Tag Archives: ECHR

Jacob Rowbottom: Laws, Miranda and the Democratic Justification for Expression

jacob-rowbottom-photoThe Divisional Court’s decision in the David Miranda case has provoked much controversy and debate about freedom of the press and national security issues. About halfway through his judgment, Laws LJ makes a number of comments about the justifications for freedom of expression and media freedom. While these may not be the most pressing or immediately important issues raised by this particular case, it is worth noting what Laws LJ says at paras [41-46] as he seems to move away from what has been something of an orthodoxy in the British and European jurisprudence – the importance placed on the democratic justification for expression.

Laws LJ takes this step away from the democratic justification only in relation to individual freedom of expression, and not media freedom. On his view, media freedom is justified ‘to serve the public at large’ – in other words to scrutinize government and provide useful information to the public. These are classic features of the democratic justification. In this, Laws (correctly in my opinion) takes an instrumental account of media freedom, an approach that is reflected in many of the cases and in the Leveson Report. By contrast, he states that freedom of expression ‘belongs to every individual for his own sake’. Here Laws LJ states that ‘the promotion or betterment of democratic government’ is not the ‘essential justification of free expression’. Instead, individual freedom of expression ‘is a condition of every man’s flourishing’.

The implication of this distinction is that when applying the proportionality test in the case of media freedom, the courts are balancing ‘two aspects of the public interest’. By contrast, freedom of speech is about balancing the rights of the individual with the interests of the community. This should not, however, be taken to mean that media freedom rights are more easily outweighed. There may be instances where the public interest in expression serving the needs of the audience is stronger than the interest held by the individual. There will be cases where the audience-focused public interest justification makes a very strong case for heightened protection.

In his discussion of the democratic justification, Laws LJ describes Alexander Meiklejohn’s view that free speech is ‘a collective, not an individual, interest’ and a ‘servant of democracy’. We can see the collective approach to free speech reflected in Meiklejohn’s famous comment that ‘What is essential is not that everyone shall speak, but that everything worth saying shall be said’. According to this approach, the key is that all the relevant viewpoints get a hearing and are considered. The goal is to ensure that the audience is well informed. This thinking suggests that if every person were to speak in a debate, then similar views would be likely to be repeated – while this might make speakers feel better about themselves, it does not give the audience new information (except indicating strength of feeling). Laws LJ argues that this justification, while relevant to the media, does not provide a foundation for individual freedom of expression.  In short Laws LJ seems to take the following approach: the collective Meiklejohnian justification for the media, and a liberty theory for individual speakers.

One of the main criticisms of the democratic justification/collective interest advanced by Laws is that it tends ‘to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government’. It is certainly true that the democratic justification, as advanced under Article 10, has led to a hierarchy in which political speech is given strongest protection. If what Laws LJ means is that the democratic justification is not the sole justification and needs supplementing in some instances to give broader protection, then this is a valid point. I have argued elsewhere that in some cases more protection is needed for the non-political speech of individuals. But the democratic justification still plays an important role in relation to individual expression and there are strong arguments to support the robust protection of political speech. Furthermore, some hierarchy among categories of speech may be practically necessary – not every utterance can be given exactly the same intensity of protection. If all types of expression were treated as a single category then it might weaken the protection of expression overall (ie treating all speech types equally might lead to a leveling down of protection rather than a leveling up).

Laws LJ’s concern that the democracy argument justifies ‘the prohibition or abridgement of speech advocating undemocratic government ‘ is less persuasive. An account of speech that focuses on the collective democratic interest does not necessarily lead to a conclusion that prohibitions on undemocratic speech are to be permitted. The audience interest in hearing diverse views can extend to those that challenge democratic values. One can still oppose restrictions on ‘extreme speech’ while staying within the framework of the classic democratic justification for expression rights. Furthermore, if Laws LJ’s maintains the collective/democratic justification in the case of media freedom, then why doesn’t his objection to the justification apply in this context as well as to individual speakers?

