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Leveson, Julie Burchill, free speech and the Lynne Featherstone clause – Carl Gardner

lynne-featherstoneOn 14 January 2013 the Observer decided to delete the online version of an article by Julie Burchill printed in its edition last Sunday, together with readers’ comments on it, most of which were critical. It also apologised for publishing the piece. But you can read it on Toby Young’s Telegraph blog, where it’s since been republished.

In my view this decision is scandalous. Julie Burchill’s piece was insulting and no doubt offensive to many people. But pure offence is not a good reason to suppress writing, whether the offended are members of a religious or ideological group, or any other segment of society. Burchill’s piece does not advocate violence or irretrievably harm anyone, for instance by invading his or her privacy. It’s worrying that pressure has made the Observer buckle in this way even though quite a few critics of Julie Burchill, in their comments under her article, expressed the hope that the Observer would not delete it (wanting others to be able to see how offensive it was). You’ll have to take my word for that; I can’t link you to any of those comments, as they’ve also been deleted. You don’t have to agree with Julie Burchill or with the many critics who posted strong reactions under her piece to see that expunging both was wrong.

By the way, I think Toby Young is wrong to see this incident as a warning about Lord Justice Leveson’s proposals:

if professionally offended, Left wing lobby groups can silence a journalist for being politically incorrect before the Leveson proposals have been implemented, just imagine how influential they’ll be after a new independent regulator has been set up, particularly if it has the power to take complaints from third parties and a remit to enforce “the spirit of equalities legislation”.

The point is that this happened without Leveson being implemented, and with no regulatory intervention whatever. In reality, proper implementation of Leveson would help ensure proper distinctions are made between harmful journalistic activity on the one hand (such as spying, stalking and revealing information that ought to be private) and opinion that merely causes offence on the other. It’d help ensure decisions on apologies are made according to rules laid down by journalists, rather than the rule of clamour, and that content is suppressed only in a very small minority of cases where this is truly necessary to protect individual rights.

Where Toby Young is right, though, is in saying that

What makes this decision particularly sinister is that it was taken less than 48 hours after a government minister attacked the Observer for publishing the article in question.

International development minister Lynne Featherstone had called for Julie Burchill to be “sacked”.

Legally what’s interesting about this is that Leveson LJ recommended (see page 315) that the law should place an explicit duty on ministers to uphold the freedom of the press. Both draft bills published so far, Hacked Off’s Media Freedom and Regulatory Standards Bill and the Labour opposition’s Press Freedom and Trust Bill, would impose such a duty. Clause 1 of Hacked Off’s bill says:

(1) Ministers of the Crown and public officials with responsibility for matters relating to the media must uphold the freedom of the press and its independence from parliament and the executive.

(2) Ministers of the Crown and such public officials must have regard to–

(a) the importance of the freedom and independence of the media;

(b) the right of the media to receive and impart information without interference by public authorities;

(c) the need to secure the independence of the media.

(3) Interference with the activities of the media by Ministers of the Crown and public officials shall be unlawful unless it is for a legitimate purpose and is necessary in a democratic society, having full regard to the importance of media freedom in a democracy.

Provisions like this certainly wouldn’t amount to a British First Amendment, since they’d do nothing to prevent Parliament limiting the freedom of the press. And it’s not easy to imagine them being enforced in any effective way. Although clause 1(3) seems to me justiciable – a decision or act that breached clause 1(3) could be judicially reviewed – it offers nothing not already provided by the Human Rights Act 1998 in relation to freedom of expression, except that it could be invoked by a wider class of claimants (the Human Rights Act is only available if you yourself are at least a potential “victim” of any restriction on free speech, whereas this clause could be relied on by other interested persons).

In a case like this, it’s difficult to see how Lynne Featherstone’s remarks could lead to any actual remedy since nothing happened directly as a result of what she said. Even if her words breached clause 1(1) or (3), all anyone could hope to achieve would be a declaration from a court to that effect. And the courts are slow to give purely declaratory relief where it serves no real purpose.

For these reasons, you could argue that this is practically pointless legislation, of the kind criticised by former Parliamentary Counsel Daniel Greenberg – who helped to draft Hacked Off’s bill – in his excellent book Laying Down The Law. Its main purpose is to reassure the press and public

I’m not sure I agree that a “Lynne Featherstone clause” really is pointless, though. Being advised that doing something would breach a legal duty, and the risk of being accused of doing so, does tend to constrain and check ministerial behaviour – and I’ve no doubt a clause like this would have such an effect. People already appeal to the ministerial code wherever possible when criticising ministers’ conduct. It’d be just that bit more embarrassing if they could appeal to the law instead. And as I’ve said, clause 1(3) seems justiciable in the same way as a Convention right under the Human Rights Act, so ministers would face at least some risk of being found by a court to have interfered with the media. This is one reason why Hacked Off’s draft bill is better than Labour’s – which looks almost purely aspirational in this regard.

