“measured, justifiable and proportionate..”

With one eye on the recent Holylands blogger trial and the other on the DUP’s Iris Robinson’s comments, or rather the ongoing reaction to those comments, in the Irish News Newton Emerson is rightly concerned about references to freedom of expression in the Bill of Rights Forum’s final report in March this year.

The common point running through all these arguments is that speech should be restricted if it might lead to harm. This sweeping concept is enshrined in the Human Rights Act, which curbs freedom of expression where it impinges upon public safety, national security, health, crime, disorder and the rights of others. Earlier this year, politicians and special interest groups on the Bill of Rights Forum added further proposed restrictions to freedom of expression in Northern Ireland. These included “consideration of the best interests of children” and “incitement to unlawful discrimination, hostility or violence”. Few people in Northern Ireland would deny that words can lead to violence. But banning “hostility” could lead to cases even more absurd than the prosecution of Mr Murray, with unjust and provocative consequences.

Meanwhile the Irish Times reports on the “First Report of the Oireachtas Joint Committee on the Constitution: Article 40.6.1.i – Freedom of Expression” [PDF file available here]

5.4 The Committee was of the view that the Article 40.6.1.i appears to give undue priority of consideration to the limitations on freedom of speech rather than on the entitlement itself. The drafting of the Article gives the impression that the framers were concerned with controlling the corrosive effect of matters such as immorality, blasphemy, sedition and indecent material. Whilst it is vital that the State can legitimately impose restrictions on free speech, it is also vital that any such restrictions be measured, justifiable and proportionate to the protection of other freedoms and rights.

The report continues

5.5 In this regard, the Committee was of the view that there were two clear reasons for improving the language of Article 40.6.1.i so as to increase the protection for free speech itself.

5.6 The first reason is the imperative to ensure that Ireland is fully in compliance with its obligations under the European Convention of Human Rights. Whilst the recent decisions of the Courts show Article 40.6.1.i is being interpreted along these lines (and in fact certain judgments express the view that there is no distinction in substance) an amendment modelled along the lines of the European Convention of Human Rights article would provide welcome clarity in this regard.

5.7 The second reason is that the current trend of judicial interpretation is potentially temporal in its effect. Whilst there is no immediate concern, the Constitutional imperative to protect free speech should not be dependent on judicial support alone, but protected by the will of the people as expressed through the Constitution.

It’s worth noting the reference, quoted by Newton, from the Freedom of Expression recommendation in the Bill Of Rights Forum report [PDF file pages 60-62] in full

FREEDOM OF EXPRESSION

This provision deals with a right within the European Convention on Human Rights and should be drafted to indicate the additional protection recommended.

Recommendation

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by any public authorities and regardless of frontiers.

2. Everyone has the right of access to information, including any information held by public authorities and any information that is required for the exercise or protection of any rights in the Bill of Rights.

3. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. It may also be subject to consideration of the best interests of children.

4. These freedoms do not include freedom for advocacy of hatred, on any proscribed ground, that constitutes incitement to unlawful discrimination, hostility or violence.

5. This article shall not prevent public authorities from licensing broadcasting, television or cinema enterprises.

The DUP and the UUP, along with Neil Faris of the Business Sector, opposed the adoption of the recommendation on Freedom of Expression on the basis that

“[Human Rights Act] Article 10 sufficiently addresses this issue”.
“Furthermore, the proposal cannot be considered as relevant to the particular circumstances of Northern Ireland”.

All others supported the “additional protection”.

To quote the Oireachtas Committee on the Constitution again.

Whilst it is vital that the State can legitimately impose restrictions on free speech, it is also vital that any such restrictions be measured, justifiable and proportionate to the protection of other freedoms and rights.

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  • joeCanuck

    Freedom of speech is one of the more important “rights” and restrictions need to be carefully thought out.
    I would imagine that a single sentence circumscribing it if it can cause harm to others would be sufficient.

  • Harry Flashman

    The Left have successfully characterised themselves as the people who are in favour of freedom and liberty; nothing could be further from the truth.

    Today censorship, restrictions on civil, religious and political freedom all come from the Left, it is they who believe “thought crimes”.

    If you don’t like homosexuality, think Catholics are uptight, Muslims are anal retentive, protestants are boring, Englishmen are smelly, Scottish people are tight-fisted, Jews control too much of the media, Tories are frankly a bit weird or blacks seem to be inordinately successful at athletics it should not be a criminal offence to say so.

    I might happen to believe that you are a complete tosser for believing such things but I don’t believe that you should be treated as a criminal.

    Why should we be having to re-learn such basic concepts as freedom of expression? Why are the Left such stalinists?

  • Harry Flashman

    The Left have successfully characterised themselves as the people who are in favour of freedom and liberty, nothing could be further from the truth, all assaults on political freedom today come from the Left.

    Today censorship, restrictions on civil, religious and political freedom all come from the Left, it is they who believe in the concept of “thought crimes”.

    If you don’t like homosexuality, think Catholics are uptight, Muslims are anal retentive, protestants are boring, Englishmen are smelly, Scottish people are tight-fisted, Jews control too much of the media, Tories are frankly a bit weird or blacks seem to be inordinately successful at athletics it should not be a criminal offence to say so.

    I might happen to believe that you are a complete tosser for believing such things but I don’t believe that you should be treated as a criminal.

    Why should we be having to re-learn such basic concepts as freedom of expression? Why are the Left such stalinists?

  • Harry Flashman

    Apologies for the double post, a shockingly bad internet connection here tonight.

  • joeCanuck

    It’s not often that I agree with you, Harry.
    But being left leaning myself I have been dismayed at the antics of the so called left party in power in the UK in trampling on long held freedoms.

  • Steve

    Harry

    if it is the left ……… explain bush

  • POL

    Was the outcry as loud when the shinners freedom of speech was denied.

  • Mick Fealty

    POL,

    There were books written about it. And rightly so. But should partiality to freedom of speech be conditioned by affiliation to or disaffection from any given political party?

  • Occasional Observer

    “Why are the Left such stalinists?”

    Posted by Harry Flashman on Jul 11, 2008 @ 06:55 PM

    Would it be illogical to answer, “Because Stalin was a Leftist?”

  • Reader

    Harry Flashman: Why are the Left such stalinists?
    By which you mean authoritarian? It’s because socialism depends on defying human nature as it is observed in real life. Before a socialist system can be made to work, people have to be made to change. Once the rhetoric has failed to achieve this, the clampdown begins.
    Unfortunately, I am not convinced that the Conservative right, the Capitalist right, or the Libertarian right have the answer either. At least we can be sure now that the Authoritarian right is entirely useless at delivering happiness.

  • Harry Flashman

    “if it is the left ……… explain bush”

    Explain what?

  • cynic

    Another layer of rights? What for? Isn’t ECHR good enough for Norn Iron?

    This just shows the madness of putting Zealots in charge of recommending additional measures (via a Committeee of course – we couldnt not have one of those). Did anyone ever consider that in ANY area a quango whose jobs and promotion prospects depend on expansion, more funding and more powers would not recommend a whole new raft of ‘essential’ additional rights?

    When will it dawn on us that all this will cost money (that we will pay) to expand NIHRC and fund Government compliance with the new rights. It will cost jobs when nternational companies, looking at the regulatory regime they face, will not locate here if they can see an easier and chearer regime in other European states.

    We might live with that if there was some huge lacuna in the existing protections that needed to be plugged and there bwas some estimate of the costs involved. But there isnt. The rest of the Convention signatories get by very well with the Convention. None of thsi si costed. Why should it be? In ECHR land someone else always picks up the bill so why worry.