#3581 - Freedom Of Expression And National Security - Constitutional Law

FREEDOM OF EXPRESSION

• Gearty: “in relatively stable societies, restrictions on freedom of expression are regarded as the most serious conceivable breach of civil liberties”

• But arguably torture etc. is much worse and thus free speech seems esoteric and elitist. (Raz). Solutions:

  • Non-consequentialist:

    • The argument from autonomy. Freedom of speech reflects the manner in which we view individuals as autonomous. Autonomous individuals should be allowed to express themselves.

    • To deny the right to expression is to deny an individual his humanity.

    • Autonomous individuals should be able to hear what others have to say and judge its credibility themselves.

    • But free speech should not be unlimited – we can guard against particularly harmful consequences. The harm of free speech must be weighed against the good.

  • Consequentialist:

    • Marketplace of ideas: Similar idea to the free market economy. Good ideas succeed, poor ones are put out of business and the quality of competition is heightened. Mill agrees with this approach. But remember that the free market is flawed and relies on the rationality of consumers, which may not necessarily exist.

    • ‘Lifeblood of democracy’ argument: democracy requires more than regular elections. Those elections must be informed and meaningful. Freedom of speech allows this. Put forward by Meiklejohn.

    • Freedom of speech promotes tolerance. If gays can be seen in the public eye as a part of normal life, tolerance will follow.

• Free speech helps ensure the government are held to account – freedom of information etc. Also, praise and criticism must be freely permitted.

• Legal entrenchment of the right (legal constitutionalism) allows political mechanisms of control to be more fully exploited.

Article 10 ECHR

• Freedom of speech existed before the ECHR but it receives proper legal footing etc. from the HRA.

• Art. 10 only protects ‘expression’. What counts as ‘expression’?

  • Opinions, information, ideas, but this is non-exhaustive. The line between what is an is not expression can be a thin one – calling blacks ‘animals’ is not expression, but hard-core pornography and flag burning is.

• Restrictions to freedom of speech are given under Art 10(2): in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

  • But again everything boils down to a cost-benefit analysis and there are certain situations where restricting freedom of speech requires greater justification.

  • Bowman v UK – C distributed 1.5 million flyers detailing election candidates’ views on abortion. She was charged with violating a 1983 statute that prohibited an individual not running for office from spending more than 5 with a view to promoting or procuring a candidate for election. There was a specific exception for the media. She claimed this was a breach of Article 10 and sued the UK. The court granted her claim. They accepted that there may be state interest in limiting individual involvement in influencing election results, but the limit of 5 was a ‘total barrier’ to her having any influence.

GOVERNMENT SECRECY

• Official Secrets Acts

  • 1911 Act s.1 deals with spying – fraternising with an enemy.

  • 1989 Act, in ss.1-4 deal with disclosure of information which may be a threat to security, defence, international relations and crime.

• 1989 Act:

  • s.1 – security and intelligence. Applies to current and former employees of the intelligence services and people who have been informed that a relevant piece of information is being governed under s.1

    • No damage need be shown.

    • Also applied to current and former employees of the Crown and government contractors. Damage or the likelihood that damage would/will occur needs to be shown here. S.1(3).

    • DEFENCE: D did not know and had no reason to believe that the information was related to security/intelligence. Those covered by s.1(3) may argue that the did not know and had no reason to believe damage would result or be likely to result.

  • s.2 – defence e.g. defence policy/strategy/organisation/readiness of armed forces.

    • DAMAGE – damages capability of armed forces, leads to loss of life, endangers UK’s interest abroad. Or likely to do any of the aforementioned.

  • S.3 – international relations – concerns IR or is confidential material obtained from another state or IO.

    • DAMAGE - Endangers interests of UK abroad, endangers UK citizens abroad. Likely to do any of the aforementioned.

  • S.4 – criminal and special investigation powers – disclosure would have a proscribed consequence.

    • DAMAGE: commission of offence, escape from legal custody, impedes detection/apprehension. Or likely to do these.

  • Note: ss.2-4 concern current and former Crown servants and government contractors. They all have the defence that they did not know and had no reason to believe the information was covered under that section (or that the proscribed consequence would occur for s.4)

  • NOTE: acting in the public interest is no defence.

• R v Shayler

  • D, a former security officer charged with disclosing information, argued that a public interest defence should be read into the Act, in pursuance of s.3 HRA.

  • HoL disagreed. They argued that absolute disclosure ban would breach Art. 10, but the absence of a public interest defence did not render the prohibition absolute.

  • Those responsible for authorising disclosure are bound by Art. 10 in the interest of free speech. The exception lies in if there is a necessary and proportionate national security interest at state. If someone took issue with this, it would be subject to judicial review.

  • The authorisation principle within judicial review means that a public interest defence is not necessary to comply with Art. 10. The public official adjudicating the decision will be bound by the HRA and ECHR. Therefore that decision will be consistent with ECHR – the remedy and legality lies in judicial review.

• Conclusions

  • There is a hierarchy of speech and the levels of protection afforded – political speech is at the apex.

  • Freedom of speech often clashes with other rights, and the courts need to decide how the balance should be struck. This is a powerful position but a necessary one because it requires impartiality etc.

Bailin – The Last Cold War Statute

• 1989 Act does not define the interests of the UK – inchoate concept.

• It is important that the interests of a political party are not equated to the interests of the UK.

• Necessity remains a defence. In R v Katharine Gun, D appealed against a conviction for s.1 disclosure on the basis that she was seeking to prevent a war without a lawfully obtained second UN resolution with regards the Iraq war.

• There is no public interest defence. However the public interest may be relevant when considering the severity of the breach and whether or not it is damage – it may just result in diplomatic embarrassment rather than threat to national security. Damaging to whom, also – a minister, or actually the country?

• Damaging disclosure defence is that the disclosure WOULD be damaging, not that it might be.

• Prior publication may render something that would be damaging no longer damaging – see Spycatcher case.

• In order to mount a defence, it will be necessary to divulge information to lawyers. This will need to be granted under s.7 before the nature of the charge can even be known.

• The Acts have been enforced inconsistently – the Home Sec was not prosecuted for disclosing government intention to kidnap Mahatma Gandhi. Excessive reliance of parliamentary privilege. Concern over the Act being used to save embarrassment and not protect security.

• Public interest disclosures have already been codified in employment law in Public Interest Disclosure Act 1998. It should be extended.

Breach of Confidence

• Article 8 – privacy. In the context of freedom of speech, we are concerned with informational privacy – the right to control dissemination of information about yourself.

• Art 8 and 10 can be limited when ‘necessary’ – freedom of speech can be curbed in the interest of privacy and vice versa.

• Previously, there was no right to privacy in English law – rarely could there be a remedy.

• A remedy WOULD exist under breach of confidence if:

  • The information had to ‘have the necessary quality of confidence about it’ – should not be widely available in the public domain.

  • It had to be communicated on the basis that the information was confidential

    • Problematic because a remedy would be available when someone went back on a secret, but not when information was obtained in an altogether underhand manner

  • This approach changed in the Spycatcher case – Lord Goff said a claim in breach of confidence would be available when acquired by a person who ‘has notice, or is held to have agreed, that the information is confidential’. So information that was clearly confidential but had not been explicitly stated as such could be covered.

Misuse of private information:

• Tort established in Campbell v MGN. The provider of the treatment, the details of the treatment and the information contained in the photo were all found to be private and publication was unlawful.

• What is private?

  • The test was put forward by Nicholls and Hale – it asks whether D knows or ought to know that the claimant can reasonably expect his privacy to be respected.

  • Note: just because someone has revealed...