Freedom of speech in the UK

Great Debates
1

Knowing the SDMB Brits as I do, I think this might possibly be more of a GQ than a GD, but we’ll see how it goes.

First, the relevant link. And then my attempts to come to grip with this.

I wrote a 2000-word research paper on political censorship in the UK back when I was a student at Middlesex Uni. So I’ve long been aware that there are restrictions on speech in the UK that I find pretty abhorrent. I somehow managed to miss this one in my research though. That “clunk” you heard a few minutes ago was the sound of my jaw hitting the floor when I read this article.

Now re-reading it, it appears to me that the judges were more denying the Guardian standing to challenge the law than they were upholding the law itself. And yet it still points to the very basic fact that the UK allows far more political censorship than does the US or, indeed, many other western democracies (one thing I remember from writing that paper was a Glasgow Media Group report that found the UK to be by far the most censorious of the ten European countries it examined).

And while I recognize that Americans and non-Americans sometimes differ in our concepts of fundamental rights (and that in practice most Americans aren’t quite as wedded to the idea of freedom of speech as we claim to be in theory), I don’t think we differ in considering the right to criticize the government to be A Good Thing. IOW this isn’t like guns or health care in which we simply don’t agree on the importance (or indeed the existence) of a right - at least, I don’t think it is.

So my question, basically, is why the hell do you guys let your government(s) get away with this? Why isn’t there more pressure to reform the Official Secrets Act and to do away with other restrictive laws of this sort? Is it because they simply aren’t relevant to most people’s lives, because they don’t seem to be used except in rather extreme circumstances? Or is there actually a larger proportion of your population than I realize that really does support these laws?

[sub]Footnote 1. I do not wish to see this thread turn into another venue for the ultrajingoistic Yanks amongst us to bash any country that isn’t America, so if you’re one of those types, please, stay away.

Footnote 2 I’ll take on the Act of Settlement next week ;)[/sub]

2

ruadh, I tend to disagree with you on this one. This is about the former attorney general advising The Guardian about the law against advocating the overthrow of the monarchy. No such advice letter by a lawyer can constitute being law itself. And since there is no harm related to the law (no one has been ever prosecuted under the law in question), the court’s ruling, that [The Guardian* opted for litigation too soon before someone is damaged, is proper. Also note that the court did not even tackled the law in question yet.

3

OK, I realize it was a long post, but I thought I was making it pretty clear that I’m looking for discussion on the UK’s censorship laws in general, not the judges’ decision in this case specifically.

4

First, let me say, that I feel that this law (along with the Act of Settlement and many others should be struck down, and probably will be in a few decades.

Second, knowing that you’re Irish, did you know that this law was first made at the height of the potato famine to fend off a potential Irish rebellion. The most famous case was that of John Mitchel, the editor of the United Irishman, who was sentenced to 14 years transportation, and eventually became an American hero:

http://www.irelandseye.com/aarticles/history/people/whoswho/mitchel.shtm.

The Act has only been used about ten times- last in 1867- again in Irish politics.

Thirdly, I agrre with the above posters- the legal block was to do with procedure, not because the government wished to use the act. I suspect that they wanted to avoid the case becoming a cause celebre. The Guardian intends to push this to the European Court of Justice, so there will be a review of the ‘constitutionality’ of the law eventually and IMHO it will be thrown out.

Fourthly, I wonder what you make of this:

’ the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.’

which seems to allow a pretty general level of state action against sedition in a very similar manner. Do yiou recognize its source?

5

Well, from your tone certainly implies that it is was from the Alien and Sedition Act.

6

Yeah, you Irish chicks are all the same :wink: (I’d put a hard hat on if I were you, Pjen, cos somethings about to hit you froma great height)

My reading:

Rusbridger and Toynbee were seeking a ruling on the wording of this antiquated legislation despite it being usurped by the Human Rights Act (the latter having clear legal precedence) because idiots like Mugabe use it to justify their own policies. Fine but no biggie.

IMHO, Rusbridger’s petition has merit if other countries use it in that way but, in terms of UK law, the 1848 Act is, de facto, meaningless – Sections 2 and 3 of the Official Secrets Act (OSA) – the naughty bits of that particular Act - also being largely redundant but for different reasons.

Why is the OSA largely redundant ? - Because the authorities (post Berlin Wall / Clive Ponting) know the general public (i.e. the jury in any given case) won’t convict regardless of the evidence if their (modern day) understanding of the phrase “in the public interest” is at odds with that proposed by the prosecution in the given case – the public no longer accept the ‘official’ line on these matters and, rather than hang their dirty washing out in public, the authorities back down. The Cold War is over, baby …put your legal toys away!

