market and State: The Politics
of Professionalism, p.33
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 5
told by one special advisor that s/he felt ‘like all I do is talk to lawyers who tell you what
the problems are’.18 Recent Government efforts to limit Judicial Review cite concern that
legal challenges are making public authorities ‘overly cautious in the way they make
decisions’.19 It is no shock that those in government want to make decisions without fear
of legal challenge. But one person’s red tape is another’s due process of law. We must be
cautious of proposals to restrict human rights and judicial review coming from the same
individuals most likely to benefit from those restrictions.
Attacking judges can also serve the narrower purpose of deflecting attention away
from a mistake made by a minister or their department. It is ‘not difficult to see’ says the
head of the Court of Appeal Lord Dyson ‘why a politician who suffers a reverse in the
courts in a human rights case may blame the human rights law rather than himself or his
department for his defeat’. 20 And because judges are wary of overstepping their
constitutional role, they very rarely respond to attacks, making them as weak and
defenseless in the public arena as they are powerful in their court rooms. Lawyers who
speak up in support of human rights are branded as part of the ‘human rights lobby’
who are more interested in protecting their supposedly fat paychecks than their clients.
There is another reason that politicians may be set against the HRA. One of the most
visible effects of human rights law, alongside the development of Judicial Review since
the 1970s, has been that actions of the executive, security services and military have been
opened up to scrutiny as never before. Thanks to the rise of Judicial Review, a process by
which courts examine the legality of the decisions of public authorities, judges have
become accustomed to acting as overseers ensuring that officials do not overstep their
powers. Arguably, the HRA turbocharged judicial powers. For an illustration of how
things have changed, compare the following two passage from two judgments involving
national security, 27 years apart. First, one of the most famous judges of the last century,
Lord Denning, in 1977:21
There is a conflict between the interests of national security on
the one hand and the freedom of the individual on the other. The
balance between these two is not for a court of law. It is for the
Home Secretary … In some parts of the world national security
has on occasions been used as an excuse for all sorts of
infringements of individual liberty. But not in England.
Then Lord Bingham in 2004, in a case about anti-terrorism powers:22
18 Frances Gibb, ‘Ministers warned over attempt to curb legal challenges’, The Times, 16 January 2013
(http://www.thetimes.co.uk/tto/news/politics/article3658830.ece – accessed 17 April 2013)
19 Judicial Review: proposals for reform, December 2012, paragraph 35
20 What is wrong with human rights? Lord Dyson, Speech at!Hertfordshire University,!3 November 2011
21 R v SSHD ex p Hosenball [1977] 1 WLR 766 at 783
22 The ‘Belmarsh’ case: A and Others v Secretary of State for the Home Department [2004] UKHL 56 at 42: this
comparison was made by Alex Bailin QC in a lecture to the Administrative Law Bar Association on 5 October
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 6
… the function of independent judges charged to interpret and
apply the law is universally recognised as a cardinal feature of
the modern democratic state, a cornerstone of the rule of law
itself.
From ‘the balance… is not for a court of law’ (1977) to judicial interpretation being ‘a
cornerstone of the rule of law itself’ (2004). A remarkable shift. Moving to the present
day, in an era where the threat of terrorism has resulted in state-sanctioned torture at
Guantanamo Bay and elsewhere, and the erosion of civil liberties in the name of security,
it is unsurprising that the same politicians who in 1998 – a heady post-Cold War but pre-
9/11 moment – supported the HRA, may now regret handing even more power to
judges. Put simply, increasing human rights protections has made it harder for culpable
officials to get away with past abuses.
The judiciary have taken up their enhanced scrutinising role with gusto. Lord
Denning’s cry of ‘not in England’ is now in serious doubt after the comments of Lord
Neuberger, current president of the Supreme Court, 23 in a 2010 judgment about
allegations of torture complicity by the UK’s security services. The litigation would
probably not have been possible without the HRA, which In a section that was so
sensitive that it was initially removed from the judgment and then reinstated (with some
judicial embarrassment), Neuberger said that some MI5 and MI6 officials had a ‘dubious
record relating to actual involvement – and frankness about any involvement’ with the
torture of a terror suspect.24 The true extent of officials’ involvement in rendition and
torture is yet to be determined,25 but the HRA has been a vital cog in the machinery of
accountability which claimants and lawyers have used – and are still using – to expose
state misdemeanors. Human rights make it easier to bring officials to book, so it is no
shock that those same officials may be keen to diminish them.