Thanks, then, to Lynne Featherstone for giving us another reason why Parliament should legislate to implement the Leveson recommendations.

This post was originally published on the “Head of Legal” blog and is reproduced with permission and thanks


  1. Jcgibson

    Freedom of speech can include the freedom to delete as well as to publish.

    A better example would be the free speech implications of Transworld’s decision not to publish, in the United Kingdom, the latest book by Pulitzer Prize winner Lawrence Wright (“Going Clear: Scientology, Hollywood and the Prison of Belief”), a decision made “after taking legal advice” (ie the different, and less effective, defences to defamation).

    Even the tabloids have commented on this:

    It seems to me this book is more likely to make a contribution to public debate than Julie Burchill’s views about transsexuals.

    • Godwin Busuttil

      Is The Telegraph a tabloid? Discuss.

  2. Evan Harris

    I am appalled by the Observer’s censorship of their own writer. If the writing is legal it should stay up. If the Observer want to publish a disclaimer, they are free to do so, but taking it down is inappropriate.

    I should point out that Lynne Featherstone is entitled to her view – and her right to say it – although I disagree with it. She did not express those views in her ministerial capacity and therefore Clause 1 of the Hacked Off Bill does not “bite” on her tweets. Had she made her statement (or, more likely, done something) in her former role as Equalities Minister, or authorised her officials to do something specific and censorious, then that is where the Clause could have had an effect.

    The Clause is not intended, not does it have the effect, of preventing people who are ministers of being able to blog or tweet in a personal capacity. Free Speech advicates need to be very clear that everyone here – Ms Moore, Ms Burchill, Transgender activists and Ms featherstone – are allowed to express their lawful views – however offensive, censorious, angry or stupid.

    Toby Young is rarely factually correct, and this is no exception. The recommendation in Leveson for a recognised regulator to be able hear (but not required to investigate any or every one of them) third party complaints is no different to the way the PCC currently claims it operates. The recommendation covering the “spirit of discrimination law” is one which requires a recognised regulator merely to *consider* how it will approach matters like the systematic and sustained hostile and distorted reporting by a newspaper of, say, asylum seekers or gypsies – again something that the PCC claimed to have dealt with.

    Evan Harris
    Associate Director of Hacked Off

  3. Leo

    Insofar as the Observer’s decision constitutes censorship, it is censorship they are entitled to. Julie Burchill has a right to say what she wants, but she does not have a right to be published in a newspaper on or that newspaper’s website. The Observer has the right to decide what it hosts, and it decided that it was in its interests – and probably also right – not to continue hosting an article full of transphobic abuse. The situation is the same as one where Burchill sends them the same article with the same flaws and they decide not to publish it because it will anger their readers (and possibly cause them to stop buying or reading the paper in disgust) or because it is at odds with the values the paper espouses (which may include a commitment to trans equality).

    If Julie Burchill wants to publish vile abuse, there are plenty of other places which i’m sure would be glad to have her. Spiked is one, it would appear, since they have republished her article in full there and given it an even more disgusting title. Alternatively, she can set up her own website and publish her vile views there. Nobody is saying Julie Burchill should be banned from saying what she wants to, but that’s not the same as saying she has a right to self-expression which trumps that of the Observer to decide what articles appear under its title. It exercised that right because it decided the article was at odds with its values. To oppose the paper’s right to do so would seem to imply support for the principle that once an article is published, it cannot be retracted or removed by the organisation that published it. That would, to my mind, be an absurd principle.

    The issue has been complicated by this kind of rights-talk, and by the usual stuff about how there needs to be a ‘freedom to offend’, when the real debate should be over the merits of the article. They are none. Indeed, it has significant demerits because it is essentially an exercise in seeing how many abusive epithets towards a vulnerable minority can be crammed into a single op-ed article. Were the same kind of thing published but about a racial minority, much of this ‘right to offend’ stuff would not be being said, and rightly so.

    A debate can also be had as to whether there are benefits in such views being able to be seen so they can be contended with and defeated. My position in that debate would be to contend that there is no need to give public prominence or airing to what is essentially just abuse (note: no significant argument is actually advanced in the article at all). There are legitimate issues to be discussed about trans rights, gender identity and so on. A controversial article that offends some people’s sensibilities but is clearly well-intentioned, thoughtful and respectful would be one I would defend the Observer hosting. Burchill’s article was none of those things.

  4. Xenophon

    @Leo. Your argument would hold more weight if the Observer’s editorial staff had rejected Burchill’s article from the outset. The complaint is that they backed down in the face of the abuse which Burchill received in the comments, which smacks of moral cowardice. It also calls into question the original editorial judgement which considered the article did fit in with the Observer’s values. I assume that this was no last minute insertion into the paper and website, so in theory the article should have undergone full editorial scrutiny prior to publication.

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