It’s a classic case of law being led by public opinion rather than Parliament or the higher Courts (rather like the ‘perverse’ verdicts that are now common place when the authorities try to bring charges against GM crop protesters or those damaging military aircraft due to be exported to authoritarian regimes). They can’t get a jury to convict if the protest was only morally and / or ethically based. Ditto disclosure under the OSA

Unless I missed something, I think the 1848 Act is wholly irrelevant to the UK both in fact (it being subordinate to subsequent legislation) and in effect (they can’t get a conviction). Besides, I see tabloids regularly running articles concerning the future of the Monarchy – everything from those deeply meaningful ‘polls’ to Editorials asking: Is it time for them to go ?

And there is always that new-fangled antitheses of all things authoritarian, the Internet.

If you want to talk about the current prosecution of the ex-MI6 chap recently returned from Paris, then I’m in !

7

I don’t know anything about the Irish judicial system, but there’s nothing in the article which I can not easily imagine happening in the USA. No one is allowed to simply say “I think this law is unconstitutional. It should be struck down.” For something to reach the Supreme Court, someone has to be a test case and actually get arrested based on it. Now, this does seem like a rather unjust way of doing things to me, but it is hardly peculiar to Britain. As for your second question, it’s probably because people don’t see much point is exorcising every archaic law that’s no longer used. In the US, there are plenty of miscegenation, sodomy, and fornification laws, but because they are largely ignored, there isn’t much outcry. And as for your final question: not knowing how many people you think support this law, I can’t say whether you are over- or underestimating, but I am sure that there is a sizable number who support it, and an even larger portion that would oppose its removal. People tend to require good reasons for changing the status quo, and sadly justice is not as widely recognized as a good reason as one might hope.

8

Ah yes, the Official Secrets Act - described by my lawyer friend in university as “the single most oppresive piece of legislation that he’s ever come across”

As to why there isn’t any popular movement to get rid of it - I’d wager a guess that most people simply don’t know the meat of it, since it’s impact in practical terms (as L_C says) is negligable.

pan

9

No, they don’t. They simply have to demonstrate that they are suffering harm from the law. Being prevented from doing something under threat of prosecution qualifies.

Fair enough as far as the monarchy law goes. But the OSA is still being used. Whistleblowers still face prosecution (and it isn’t an idle threat; ask Shayler, ask Tony Geraghty). Newspapers are still subject to gag orders. The libel laws are most certainly still in use - that’s kind of a different thing, I know, but still another example of freedom of speech not being protected. And you have to wonder how much self-censorship occurs because of these laws. They do have an impact - I doubt anyone in the media would tell you otherwise. You simply can’t dismiss the entire issue as being a case of not wanting to “exorcise every archaic law”.

10

There is a great deal of pressure to reform the Official Secrets Act, and in fact reform is currently taking place under the Freedom of Information Act 2000. This isn’t a terribly radical piece of legislation, but when you consider the kind of triva which were previously deemed to be official secrets, it is at least a start.

I think that, given that it will always be necessary for the State to preserve some secrets, it might be better to do so within a statutory framework and under the rule of law and the scrutiny of the courts than in any other way. After all, a private company is allowed to prohibit its employees from disclosing commercial secrets both during and after their employment. The important safeguard is that there is some legal defence based on public interest which allows the courts to make an exception for genuine whistleblowers (as opposed to people who are trying to make money selling their stories to the tabloids, or whatever).

The libel laws, which were once a mechanism which wealthy men could use pretty freely to supress the truth, also seem to be losing some of their force, for which we can thank Jonathan Aitken and Jeffrey Archer. The problem was always that juries were too keen to believe “respectable” plaintiffs like Robert Maxwell and Liberace, and to award stupidly high damages. I think most jurors will think twice now before taking the plaintiff’s unsubstantiated claims at face value. Of course, the other real scandal associated with the libel laws in this country is the fact that access to justice is simply beyond the means of most ordinary people, which means a genuine crook can supress the truth about his activities if he is sufficiently rich, but the News of the World can run as many stories as it likes about shagging vicars or the distant relatives and casual acquaintances of C-list celebs knowing full well that none of these people could affort to issue a writ even if what they were printing was wholly untrue.

Where I think we have got it right in this country (and the USA has got it wrong) is the restrictions on court reporting. I think it is far better to supress coverage of a trial while it is taking place – provided that people are allowed to report what they like after the event – than to try to conduct a fair trial in the middle of a media circus.

11

Yes, from the media themselves and from civil liberties groups (which to my mind proves the point that these laws aren’t meaningless, as there wouldn’t even be that pressure if they were). It’s the lack of grassroots pressure that I wonder about - is that due to apathy amongst the British populace, or support for the laws?