Media Misrepresentation
One of the reasons politicians find it so easy to criticise human rights is that the
popular press have laid the groundwork for them to do so. Like residents of a city with
two football teams, the media has split into rival ‘pro’ and ‘anti’ camps over human
rights. The battle lines are set, and few dare venture from their fiercely defended
2010 (http://adam1cor.files.wordpress.com/2010/10/alba-hr-talk-2010-alex-bailin-qc.pdf – accessed 8 April
2013)
23 Lord Neuberger (then Master of the Roles, i.e. the head of the Court of Appeal)
24 Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65 at
paragraph168
25 An independent inquiry to be led by Sir Peter Gibson was scrapped in early 2012, apparently to be reinstated
once criminal investigations are concluded.
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 7
bunkers. The failings of press and politicians to present the full picture means that
human rights myths have an almost unstoppable momentum.
The right-of-centre newspapers regularly report tales of human rights gone wrong,
in which criminals, terrorists and other undesirables appear to supplant the rights of
ordinary Britons. The Sun26 and the Daily Express27 refer to the UK’s major human rights
law as the ‘Hated Human Rights Act’. The Daily Mail calls it a ‘charter for criminals and
parasites’28 and states that 75% of Britons’ believe the same29. The left-of-centre press
usually takes the opposite line, presenting human rights uncritically and without any of
the complexity which is typical of the judgments themselves.
Some concerns over human rights law are justified. But media portrayals of human
rights cases often contain serious errors and misrepresentations which, when pointed
out, remain uncorrected. The media-created myths are enthusiastically deployed by
politicians to justify unjustifiable positions and policies.
Human rights myths spread easily and quickly become entrenched. I have already
mentioned the Home Secretary’s speech about the ‘The illegal immigrant who cannot be
deported because – and I am not making this up – he had pet a cat.’ This is an excellent
example of the danger posed by entrenched human rights myths. The original judgment
was released in 2008 and was misreported by the press in 2009.30 At that time, the Judicial
Communications Office moved quickly to explain why the decision wasn’t about a cat at
all, but rather a Home Office error, pointing out that the Home Office lost the case
because they ‘conceded that they had mistakenly failed to apply their own policy for
dealing with unmarried partners of people settled in the UK’.31 But in June 2011, shortly
before the Conservative Party Conference, the story was repeated in The Sun, The Sunday
Telegraph and The Daily Mail32, although this time with the qualifier that the deportation
was avoided ‘partly’ because of the cat (which was still wrong). The cat story was then
adopted, without the ‘partly’ qualifier, by the Home Secretary for her party conference
speech, which it was used as a primary example of why ‘the Human Rights Act needs to
go’. As many pointed out in the following days, the story was inaccurate. But who paid
26 http://www.thesun.co.uk/sol/homepage/news/3848868/May-Scrap-the-Human-Rights-Act.html
27 http://www.express.co.uk/news/uk/381630/Tories-pledge-to-scrap-dangerous-Human-Rights-Act
28 ‘Human rights is a charter for criminals and parasites our anger is no longer enough’ Mail on Sunday, 15 July
2012
29 ‘Human rights laws are a charter for criminals, say 75% of Britons’, Daily Mail, 16 April 2012,
http://www.dailymail.co.uk/news/article-2130224/Human-rights-laws-charter-criminals-say-75-Britons.html
(accessed 13 March 2013).
