Our human right to be kept in the dark
Andrew Tettenborn says we should be able to hear, read and say what we want without the threat of undemocratic human rights law
This article is taken from the December 2020 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering three issue for just £5.
You can tell a lot about a country by seeing how easy it is for people to suppress material about themselves which they would prefer the rest of the public not to see. If you believe in open society, then broadly speaking the harder this is, the better for all of us.
On this score Britain has seen a major change in the last 30 years or so. In 1990, you could pretty much say anything you pleased about a person provided it was true (unless you had been told it in confidence); if you took a picture in a public place, you could publish it wherever and however you wanted. No longer. We are rapidly becoming a society based on a paternalistic “need to know” principle, where even true information about, or public pictures of, a person can be kept under fairly tight wraps, and only published if it is determined by a judge that there is good reason to do so. What is more worrying is that this rather massive change in social policy has taken place with virtually no democratic input.
Partly this is the fault of the EU’s draconian data protection law, but the main culprit is one you might not expect: human rights law. Most of the restrictions on what we can read or see are due to an astonishing exercise in mission creep by human rights lawyers, aided and abetted by the European Court of Human Rights and, of course, by our own new governing class. Let me explain.
The background is a laconic 17 words making up Article 8 of the European Convention on Human Rights, a convention to which Britain, like every other European state, is party and whose judgments we are expected faithfully to follow. It reads: “Everyone has the right to respect for his private and family life, his home and his correspondence.”
Like almost the entire Convention, instituted in 1950 in the shadow of World War Two, the private life provision was a direct response to Nazi state abuses: house-to-house searches, universal snooping and a sense that nothing could be kept secret from the Gestapo. For some years it was interpreted accordingly by the Human Rights Court, as dealing essentially with these matters.
But from about 1990 a change arrived. In short order, a by-then remarkably activist court metaphorically converted what had been a small blockhouse into a spectacular baroque edifice, with precious little regard for the light of publicity and press freedom that this blacked out.
In 1998 the Parliamentary Assembly of the Council of Europe, the rather precious body under whose aegis the court operates, piously resolved that Article 8 “should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.” The court obliged, holding (in a case involving Lady Diana Spencer’s father) that there could be a human right not to be photographed at home by a newspaper which stationed a photographer in a public place.
Seven years later, a 2005 affair involving Princess Caroline of Monaco, a very public figure married to a minor German aristocrat, gave the opportunity for some spectacular further construction. Photographed by the press with her children carrying on normal activities in a number of public places, she complained. The paper understandably retorted that public figures who went out in public could not very well complain about public interest in what they did or the paper’s reporting on it. The case reached the Human Rights Court, which enthusiastically sided with her against the paper.
It was, it said, time to recognise that private life included “physical and psychological integrity” and extended to the “development of every human being’s personality” in the social sphere, something on which photography in a public place could impinge. The freedom of the press to report on matters of interest, it added rather sniffily, was aimed largely at merely ensuring the public were informed about political figures.
Since then its restrictive attitude has continued, with priggish statements that newspaper freedom need not go much further than cases where it contributed to a “debate of general interest” or a “debate in a democratic society relating to politicians in the exercise of their functions”, and certainly needed to stop short of publications “of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life.”
Meanwhile the English courts, by then armed with the Human Rights Act of 1998, had also taken the hint. In 2004 a photograph of supermodel Naomi Campbell emerging from Narcotics Anonymous cost a newspaper a substantial sum, on the rather question-begging basis that, even though everything had happened in public, human rights law gave her a “reasonable expectation of privacy”. This effectively gave a licence to complain of any publicity that might cause embarrassment or discomfort. Predictably, the law was not slow to oblige by holding information suppressible on human rights grounds in all sorts of cases.
Voters are entitled to cast their vote for the candidate they prefer, and for reasons of their own choosing
A representative sample includes sexual peccadilloes (witness Max Mosley’s successful privacy claim against a newspaper for reporting his visit to a sado-masochistic dungeon); extramarital affairs (even where it was the jilted other party seeking to reveal them); reports of criminal proceedings for pederasty, allegations in open court of terrorist complicity and even information about a father that might cause his children to be teased at school.