None of this is dismiss the important distinction drawn between individual speech rights and media freedom (with which I strongly agree). However, we can support that distinction for reasons that still connect free speech with democracy. Meiklejohn provides a powerful argument that captures one very important role for free speech in a democracy. But there are other additional reasons why free speech is necessary in a democracy. When thinking about the free speech rights of individuals, we also need to consider the perspective of the speaker.  While this seems to be what Laws LJ is getting at, the speaker-based perspective can fit within a democratic justification. Expression can be a form of participation in the political process. To speak out in a democracy is valuable not solely as a means of informing the public, but also as a way of having your say and engaging with collective decision-making. For example, protests are important not just to publicize a cause, but in allowing people to publicly register their thoughts.

My point is that we need not marginalize the democratic justification for expression to go beyond an audience-focused approach. Instead, some of the classic theory’s shortcomings can be addressed by developing the understanding of democracy that underpins the justification for free speech rights.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Laws, Miranda and the Democratic Justification for Expression’  U.K. Const. L. Blog (22nd February 2014) (available at : http://ukconstitutionallaw.org/)

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Jeff King: Should prisoners have the right to vote?

I think they should, and want to explain why in a way that addresses the issue recently faced by the courts and by Parliament.  The prisoner voting saga culminated in the Hirst v UK (No.2) [2005] ECHR 681 case before the Grand Chamber of the European Court of Human Rights, and the nearly five hour debate on the floor of the House of Commons which ended with a 234-22 vote in favour of a resolution that “supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.”: House of Commons Debates, 10 February 2011, Vol 523, No.116, 493-586.  The saga, for Parliament, represented two distinct issues: whether the Strasbourg Court was exceeding its competency; and whether prisoners ought, as a moral and human rights matter, to have the right to vote.  This blog entry is concerned only with the second of these questions, but as it turns out, the status of the right to vote as a human right is highly relevant to the resolution of this moral issue.

The debate in the Commons was supposed to address that moral question in order to satisfy the finding in Hirst that the impugned 1983 law, which carried forth without debate a policy adopted in 1870, could not be justified as being necessary in a democratic society given that Parliament had not debated the issue in light of modern day penal policy: Hirst v UK, [79]; but see Joint Dissenting Opinion of Justice Wildhaber et. al., [7].  However, the Commons was almost entirely preoccupied with the question of whether Strasbourg had exceeded its authority or was staffed with incompetent judges.  Indeed, the matter swung so much that way, that the Attorney General was forced to remind the House of the point of the debate, eliciting the following hilarious exchange:

  • The Attorney General (Mr. D Grieve): ‘Members might also wish to focus on why they consider the current ban, or some variant of it, to be reasonable and proportionate in our own national context. It was the absence of debate of that issue that appeared to make the Court take the view that our ban was indiscriminate.’ (HC Debate, 513)
  • Chris Bryant (Lab): ‘Really?’ (513)
  • Ben Gumner (Con): ‘I am slightly worried by what my right hon. and learned friend said earlier about the purpose of this debate.’ (515)
  • David Davidson (Con): ‘Does the AG accept that, in being a lawyer, he has the problem of over-complicating matters? [Laughter.[sic]] Is not the basic issue whether we in this country should decide our line on whether prisoners should be able to vote – or should it be decided by somebody else?’ (517)