30 ‘Migrant facing deportation wins right to stay in Britain… because he’s got a cat’, Daily Mail, 19 October 2009
(http://www.dailymail.co.uk/news/article-1221353/Youve-got-cat-OK-stay-Britain-officials-tell-Bolivianimmigrant.
html – accessed 13 April 2013)
31 ‘Immigrant allowed to stay because of pet cat,’ Daily Telegraph, 17 October 2009
(http://www.telegraph.co.uk/news/newstopics/howaboutthat/6360116/Immigrant-allowed-to-stay-becauseof-
pet-cat.html – accessed 13 April 2013)
32 102 foreign criminals and illegal immigrants we can’t deport, David Barrett, Sunday Telegraph, 11 June 2011
(http://www.telegraph.co.uk/news/uknews/law-and-order/8570639/102-foreign-criminals-and-illegalimmigrants-
we-cant-deport.html – Accessed 13 April 2013)
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 8
the price for this major gaff? Only the Justice Secretary Ken Clarke, who exposed the
error, was ultimately sacked.33 In modern politics, being on-message on human rights is
more important than getting it right.
Another example. The claim that a serial killer, Dennis Nilsen, was allowed to
receive hardcore gay porn in jail thanks to human rights law. In fact, his case was thrown
out by the High Court at the first hurdle.34 And, yet, that total fabrication is still on The
Sun’s and Daily Mail’s websites35 as an example of ‘more madness’ under the HRA. This
highlights a significant problem: in the age of the internet, it is easy for myths to take
root. Like the heads of Medusa, human rights myths are simple to create but almost
impossible to kill off.
There is the claim that the UK loses three out of four European human rights cases,
which made the front pages of both the Daily Mail and the Daily Telegraph in 2012. The
real figure is around one in fifty,36 but the newspapers never apologised or corrected their
stories. In August 2014 The Sun reported another bogus statistic: that the ‘Euro judges go
against the UK in 3 out of 5 cases’.37 The article included what it seems the author
thought38 was a sufficient qualification: ‘Terrorists, rapists, killers and paedophiles have
won at the court, which overrules Britain in three out of five cases it hears’ (emphasis
added). But as I pointed out in my response, that was wrong too.39 As a good illustration
of the dynamic I referred to above, Dominic Raab MP, one of Parliament’s most vocal
human right critics, was quoted in support of the article’s claim.
More inaccurate figures can be found in the Daily Mail’s splash alleging that
prisoners’ human rights claims were costing £500,000 per week in legal aid,40 almost
double the real amount.41 Then there is the constantly repeated allegation that the HRA
prevented the deportation of the killer of Philip Lawrence, a head teacher. The real story,
as was widely reported at the time of the tribunal decision in 2007, was that he avoided
33 We may never know the exact reasons for Ken Clarke being moved on from the role of Justice Secretary, but it is
a fair assumption that his consistently pro-human rights and pro-European views were central to the decision to
replace him with ‘attack dog’ (cf. Sunday Telegraph) Chris Grayling
34 ‘Review of the Implementation of the Human Rights Act’, Department of Constitutional Affairs, July 2006, p.30
35 ‘35,000 back Sun on rights’, The Sun, 3 August 2007; ‘How do you label a goat?’, Daily Mail, 20 November 2006
(http://www.dailymail.co.uk/news/article-417637/How-label-goat.html – accessed 13 April 2013)
36 Adam Wagner, ‘UK loses 3 out of 4 European human rights cases? More like 1 in 50, actually’, UK Human Rights
Blog, 12 January 2012 (http://ukhumanrightsblog.com/2012/01/12/uk-loses-3-out-of-4-european-human-rightscases-
more-like-1-in-50-actually/ – accessed 13 April 2013)
37 Craig Woodhouse, ‘Euro judges go against the UK in 3 out of 5 cases’, The Sun, 24 August 2014
38 According to my conversation with him on Twitter
39 Adam Wagner, ‘No, The Sun, “Euro judges” do not “go against UK in 3 out of 5 cases”. More like 1 in 100.’, UK
Human Rights Blog, 27 August 2014 (http://ukhumanrightsblog.com/2014/08/27/no-the-sun-euro-judges-donot-
go-against-uk-in-3-out-of-5-cases-more-like-1-in-100/
