The Human Rights Act (1998) has a big fan base. In legal, political and celebrity circles there is much enthusiasm for it. Yet the law is not giving us the rights and freedoms we need, because each right can be played off against another. We’ve been losing our human rights in the name of human rights.
In the mid-nineties I began chronicling and campaigning for a right to free speech while challenging the Human Rights Act. I couldn’t understand why Britain, a country renowned for its tolerance, was clamping down on the right to free speech (Article 10) including what newspapers published, in the name of a right to privacy (Article 8). The reason was said to be the rise of stories concerning the private lives of public figures. But British newspapers have a long-held, international reputation for publishing such stories. The Human Rights Act was supposed to protect the right to free speech, but how is it possible that the same Act that champions free speech was now being used to censor people?
The first problem is the wording of the HRA. There are 12 Articles for each human right, but the small print allows for the curtailment of each human right. For instance, the right to freedom of expression (Article 10) says ‘everyone’ has a right to ‘hold opinions’. Yet the Act lists all kinds of situations where what people say, write, broadcast, photograph, campaign about or paint can be banned. If the law courts rule that what you’re saying is a problem for ‘national security’ for example, you’ve got to shut up. Compare this to the Bill of Rights in the USA where no such qualifications exist. The First Amendment says, Congress 'shall make no law… prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances'.
Another problem is how judges define the scope of each human right. The freedom allowed to exercise a right is shrinking. In the case of a right to free speech those in the legal profession talk of needing to ‘balance’ a right to free speech with a right to privacy (Article 8). In numerous cases over the years such as Naomi Campbell vs Mirror Group Newspapers , a human right (privacy) is said to trump another human right (freedom of expression, in this case to photograph in a public place). The Act was supposed to give people freedom from state intrusion, but it has turned in to a law whereby an individual is censored in the name of protecting another individual’s human right. Perversely the state can now wage war on all our human rights, in the name of human rights.
Theresa May and other critics of the HRA focus their concern on how the Act is used in the odd case concerning a terrorist suspect’s deportation. Relatively little is said, though, about the many more cases of people being unable to express themselves freely under the current human rights law regime. Let's not hang on to the HRA out of fear of change. Why should we accept human rights-lite, an understanding of rights which buckle to other people’s sensibilities and limitations of how we exercise those rights? We can demand our rights afresh – genuinely democratic rights that cannot be extinguished by each other.
Tessa Mayes is a journalist and author. She is currently directing her first feature film documentary on the Constitution, democracy and citizen's rights.