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DRAFT SUBMISSIONS TO THE UN HUMAN RIGHTS COMMITTEE ON THE UK

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DRAFT SUBMISSIONS TO THE UN HUMAN RIGHTS COMMITTEE ON THE UK ...

    Submission to the 91st Session of the United

    Nations Human Rights Committee

    on

    Respect for Freedom of Expression in the

    United Kingdom of Great Britain and

    Northern Ireland

    London

    October 2007

    ARTICLE 19 ? 6-8 Amwell Street ? London EC1R 1UQ ? United Kingdom

    Tel +44 20 7278 9292 ? Fax +44 20 7278 7660 ? info@article19.org ? http://www.article19.org

    1. Introduction

    This submission outlines ARTICLE 19‘s main concerns regarding respect for the

    right to freedom of expression in the United Kingdom. Our submissions is presented in respect of the consideration by the United Nations Human Rights Committee of the Sixth Periodic Report of the United Kingdom on the implementation of the International Covenant on Civil and Political Rights (ICCPR). A list of possible questions to be posed to the United Kingdom representation is appended to this submission.

    ARTICLE 19 is an international, non-governmental human rights organisation which works around the world to protect and promote the right to freedom of expression and information.

    2. Summary of concerns

    The United Kingdom is a long-standing member of the Council of Europe and European Union and a party to the European Convention of Human Rights as well as the International Covenant on Civil and Political Rights. While the right to freedom of expression is generally respected, there are currently problems in five key areas:

     Access to information:

    i) The Freedom of Information Act 2000 contains exemptions which allow

    access to information to be refused on arbitrary or inappropriate grounds.

    ii) The government has proposed FOIA amendments to the way the costs of

    processing a request under the Act are assessed, making it easier to reject

    politically sensitive or complex requests on the grounds of costs.

    iii) The Official Secrets Act does not recognise prior publication or disclosure

    in the public interest as defences, which creates the problematic scenarios

    where ‗whistleblowers or journalists who republish information that is

    already in the public domain may be unduly punished.

     Anti-terror legislation:

    i) The ‗encouragement of terrorism‘ offence introduced by the Terrorism Act

    2006 lacks clarity, creating a chilling effect on statements which

    contribute to legitimate debate about terrorism.

     Libel laws:

    i) The existence of Conditional Fee Agreements and ‗after the event

    insurance‘ has considerably increased the costs of defending or even

    settling a libel claim.

     Public order laws:

    i) The Serious Organised Crime and Police Act 2005 (‗SOCPA‘) prohibits,

    inter alia, demonstrations of one or more people within a square kilometre

    of the Houses of Parliament without prior permission.

    ii) The Protection from Harassment Act 1997 ostensibly prevents stalking,

    but is so broadly worded that it has been used to prevent demonstrations.

     Outdated criminal offences:

    i) A number of ancient and outdated speech-related criminal offences still

    formally exist in United Kingdom law. The rationale for crimes such as

    blasphemy, sedition and criminal libel no longer exists in a modern

    democratic society and although they are no longer in frequent active use,

    they could theoretically be revived and they serve as a justification for the

    retention and application of similar laws in other countries.

The following sections consider these points in detail.

    3. Threats to the right of access to information

    There is a growing consensus in international law that the right to access publicly held information is part and parcel of the right to freedom of expression. In a landmark ruling in 2006, the Inter-American Court confirmed that a right of access is 1guaranteed by Article 13 of the American Convention on Human Rights, whose

    wording closely follows Article 19(2) of the ICCPR.

    The Freedom of Information Act 2000 for England, Wales and Northern Ireland came fully into effect in 2005. Despite shortcomings in the Act, its first year of operation 2was evaluated by the government as a ―significant success‖, an assessment generally

    shared by civil society and the media. Since then, however, official enthusiasm for the Act has been waning and a number of retrogressive amendments have been proposed.