40 Jack Doyle, ‘£500,000 a week in legal aid for prisoners’ human rights claims: YOU pay for them to seek easier life
or early release’, Daily Mail, 30 December 2012 (http://www.dailymail.co.uk/news/article-2255065/500-000-
legal-aid-week-prisoners-human-rights-claims-YOU-pay-seek-easier-life-early-release.html#ixzz2Gd4Xueeu –
accessed 18 April 2013)
41 Adam Wagner, ‘Avalanche! Daily Mail on new year dishonour list for dodgy prisoner human rights article’, 31
December 2012, UK Human Rights Blog (http://ukhumanrightsblog.com/2012/12/31/avalanche-daily-mail-onnew-
year-dishonour-list-for-dodgy-prisoner-human-rights-article/ – accessed 18 April 2013)
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 9
deportation due to EU Freedom of Movement law.42 The Chindamo case is an example of
the regular confusion between the European Court of Human Rights and the European
Union. They are entirely separate institutions, and yet the The Sun reported a decision
from the England and Wales Court of Appeal under the byline ‘EU could let fiends like
him prey on your children’.43
Where, you might ask, is the press regulator? The answer is that it occasionally
intervenes, but invariably the damage has already been done and its sanctions seem to
have no effect on future conduct. The Press Complaints Commission (PCC) reprimanded
The Sun for confusing the European Union and the European Court of Human Rights,
leading to an online correction and a tiny mea culpa on page two of the newspaper.44 But
despite promising the PCC that it would “alert its staff to the issue and incorporate it
into its training program”, the newspaper repeating the EU/ECHR error a few weeks
later.45 Nor did it stop The Sun, wrongly stating that the European Court ‘stopped a
British judge imposing a whole-life tariff on Ian McLoughlin’.46 The reality is that the
judge’s decision was swiftly overturned by the Court of Appeal. Following my
complaint, The Sun published a correction. The newspaper’s Ombudsman’s initial
response to my complaint demonstrates the newspaper’s reckless approach to human
rights reporting; responding to my point that the decision had been overturned on
appeal, she said ‘[t]here was clearly no space in the layout to go into all this intricate
detail about legal cases that followed’.
The PCC also told The Daily Mail to correct a front-page splash47 (‘HUMAN RIGHT
TO MAKE A KILLING’) which claimed the European Court of Human Rights had
‘handed… criminals taxpayer-funded payouts of £4.4million – an average of £22,000 a
head’. As the Council of Europe pointed out in an unprecedented press release
responding directly to a newspaper article48, the story was wrong on two counts. First,
the real figure of compensation granted by the Court since 1998 was £1.7m, less than half
of the alleged pay out. Second, only some of the pay outs were to criminals, and many
42 Adam Wagner, ‘Telegraph wrong again on foreign deportation’ (UK Human Rights Blog, 8 September 2011)
(http://ukhumanrightsblog.com/2011/09/08/telegraph-wrong-again-on-foreign- deportation/ – accessed 13
April 2013)
43Adam Wagner, ‘No, The Sun, the Human Rights Act is not the EU’, 10 February 2013,
(http://ukhumanrightsblog.com/2013/02/10/no-the-sun-the-human-rights-act-is-not-the-eu/ – accessed 13
April 2013)
44Press Complaints Commission, 26 July 2013, http://pcc.org.uk/news/index.html?article=ODQ3Mg==
45 ‘Victory for Evil: EU Judges say whole-life terms ‘inhumane’’, The Sun, 10 July 2013 – nb. This headline was
amended after I tweeted the newspaper’s political editor: see (http://ukhumanrightsblog.com/2013/07/10/notagain-
eu-judges-behind-victory-for-evil-says-sun/)
46 ‘It’s time to stop crazy human rights rulings from European judges’, The Sun, 27 July 2014
47 Clarifications and Corrections, Daily Mail, 10 November 2013 http://www.dailymail.co.uk/home/article-
2498733/Clarifications-corrections-European-Court-Human-Rights.html
48 Council of Europe: ‘Court concern at “seriously misleading” UK news article’, 11 October 2013
http://www.humanrightseurope.org/2013/10/court-concern-at-seriously-misleading-uk-newsarticles/?
