While the recently introduced Bill of Rights Bill [pdf] appears to weaken the judicial protection of fundamental rights in some respects, the government claims the Bill will strengthen the right to freedom of speech.
The apparent enhanced protection for free speech can be found in clause 4, which provides that ‘a court must give great weight to the importance of protecting the right’. The intended effect of the provision is to strike a fresh balance between free speech and other rights and competing interests, in particular the right to privacy. Whether the clause will have this intended effect is another matter.
To start with, it is worth considering what the clause will add to the existing law. Under the current law, courts are already supposed to give great weight to freedom of expression. In numerous decisions the Strasbourg Court has stated that freedom of expression is one of the ‘essential foundations of a democratic society’. However, not every exercise of free speech is given the same weight. The courts have differentiated various types of speech. Under this approach, the government would be expected to offer particularly strong reasons to justify legislation restricting political speech. By contrast, any speech interests threatened by regulations restricting extreme pornography online would be given less weight. I assume that clause 4 is not intended to reverse this approach. If that is correct, then ‘great weight’ will be a starting point, and different types of speech will continue to receive varying weight.
A further question is what giving free speech ‘great weight’ means in practice. The issue will normally arise in the context of a proportionality assessment, in which the court considers the speech right along with a competing right or interest. The protection of the speech will partly depend on the weight given to the competing factor. As Lord Sumption pointed out in Carlile at :
“It cannot therefore be enough to assess the weight to be attached to freedom of expression on its own, unless perhaps the court is to say that the weight to be attached to freedom of expression is so great that as a matter of law nothing can prevail against it”.
The ‘great weight’ provision does not mean that speech rights must always prevail. The clause does not say that speech rights must be given greater weight than any other competing right. Nor does the clause say that priority must be given to speech rights, all other things being equal. This means the protection given to speech will continue to vary according to the context of the case (including the importance of the countervailing factor). Accordingly, the clause does not stop courts giving equal weight to rights under Article 8 of the ECHR, and so the clause does not require a rebalancing of privacy law.
Most of the text of clause 4 sets out limitations where the ‘great weight’ provision will not apply. The first limit is the scope of the clause. The clause refers to ‘freedom of speech’, as opposed to ‘expression’. In line with that wording, the ‘great weight’ clause applies to ‘speech, writing or images (including in electronic form)’. The clause appears not to cover certain types of public protest – though that will depend on whether the conduct in question constitutes ‘speech’. At face value, the ‘great weight’ provision protects a narrower range of activities than Article 10.
There are also several exceptions to the ‘great weight’ clause in the Bill, relating to criminal matters, confidential agreements, rights to enter and remain in the UK, and national security. If the ‘great weight’ clause is not to apply to such areas, then does that mean speech rights falling within those exceptions are to receive something less than great weight? If so, then that could result in a weakening of the protection of free speech.
As was noted, not every speech right receives equal weight and much depends on the context. However, the exceptions listed in the clause are not a reliable guide as to when speech should receive stronger or weaker protection. Take the exception where a court is determining whether ‘legislation that creates a criminal offence is incompatible with a Convention right’. Imagine a government enacts a criminal offence to prohibit offensive statements in election campaigns. The measure would be a far-reaching and severe restriction of political speech at an important moment. That is exactly the type of context where the court should give great weight to speech rights, but that would not be required by clause 4. The fact a restriction is enacted in the criminal law tells us nothing about the importance of the speech right at stake or the rationale for the measure.
The point is not merely hypothetical. Some major restrictions on free speech can be found in the criminal law. For example, s.5 of the Public Order Act 1986 has received criticism for its application to controversial and offensive speech. A similar point can be made in relation to s.127 of the Communications Act 2003 (to be repealed in the Online Safety Bill). The same point can be made in relation to clause 4(3)(d) of the Bill of Rights Bill, which excludes determinations of questions that may affect national security. The potential abuse of secrecy laws by government to cover up embarrassing facts is well known. Some speech that relates to national security may serve the public interest by holding government to account, and thereby deserve great weight when assessing the proportionality of the restriction.
Free speech and the wider scheme under the Bill
The effect of the ‘great weight’ clause has to be assessed in the context of the whole Bill. Even if the clause does enhance the position of speech rights when deciding if Article 10 is violated, the protection offered by the courts may be limited by the other provisions. For example, the lack of an equivalent to s.3 of the HRA will limit the ability of the court to offer a quick remedy to victims and to make legislation compliant with the right. It is all very well to say that greater weight will be given to free speech, but that may have little impact if the courts have more limited remedies to address a violation.
The clause requiring ‘great weight’ to be given to speech rights may serve as a reminder to courts not to be too quick to override the right. However, that may do little in practice to change the current law, in which courts already claim to give such weight to speech rights as a starting point. Much will depend on how the courts choose to interpret that provision. The risk is that the provision may steer courts to give something less than great weight in the excepted areas, which could result in a weakening of protection in areas where it is needed most.
Jacob Rowbottom is a Professor of Law and Fellow of University College, Oxford