By Godwin Busuttil
In the first of two posts, Godwin Busuttil, a barrister at 5RB specialising in media and communications law, sets out how the Bill of Rights Bill may change the law relating to freedom of expression. Convention rights can be used to protect freedom of speech by protecting journalists from having to reveal their sources. This helps to promote freedom of expression as it means journalists can print stories without concerns that legal action may be taken against their source – e.g. if they have leaked a story that is in the public interest – which in turn would risk such sources ‘drying up’.
Also, the Human Rights Act 1998 (s.12) lays down tests for courts to apply when determining whether to grant an injunction preventing the publication of a story, which are already stringent when the applicant does not want to notify the respondent of the application. Neither of these current protections, Godwin argues, would be significantly modified by the proposed Bill of Rights if it were enacted.
The Bill of Rights Bill and freedom of expression
There are three clauses of the Bill of Rights Bill which, if enacted in their current form, would have a direct impact on freedom of expression cases. These are clauses 4 (‘Freedom of speech’), 21 (‘Limit on court’s power to require disclosure of journalistic sources’) and 22 (‘Limit on court’s power to grant relief that affects freedom of expression’).
The potential impact of the latter two clauses seems relatively inconsequential.
Clause 21 would amend s.10 of the Contempt of Court 1981 to provide, in relation to “journalistic sources” (see cl.37(1) & Sch.5, para.1(3) to the Bill), that before requiring a person to disclose, or finding a person guilty of contempt of court for refusing to disclose, the identity of a journalistic source, the court would have to be satisfied not only that such disclosure was necessary in the interests of justice or national security or for the prevention of crime or disorder (as per the current s.10), but also additionally that “there are exceptional and compelling reasons why it is in the public interest for the disclosure to be made” (cl.21(1)(b)).
However, the present position in law is already in effect (owing to the impact of Strasbourg jurisprudence) that the court would not make such an order or finding unless there were exceptional and compelling reasons why it was in the public interest for the disclosure to be made: see Mersey Care NHS Trust v Ackroyd  EMLR 1 (CA) at . Accordingly, the amendment would be unlikely to make any great difference. The law and the courts already (as per cl.21(2) of the Bill) “give great weight to the public interest that exists in protecting journalistic sources” in such situations, “including the fact that their protection supports the Convention right set out in Article 10 of the Convention (freedom of expression)” (sic). The intention thus appears to be one of codification of the common law or, less kindly, gestural. The Explanatory Notes to the Bill (paras.189-192) shed no further light.
So far as cl.22 is concerned, it substantially replicates s.12 of the Human Right Act 1998 (‘HRA’), which is to be repealed along with the rest of the HRA on the enactment of the Bill: see cl.1(1) & Sch.5, para.2. The only real difference between s.12 and cl.22 is the insertion into cl.22(2)(b) of the adjective “exceptional”. This would apply in circumstances where the application was one affecting speech – typically, for an interim injunction to prevent publication – and the applicant proposed not to notify the respondent of the application, e.g., in a tipping off or blackmail case. The effect of the amendment would be that the applicant would have to show not just “compelling reasons” why the respondent should not be notified but “exceptional and compelling” ones.
But again, since in practice in speech-based cases an applicant is already required by s.12(2) HRA to demonstrate exceptional reasons why the respondent should not be notified before the court exceptionally grants an injunction or similar relief against someone who has not been notified of the application – see the Master of the Rolls’ Practice Guidance: Interim Non-Disclosure Orders  1 WLR 1003, at paras.5 and 18-23, and Birmingham City Council v Afsar  ELR 373 (Warby J) at  – it seems unlikely that this amendment would make much of a difference either. Even as a matter of English, the word “exceptional” does not appear to add a great deal to “compelling”.
It may be noted, however, that, if the Bill as a whole were enacted in its current form, the context in which the court would be applying under cl.22 the familiar tests that formerly appeared in s.12 HRA is liable to be very different: see further below about cl.4 of the Bill.
The impact of the new freedom of speech clause
The impact of cl.4 of the Bill (‘Freedom of speech’) on freedom of expression cases, in contrast to cls.21 and 22, is liable to be far-reaching.
The clause provides as follows:
- Freedom of speech
- When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.
- In this section “the right to freedom of speech” means the Convention right set out in Article 10 of the Convention (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).
- This section does not apply—
- in criminal proceedings or to the determination (in other proceedings) of any question whether a provision of primary or subordinate legislation that creates a criminal offence is incompatible with a Convention right;
- to the determination of any question whether the disclosure of information would be in breach of an obligation of confidence which—
- arises under an agreement with any person, or
- arises (otherwise than under an agreement) as a result of a professional relationship with any person;
- to the determination of any question relating to—
- whether a person is entitled to enter, or remain in, the United Kingdom, or
- a person’s citizenship; to the determination of any question the determination of which affects or may affect national security.
- to the determination of any question the determination of which affects or may affect national security. (emphasis added)
Three things about this clause may be noted straightaway.
Firstly, and most obviously, cl.4(1), if enacted, would impose a statutory obligation on the court to give “great weight to the importance of protecting” the right to freedom of speech in most civil cases involving speech or expression. The phraseology seems to be derived from s.12(4) of the HRA (“The court must have particular regard to the importance of the Convention right to freedom of expression…”). But the idea that the court should be obliged to give “great weight” in almost all circumstances in civil litigation to the importance of protecting the right to freedom of speech as opposed to the importance of protecting any other right – particularly Art.8 rights to respect for private and family life including where appropriate rights to protection of reputation and good standing – is clearly new.
Secondly, cl.4(1) would only require the court to give great weight to the importance of protecting the right to freedom of speech, not any (Art.10 or common law-based) right to receive information: see cl.4(2). If the distinction in cl.4(2) were not drawn in the way that it is, it could in principle entail an enhanced personal right to access information including governmental information (see in this context the discussion in Kennedy v Information Commissioner  AC 455 (SC)). The Government presumably regards this as undesirable, although the relevant Explanatory Note (para.56) offers no assistance.
Thirdly, cls.4(3)(b) & (d) would relieve courts of the cl.4(1) obligation to give great weight to the importance of freedom of speech in cases relating to alleged breaches of confidence where the duty of confidentiality was said to arise from a contract – including, it would seem, in the employment context, non-disclosure agreements (‘NDAs’), which have been criticised as being against the public interest (see ABC v Telegraph Group Ltd  EMLR 5 (CA) at ) – or a professional relationship between the claimant and another person, and in cases involving national security. The latter would preserve if not strengthen the hand of the Government in any future case like Attorney General v BBC  4 WLR 74, in which an injunction was successfully sought to restrain the BBC from broadcasting information about a MI5 covert human intelligence source who had criminally abused two women.
Beyond this, before offering any evaluation of the possible general impact of cl.4 on freedom of expression cases, it is necessary to consider the clause in its context. The immediate and most important context of cl.4 is cl.3 of the Bill. This is the clause that will, if the Bill is enacted, replace s.2 of the HRA.