The round up: a battle of ideas and freedom of expression

25 October 2015 by Charlotte Bellamy

In the News

“This is, at its heart, a battle of ideas. On one side sit the extremists, with a deliberate strategy to infect public debate, divide our communities and advance their warped worldview,” announced David Cameron last Monday, when the government unveiled their new Counter Extremism Strategy. “On the other side,” he said, “must sit everyone else”.

The question is, how is ‘everyone else who sits on the other side’ to be protected under the proposals? Not without cost, it seems – although laudable in motive, the methods suggested with which to fight this ‘battle of ideas’ run the risk of infringing individuals’ right to freedom of expression. Joshua Rozenberg has called for careful attention to one section of the paper in particular which outlines new proposed powers to “ban extremist organisations”, “restrict harmful activites” and “restrict access to premises that are repeatedly used to support extremism”. The plan to ban extremists from mosques has drawn criticism from the Muslim Council of Britain, the UK’s largest Muslim group, who detected “McCarthyist undertones” in the proposal to compile blacklists. Would restricting access to premises used for extremist purposes restrict extremism itself? As Rozenberg wonders, “What would be the point of closing a hall? It’s not the hall’s fault. People would simply go elsewhere.”

The government’s definition of extremism – “the vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and the mutual respect and tolerance of different faiths and beliefs” – sounds remarkably like freedom of expression as defined in the milestone Handyside case as the freedom to “shock, offend, or disturb”. The Index on Censorship certainly has this concern, stating the proposals will “criminalise legitimate speech” and “shrink the space for open debate throughout society”.

Other News

• Support for the rule of law has been “airbrushed” out of the new Ministerial Code, the Guardian reports. The previous 2010 Code referred to the “overarching duty” on ministers to comply with international law, treaty obligations and to uphold the administration of justice [1.2] – mention of which is now nowhere to be seen. Its erasure follows last year’s proposal in the Conservative strategy document ‘Protecting Human Rights in the UK’ produced under Grayling, which set out how to avoid Strasbourg’s “problematic jurisprudence” [p4] – not by leaving the ECHR, but by picking and choosing how to apply it. See Adam Wagner’s post last year on the document.  Although the reference to the duty “to comply with the law and to protect the integrity of public life” remains, some lawyers are without doubt seeing it as a governmental retreat from upholding the rule of law, writes Obiter J – with Philippe Sands QC decrying the “shocking” alteration as “another slap to Magna Carta” – whilst Rights Watch is mounting a legal challenge.

• Addressing a conference last week with David Cameron, Chinese President Jinping admitted there is “room for improvement” for the “world’s” (presumably including China’s own) human rights record, claiming China is “ready to increase co-operation with UK and other countries” on the issue, emphasising that China “attaches great importance to human rights”, the Telegraph reports. This statement came amongst mounting cross-party disquiet in Westminster over the PM’s failure to raise specific human rights issues with the Chinese President, and coincides with the UK securing £30bn of trade and investment with the country.

• A protest by French lawyers against planned legal aid reforms has gone national – and physical, according to the Law Society Gazette. Legal aid reforms to France’s 43-year old legal aid system are due to come into effect on January 1^st 2016, and the Paris bar is not happy. They have warned that protest action is heading towards a national profession-wide strike, and they do not seem afraid of a scuffle – lawyers taking part in a “robust protest” recently clashed with riot police outside a courtroom in Lille. Allez hop!

In the Courts

• Sher and Others v UK – the European Court of Human Rights held that secret hearings to determine whether suspects should be held without charge during anti-terror investigations are legal. Three Pakistani students who were in the UK on student visas had brought a claim that their detention for nearly two years breached their rights: they had claimed that they were not given adequate information about the allegations brought against them as required by Articles 5(2) and 4 ECHR, and that the procedure for hearing applications for warrants for further detention was incompatible with Articles 5(4) and 6(1).

• Dvorsji v Croatia – it was held in this case that the inability to make an informed choice of lawyer undermined the rights of the defence and the fairness of proceedings as a whole. The applicant’s parents had hired a lawyer to represent him whilst he was being questioned at the police station on suspicion of murder, arson and robbery – but the police did not inform him of this fact and refused to allow the lawyer to represent him. In the meantime, the applicant had signed a power of attorney authorizing another lawyer to be his representative and made a confession that was admitted as evidence in his trial. The Court found the national court had not taken the necessary measures to ensure a fair trial.

Upcoming Events 

• ‘Shakespeare and the Law’, Peace Brigades International UK, 16th November, Middle Temple. For more information and to buy tickets online visit their website.

• ‘Australia’s Asylum Seeker Policies: International Law and the Human Rights Commission‘, British Institute of International and Comparative Law, 11 November.

• ‘Human Rights for Business People: BIICL Short Training Course‘, British Institute of International and Comparative Law, 2 December.

Previous Posts

• Western Sahara Goes to Europe
• This way, that way, the other way? Latest debate on the Human Rights Act – Brian Chang
• Court of Appeal castigates judge’s conclusion on deprivation of liberty