By Godwin Busuttil
Barrister, 5RB

In this second post, Godwin Busuttil explains how the proposed Bill of Rights would change how courts were required to interpret the scope of Convention rights in the freedom of expression context. The Bill if enacted would mean that UK courts no longer needed to take account of decisions of the European Court of Human Rights. UK courts would also be expected generally not to interpret Convention rights in a way that was more expansive than interpretations placed upon those rights by the European Court of Human Rights. However, they would be allowed to do so when this was to protect freedom of expression.

According to Godwin, this would be likely to have a significant impact on the way in which privacy is protected in UK law, tipping the balance in favour of freedom of speech and against privacy. It would be unlikely, by contrast, to have much of an impact on the law of defamation, the tort which allows individuals to seek damages and other remedies when speech harms their reputation. You can read Godwin’s first post here.

Interpretation of the Convention rights 

As matters stands, s.2 HRA requires a court determining a question which has arisen in connection with a Convention right to take into account any relevant judgment, decision, declaration or advisory opinion of the European Court of Human Rights (‘ECtHR’) (among other things). 

Clause 3 of the Bill, if enacted, would substitute for s.2 a markedly different regime for the interpretation of Convention rights by UK courts. 

Materially, cl.3 provides as follows: 

  1. Interpretation of the Convention rights

    …

    1. A court determining a question which has arisen in connection with a Convention right—
      1. must have particular regard to the text of the Convention right, and in interpreting the text may have regard to the preparatory work of the Convention;
      2. may have regard to the development under the common law of any right that is similar to the Convention right;
      3. must comply with sections 4 to 8.
    2. A court determining a question which has arisen in connection with a Convention right—
      1. may not adopt an interpretation of the right that expands the protection conferred by the right unless the court has no reasonable doubt that the European Court of Human Rights would adopt that interpretation if the case were before it;
      2. subject to paragraph (a), may adopt an interpretation of the right that diverges from Strasbourg jurisprudence.
    3. Subsection (3)(a) does not prevent a court from adopting an interpretation of a Convention right where it does so as a result of complying with section 4 (freedom of speech). (emphasis added)

This clause raises many far-reaching issues, not least in terms of: the relationship between current domestic law, suffused as it is with the principles and policy of Strasbourg jurisprudence, and ex hypothesi post-Bill of Rights domestic law in circumstances where the courts have been given a discretion to ignore Strasbourg case law and to “diverge” from it; the apparent tension between the interpretative obligations that would be imposed by cl.3 and the court’s duty as a public authority not to act in a way that is incompatible with a Convention right, a duty which is preserved by cls.12(1) & 34 of the Bill albeit subject to a limited ‘carve-out’ in cl.12(2); and the apparent tension between the interpretative duties which cl.2 imposes on courts and courts’ further duty to ensure as far as they can that the UK complies with its treaty obligations in international law arising from the UK’s status as a State Party to the European Convention on Human Rights (‘ECHR’). 

But subject to this, the things that strike me most forcefully in terms of the potential impact on freedom of expression cases if cls.3 & 4 were enacted as proposed are these: 

(1) The application of cls.3(2)(c), 3(4) & 4(1) in ‘freedom of speech’ cases (so defined) would bring about a situation whereby the right to freedom of speech was accorded presumptive priority over any other right including specifically the Art.8 right to respect for private and family life, home, and correspondence. It is surely impossible to interpret a duty to give “great weight” to the importance of protecting freedom of speech, certainly in the absence of an analogous duty to give great weight to the importance of protecting any other right, in any other way. This is to be contrasted with the current law of misuse of private information and the law governing the grant of derogations from open justice including in the family courts, both of which rest fundamentally on Art.10 and Art.8 standing in a relationship with one another of presumptive parity: see Campbell v MGN Ltd [2004] 2 AC 457 (HL), Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 (HL), PJS v News Group Newspapers Ltd [2016] AC 1081 (SC) and ZXC v Bloomberg LP [2022] 2 WLR 424 (SC). 

(2) Every claim of misuse of private information involves on its facts questions “aris[ing] in connection with a Convention right” (as per cl.3(2)) – typically Arts.8 and 10 but also less frequently Arts.2, 3 & 6 – and, if the Bill were enacted, each will also involve questions “aris[ing] in connection with the right to freedom of speech”, as that right is defined in cl.4(2). The effect of this would surely be that each case of alleged misuse of private information arising after the enactment of the Bill, except those falling within cl.4(3), would have to be approached in a quite different way from before, so as to give presumptive priority to freedom of speech. 

(3) Giving presumptive priority to the right to freedom of speech in privacy cases would not mean that freedom of speech once again became, in Hoffmann LJ’s memorable phrase in R v Central Independent Television plc [1994] Fam 192 at 203E, “a trump card which always wins”. There is no prospect of the law going back to Kaye v Robertson [1991] FSR 62, in which the Court of Appeal pronounced that, “in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy”. A strong Art.8-based case would still prevail on its facts, however much weight the importance of protecting freedom of speech was presumptively given. One wonders, for example, whether the existence at the relevant time of a statutory provision in the form of cl.4(1) would have made any difference to the outcome of Cliff Richard’s privacy claim against the BBC. 

Furthermore, so much is explicitly contemplated in the Explanatory Notes to the Bill at para.58: “The great weight given to the importance of freedom of speech does not create an absolute right to freedom of speech. Even with greater weight attached, freedom of speech remains a qualified right and is subject to the qualifications set out in Article 10(2) of the Convention”. 

But still, there is no question that if the Bill were enacted, the effect of cls.3 & 4 would be that a publisher defendant would be being given a significant head start over a privacy claimant in comparison with how matters stand today. 