utm_source=twitterfeed&utm_medium=twitter
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 10
were not. But again, the damage had been done. The corrections were both printed
weeks after the original stories, which in the age of social media might as well be a
million years. The story was widely reported in other newspapers, none of which
published similar corrections; the claim was repeated as recently as last month in The
Daily Express.49 In his 2012 report into press ethics, Lord Justice Leveson observed:
It is one thing for a newspaper to take the view that… the asylum
and/or human rights system should be reformed… It is another
thing to misreport stories either willfully or reckless as to their
truth or accuracy, in order to ensure that they support those
political views… there are enough examples of careless or
reckless reporting to conclude that discriminatory, sensational or
unbalanced reporting in relation to ethnic minorities, immigrants
and/or asylum seekers is a feature of journalistic practice in parts
of the press, rather than an aberration.50
Reporting of human rights decisions is now so inaccurate, says President of the UK
Supreme Court Lord Neuberger, that it ‘may tempt some into thinking that it is hardly
worth maintaining the State’s inability to deny you a fair trial, to kill or torture you, and
to preclude you enjoying freedom of expression.’51 And unforced public corrections are
so rare that it is reasonable to assume that much of the misinformation is deliberate. As a
result, the Human Rights Act and the European Court of Human Rights have become
monsters in the eyes of the public, and those who claim using human rights law have
themselves been monstered.
Why is the media doing such a bad job?
There are a number of interlocking dynamics at work here. Perhaps foremost is the
slow and unedifying death of ‘serious’ journalism, and especially legal journalism. For
lawyers like me, reading law reporting in newspapers is as painful as a musician having
to listen to an off-key symphony. Much of the mainstream media’s legal reporting is
poor, with no appreciation of or even attempt to explain what judges are really doing
when they judge. The UK Human Rights Blog, which I edit, has a section on poor legal
reporting – it is a very regular feature.
49 Stephen Pollard, ‘Now we can quit European Court of Human Rights’, The Daily Express, 13 August 2014: ,“Last year for
instance figures released in the House of Commons Library showed that murderers, paedophiles and rapists had been given
£4.4million of British taxpayers’ money because of rulings by the ECHR”. This statement has since been corrected online
following my contact with the author via Twitter.
50 Lord Justice Leveson, Report into the Culture, Practices and Ethics of the Press Vol. II, November 2012 §8.48-8.49
(http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780_ii.pdf – accessed 13 April 2013)
51 Lord Neuberger, ‘Open Justice Unbound?’ Judicial Studies Board Annual Lecture 2011, p. 15,
(http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-jsb-lecture-march-2011.pdf
accessed 13 April 2013)
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 11
The frenetic pace of news delivered by social media is also in part to blame; legal
judgments are difficult to understand, particularly by non-lawyers, and having to do so
in a few minutes is almost impossible. Distilling that understanding into 140-character
tweets is even harder. But the reality is that in an increasingly cash-deprived industry,
most major newspapers are no longer willing to pay for specialist journalists, and the
quality of coverage has suffered as a result. Former Telegraph Legal Editor and BBC chief
legal correspondent Joshua Rozenberg has said that many national newspapers no
longer have a designated legal correspondent, meaning that they ‘don’t provide the
service they did’.52 The Daily Telegraph itself no longer has a legal editor or legal
correspondents. Frances Gibb of The Times is now the only full-time legal editor of any
distinction, but the newspaper’s weekly Law Section (the last of its kind in a printed
newspaper) is losing size, status and influence. In 2010 The Guardian launched an
ambitious online law section. In 2013 it made its online legal editor redundant in order to
save costs. Not all legal journalism is bad – the BBC’s coverage is a notable exception,
and legal blogging is to a small extent filling the gap – but taken as a whole, the public is
poorly served.
Not all poor legal reporting can be blamed on the lack of specialist reporters.
Newspapers often sacrifice legal accuracy at the alter of ideology. Again we return to
some of the groups protected by human rights law – immigrants, terrorists, prisoners
and the like – who serve as useful villains. And stories about unpopular groups also link
in well with the three key ideological currents running through some coverage of human
rights: Euro-skepticism, antipathy to immigration and tough criminal punishment. The
Daily Mail, The Daily Express, The Sun and The Daily Telegraph thrive by stoking anger
against unpopular groups who are seen to be gaining too much advantage from human
rights. Controversial judgments provide regular opportunities for ‘human rights gone
wrong’ stories and long-running campaigns,53 often bolstered by inaccurate reporting and
infected with editorial masquerading as news. And because some of the hardest human
rights cases involve criminals or suspected criminals, there are enough truly monstrous
human rights claimants to make it seem that the entire system has been hijacked by
undesirables. Perhaps most memorable are Abu Hamza, the hook-wielding Islamist
terrorist who for years used human rights law to block his extradition, and John Hirst,
who killed his landlady with an axe but also won the right – as yet unimplemented – for
some prisoners to vote in elections. And then there is Abu Qatada, whose case was so
controversial (although the UK eventually got the result it wanted – his extradition to
52 ‘The geek shall inherit’ Legal Week, 20 October 2010
53 For example, the Telegraph’s longstanding campaign to prevent ‘foreign criminals’ using human rights law to
avoid deportation to their home countries, which has been strongly supported by, amongst others, the Home
Secretary
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 12
Jordan) that it may have set the UK on a path towards withdrawal from the European
Convention on Human Rights.