    3.1. Underlying problems in the Freedom of Information Act

     Overbroad and vague exemptions

    The Act contains a number of exemptions which cannot be reconciled with the test for restrictions on freedom of expression found in Article 19(3) of the ICCPR. In the first place, certain exemptions are overbroad or do not meet the standard of clarity necessary for a limitation on freedom of expression. For example, s. 29 exempts information that ‗would, or would be likely to, prejudice…the economic interest of the United Kingdom‘ from disclosure. The UN Special Rapporteur on Freedom of Opinion and Expression criticised such exemptions after his visit to the UK in 2000:

    [T]he bill [now the Freedom of Information Act 2000] reportedly contains categories

    that should not be treated as class exemptions, such as section 22 [now section 27],

    which refers to information that would prejudice ―the interest of the United Kingdom

    abroad‖. Similarly, section 25 [now section 30] exempts information that has been

    held by public authorities for the purpose of various types of investigations. This

    exemption should be narrowed to include only material related to criminal process.

    Section 28 (3) [now section 36] exempts information likely to prejudice the

    maintenance of collective responsibility of ministers. Again, the Special Rapporteur

     1 Claude Reyers v. Chile, Serie C No. 151. 2 Department for Constitutional Affairs, Freedom of Information - One Year On, June 2006, HC 991, p.

    9. Submission to the 91st Session of the United Nations Human Rights Committee Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland ARTICLE 19, London, 2007 LAW/2007/10/United Kingdom

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    believes that the bill should not cover all information relating to the development of 3policy, but only information which would inhibit legitimate policy process.

     Absolute exemptions

    The exemptions under the Act are classed as either ‗qualified‘ or ‗absolute‘. A

    qualified exemption is an exemption which does not apply when the public interest in disclosure outweighs the interest served by the exemption. By contrast, absolute exemptions apply regardless of the public interest the information covered by them

    is per se inaccessible. The possibility that information can be withheld despite the greater public interest in receiving the information is both illogical and inappropriate. Absolute exemptions under the Act include where the information is accessible by 45other means, where Parliamentary privilege applies, where the requested 6information contains personal data, where disclosure would amount to a breach of 7confidence and where the requested information is in the custody of a court or was 8created by a court in order to proceed with a case. Most concerning of the absolute

    exemptions are those provided for in s.23 and s.44. These sections exempt 9information supplied by or relating to bodies dealing with security matters, as well as

    information whose disclosure is prohibited under any enactment, or would be

    incompatible with any Community obligation, or would constitute contempt of 10court. The Act is thus in part subordinated to secrecy legislation, including the Official Secrets Act 1989, undermining the presumption of openness which should govern an access to information regime.

     Ministerial discretion to refuse requests

    Beyond exemptions, another problem in the Act is that a Minister is able to set aside a requirement to comply with an information request, and may even overrule the 11Information Commissioner. Although reasons need to be given, no standard is laid

    out by which to judge the sufficiency of these reasons, nor is it clear what are the consequences if the reasons are considered inadequate. Similar issues surround s.36 of the Act, which considers information exempt if, in the reasonable opinion of a ‗qualified person‘, it is likely to prejudice the effective conduct of public affairs. This provision has already been relied upon to prevent the release of information. In May 2006 a certificate was issued under s.36 by the Speaker of the House which prevented 12disclosure of the names and salaries of MP‘s staff paid from the public purse -

    information which is in the public interest and which is generally publicly available in comparative jurisdictions. It is not clear whether review of these sorts of decisions

     3Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Visit to the United Kingdom of Great Britain and Northern Ireland, UN Doc.

    E/CN.4/2000/63/Add.3, para 66. 4 Freedom of Information Act 2000 s.21. 5 Ibid, s.34. 6 Ibid, s.40. 7 Ibid, s.41. 8 Ibid, s.32. 9 Ibid, s.23. 10 Ibid, s.44. 11 Ibid, s.53. 12 Information Commissioner‘s Decision Notice FS50073128: Heather Brooke vs House of Commons Submission to the 91st Session of the United Nations Human Rights Committee Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland ARTICLE 19, London, 2007 LAW/2007/10/United Kingdom

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    will be possible and as a result these exemptions represent clear inroads into the public‘s right to know.

