Critiquing the UK Judiciary's Response to Article 10 Post-HRA: Undervaluing the Right to Freedom of Expression?

Abstract

The arrival of the Human Rights Act 1998 (the “HRA”) stimulated much speculation as to the effect that the Act would have on judicial approaches to the relationship between the individual and State. In particular, the Act generated expectations that it would raise rights consciousness within judicial thinking. Consequently, the potential effect this change would have on freedom of speech in the UK was intriguing. It had been said that the common law already recognised a ‘constitutional right to free speech’, although the strongest statements for its protection seemed reserved for freedom to publish, in particular and, furthermore, the common law could not interfere with contrary statutory measures. There had been speculation that the obstacle to the fullest protection for free speech would be removed if a constitutional measure was introduced that allowed the judiciary to protect free speech where the common law would otherwise be impotent. Yet it was also argued, pre-HRA, that, in addition, judicial attitudes toward freedom of speech required addressing. It was argued that the judicial approach to freedom of speech was inconsistent: the judiciary did not seem to treat free speech claims equally and so certain speakers seemed better placed than others. Certainly, uncompromisingly pro-free speech judgments were rare where the freedom to publish was not implicated. Thus, it was argued that the common law approach to free speech had developed incoherently and that there seemed to be a judicial readiness to allow restrictions on flimsy grounds. These criticisms implicated the UK judiciary’s conceptual understanding of free speech, suggesting failings in the court’s engagement with the moral and philosophical arguments underpinning the nature of the right. However, there was an expectation amongst some commentators that greater consistency of free speech protection would occur as a result of the provisions in section 2 of the HRA.
It has now been almost nine years since the substantive provisions of the HRA came into force (not counting the further two years of judicial preparation). By surveying the post-HRA landscape, the object of this enquiry is to ascertain whether the judiciary has realised protection for freedom of speech in its fullest terms. Prior to the HRA, Barendt, for example, had argued that in order to maximise protection, the judiciary ought to engage with the theoretical arguments for the free speech protection. This thesis seeks to understand what the judiciary’s approach to Article 10 is and how this compares to both established theory and the rationale underpinning the Strasbourg Article 10 jurisprudence. Thus, it will examine whether the judiciary has become acclimatised to the language of ‘rights’ in a free speech context and, furthermore, whether it has recognised the significance of underlying theories of free speech in this regard. As is well-established in the academic literature, there are several dominant theories which seek to explain and justify the concept of free speech as a right. Each of these offers different perspectives on the scope of free speech and approaches to protecting it. In raising free speech from a liberty to a right in all circumstances, has the judiciary demonstrably engaged with those theories and, if so, to what extent? In other words, what value or values has the judiciary identified as being served by freedom of expression? Does the jurisprudence suggest the judiciary is simply absorbing Strasbourg jurisprudence and, if so, how does this affect the UK judiciary’s engagement with theory? In other words, even if minded to do so, what obstacles stand in the judiciary’s way toward a more principled approach to Article 10 to fit theoretical understandings of the right?
By virtue of this critique, it will be argued that the UK judiciary has not developed the Article 10 jurisprudence in a principled manner, i.e., one that fully engages with the established theoretical approaches to freedom of expression. Instead, due to, amongst other things, its limited approach to the obligations contained within s. 2 of the HRA, the UK Article 10 jurisprudence demonstrates a particularly narrow approach to the consequentialist rationale for protecting expression that, consequently, neglects other rationales based on broader instrumentalist grounds or, indeed, protection based on the intrinsic value of free speech. Thus, it will be argued that in the UK, the Article 10 lens has been focussed too sharply on narrow forms of political expression. This is disappointing from a free speech advocate’s perspective not just because the concept of free speech is stunted in this environment but also because it suggests the promised ‘rights culture’ has not fully taken nor the constitutional significance of free speech fully secured.