Pastor Terry Jones ban – what about free speech?
20 January 2011
Terry Jones, an American pastor who threatened to burn Korans on the 9th anniversary of the 9/11 attacks, has been banned from entering the UK “for the public good”.
He has told BBC Radio 5 live that he would challenge the “unfair” decision as his visit could have been “beneficial”. But, as I posted last month, the recent case of an Indian preacher who challenged his exclusion from the UK suggests that the courts would be unlikely to quash the Home Secretary’s decision. The following is taken from my previous post on the topic.
Jones, an otherwise unknown local pastor in Gainsville, Florida, cause worldwide controversyearlier this year when he proposed an “International Burn a Koran Day”. He has not as yet carried out his threat.
It is well-known that free speech protections mean that we have to protect the rights of those we disagree with. A recent High Court case involving an Indian preacher shows that the protection probably does not extend to non-UK residents such as Jones, but it may to his supporters.
Article 10 of the European Convention on Human Rights permits a public authority to breach freedom of expression rights, amongst other things, if “necessary in a democratic society”. The Home Secretary has no obligation to protect the free speech rights of Pastor Jones. However, in deciding whether to ban the pastor, she is must ensure under human rights law that a ban would not unduly restrict the freedom of expression rights of those who could hear him speak in the UK.
The High Court recently addressed similar issues in the case of Dr Zakir Naik, when it authorised the exclusion from the UK of a popular Indian television Islamic preacher, on the grounds that his presence would not be conducive to the public good (see our post / the judgment).
The High Court considered whether Dr Naik’s personal freedom of expression rights were at issue. Although he is based in India, there have been a number of recent cases which have extended the protections guaranteed under human rights law beyond the borders of tue UK. For example, in R(Smith) the Supreme Court ruled that soldiers in UK bases (but not battlefields) abroad were protected.
However, the High Court was unwilling to extend free speech protections to Dr Naik, and if Pastor Jones’ case reached court, it is unlikely he would be treated any differently. In any event, even if Jones was protected under the Human Rights Act, it would still be open to the home secretary to breach his rights if a proportionate means of pursuing a legitimate end (human rights speak for “fair enough”).
If he lived in the UK to begin with and decided to burn Korans, that would be a different position altogether, although in fact our freedom of expression protections are less robust than those in the US, and he may well have been caught under incitement of racism laws (see this post on Inforrm’s blog for more).
But it is not just Jones himself who is entitled to article 10 protection. Another aspect of the protection is that it ensures the right to “receive information“, and this could apply to the people who might have come to hear Pastor Jones speak, even those who do not agree with his views.
In Dr Naik’s case, his supporters based in the UK were entitled to the right to receive the information that Dr Naik would have given them during his public lectures. Article 10 was accordingly engaged. However, the High Court held that the interference with Article 10 could be justified under Article 10(2) as it was proportionate and in accordance with the law governed by the Immigration Rules and the Home Office’s policy
The relevant Home Office Policy in such cases is its Unacceptable Behaviours Policy. Jones would likely be caught by the policy of excluding those who “foster hatred which might lead to inter-community violence in the UK.”
Given the unattractive and inflammatory views of Pastor Jones, it seems unlikely that his case, if considered by a court, would lead to a different result from that of Dr Naik’s, in the High Court at least (the higher appeal courts may have a different view). But human rights law does show that the home secretary has some thinking to do before excluding preachers and speakers who many do not agree with.
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