    3.2. Attempts to undermine the scope of the freedom of

    information regime through amendments to the Principal Act

    The Draft Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2007 pose a threat to freedom of information by proposing reforms that would lead to a greater number of information requests being rejected on the grounds of costs.

    Under the Act currently, requests for information can be refused if the cost of 13processing them exceeds the ―appropriate limit‖ which has been set at ?600 (US

    $1200) for central Government and Parliament, and ?450 (US $900) for the wider public sector. Costs are assessed at ?25 (US $50) an hour and in calculating the overall cost of a request, regard may only be had to time spent on determining whether the requested information is held, and then locating, retrieving and extracting it. Under the proposed Regulations, the time spent examining the documents, consulting with others and considering whether an exemption applies will also be ‗chargeable time‘ and so count towards to the cost limit, causing a greater number of requests to fall foul of this limit and so be refused. Furthermore, it is currently possible to aggregate requests treating similar requests as a single one for the

    purpose of calculating costs to prevent requesters from circumventing the

    appropriate limit by breaking up their request. Under the proposed Regulations, aggregation will be possible even for unrelated requests if they are received by the public authority in the space of 60 days and either refer to the same issue or it is 14considered ‗reasonable in all the circumstances‘ to combine the costs of the requests.

    The government argues that the reform is necessary to reduce disproportionately expensive and frivolous requests and bring down the overall cost of the Act (?35.5 million annually or about 0.0064% of total government expenditure). It has been widely warned, however, that the proposed Regulations will particularly affect requests made in the public interest and that cost-cutting can be achieved by better use of existing provisions in the Act.

     15First, the Act allows public authorities to refuse ‗vexatious‘ claims or to charge any 16costs exceeding the appropriate limit to the requester. Second, there is no logical

    connection between the most expensive requests being frivolous or disproportionate. In fact, the contrary seems likely, given that the more sensitive a request is, the more consultation, consideration and examination of the relevant documents will be required. By the government‘s own admission, most of the top 5% of costly requests 17are made by journalists, MPs, campaign groups and researchers. Finally, the

    possibility of denying requests on the basis of an estimate of how long consultation

     13 The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations, s. 3(2). 14 Draft Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2007, s. 7(2)(b)(ii). 15 Freedom of Information Act 2000, s.14. 16 Ibid, s.13. 17 Partial Regulatory Impact Assessment, para. 40. Submission to the 91st Session of the United Nations Human Rights Committee Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland ARTICLE 19, London, 2007 LAW/2007/10/United Kingdom

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    will take creates a great potential for abuse. The same applies to the possibility to aggregate requests when the public body deems it ―reasonable‖ to do so.

    In light of all the above, the Committee may wish to put the following questions to the United Kingdom:

    ; Has the British Government considered narrowing the exemptions in the

    Freedom of Information Act as suggested by the UN Special Rapporteur,

    and does it intend to make all exemptions subject to a public interest

    override?

    ; Does the British Government still intend to enact the Draft Freedom of

    Information and Data Protection (Appropriate Limit and Fees)

    Regulations 2007? If so, has consideration been given to options which

    would be less detrimental to the right to know, such as charging some

    costs to information requesters where the fees exceed the government

    department’s schedule?

    3.3. Official Secrets Act

    Despite the concerns expressed over the Official Secrets Act 1989 (OSA) by the 18Committee in 2001, it remains in force without amendment.

    The OSA prohibits all disclosures of information acquired by current and former employees of the security and intelligence services, Crown servants and government contractors. In the case of security and intelligence staff, the offence applies even if it 19has not been shown that the disclosure was damaging. The Act also criminalises the

    secondary disclosure of information by the media, to prevent information from being 20disseminated to the wider public if it is leaked.

