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Free Speech in Britain
From: London School of Economics and Political Science
| By:
Gavin Millar |
EDITOR'S INTRODUCTION |
 Gavin Millar (below), a leading human-rights lawyer, explores the implications of changes in the Human Rights Act on freedom of speech in the UK. He argues that the new procedures will enlarge the scope for public debate, particularly on the issue of balancing the rights of those who want to speak with those who want to receive information. |
 e are on the verge of a new beginning in this country in terms of freedom of speech. From October, the Human Rights Act will bring into consideration in our law the European Convention on Human Rights and the case law of the European Court of Justice. |
That includes (as well as a number of other provisions that bear on freedom of speech) Article Ten, protecting the basic and fundamental right of free speech. Although the act coming into force does not mean we have a Bill of Rights or that the convention is automatically applicable directly in this country, it does mean that all of the development of our law in libel, media, free speech, obscenity and so on will now have to be developed by the judges consistently with the principles of the European Convention. It means our statutory law will have to be interpreted in accordance with those principles. And as a human-rights lawyer (one of the hitherto fairly small but now growing band of human-rights lawyers in this country) I unreservedly welcome the Human Rights Act. |
Although I am going to say some things about the way in which the provisions of Article Ten may in some respects limit freedom as well as promote freedom of speech, there is no doubt that, whatever the judges do with it in this country, it is a monumentally good thing, and that bringing those principles into play will open up in an entirely new way this sort of debate for the nation at large. It will make human rights and, in this context, freedom of speech a matter of public debate within the broad confines of balancing the rights of those who want to speak with those who want to receive information. |
The limitations of Article Ten
One of the problems we face in this country is that we have got no history, no track record of human rights. Even now, the launch of the act may be under threat as something of a damp squib. Apart from perhaps the Daily Mail and a few other right-wing papers, which are already gearing up campaigns to suggest that the Human Rights Act is a waste of time and unimportant, nobody seems to know that it is coming. The government has put only £million into promoting it--which is peanuts, given its importance. Most of us do not really think in human-rights terms in this country, unlike in America, where there is a history of human rights and of interesting and hard cases prompting public debate about competing freedoms. So we have got none of that to work with. We are starting very much from scratch. |
What, then, is Article Ten? The European Court of Justice has told us, for many years (dating back to 1976 and a very famous case called the Handyside Case, arising out of a book called the Little Red Schoolbook), that ideas which offend, shock or disturb the state or any sector of the population must be protected. The interests of pluralism, tolerance and broad-mindedness demand recognition of that principle. The European Court tells us that without a regime of protection there is no democratic society; without the freedom to impart ideas like that, there is no democratic society. And here we come to a fundamental distinction between human-rights law that is going to come into play in this country in the area of freedom of expression and human-rights law in America because the underpinning rationale of the Handyside principle is the concept of democratic society and what is legitimate and demanded in a democratic society, given the institutions of democracy. |
In the United States, the Supreme Court has recognised as part of the justification for free speech the pursuit of truth, which of course is a rather different thing. In America, this enables journalists like Mick Hume and others to make legitimate errors, errors in good faith, in reporting facts, which may impact on others' reputations--that is, defame them; the public interest and the role of the press as a watchdog in matters of public interest made it legitimate for them to write what they did or broadcast what they did in good faith. We do not have that here, and there is no sign that we will be getting that in this country, or in Europe, under the European Convention. However, it is not all bad news. The press is given particular licence as a public watchdog in European law. There is a broad concept of freedom of expression that covers symbolic action--for example, flag burning as well as speech and writing. |
But the downside of Article Ten is that there are a series of checks in Article Two which a judge can bring into play to limit the principle of freedom of expression, and they are: national security, public safety, prevention of disorder, prevention of crime, protection of health or morals, the reputation of others (which is our libel law), information received in confidence and maintaining the authority and impartiality of the judiciary. That long shopping list is, everybody recognises, a potentially valuable weapon in the armoury of a judge if he does want to limit freedom of expression. The only way we will know, really, how it's going to work out in this country is on a case-by-case basis, and it is true that hard cases in human rights tend to throw up the interesting law. |
The consequences of Article Ten
If the European Court jurors' prudence is anything to go by, there seems little doubt that hate speech will continue to be unlawful and will not receive the protection of Article Ten, but a great many other things short of that should receive that protection. A lot of symbolic action and speech will. Things like flag burning and anything that lies in a political context will get the protection they have lacked until now. The broad, flexible principles that I have been speaking of can be applied almost anywhere, and we can now explore how freedom of expression ought to operate and whether there should be any role for controlling activity and speech in certain circumstances. |
But this is an important and a good thing. We are all looking forward to it coming into force, and we would hope that maybe 10 or 15 years down the line the sort of experience that Mick Hume had would not be happening to British writers and British journalists. One last thought I would like to throw into consideration is where we would stand in this country in terms of cameras and radio going into courtrooms and giving us a direct version of what happens in the evidence. |
In a court case, it has always seemed to me (and I know I am a radical, as far as many barristers in this country are concerned on this point) that the pursuit of truth--which of course is not what goes on in court (court is an adversarial thing), but the pursuit of truth generally--might well be advanced by allowing, in controlled circumstances, cameras to go into certain trials like libel trials with public figures involved and public inquiries like the MacPherson Enquiry. And I hope that sort of development is exactly the sort of thing we are going to start to see happening in this country once Article Ten comes into force. |
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