"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Monday, 25 March 2013

Free speech on holiday

I am presently on holiday overseas.  So too, it would seem, is the concept of free speech in Britain.  The UK Human Rights Blog has an interesting post (I am afraid I won't be able to put in direct links at the moment, it is too time-consuming on the mobile device I am using) has a post on Core Issues Trust v TFL [2013] EWHC 651 (Admin).  The High Court ruled that TFL had not acted unlawfully by banning an advertisement from the side of London buses which was to have read "Not Gay! Ex-Gay, Post Gay and Proud. Get over it!".  Although it had handled the decision making process badly (suggesting a traditional JR challenge might have succeeded), the decision itself was not unlawful or in breach of the human rights of the claimant (CIT).

The background is that a while ago a similar ad had been run by a gay rights group, Stonewall, which had read "Some people are gay. Get over it!"

The UKHR post sets out the detail, which need not be repeated here.  I simply want to add an observation or two (note, based entirely on the UKHR post).  The judge seems to have held that although CIT's right to freedom of expression had been engaged - which plainly it must have been - TFL's decision was a justified and proportionate restriction on that right.  The reason is that the restriction was in furtherance of the legitimate aim of protecting the "rights of others".

We will come back to that in a moment.  But, extraordinarily, the court also held that Art 9 - freedom of religion - was not engaged, because CIT "was not an individual, religious community or church". This seems to me to be a finding of convenience. It seems obvious that CIT was established by its founders as a vehicle for promoting their religious beliefs.  Equally obviously, the bus advertisements were propounding one of those beliefs.  To pretend that those beliefs do not have to be considered because of the corporate structure that the holders chose is a cop-out, designed to ensure that the judge did not have to consider the awkward prospect of how far the right to manifest religious beliefs might extend.

And here is the nub.  Stonewall was entitled to express its beliefs on the side of the bus.  CIT was not.  CIT was not because it was felt that its beliefs would have undesirable consequences in the form of homophobia.  But CIT would doubtless respond that according to its beliefs (wrong headed as some including myself would think) it is homosexuality that is wrong, that the mainstream scientific and social acceptance of homsosexuality is incorrect, and therefore it is Stonewall's beliefs that would have undesirable consequences.

Who is right?  Most people nowadays would say Stonewall.  But that is not what free speech is about.  Had free speech meant banning anything contrary to the prevailing viewpoint about desirable consequences then the Stonewall movement would never have gotten off the ground.  Peter Tatchel, the well known gay rights campaigner, understands this well and has often articulated similar thoughts.

In my view London buses aren't really the place for debates about social, political or religious issues and therefore TFL should have had a policy banning all such messages.  But that is only my opinion, and not one I hold particularly strongly anyway (being happy not to pay attention to them, and not have to debate the scope of what is political and what is not).  The fact is that once TFL decided to allow Stonewall to run its campaign (and indeed the "atheist" bus ads) then its role as a public body was not to take sides and to allow counterpoints.

Wednesday, 20 March 2013

A free press

There are some disturbing developments in the field of free speech around the world at the moment, all of which resonate particularly in the United Kingdom given the debate over a Royal Charter or possible statutory regulation of the press.

There are two points here: a general one about the nature of state control and a more particular one regarding free speech.

As to the first, fundamental rights and freedoms cease to be fundamental once the state gets the idea that they are just another part of its responsibilities and can accordingly be tinkered with at will.  This is why the executive is always pressuring to subsume management of the courts, the judiciary and the entire criminal justice process within another monolithic state emanation such as the Ministry of Justice.  Once that happens, then the rule of law becomes an optional extra, subject as with everything else to bugetary constraints and the overriding need to ensure the incumbent government gets re-elected. If the state gets hold of the press, then we can expect a steady if stealthy erosion of the freedom of the press, moving towards a curtailment of anyone being warned off stories which might embarrass the executive.

As to free speech, this is a principle that can be justified broadly on two grounds. First, the "rights" based argument, which is that as part of personal autonomy we have the right to free expression, meaning the right to any political, religious or other point of view, simply as part of a free society.