    The current version of the OSA was enacted following the 1985 trial of Clive Ponting, a civil servant who had disclosed information that demonstrated that ministers misled the public over the sinking of the Argentine cruiser General Belgrano during the

    Falklands war. Contrary to the official version of events, the ship had not been threatening British lives but was withdrawing from the theatre of conflict when it was attacked. The jury acquitted Ponting on the basis that his disclosure served the public interest. The OSA was subsequently amended to exclude the defence of public 21interest.

    We believe the OSA must be amended in three respects to be brought in line with the guarantee of freedom of expression in Article 19(2) of the ICCPR. First, disclosures which cause no harm should not attract criminal liability. Second, the media should not be made responsible for keeping official secrets; the prevention of leaks should be the exclusive responsibility of the authorities. Third, the OSA should recognise the possibility of legitimate whistleblowing by incorporating a defence of disclosure in

    the public interest.

     18 Concluding Observations, CCPR A/57/40 vol. I (2002), para. 21. 19 Ibid, s.2. 20 Ibid, s.5. 21 See http://news.bbc.co.uk/onthisday/hi/dates/stories/march/1/newsid_4251000/4251355.stm Submission to the 91st Session of the United Nations Human Rights Committee Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland ARTICLE 19, London, 2007 LAW/2007/10/United Kingdom

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These points are supported by the ARTICLE 19 Johannesburg Principles on National 22 which state: Security, Freedom of Expression and Access to Information,

    Principle 15: General Rule on Disclosure of Secret Information

    No person may be punished on national security grounds for disclosure of information if

    (1) the disclosure does not actually harm and is not likely to harm a legitimate national

    security interest, or (2) the public interest in knowing the information outweighs the harm

    from disclosure.

    Principle 17: Information in the Public Domain

    Once information has been made generally available, by whatever means, whether or not

    lawful, any justification for trying to stop further publication will be overridden by the

    public's right to know.

    The UN Special Rapporteur on Freedom of Opinion and Expression has also stated that:

    Journalists should not be held liable for publishing classified or confidential information

    where they have not themselves committed a wrong in obtaining it. It is up to public 23authorities to protect the legitimately confidential information they hold.

    Recent events illustrate the problematic nature of the OSA. Earlier this year, David Keogh, a Whitehall Communications Officer, and Leo O‘Connor, a former researcher

    for an MP, received jail terms of six months and three months respectively for having leaked a confidential memo. The memo apparently contained a conversation in which Tony Blair dissuaded George W. Bush from bombing the Al-Jazeera offices in Qatar. Given the absence of a public interest defence, no regard was had to the fact that both 24thought they were acting in the public interest. Importantly, the court also imposed a

    gagging order on the media so the contents of the memo are still prevented from 25entering the public sphere.

    In the light of the above, the Committee could pose the following questions of the United Kingdom:

    ; What is the justification for penalising disclosures of information which

    are not harmful to national security, and for making the media liable for

    reporting leaked material?

    ; Does the United Kingdom intend to add a defence of public interest to the

    OSA to ensure that whistleblowers are not deterred?

     22 U.N. Doc. E/CN.4/1996/39 (1996); the Johannesburg Principles have been endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression in his reports to the United Nations Commission on Human Rights. 23 Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR (African Commission on Human and Peoples‘ Rights) Special Rapporteur on Freedom of Expression, 19 December 2006. 24 http://United Kingdom.reuters.com/article/email/idUNITED

    KINGDOML1060345320070510?pageNumber=1 25 See Times Newspapers Ltd. & Ors v R. [2007] EWCA Crim 1925. Submission to the 91st Session of the United Nations Human Rights Committee Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland ARTICLE 19, London, 2007 LAW/2007/10/United Kingdom

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    4. Anti-Terror Legislation Encroaching on Freedom of

    Expression

    The UN Human Rights Committee, amongst others, has voiced concern in the last few years about the adoption of far-reaching terror laws in some countries. In the United Kingdom, the offence of ―glorification‖ or ―encouragement‖ of terrorism,

    which was hurriedly introduced in the wake of the July 2005 bombings, is an example of legislation that fails to strike an adequate balance between the protection of the public against terrorism and the importance of freedom of expression.