In reality, the picture is much more nuanced, but little of that nuance makes it to the
press. Human rights, being universal, are available to everyone, including convicted
criminals and even terrorists. But whilst their judgments may generate more column
inches, criminals and terrorists are not the most regular beneficiaries of human rights.
For example, of the 28 ‘declarations of incompatibility’ made under the Human Rights
Act since its introduction in October 2000, only 11 involved convicted criminals or
terrorists.54 Of those 11, two were about people with ‘spent’ convictions who wanted
those convictions stricken from the national police database. The other 17 included three
cases about detention under mental health powers, transsexuals’ right to marry, the right
of a child’s dead father’s name to be put on their birth certificate, the rights of men to
claim the equivalent of a payment usually reserved for widow mothers and a challenge
to sham marriage rules and hosing assistance for a pregnant spouse. There are many
other examples of cases of what the public might consider ‘human rights gone right’ –
such as enhanced investigations into deaths required under Article 2 ECHR, right to life
cases, gay rights. But cases involving villains receive a lot more attention. The old adage
that bad news travels fastest applies here; the media should not entirely be blamed for
only reporting the most controversial cases. But if that is right, then the failure to
publicise the cases not involving terrorists and rapists lies elsewhere.
Over in Westminster, politicians are keen to support – or at least reluctant to oppose
– anti-human rights campaigns. They ‘should be fighting back against this’, as former
MP David Howarth has said, ‘but they are so afraid of these newspapers that they
don’t’.55 Whilst MPs are reluctant to promote human rights, newspapers are free to
manufacture their own alternative reality where terrorists always avoid deportation and
suspects evading arrest get takeaway chicken deliveries because of human rights
judges.56
There is also another agenda which encourages newspapers to erode confidence in
human rights law. Tabloid newspapers in particular see the HRA as being responsible
for the introduction of a ‘privacy law by the back door’, threatening their celebrity
gossip-driven business model. As Paul Dacre, editor of the powerful Daily Mail, has
complained, rather than this being legislated by Parliament accompanied by the usual
54 See the list http://www2.lse.ac.uk/humanRights/articlesAndTranscripts/2013/incompatibilityHRA.pdf
55 EHRC Human Rights Inquiry, ibid p.97
56 This story was reported in the Daily Telegraph on 8 June 2006: ‘A suspected car thief who bombarded police with
bricks and tiles during a rooftop siege [in Gloucester] was given a Kentucky Fried Chicken takeaway meal by
officers to ensure his ‘well-being and human rights’. The Government later confirmed that the Human Rights Act
had nothing to do with the decision, but the story has endured as a ‘human rights gone wrong’ myth – see Human
Rights Inquiry: Report of the Equality and Human Rights Commission, June 2009 p.96
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 13
debates and votes, the ‘wretched Human Rights Act’ has allowed ‘one Judge57 with a
subjective and highly relativist moral sense [to] do the same with a stroke of his pen’.58 It
is no coincidence that the Daily Mail’s website, now amongst the most popular news sites
in the world, is dominated by celebrity news and pictures. Why would newspapers
support a human rights system which potentially damages their bottom line?
Human rights myths are compounded by the low level of public education on
human rights, meaning basic misunderstandings and errors persist. And the more the
old myths are repeated and amplified, the more believable the new myths appear to be –
a kind of public miseducation.