So much for reasonable disagreement about the scope of the right to vote.  In fact, as Liora Lazarus has noted on this blog in her response to Graham Gee, it was almost impossible to find any discussion which acknowledged the existence of the right and tried to delineate its scope. Only a few could arguably have been said to address the issue that way: see Long (HC Debates, 532-33); Qureshi (535-36); Corbyn (538-39). In fairness, a few MPs did address the moral issue moderately squarely, and at times the debate was very impressive on all sides of the issue.  The most frequent argument against prisoner voting is that such criminals had broken the social contract: HC Debate, 527, 544, 563. One can be tempted here to get philosophically pedantic, and claim that no one actually signed any social contract, and that a ‘hypothetical contract is not simply a pale form of an actual contract; it is no contract at all.’ (Dworkin: Taking Rights Seriously (1977: 17-18).  But what the MPs surely meant is that community life entails obligations of reciprocity, one in which the benefits of the state system and mutual forbearance come with the burdens of obedience to the rules adopted fairly by the community.  One can at once see the allure and limitations of this argument. It is among the better reasons for why we normally obey community rules (though not always, see Raz, The Authority of Law  (1979: Ch.12).  But it’s less convincing to those who have had poor life chances, and received a slim share of the alleged benefits of forbearance.  The link between inequality and incarceration is shocking: Wilkinson and Pickett, The Spirit Level (2010: ch.11).  And let it not be forgotten that due to exactly this type of reasoning, which essentially justifies depriving voting for life, one in eight African-American men is ineligible to vote in America: Cole, ‘Can our shameful prisons be reformed?’, NY Rev Books, 19 Nov 2009, §4.  The fact that Britain tailors the disenfranchisement to the prison term is less cruel, but it borrows the same reasoning.

But I want to suggest that the argument is misguided for another reason. It implicitly fails to recognise a very relevant dimension of the issue, namely that the right to vote is a fundamental human right. It is not a privilege, like a driving license or access to the gym on weeknights.  The denial of this claim, including immediately by the two sponsors of the resolution, was a veritable leitmotif of the debate:

  • Jack Straw: ‘the issue before us today – is by no stretch of the imagination a breach of fundamental human rights. Rather it is a matter of penal policy…’  (HC Debates, 502; see also 493).
  • David Davis: ‘[T]here is an important point about not confusing the rights that are properly held by everybody who is a British citizen…with those much more circumscribed rights that are given to prisoners.’ ): (493).
  • Many others: 537, 539, 542, 545, 548, 553, 556, 557, 577 (debate on that point), 578.

But the right to vote is a human right.  Participation in self-government is the most basic expression of the principle of equality, a recognition that each person has basic, equal and presumptively irrevocable civic status in the society.  So the many MPs who denied that idea are wrong as a matter of law, and of morality: see in addition to Art.3, AP.1 of the ECHR, the International Covenant on Civil and Political Rights, art. 25(b); Waldron, Law and Disagreement (1999: Ch.11), and cf. Griffin, On Human Rights (2008: ch.15, but note 254-255).  (Some parliamentarians became exercised over the Court’s deriving a right to vote from the duty to hold periodic elections in Art.3, AP1 (see Hirst v UK, [56]-[62]) but that is hardly an interpretive stretch by comparison to equality rights for transsexuals or gays in the military).  The fact that it is a human right means it is among the most basic conditions for human dignity, autonomy, and citizenship.  One does not forfeit a fundamental human right as the default penalty for non-compliance with law.

So what does that mean then? I would say this: it is of the essence of basic human rights that they are qualified or limited, if at all, only for a legitimate or compelling state interest achieved by proportionate means (i.e. are necessary and strike a fair balance). I think this admittedly legalistic proportionality principle neatly encapsulates the presumptive or peremptory force, or urgency, we attach to rights in the realm of moral practical reasoning as well.  Limitations of those types of interests require special justification.

We recognise this principle in the human rights law relating to prisoners, who continue to enjoy nearly all their other human rights while in prison, to the extent that they are exercised compatibly with the basic regimen of prison life: Hirst v UK, [69].  But don’t we take away the prisoner’s right to liberty?  How can one say that this can go but the right to vote must stay?  This is believed to be the ace in the back pocket of those opposing prisoner voting.  It is a difficult issue, but the analogy breaks down upon close examination.