(4) Clause 3(4) of the Bill expressly licenses courts to adopt an interpretation of Arts.8 and 10 that diverges from the interpretation placed upon those rights in Strasbourg jurisprudence if that is the consequence of complying with their duty in cl.4(1) to give great weight to the importance of protecting the new UK right to freedom of speech. Clearly, the nature of the divergence that is contemplated is one that skews the balance between Arts.8 and 10 – a balance inherent in those Articles themselves given the terms of Arts.8(2) and 10(2) – in favour of freedom of speech. The Government contemplates that cl.3(4) and the legal results that it might produce when applied by domestic courts would be Convention-compliant as falling within the UK’s ‘margin of appreciation’: see para.52 of the Explanatory Notes. 

Whether the Government turns out to be right about this remains of course to be seen. However, it appears to me doubtful.  

The doctrine of ‘margin of appreciation’ exists to recognise and tolerate minor local differences in the interpretation of Convention rights and not wholesale departures from their essential character and structure. Nevertheless, subject to the ECtHR at some point in the future finding the UK Government in breach of its Convention obligations, and the UK Government and Parliament at that time considering themselves obliged to amend domestic law in the light of that adverse ruling, domestic courts determining civil claims involving speech in the meantime would be at liberty to adopt an interpretation of Art.10 “that expands the protection conferred by [that] right” at the expense of Art.8 rights “where [they do] so as a result of complying with section 4 (freedom of expression)”: see cls.3(3)(a) & 3(4).  

Whether, and to what extent, they would opt to exercise this power also remains to be seen. But the chances are that judges would strive faithfully, as they always do, to give effect to what would be Parliament’s clearest intention, subject only to concerns that they might have about the lawfulness of the decisions that applying the new canon of interpretation produced so far as concerned their compatibility with Convention rights (see cl.12(1) of the Bill) and also in the international law context. Doing so would inevitably generate a new case law whose hallmark would be claimants finding it far harder to assert and exercise their Art.8 privacy rights against the media and other publishers than they do today. 

(5) The considerations to which I have referred above arising from cls.3 & 4 would be unlikely to affect defamation or malicious falsehood cases in the same way as misuse of private information claims. This is primarily because Convention rights, and the striking of a balance between those rights, have not had as important or overt a role to play in these long-standing torts as in the relatively new tort of privacy. As Lord Wilson observed in Serafin v Malkiewicz [2020] 1 WLR 2455 (SC) in relation to the public interest defence in s.4 of the Defamation Act 2013 at [74]: “…just as the common law [Reynolds] defence was developed under the influence of Convention principles…, so was the statutory defence. Its three requirements…are intended, and may generally be assumed, to ensure that operation of the section generates no violation either of the claimant’s right under article 8, or of the defendant’s right under article 10”.  

The same can reasonably be said of the law of defamation in general. There are few defamation cases in which Convention rights have made any real difference. The same goes for malicious falsehood. Claims for malicious falsehood are unlikely to engage Art.8 at all. And so far as concerns rights to freedom of expression or speech, as Warby LJ recently observed in George v Cannell [2022] EWCA Civ 1067 at [70]: “I accept that being sued at all [in a case concerned with speech] is an interference with freedom of expression. But the point has scant attraction in cases such as this. The remedy for those in the position of these defendants is to avoid conspiring to utter false, malicious, and financially damaging statements, or to settle the claim promptly if discovered to have done so”. 

Another reason why cls.3 & 4 if enacted are unlikely to have a major impact on defamation and malicious falsehood cases, in contrast to privacy claims, is that the importance of protecting the right to freedom of speech is already, in a variety of contexts, given great weight in these torts: see, e.g., the special rule governing the grant of interim injunctions derived from Bonnard v Perryman [1891] 2 Ch 269 (CA), endorsed in the post-HRA era in Greene v Associated Newspapers Ltd [2005] QB 972 (CA), the obligation on a claimant in defamation to prove serious harm to their reputation and the requirement for a claimant to prove falsity and malice in malicious falsehood.

Prioritising free speech 

Overall, the Government’s general purpose and project in tabling cls.3(2)(c), 3(4) & 4 of the Bill seems clear: to move the courts operating in the media and communications field and therefore the applicable law away from a position whereby free speech rights stand in a relationship of presumptive parity with Art.8 to a position whereby speech rights are prioritised over any other right (except in claims relating to professional or contractual confidences or national security) and thus to make it harder for people to bring Art.8-based claims before the court and succeed in obtaining remedies. 

The big question is would it work? While judges would doubtless do their best to give effect to Parliament’s intention and make the plan work, it is surely not impossible – such is the degree of the deviation from the ECHR, specifically Art.8, that the application of cls.3 & 4 would necessarily entail – that the court would feel compelled to declare those provisions incompatible with Convention rights in accordance with cl.10 of the Bill (which preserves the substance of s.4 of the HRA). Were that to happen, it would then be for the Government and Parliament in place at that time to decide what to do. 

Even if the court were to stop short of taking that radical step, any decision of the court that applied cls.3 & 4 in a way that failed to give a person’s Art.8 rights a Convention-compliant level of respect would clearly be readily susceptible to challenge in Strasbourg. If the ECtHR were then to find the UK in breach of its obligations under the Convention in respect of Art.8, then, again, it would be for the Government in place at that time to decide what, if anything, to do. 

So, to conclude, by way of summary, the impact of cls.21 & 22 of the Bill on freedom of expression cases is likely to be minimal, but the enactment of cls.3(2)(c), 3(4) & 4 of the Bill, in relation to the broad run of privacy cases at any rate, is liable to be akin to a reinvention of the wheel.