Just to get back (briefly) to the Act of Settlement, I had always assumed that that law was still there simply because it wasn’t considered meaningful enough to do anything about. But one of the Scottish Sunday papers recently printed a few letters in support of the Act - people saying that they agree that the monarch should be prohibited from marrying a Catholic. How widespread that view is, I don’t know. But I now see that there are some British citizens who would genuinely oppose reform in that case, and I’m curious as to whether, and on what scale, the same is true regarding the OSA, et al..

If their stories are true, I’m not sure I see why it should make a difference what their motivation is to reveal them. But I do think “public interest” is the crux of the issue. The American view (theoretically, at least - as I said earlier I know it doesn’t always work this way in practice) is that knowing what your government is up to is inherently in the public interest (with extremely limited exceptions, such as actions during wartime knowledge of which might genuinely compromise national security), whereas it seems to me the British framework tends to assume that public knowledge is inherently dangerous and that the government (or Government)'s interest comes first.

12

Well, the FOIA was in the Labour Party’s 1997 Manifesto, so we did vote for it. If there is a lack of grassroots support for the repeal of the OSA, then I would guess it’s apathy rather than support for the the law.

I’ve never heard anybody express active support for the Act of Settlement but I suspect a MORI poll of a random sample of 1,000 British citizens would reveal that fewer than 10 knew what it was. Then again, coming back to what you were saying about the Scots in an earlier thread, there might be people there who make it their business to bone up on anti-Catholic legisaltion.

FWIW, I’ve always thought that Act of Settlement was of minor significance compared to the fact of the hereditry monarchy itself. But I might feel differently if I were a Roman Catholic.

I agree. I didn’t meant to imply that motive was the issue, only the question of whether the disclosure was genuinely in the public interest. It is possible for somebody to make a disclosure which is in the public interest for wholly ignoble reasons, and I think that should still be protected. But you know how the tabloids will claim a public interest in publishing any salacious information they happen to get their hands on and I can imagine circumstances in which damaging disclosures would be made in exchange for cash, in order to sell papers and under the guise of a public interest disclosure.

I think it’s reasonable for certain types of information to be kept confidential, though, other than military secrets. For example, civil servants’ advice to Ministers is not normally disclosed. Ministers are responsible for the policy decisions they make and they alone are accountable to Parliament for those decisions. If it were to become common practice to reveal the details of the advice which they had received, I think there is a danger that it would undermine that principle.

There is also the danger that a civil servant, knowing that his or her advice might find its way into the papers, will be less candid than he or she should be. I suspect that this will be one consequence of the FOIA – officials will be much more careful about what they put down on paper and the ‘real’ briefing will take the form of deniable conversations. At least under the present arrangements we have access to more or less everything 30 years later.

However, I can see that in the USA, where the civil service is much more politicised, greater freedom of information is more appropriate.

13

Apologies to Ruadh, who, from LondonCalling’s cerbic comment, I assume I have mis-categorized as Irish. I just assumed by the Dublin location and Gaelic handle on the SDMB and e-mail that their was a certain Irish Air. Obviously wrong if LondonCalling is justified in his comment abot bricks.

This somewhat deflates the import of my quote of legislation in my previous post:

’ the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.’

which is from the Irish constitution. However, I do think that it is equivalent to the British act.

The basic problem with the British system of law, particularly Constitutional law, is that it has been gathered by accretion over the years, and decay of use over the same years. There is no rational mechanism for amending a basic law. What tends to happen is a war of attrition between the government (of whatever hue) and the libertarians. As there is no mechanism to amend, we are reliant on a constantly shifting system of case law and learned opinions with no definite foundation.

However, with the acceptance of the European Convention on Human Rights into the body of British Law, we at last have the start of a procedure for amending whatever it is that forms our ‘constitution’. Over the years, IMHO, this document will gradually become our effective constitution as more and more acts (including those quoted above) are gradually struck down.

As the judiciary becomes more confidant with using the ECHR, then we may approach the position where they feel more able to make general statements of principle based on the ECHR that would be more like case law from the Supreme Court in the USA.

Of course, this is only a minor inconvenience to those with real power in our system who still operate an elective dictatorship with minimal checks and balances. The only check we have is ‘do we prefer the other lot?’ at the next election. There is no real balance from the legislature- the Commons is tame, and the Lords is indefensible and has limited delaying powers. The judiciary may be easily overturned (even with the ECHR) with only the possibility of loss at the next election as a check.

Until we have entrenched rights, we will continue to live in a poorly modified monarchial system with the rights of the monarch used in monarchial fashion by the Prime Minister of the day.