This is not a happy state of affairs. The attitude emanating from the human rights establishment, that the spread of information about people needs to be strictly controlled, and that the public should only be told about things they have a genuine interest in knowing, is corrosive of free speech. But it is also patronising, dangerous and undemocratic. It is patronising because it underestimates the ability of ordinary people to make up their minds about what they read without guidance from above.
It is dangerous because it leads to a constant suspicion that whatever we read or hear in the news there is something we are not allowed to know and is being kept from us; it may also even prevent us from knowing about something that could cause us harm (think a neighbour’s criminal record or history of arrest).
And the clash with an open democracy is not difficult to see. Voters are entitled to cast their vote for the candidate they prefer, and for reasons of their own choosing, unreasonable as well as reasonable. To deny them personal information about a candidate save in so far as an elite group regards it as relevant to a rational choice is to deny them that right; it is to treat their choice as worthy of attention only if made on a particular basis and not otherwise.
More widely, limiting the information we have access to has the unfortunate effect of narrowing our horizons as citizens. The brocard that publication of information is not in the public interest merely because it is of interest to the public may trip neatly off the tongue of an international lawyer, or a cosmopolitan Euro-citizen in Strasbourg, Stockholm or Stockwell. But that does not mean that it is sound, or that it is one we do not need to be very careful with.
A free-ranging curiosity about anything and everything that goes on around us, including the affairs of our fellow men, is a natural and largely harmless human trait. True, it may well sometimes compromise people’s dignity, or make them feel small. Nevertheless, it marks a healthy interest, and enthusiasm to participate, in the wider community that we are all part of.
By comparison, there is little attractive about the “mind your own business and keep off matters that do not concern you” (except to the members of the self-righteous human rights establishment who typically adopt it). It leads to an inward-looking preciosity and to a closing-off of interest in the wider world.
Restrictive privacy rules are thus probably a bad thing. But it isn’t the chief objection to the rampant spread of the human right to privacy, even though the latter is beginning to look more and more like some out-of-control ground elder in the legal garden. There are two other more serious ones.
The courts were not slow to suppress information on human rights grounds in all sort of cases
The first is that when we extend the right of privacy using the vehicle of human rights, this goes a good deal further than restricting what we are allowed to say or read. Human rights are not just any old rights. They are by definition a special kind of right, whose raison d’être is that they are so important that they need to prevail despite the clear desire of a democratic majority that they should not.
Put another way, it is because, and only because, they are rights such that any country which does not protect them is beyond the pale and does not deserve to be on the list of civilised nations, that we feel justified in putting them above and beyond the normal political process.
Now, to say this of some rights — the right, say, not to be tortured, enslaved or murdered in cold blood by government agents — is a perfectly proper view. Indeed any civilised person, of left or right, would probably agree with it. But the right not be photographed by a paparazzo in a public place when you don’t want to be? The right to sue a newspaper for substantial sums after it dents your public image by saying, quite truthfully, that you are a secret sado-masochist, or which gleefully reports that you have been to Narcotics Anonymous and shows a picture of you coming out of it?
Or the right to use the law to suppress the news that you have an embarrassing criminal conviction, or for that matter material about you that might lead to your children being bullied at school? True, in all these cases there is an argument, though at times a fairly weak one, that practices of that sort should be forbidden. But it is very hard to accept that any of these rights is so self-evident that we can immediately damn any state that does not protect it as outside the club of civilised nations.
On the contrary: questions like these are questions of social policy and of the kind of society that we want to live in. Of course they are important: but that is no reason to say that those calling for them to be implemented should not, like the rest of us, have to persuade a majority to vote their way.
The second is that the whole process is thoroughly anti-democratic. It has to be admitted that, whatever you may think of the very restrictive privacy regime we have just described, there is nothing wrong with a country freely adopting it by democratic means if it wishes to. Some indeed have. Germany, for example, has a constitutional protection of human dignity (Die Würde des Menschen ist unantastbar) and of the right to free development of personality (Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit); and for the last 40 years or so its own courts, subject to democratic oversight, have chosen to expand these ideas into a very broad right to privacy indeed.
