Fraser Nelson has a piece in the Telegraph arguing that freedom of the press ought to be enshrined in a British Bill of Rights. That’s a bad idea.
Why? Partly because we already have a perfectly good protection for freedom of the press, and that’s article 10 of the European Convention on Human Rights, the 60-year-old international agreement which Mr Nelson dislikes so much. Various cases have shown that the press is treated as a special sort of expression, because of its importance to democracy, and that the European Court can be trusted to maintain press freedom. Job done.
But let’s assume that Mr Nelson thinks the ECHR is completely flimsy and useless, and a new stronger British Bill of Rights is needed. That’s possible, though extending the scope of human rights doesn’t sound like a cert for the Conservative manifesto. Even if it happened, though, it wouldn’t be much greater protection. That is because a British Bill of Rights, without a complete constitutional rewrite which is not on the cards, would be subject to the will of our sovereign supreme Parliament, and they could change or abolish it whenever they wanted.
The ECHR is not subject to Parliament in the same way – we have signed up to it and we have to take it or leave it (there are a few marginal areas where this is not true, but that’s the big picture). We either go off into a corner and play with Aleksander Lukashenka of Belarus and no-one else, or we implement rights in full.
Worse still would be the situation if, as some people recommend, we left the ECHR in favour of British Bill of Rights. In that situation, the press would be far worse off. Our sovereign supreme Parliament could mould, change or abolish rights in a British Bill with a stroke of a legislator’s pen. Don’t expect special rules about changing the law to work: courts aren’t allowed to pass judgement on the procedural business of Parliament – our existing bill of rights, from 1689, says that Parliament’s proceedings cannot be questioned in any court.
Nelson has previously, in the linked article, suggested that a British Bill of Rights could exist in parallel with and superior to the European Convention. That shows a lack of understanding of how the law works. If two parallel rights existed, the courts would surely use the more extensive right, whichever declaration it was in, they cannot be forced to ignore the ECHR while we are signatories to it. A British Bill could extend rights, therefore (as long as Parliament stayed sweet) but it couldn’t reduce them.
So in short, protecting the press in a British bill of rights is an unnecessary step that improves nothing, and probably makes it worse.