The second ground is the "consequences" argument, which is that the consequences of banning speech usually turn out to be worse than not doing so.  Of course this is not always the case, which is why consequentialist arguments in favour of a free press are always up for debate. At the moment the argument is being presented that the free press we have hitherto enjoyed behaved so badly that it needs to be reined in by way of a Royal Charter or statute.

Coinciding with the debate here comes this report into the Chavez regime.

Chavez was admired by a number of British politicians, a number of whom are struggling to say anything bad about him. Here, for example, is a breezy encomium from Lord Prescott on a tabloid site. And here is a Guardian editorial which struggles to say anything negative about him at all.

The most amusing and telling comment comes from the satirical Daily Mash, which ran a spoof headline about Guardian readers paying tribute to a man who would have banned the Guardian had it been published in Venezuela.

Then comes news of this sort of thing elsewhere.

It seems one step forward with free speech, and then a lot of steps backwards, and none of it bodes well for increased regulation in this country. 

Of course people have a right to a private life, and the press has been notoriously bad in recent years about interfering with such a right.  But there are two problems. First, no-one should assume that suppressing the press instead will automatically be a better option, or even that it will be the lesser of two evils.  The fact that certain sections of the press blinded themselves to Chavez's human rights abuses because they agreed with his anti-American stance or his social programmes does not fill one with confidence.

Secondly, the public/private distinction is not an easy one to make. For example, straw polls I have conducted confirm that Mr Piers Morgan is seen as a paradigm of an irresponsible tabloid editor, and by contrast the Guardian is seen as a responsible member of what used to be called the broadsheets.  For what it is worth, I do not number myself amongst Mr Morgan’s fans.  But credit where it is due.  In this interview Morgan makes Alan Rusbridger, the editor of the Guardian, look frankly ridiculous for his hypocrisy and muddle-headedness on the issue.   Who would want either a Morgan or a Rusbridger as a putative regulator of Fleet Street?

As with any form of regulation the prior question is whether any extra laws are needed at all.  I previously wrote about Leveson:

where the press have been shown to have entered into inappropriate relations with the police, then the answer is tighter controls of police. A police officer leaking information about an inquiry is (potentially) committing a criminal offence. Indeed, the journalist might too if he or she acted in a way that prejudiced a trial. There might also be a civil remedy arising from breaches of the right to privacy, having regard to Art 8 of the European Convention on Human Rights.

The same applies with politicians and civil servants: if they are too close to journalists, or are found leaking information improperly, then they may breach codes of conduct for their respective roles or, again, face both civil and criminal proceedings depending on the circumstances.

In other words, the answer to many of the questions posed by Leveson may well be better enforcement of the existing law, not new laws or new enforcement mechanisms.

 Which remains my view today.

Friday, 1 March 2013

Executive Pay

Published in the Times on 26 February 2013.  It was the lead letter for the day.

Dear Sir,

Jane O’Nions (letter, 25 February) gives but one example of executive pay being out of all proportion to any results achieved, a trend confirmed by a report in 2011 by the High Pay Commission.

One of the chief problems is that English corporate law was largely developed in the nineteenth and early twentieth century, when companies had far smaller numbers of shareholders. Accordingly, the latter were able to provide a check on executive performance. When the largest individual shareholder of a company holds less than 1% of the shares, as is common with large multinationals today, it will be all but impossible for the shareholders to act as a group.

Successive governments have always been reluctant to act by imposing higher taxes, partly because economists dispute whether they would lead to increased revenues, and partly because executives can either find loopholes or threaten to move business offshore. Moreover, many politicians will have one eye on directorships for themselves – a consideration which also puts paid to other forms of restraining pay besides tax. This effectively leaves it to executives themselves to set the level of their own pay [and it is not hard to guess the result of placing the design of the chicken coop in the hands of the foxes].

A second blight has been the attempts of local government and other public sector bosses trying to pay themselves in line with the private sector, leading to the absurd situation of many council chiefs earning considerably more than the Prime Minister. This is something the Government should deal with[, perhaps by starting with a sealed bid procedure for senior public sector roles].

Words in square brackets omitted.