There is an argument that there was a better system of checks and balance in operation after 1689 than there is today. That is how rotten our system of government is.

14

Just a couple of comments. Arguably, the 1848 Treason Felony Act liberalised English treason law. The relevant clause is simply a re-wording of the traditional definition of high treason. It did not create any new offence. What it did change was the penalty it carried, reducing it from death to transportation. Admittedly the reason this was done was to make convictions easier to obtain. The Guardian is of course just mischief-making.

Whether the incorporation of the European Convention of Human Rights into English and Scots law will undermine the OSA remains to be seen. Few European governments are keen to create a general right of access to official information.

15

Arguably, the Human Rights Act might lead to further restrictions on the freedom of speech under Article 8 (Right to Respect for Private and Family Life), which will no doubt be used in due course to try to prevent newspapers publishing details of people’s personal lives.

ANAL, but I think it is unlikely that Article 9 will be used to overturn the OSA, since it carries the following rider:

As far as I can see it might as well say “except the Official Secrets Act”. Plus which, I find the thing about “the protection of health or morals,” which occurs in several of the Articles, a little bit creepy.

16

That should have been “IANAL”. Freudian slip.

17

And joining those wastrel mischief makers like:

Oliver Cromwell
William of Orange
Tom Paine
George Washington and Thomas Jefferson
The Chartists
The Levellers
The Tolpuddle Martyrs
The Suffragettes
Abraham Lincoln
The Civil Rights Movement

and look what trouble their mischief making caused. :wink:

18

Naughty, naughty, Tom.

Pjen - Did you forget Margaret Hilda Thatcher ?

ruadh - The one redeeming facet of the OSA is that it was framed in such broad terms that it allows for a modern day interpretation f.i. “In the public interest” is interpreted very differently by a jury now compared with the 1960’s – in other words, prosecutions under the OSA have to move with the times or else there will not be a conviction (‘Gagging Orders’ work differently but the Internet plays a significant role here).

So I agree it does need reforming but that’s as much due to its neutering and increased lack of relevance (under its own terms) as its (increasingly theoretical} oppressive intent.

I’m surprised no one here cites the Clive Ponting case – surely the landmark decision in prosecutions under the OSA. ?

Also, if the best The Guardian – flagship of the Liberal Left – can muster is a campaign against redundant legislation, one is tempted to think there is not quite the agenda for a grass roots rebellion to get its teeth stuck into that there once was.

L_C misting over at memories of CND and Ant-Aparthied rallies…
Tom - I know I keep harping on about this but any proposed legislation is (ultimately) subject to one crucial criteria: It has to be prosecutable - unless the public sympathise with the ‘Establishment’ view, the Law is (generally speaking) not enforcible as a jury won’t convict.

19

With no constitutional guarantee of trial by jury, this is no guarantee at all. The current government is determined to remove the right of trial by jury for ‘minor’ offences- those with less than six months imprisonment IIRC. This is to ‘make justice more effective’ (cheaper and less open to perverse verdicts). We have had Diplock courts in NI with only judges sitting. We have had the gross misuse of the right of the government to withold pertinent information from trials in the ‘national interest’ (the government interest- the courts actually defined the national interest as the current government’s interest!)

If the OSA id reformed, look out for the use of methods to avoid full jury trial. The mind-set of the British Body Politic is so government oriented rather than citizen oriented, that it will make every effort to avoid being questioned by perverse verdicts.

20

Mmmmm. IANAL either, but my take on the article in the OP: to me, it looks like the judiciary covering their backsides with regrard to constitutional procedure. I’m sure that, if the journalists in question were to be prosecuted under the Treason Felony Act, the prosecution would fail (or, at the worst, an appeal would be allowed) under the Human Rights Act. But, absent such a prosecution, the courts don’t have the right to set aside the law in question; it’s an Act of Parliament, and it should take another Act to repeal it. Of course, it could and should be repealed - particularly as it’s not going to be enforced; having laws on the books that are not enforced vitiates the whole force of the law.

With regard to the Official Secrets Act, IIRC this was created in something of a rush, and its deficiencies are well known. However, digging through it to find and eliminate its various failings is not a particularly interesting task, and consequently doesn’t attract a great deal of popular fervour. “Preserve free speech!” is a good slogan, “Apply proper restrictions to the scope of Section II of the Official Secrets Act!” a bad one. Of course, the OSA can be, and has been, abused.

I have to say, though, that proposed restrictions on the right to trial by jury worry me. Particularly coming, as they do, from a nominally Labour government… and because the “justification” for these measures is expressed purely in terms of cost benefits: the historic liberties of the British subject are, apparently, no longer economically viable…