THE BLOG

Why the David Miranda Verdict Was an Important Victory for Our Free Press

20/01/2016 11:44 GMT | Updated 20/01/2017 10:12 GMT

Few political punch-bags take quite such a regular pummelling in the media as the Human Rights Act. But yesterday it came to the rescue of press freedom in the face of arbitrary abuse of state power - and not for the first time.

Back in 2013, David Miranda was stopped by police at Heathrow Airport under Schedule 7 of the Terrorism Act. He was held for nine hours and questioned for long periods without a lawyer.

His electronic equipment was confiscated - equipment that happened to be carrying encrypted journalistic material provided by NSA whistleblower Edward Snowden. Miranda was helping his partner Glenn Greenwald, the first journalist to drag Snowden's mass surveillance revelations kicking and screaming into the light, when he was detained.

For years Liberty has argued that Schedule 7 - a breathtakingly broad and intrusive power to stop, detain, question and seize without suspicion that can be used against anyone travelling to, from or through the UK - is ripe for overuse and abuse.

And yesterday, in a landmark victory for our free press, the Court of Appeal agreed with Liberty's intervention. It ruled Schedule 7 incompatible with journalists' right to freedom of expression, protected in British law by - guess what? - Article 10 of the Human Rights Act, because it allows the state to pry into journalists' work without any proper safeguards.

This isn't the first time the Act has proven a bulwark for the protection of journalistic sources against powerful interests. It's the latest in a long line of cases.

The Sun has employed it to challenge police snooping on confidential sources. The Daily Mail has used it in its defence too. The mere threat of Article 10 has been enough to protect newspapers, as the Guardian discovered when the Met came knocking for its phone-hacking sources.

Local press have benefitted too. Milton Keynes Citizen reporter Sally Murrer faced prosecution for receiving information from the police before Article 10 forced the case to be dropped. And Sunday Tribune journalist Suzanne Breen resisted an order to hand over confidential notes on the Real IRA using Article 10 and Article 2 - the right to life.

A free press is a vital pillar shoring up our democracy - journalists must have room to hold governments to account. They are, and should be, an inconvenience for the powerful. But, in less than nine months in power, this Government has demonstrated clearly its approach to that "inconvenience"- by attempting to shut down, one by one, the tools that help the media and others to do just that.

The first attack was on Freedom of Information. On Monday, Liberty will give evidence before the FOI Commission. Unnecessary and unashamedly weighted, there's no doubt that its aim is to curb the Act. Why else spend scarce time and resources on this when FOIA was subject to thorough cross-party scrutiny just three years ago (which found it was working well)? Why stack the Commission line-up with peers renowned for their dislike of FOI, or who have found themselves under its unforgiving glare?

Without the FOI Act, we'd still be in the dark about a wealth of major public interest stories, not least the MPs' expenses scandal. Starting to see why the Government feels life might be easier without it?

Then there's the Draft Investigatory Powers Bill - a law, in a twist of irony for Miranda, which has only come about thanks to Snowden's whistleblowing and Greenwald's journalism.

The Government promised it would contain new 'journalist protections'. What those protections appear to amount to is a draft code of practice which recommends police and spies pause for 'consideration' when intercepting communications between journalists and sources.

The Bill gives journalists as much protection against abusive surveillance to journalists as it does the rest of us - none. The bulk hacking and interception powers it seeks to legitimise are indiscriminate by their nature - they don't differentiate by profession - and its pitiful safeguards mean journalists' communications can be spied on at the say-so of a minister or chief constable.

And then there's the beleaguered Human Rights Act, which this Government wants to scrap. They promise its planned replacement, the 'Bill of Rights', will contain "an explicit statement backing freedom of expression for the press". On the Government's current trajectory, that promise carries diminishing weight.

Like the FOIA, the HRA has been responsible for exposing countless acts of state mistreatment, neglect and abuse - revelations of monumental public interest. Without it, the parents of Private Cheryl James would not be on the brink of finding answers about how their daughter died, after battling for 20 years for information from police and the MoD. Without it, the sisters of Corporal Anne-Marie Ellement wouldn't have secured a fresh inquest into her death.

Without it, journalists wouldn't have been able to establish that they should not be at risk of being detained and questioned and having precious information seized under Schedule 7 while travelling through UK airports.

Yet while newspapers of all persuasions have rightly gone out of their way to stand up for the FOIA, they're giving the Government a much easier ride when it comes to the HRA.

Let's be clear: plans to scrap the HRA are fuelled by exactly the same motivations as the bid to curb FOI. Like the FOIA, the Human Rights Act is one of very few pieces of legislation that allow ordinary people - including the press - to take the mighty to task.

Both Acts are crucial weapons in journalists' legislative armoury. Both Acts are currently in the crosshairs of a Government determined to pull down the shutters and keep inconvenient truths, valid concerns and dissent at bay. The powerful don't like giving away power.

This is not a Government that stands for press freedom. It is not a Government that wants to be held to account. After another embarrassing loss at the hands of the courts, real safeguards for journalists - whether they toe the Government line or unearth political scandal - would mark a radical step-change in policy.

The British press has a world-envied tradition of first-class investigatory journalism, of asking difficult questions, of seeing past the spin to hold the powerful to account. Let's hope they uphold that proud tradition as they report on the battle to save the HRA in coming months.