In Hirst, the UK offered three legitimate state aims: (1) it would punish crime; (2) it would prevent crime; and (3) it would enhance civic responsibility and promote respect for the rule of law: Hirst v UK, [50], [74]-[75]. Consider these aims and the deprivation of liberty.  As to punishment, it is notable that we do not incarcerate all offenders.  Typically it is only the more serious and violent ones.  In these cases, it is plausible to say that incarceration is necessary to punish, because it may well be the only acceptable social response that constitutes a grave or real sanction for the offender in the relevant circumstances.  Second, imprisonment at least arguably constitutes a deterrent, and, more importantly, it takes serious criminals off the streets or out of bank boardrooms where, if left, they would be liable to continue harming the public.  Third, the rehabilitation/civic responsibility function of prisons is sharply contested. But there is at least a prima facie argument that without rattling the jailhouse keys, it would be hard to induce offenders to take up activities designed to facilitate their constructive re-entry into civil society, including especially the conditions for release on license (parole).

Disenfranchisement cuts a poor figure next to the deprivation of liberty, at least when these aims are contemplated.  Taking them in reverse order, the idea that denial of the vote enhances civic responsibility is ludicrous.  It is the very negation of their civic capacity, a message of mandatory disengagement, and of revoked social status: see HD Debates, 576-577 (Lorely Burt MP (LibDem), a former prison governor); see also 536 (Qureshi (Lab)), 538-39 (Corbyn (Lab)), 545 (Brake(LibDem)).  Second, denying the vote will in no way deter people from crime, given that many prisoners would not vote anyway, and the loss of the vote would add nothing by way of discouragement, for most offenders, to the loss of liberty.  And the vote itself will not harm the public through the choice of harmful candidates.  (This public protection rationale may justify, in my view, disenfranchisement in cases such as post-war Germany or Rwanda, or in cases of electoral fraud, where there is a special proportionality akin to expulsion from a profession for misconduct). We thus arrive at the third argument – that it is necessary to punish the criminal.  I see why some will think this is punishment, even though for most prisoners it will not be.  But it is not necessary to punish, because the deprivation of liberty and subsequent difficulties in re-joining society constitute the real and effective forms of punishment.  It is true that it is additional punishment for those that care, but then that does not make it necessary, nor does it explain why some other form of additional punishment (no doubt more effective if pain is the goal) could not be sought.

At the very base then, my argument amounts to this: we do not give violent prisoners the vote because they “deserve” it; we do so because they are presumptively entitled to vote as a basic human right, not as a privilege, and we have no good argument for saying it is necessary to take it away.

Jeff King is a Fellow and Tutor in Law at Balliol College, Oxford. 

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Conor Gearty: Max Mosley in Strasbourg

It is right that the feisty and courageous Max Mosley should have lost his recent case at Strasbourg.  He was asking for simply too much.  After all, he had already won his action for damages in the English courts,  having secured a £60,000 damages award from Mr Justice Eady.  Mosley wanted more – in particular he argued for a general presumption that those whose privacy would be affected by a proposed publication should be given prior notification of its imminence so as to give them the chance to start proceedings to prevent it ever appearing.

Whatever one things about the despicable behaviour of the media in this area (on which more presently) the kind of closing off of the stable door before the horse bolts suggested by Mosley would have done far more harm than good.  Gagging orders of the type that once pockmarked the laws of libel and contempt would become far more common than they are now, and not all the claimants would be genuine individuals striving to protect their privacy (think Trafigura and capitalist crooks like the late Robert Maxwell as well as trouser-less footballers and the occasional Marr-man (ie a political commentator required for professional reasons to appear ethically pure).  The chill factor caused by such a new law would dampen down much reporting that was valuable as well as some that was contemptible – it would be a blunderbuss of censorship destroying far more than it targeted.