The public have too few tools with which to make up their own minds. But it need
not be so. Human rights law may be complicated but it is also involves fascinating
human stories which interest people. My experience of speaking to groups of young
people about human rights is that they are enthusiastic to learn about rights. The lack of
public education is partly a failing of the state, and in particular the New Labour
government which introduced the HRA assuming the public would embrace their new
(or at least newly articulated) rights. That may have been a fair assumption – who could
have believed that additional protections against arbitrary state actions would become so
unpopular? – but it represents a failing in light of what has happened since. Few
politicians dare to put their head over the parapet to encourage more human rights
education – indeed, the current government has quietly purged human rights from the
national curriculum. 59 With public understanding so poor, those who deliberately
misrepresent the law are allowed to do so with impunity.
The situation is so bad that a recent commission on the creation of a UK bill of rights
concluded that even a major public education campaign would likely lead to ‘more of
the same; a highly polarised division of views between those for and against our current
human rights structures’60 The Commissioners themselves were so internally divided that
they spent much of their time squabbling and ultimately produced eight separate
‘position papers’ along with their ‘main’ report, which itself demonstrated little common
ground.
Another reason for public misunderstanding is that judges do not do enough to
make their judgments accessible. Although human rights are themselves very simple,
even simplistic, applying them to everyday life is complicated. Even if someone wants to
bypass the narrative presented by media or politicians, and go straight to the source,
57 Mr Justice Eady, the now-retired High Court judge who presided over many of the major post-HRA privacy
cases
58 Paul Dacre, Speech to the Society of Editors, 10 November 2008;
(http://www.journalism.co.uk/2/articles/532774.php – accessed 13 April 2013)
59 https://www.liberty-human-rights.org.uk/news/latest-news/human-rights-national-curriculum
60 Commission on a Bill of Rights: A UK Bill of Rights? The Choice Before Us, December 2012, Vol. 1, p. 29
THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 14
they will encounter long, bewildering judgments written in difficult language. Judges
tend to be former barristers. They are used to being hired brains, drafting their clever
advice in the secluded surrounds of the Temple. The Bar’s traditional culture means that
the courts resemble private members clubs rather than a public forum where important
decisions impacting on social policy are being made every day. I challenge any member
of the public to turn up at the Royal Courts of Justice and find their way to the most
interesting case of the day. The RCJ can seem as foreboding and impenetrable as the 16th
century fortress it resembles.
Judges have gladly accepted the responsibility of making human rights decisions but
still want to do so from Olympian heights. Some progress has been made in the internet
age, particularly from the Supreme Court (UKSC). The UKSC, which was set up in 2009,
broadcasts its hearings online, provides information through social media, publishes
excellent judgment summaries and makes efforts to welcome members of the public to
hearings.61 But compare the UKSC’s progressive approach to public education to the
almost nonexistent efforts of the rest of the court system which, after all, generates the
vast majority of legal decisions. Lawyers fees are expensive and legal aid is rapidly
disappearing. In light of all this, it is no surprise that the public are left almost entirely at
the mercy of the media to understand what judgments say.
Conclusion
This paper did not set out to analyse criticisms of the human rights system, such as
difficulties deporting foreign criminals, the quality of judges at the ECtHR or the
democratic accountability of judges. I also have not sought to argue that media
monstering of human rights is entirely to blame for the unpopularity of the ECHR, or
that highlighting inaccurate reporting in itself will answer major criticisms. All of that is
for another day.
But inaccurately aimed attacks on human rights are damaging. The proliferation of
myths and scare stories corrode public confidence in human rights and in the ability of
judges to apply the law sensibly. This creates a serious risk that domestic and
international laws protecting basic human rights will soon be dismantled, with the
blessing of the electorate. What was once inconceivable – that the UK could withdraw
from the 1950 European Convention on Human Rights – is moving inexorably towards
the centre of the political debate. Human rights have been monstered, and it may be too
late to undo the harm which has already been done.
61 Unlike the Royal Courts of Justice, a member of the public turning up at the Supreme Court will be greeted by
helpful staff who will guide them to the day’s open hearings, including providing A4 information sheets about
the current cases.

https://adam1cor.files.wordpress.com/2014/09/the-monstering-of-human-rights-adam-wagner-2014.pdf

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