The Sun has been left red-faced after calling for the abolition of the Human Rights Act – only to have to rely on it just days later to protect its journalists.
The tabloid has launched legal action against the Metropolitan Police after officers seized the phone records of political editor Tom Newton Dunn to identify his anonymous police source who tipped him off about the Plebgate scandal.
Britain’s biggest selling daily will take the force to the Investigative Powers Tribunal to challenge the seizure and will use the Human Rights Act (HRA) to argue its case.
This is at odds with the position the paper took last week, when it rapturously applauded David Cameron, who said a Tory majority government would ditch the act, which was described by the paper “hated” and is enshrined in the European Convention of Human Rights and used in UK courts.
The Sun’s headline last week, in which it referred to the HRA as ‘hated’
A spokesman for the Rupert Murdoch-owned newspaper confirmed to The Huffington Post UK that The Sun would use the HRA in its case before the Investigative Powers Tribunal. The appeals body monitors the use of the Regulatory Investigative Powers Act (Ripa) which police used to seize the records.
He said: “The Sun is using the Human Rights Act in our submission to the Investigative Powers Tribunal as it is the primary source on which to base our petition under the law as it is now.
“However, it is notable that the use of covert powers to access The Sun’s phone records occurred despite the existence of the HRA, and we therefore continue to support its replacement with a British Bill of Rights that would enshrine proper protections for journalistic sources.”
The paper did not state which part of the HRA it would use, though it would likely be Article Eight, which protects the right to privacy.
Ironically, The Sun’s stories about the abolition of the HRA were written by Mr Newton Dunn, whose phone records were seized by the Met.
One described the act as “deeply discredited” and said The Tories’ plans would “end decades of human rights laws abuse once and for all”.
The Sun ran this graphic showing its support for putting the HRA in ‘the dustbin of history’
After the paper reported it was taking the legal action, many on Twitter noticed the irony of opposing the HRA one week and using it defend itself the next.
Barrister Harriet Johnson tweeted: “The Sun complains about its calls being tapped by police; simultaneously supports end to #HumanRights Act #Facepalm”.
Media law analyst David Banks told HuffPost UK that the Sun’s claim that the HRA’s failure to prevent the seizure of phone records demonstrated the need to abolish it “defied logic”.
“The HRA is a law that can be broken like any other, and the cops might have broken it here,” he said.
Charon QC, the legal blogger who writes under psuedonym, tweeted: “One can only marvel at The Sun… I am marvelling away!”
Ms Johnson, who practices with Doughty Street chambers, wrote that binning the HRA could have consequences for everyone.
“Repealing the Human Rights Act is being sold as a common sense thing to do, as if we were giving up something we never used anyway,” she wrote after the Tories made their announcement.
“The Conservative Party are not saying to white, middle-class, educated voters: ‘we want to tap your phones’.
“They have couched their policy in terms designed to make the country think this only applies to Other People, to those who are damaging ‘society as a whole’.
“But repealing the Human Rights Act, and withdrawing from the (European Human Rights) Convention, doesn’t happen one right at a time, or on a person-by-person basis. If it happens, it happens to us all.”
Speaking about The Sun’s Ripa case, she told HuffPost UK: “It is interesting to note their argument that because this alleged breach has happened while the HRA was in force, it somehow supports the argument for repealing it – rather than the argument for keeping it.
“That’s like having your wallet stolen and saying ‘criminal laws are clearly useless, let’s repeal them…’.
“Some might argue the answer isn’t to repeal the law, it’s to enforce it – as The Sun is doing by relying on HRA as part of their complaint against the police.”
10 Worrying Things About The Tories’ Human Rights Proposals By Jessica Elgot
The proposals says that the ECHR banned whole-life tariffs for prisoners, but they didn’t
Fiona Hanson/PA Archive
Dominic Grieve, the former attorney general, called it a “howler” based on a fundamental misunderstanding of the Strasbourg ruling, and that UK sentencing laws had been found to be “totally compatible”. Adam Wagner, human rights barrister from 1 Crown Office Row, called it a “major factual error”.
It’s very unlikely the UK could be granted special status to have the Strasbourg court as a mere ‘advisory’ body
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In practice, these proposals pretty much mean leaving the European Convention of Human Rights, lawyers say, leaving us in the company of Belarus and Kazakhstan. Russia, Azerbaijahn and Ukraine are just some of the countries that would have more watertight human rights protection than the UK.
If we want special treatment from the ECHR, then won’t other countries want it too?
Legal commentator Joshua Rozenberg points out
that “if Westminster has a veto on Strasbourg’s decisions, the parliaments of Russia, Ukraine and other countries will want one too, making compliance with court rulings voluntary would undermine the entire convention system.”
The proposals “limit the use of human rights laws to the most serious cases…ensuring UK courts strike out trivial cases.”
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One of the proposals actually means we are more tightly legally bound to the Strasbourg court than we are already
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The document says “every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement. It will only be binding in UK law if Parliament agrees that it should be enacted as such.” Carl Gardner points out in his Head of Legal blog that “this proposal puts more human rights obligations on Parliament than it has under the Human Rights Act. There is currently no legal duty on Parliament to consider any Strasbourg judgment. The Conservatives plan would oblige it to for the very first time.”
Grayling has forgotten to mention how this would work under the Good Friday agreement with Northern Ireland or with Scottish devolution
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It is a requirement under the Good Friday agreement that ultimately people in NI can take cases to the ECHR. Chris Grayling has just written a paper which makes no reference to this issue or how it can be solved, except saying ‘We will work with the devolved administrations and legislatures as necessary to make sure there is an effective new settlement across the UK’. Westminster could change the law for both countries, but there’s been no consultation and no reference to it in this paper, and it’s likely Scotland would seek to devolve it. If Scotland or NI want to stay linked to the ECHR, then we could end up with a “patchwork” of different human rights laws across the United Kingdom.
British judges are now likely to find more UK legislation is incompatible with human rights, not fewer
Lewis Whyld/PA Archive
The new proposals say the Tories will “prevent our laws from being effectively re-written through ‘interpretation’ of Strasborg case law.”
“I don’t think this has been thought through,” Gardner writes on Head of Legal. “If judges think old housing legislation discriminates against a gay tenant, they can rule that it is no longer to be read as permitting the discrimination.
“But if that option is barred, they will in case like that have no option but to declare the legislation incompatible with human rights in principle.
The result, surely, will be more headlines about judges condemning Parliament for breaching human rights, not fewer.”
The proposals mean we don’t have to worry as much about sending people off to be tortured
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The “real risk” test used to determine whether someone is at risk of torture on deportation will be “revised..in line with our commitment to prevent torture and in keeping with the approach taken by other developed nations”. “If there is evidence that an individual faces a real risk of torture on return, should the UK seriously be seeking shortcuts?” asks Angela Patrick is the Director of Human Rights Policy at JUSTICE.
It would take an enormous amount of time, effort and consultation to end up with basically the same thing we have already
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No one thinks we should scrap laws against, say, slavery, or free speech, or the right to protest. So the new “Bill of Rights” would be 99% a carbon copy of what we already have, only enforced by British judges, several legal commentators have pointed out. Unless we scrap human rights altogether.
The proposal doesn’t even spell “judgment” in the correct legal way
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Gardner points out that this means the proposal probably wasn’t drafted by lawyers, at least in parts.