The European judges have sensibly avoided going down this route.  Their unanimous judgment notes that what Mosley was after went far beyond – and was consciously designed to go well beyond – the confines of his own case: he had won after all.  This being so, the Court could not help but notice that it was being drawn into something which was too close to law-making for its liking.  There was much diversity of practice across Europe and plenty of legislative engagement with the issue in Britain already:  clear indicators that the case was right for the application of the Court’s  margin of appreciation.  (This is the polite way the Court has of brushing of supplicants whose overtures it wants to reject.)

There was also, of course, a free speech point.  The European Convention on Human Rights  protects not just respect for privacy (article 8) but free speech as well (article 10).  The neat way the Court dealt with this was to note what needed to be done to make the prior notification rule fit with article 10.  First there had to be a defence based on the public interest and this would have to include a reasonable belief as to that interest was.  Second, there could be no possibility of punitive fines or a criminal sanction for breach since these would (as the Court put it) ‘create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.’

But with these two free speech qualifications was it worth having the rule at all?

Surely newspapers would just publish and take their chances with the court afterwards, arguing a reasonable belief in the public interest and taking on the chin any damages that might follow if the defence happened to go  wrong?  As the Court observed, even if the pre-notification rule had been in place the News of the World might well have chosen not to inform Mosley – remember all that nonsense about Nazi regalia masquerading as a public interest motive for publication?  So having eviscerated the rule sought in order to make it fit with article 10, the Court stood back, admired its destructive handiwork and concluded that it was something not worth having after all.

Despite the defeat, Mosley emerges from the story as a strong character unafraid of confronting head-on the commercially driven sleaziness of what used to be called the Tabloid press.  Those who do not read these papers do not perhaps appreciate quite how dependant they are on invading the privacy of celebrities (memorably  defined by Chris Patten as ‘Somebody I have never heard off’).  Few politicians in any kind of position of power ever challenge their moral iniquity – even when they are breaking the law or being grossly deceptive to get their story (and it is not just the Tabloids – remember Vince Cable’s entrapment by the Telegraph).  The pressure groups are also invariably the friends of the media – as all eleven interveners were in the Mosley case.  Less appreciated is how close the linkages are between those professional lawyers who argue for free speech in their spare time and for newspapers in court for commercial gain in their professional lives.

The one group who are immune to this pressure are the judiciary: their job is to apply the law – not as they imagine it but as it happens to be.  Parliament has long bottled out of challenging the press directly in a new privacy bill, instead quite deliberately allowing the Human Rights Act to do the work by a process of case-law accretion.  The press tried to exempt itself from the Act when it was going through Parliament – using the then chair of the Press Complaints Commission  Lord Wakeham to table an amendment which would have had this effect. It failed but the press got what is now section 12 instead.  Welcomed by Lord Wakeham at the time, it helped to achieve exactly the opposite of what it intended, a common law of privacy – starting with Douglas v Hello! Ltd in late 2000.

Since then the courts have done their job as well as could be expected, developing an article 8 jurisprudence as consistent with article 10 as can be reasonably managed given the opposite directions in which these two  rights point.

The media is not used to not getting its way.  They have subjected the judges involved in this area of the law to a fierce onslaught of criticism.  The person most often in the firing line these days is Mr Justice Eady, but there have been others in the past and there will be more in the future.  Leading the charge has been the editor of the Daily Mail, Paul Dacre, furious that his writ appears not to run in the courts as easily as it seems to everywhere else.

In all the rage about celebrity privacy, it is only the courts that appear ever to take into account the children who are often the worst victims (in terms of being bullied at school) of revelations about the bad behaviour of a parent: see this recent example of how the courts try to achieve a proper balance in this area.  it seems that newspaper editors have a commitment to children when it comes to exposing supposed child-abusers, but are less fearless when their own wallet is at stake.

Who is to defend the judiciary?  Perhaps an intervention by a team of academics would not be out of place, a joint letter or article in the … papers.  Would it ever be published?  Shall we see?

Conor Gearty is Professor of  Human Rights Law at LSE

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