As part of its tireless campaign against any form of effective press regulation, this week’s Mail on Sunday had “bombshell verdict” on the Leveson report. Leveson assessor and Liberty Director Shami Chakrabarti, had apparently told the Mail that “his law to gag press is illegal as it breaches Human Rights Act”. For good measure, the Liberty Director was reported as “blasting” Labour leader Ed Miliband’s ‘hasty and ill-considered’ endorsement of the report. This damning indictment of the Leveson Report was quickly picked up and repeated across the media.
The reality was, perhaps unsurprisingly, rather different. As Liberty pointed out in a statement later the same day, Shami Chakrabarti had not in fact delivered any “bombshell”. She supported the Leveson recommendations – subject to one detail. The point she had made to the Mail on Sunday related to the “last ditch” alternative, discussed in the report but not recommended: a backstop statutory regulator. This, she said, was an alternative that “Liberty cannot support and which would in our view, breach Article 10 of the ECHR”.
We have the greatest of respect for Shami, and for Liberty, and we agree on many things. But we do not agree with her views on the Leveson report or with what she says about Ed Miliband’s reaction to them. Miliband is quite right. There is no question whatsoever of the Leveson recommendations violating the right to free expression. Furthermore, if the industry fails to get its act together then the appointment of a statutory back stop regulator with the powers that the report suggests would not be a breach of the Convention.
Almost all European states have much stronger privacy laws than this country, and are constantly shocked by the failure of UK law to protect the right to privacy against press intrusion into the personal lives of even the rich and famous – never mind the hacking of the phones, and the publication of private diaries, of people who have been the victims of terrible crimes such as appears to have happened in the Milly Dowler and Kate McCann cases.
Arguments that carefully thought out regulatory measures designed to protect the rights of individuals are illegal under the Convention are the kind of thing that gives human rights a bad name with the public. The Convention is not there to protect the powerful interests of media barons, or profits of newspaper owners obtained by committing criminal offences.
Of course a free press and protection of the right to freedom of expression are essential to the health of a democracy. Investigative journalism is a vital means of exposing serious wrongdoing and holding public authorities to account. Despite media rhetoric to the contrary, all the lawyers and judges working in this field understand very well indeed that genuine public interest journalism is the lifeblood of democracy. And we know that sometimes that includes the right to be wrong.
The plain fact is that statutory underpinning of press regulation is no threat whatsoever to genuine investigative reporting. The right to free expression carries responsibilities. The press in the UK have great resources at their disposal, and some tabloid newspapers wield great power: the power to wreck people’s lives for no better reason than to make money. Other European lawyers and judges have looked on in horror as the Leveson evidence has emerged. They cannot believe the UK would allow these gross intrusions into the right to privacy to carry on. In our view, it is not the implementation of these proposals that would lead to violations of human rights law but a failure to implement them in full. There needs to be a light-touch statutory underpinning to this new independent body in order to protect the legal right to privacy of those whose personal lives, phone calls, and private communications have been illegally invaded. And if the press do not provide a regulator of kind recommended by the Inquiry then backstop statutory regulation will be needed.
The public knows what is going on here. Most of the press is afraid of statute because they do not want effective regulation. And the reason why some politicians have refused to accept the advice Leveson was asked to provide to the nation is not because of a public spirited concern about maintaining a free press to expose political wrongdoing in the public interest. It is because they rely on the newspaper editors to support their policies and endorse them at election time. And they want to keep well-oiled the revolving door that sees prominent journalists from Murdoch owned newspapers becoming politicians and ministers. Gove is a case in point.
Ed Miliband has done a brave and correct thing by taking a decisive stance on this issue, even at the risk of making himself unpopular with the press. The politicians who oppose Leveson will be able to rely on the support of the media in future. The whole point of Leveson was to expose this sort of patronage and bring it to an end. And yet by giving in to pressure from the papers the prime minister and his Conservative cabinet colleagues are doing exactly the same thing.
Ben Emmerson QC and Hugh Tomlinson QC are members of Matrix Chambers
A version of this article was published in the Guardian on 4 December 2012 and is reproduced with permission and thanks