Freedom of Expression

Research Proposal

The purpose of the Human Rights Act 1998 (hereby referred to as ‘the Act’) was to incorporate the European Convention on Human Rights (hereby referred to as ‘the convention’) into United Kingdom Law [1]. Under British constitutional law, legislation other than that created by parliament cannot be truly relied upon directly in the national courts. That is the doctrine of parliamentary supremacy. Although the United Kingdom (UK) was one of the original signatories to the convention, it was thought at the time that the UK already prided itself on protecting the rights and freedoms of its citizens by way of ‘residual liberty’ [2] ; the resulting freedom after all restrictions imposed by law. However in the decades succeeding the signing of the convention, various litigations were successfully brought against the UK for infringements under the convention. This was the one driving argument behind the incorporation of the convention into domestic law, and upon election into government the labour party published the White Paper [3] ‘starting the legislative process which resulted in the Human Rights Act 1998’ [4] .

The aim of this dissertation is to take an evaluative look at the impacts of the Human Rights Act, specifically Article 10; Freedom of Expression, and whether through the Act’s application, Article 10 has provided a real level of protection to the individual. The central question posed is whether Article 10 of the Human Rights Act 1998 has truly guaranteed our freedom of expression and, whether, if at all, Article 10 is necessary, should it be found that the Act does not guarantee freedom of expression, or that it is seriously flawed in doing so. However in order to attempt formulate an answer to the central question a series of sub issues will have to be addressed.

The central question posed raises general issues on of the enforceability of the Act, specifically Article 10, and the case law development on the application of the freedom. In order to begin addressing the central question it is first necessary to provide a background to the Act and by that a background to the convention, including the failures of the convention operating within the UK common law system, subject to the doctrine of parliamentary supremacy. By providing a brief history to the convention and the Act, not only will it provide an introduction to the topic area, but it provides an opportunity to observe the aims and objectives of the founders of both the convention and the Act, all of which will become relevant in a later stage of the dissertation when concluding whether Article 10 has indeed provided adequate protection to the freedom of expression. Before progressing on to the main thrust of the study; the application of the freedom of expression to English law, a section will be spent analysing the obligations on domestic courts to interpret UK law ‘in a way which is consistent with the convention’ [5] . The aim here is to highlight the scope of the powers of interpretation and the limitations involved where a conflict between pre-existing legislation and the Act occur. This will act as prologue to the main body; the examination key areas of English law related to expression and the application of Article 10, and will allow the reader to appreciate the constitutional restraints on the courts. Furthermore whilst looking at applicability of the Act as whole there will be an examination of the other provisions within the convention that allow member states to derogate from the convention. This will be become applicable at a later stage in the dissertation when looking at the enforceability of Article 10.

The main focus of the dissertation will be a detailed examination of the applicability of Article 10 in the development of key areas of English law. However, intricate to the arguments made within this dissertation about the importance of safeguarding freedom of expression, is the importance of the nature of the right from a natural law perspective. Only by analysing the nature of the right and its importance can the arguments made within this dissertation proceed with justification, otherwise the arguments made about the importance of this particular freedom would seem empty if without a sufficient theorist argument.

The main thrust of the argument in this dissertation is that the freedom of expression as set out in the Act provides only a limited freedom, a freedom which is not secured and cannot be strictly enforced by the courts should a piece of parliament made legislation be in direct conflict, therefore the enforceability of the Act is limited and has had no real effect in securing the freedom of expression, which in turn develops the argument of whether the Act, specifically Article 10 is necessary at all; has it developed English law to any significant extent thus justifying its existence? In order to develop these arguments a balanced examination of the key areas of English law will be necessary in order to justify these arguments. Initial examination will begin with the wording of the Article itself, detailing the ambiguity of the wording, specifically drawing upon Article 10 (2); the restrictions imposed on the application of the freedom. The main focus here will be examination of the express qualifications found within part 2 of Article 10; the exceptions and the justified limits to the freedom set out in part 1, and how freely can these exceptions be interpreted to justify restrictions.

The freedom of expression in English law is a residual liberty therefore observation of the operation of the freedom comes from looking at the restrictions imposed throughout English Law. The wide range of law the restrictions cover make it a ‘well developed area of law [which] adds to the usefulness of freedom of expression as a field of research’ [6] . The scope of the restrictions imposed in English law range from criminal to civil, governed by both statutory law and common law. This dissertation will examine the main ‘established exceptions [7] ’ to the freedom of expression. The applicability of the word ‘expression’ is non-exhaustive and it would be near impossible, given the length of this dissertation, to examine all the applicable areas, therefore the dissertation will be restricted to the most important namely; defamation, contempt of court, obscenity and indecency, and the criminal law including blasphemy, racial hatred and national security [8] . The aim here is to examine each of these areas by a) looking at the development of each of these areas, in turn, under the convention alone; and b) the developments under the Human Rights Act. The aim is to look at these key restrictive areas and charter the development of the application of Article 10. By exploring key case law in each area respectively, the aim is to develop and explore the key arguments both for and against. For; looking at the aspects where the freedom of expression has opened up and reduced the restrictiveness of English Law, thus providing a level protection; and against; by looking at the where the freedom of expression has failed in its application due to wide interpretation of the express qualifications that has consequently rescinded the effectiveness of the freedom.

The aim here is not to consider the entire scope of the debate of the effectiveness of freedom of expression in English law in any exhaustive detail as this would near impossible given the restrictions of length and time. However the aim is nevertheless to provide an up to date examination, drawing from leading academic arguments and developments in case law so far in relation to the key areas highlighted that in turn relate back to the central question of whether Article 10 of the Human Rights Act 1998 has truly guaranteed our freedom of expression.

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