So far, so good. Unfortunately this is exactly what did not happen as regards the application in England of the right to privacy. Unlike national constitutions such as in Germany, the Human Rights Convention has never claimed to be a democratic instrument. Having started out in 1950 as a vaguely-worded treaty envisaged as likely to be enforced by diplomatic pressure (its promotion to a soi-disant bill of rights seeing regular judicial application came a good deal later), it is now widely regarded as a means of discreetly ensuring that important matters of social policy are, as far as possible, taken out of the hands of voters who can’t be trusted with them.
Furthermore, the court which interprets the Convention has never had any democratic credentials either. As an institution it is administered by a supranational organisation, the Council of Europe, itself run by a body of politicians nominated by governments on a tacit assumption that they will say nothing that might rock the boat or offend anyone. It is staffed by judges (one from each of the 43 states who are members of the Council) elected through that body, who are encouraged to think of themselves as cosmopolitan legal technocrats, above and outside the politics and institutions of the nations they come from.
And the law it applies is informed by a cadre of lawyers from universities and human rights quangos, mainly human rights activists (since such bodies are unlikely to be keen on including an outspoken human rights sceptic, even in the unlikely event that one applied for a job). The practical result is that the European Court of Human Rights has quietly morphed into a vaguely Scandinavian-style soft-leftist institution, with a distinct progressive, agnostic, non-judgmental, anti-individual agenda and a desire to extend its reach as far as possible through an expansive interpretation of the sacred text it has to deal with.
Today, therefore, we are looking up at an enormous and forbidding edifice of privacy rights built up on the mundane words of Article 8 of the Convention following a process rather akin to biblical exegesis by a theological zealot with a sectarian axe to grind. Moreover this is a building which, rather like the concrete monstrosities that sprang up all over Eastern Europe in the 1950s and 1960s, causes many of us to shrug their shoulders and assume it to be part of the natural order of things.
All this undoubtedly explains how we have got here. But to explain is not to justify. Whatever you might think of the present law (and parts of it are certainly defensible), no would-be government ever included in its manifesto proposals to prevent criminals being named publicly as such, celebrities being photographed coming out of rehab, or footballers’ home lives being salaciously described in the Sun.
No one ever put in his election address a proposal that celebrities and others should be allowed to suppress uncomfortable information about themselves on the flimsy ground that they had a reasonable expectation of demanding that it be kept quiet. Nor for that matter would anyone stand much chance of election if they did so: the British people are naturally curious about their celebrated fellow-citizens. Moreover, perhaps more worryingly, enormous difficulties would face any government seeking to chip away at these restrictions. Unfortunately the European Convention for the moment remains a shibboleth of most of the political class. The result is a law that might make the bien-pensants happy, but is probably nothing to do with the real desires of voters outside the M25. Democracy this isn’t.
Three words may give hope, however: “at the moment”. There is a limit to which voters and the governments they elect will be prepared to tolerate an ever-extending list of matters of enormous social significance being taken out of their hands and left in those of a self-appointed unelected elite. There is only so much stress of this kind that the political pressure vessel will take before cracks appear. Indeed we have already seen signs of this. In the last ten years, suggesting that the government should ignore or simply denounce the Convention (something which requires nothing more than a diplomatic note from the Foreign Office to the secretary general of the Council of Europe giving six months’ notice) has moved from the unthinkable to the definitely sayable.
If a government were looking for a chance to implement a radical pro-democracy programme, there would be many a worse casus belli than a proposal to extend the range of what its citizens are allowed to say, hear and read about one another. It would leave the human rights establishment with an unenviable choice: give way to the popular will and admit a mistake, or make common cause with an elite pressing for the suppression of information with little more by way of excuse than that it knows better than the rest of us. This might well be enough to make even the UK ruling class blink.
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