Section 1 of the Terrorism Act 2006 is entitled ‗encouragement of terrorism‘. It

    provides that it is an offence to publish a statement which is ―likely to be understood

    by some or all of the members of the public as a direct or indirect encouragement

    or other inducement to the commission, preparation or instigation of acts of

    terrorism. The offence also applies where the person did not intend to encourage or induce terrorism but was reckless as to whether members of the public would be directly or indirectly encouraged to this effect. According to paragraph 3, statements which are likely to be understood by the public as indirect encouragement of terrorist acts include those that glorify the commission or preparation of acts or offences, and those from which the public could reasonably infer that what is being glorified is conduct they should emulate. These provisions raise a number of concerns.

    First, Section 1 is loosely drafted and could be interpreted in manifold ways; encouragement‖ and ―inducement‖ are vague terms already, ―indirect

    encouragement or other inducement‖ is so vague as to be virtually without meaning.

    The terms ―glorification‖ and ―justification‖ can be understood to include expressions

    of support, sympathy with or even understanding of ―terrorism‖. In the current climate,

    there is a danger that such vague legislation will be used to prevent the peaceful expression of unpopular or extreme views. In July, four Muslim men were jailed for six years for having used offensive slogans during a demonstration against the Danish Mohammed cartoons, such as ―Bomb, bomb Denmark. Bomb, bomb USA,‖ ―7/7 on 26its way‖ and Europe, you will pay with your blood‖. Such harsh sentences for what

    were in fact no more than expressions of extreme frustration are likely only to further alienate Muslims who feel marginalised from the rest of society. In addition these provisions fall below the ‗incitement‘ threshold for restricting speech which has been established by Article 20 of the ICCPR and confirmed to apply in the context of combatting terrorism by the UN Security Council in its Resolution 1624.

    Connected to the previous point, Section 1 may be applied to statements even if there is no real danger of violence occurring as a result of them. So long as a statement is likely to be understood by some members of the public as direct or indirect

    encouragement or other inducement‖ to terrorism, its author will be liable regardless

    of the likelihood of action resulting. This contradicts Principle 6 of the Johannesburg 27Principles:

    [E]xpression may be punished as a threat to national security only if a government can

    demonstrate that:

     26 See http://news.bbc.co.uk/2/hi/uk_news/6904622.stm 27 See note 22. Submission to the 91st Session of the United Nations Human Rights Committee Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland ARTICLE 19, London, 2007 LAW/2007/10/United Kingdom

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    (a) the expression is intended to incite imminent violence;

    (b) it is likely to incite such violence; and

    (c) there is a direct and immediate connection between the expression and the likelihood

    or occurrence of such violence.

    This test has been endorsed by the UN Special Rapporteur on Freedom of Opinion 28and Expression and has often been recommended to States for their consideration by the UN Commission on Human Rights in its annual resolutions on freedom of 29expression since 1996.

A similar standard has been embraced by the European Court of Human Rights, 30whose decision in the case of Karatas v. Turkey is particularly instructive. The

    complainant had been convicted for the publication of poetry that allegedly condoned and glorified acts of terrorism (note the similarity to the new offences under the Terrorism Act 2006). The Court accepted as a matter of fact that in Turkey violent terrorist attacks occurred regularly and that certain passages seemed to call for the use of violence. Nevertheless, it highlighted the fact that as an artistic expression, the poems had a limited impact and consequently there was simply no causal connection 31between the poems and the occurrence violence, and no need to penalise the author.

It is clear from the Court‘s judgment in Karatas that a general prohibition of

    glorification of violence cannot be justified; only those statements of glorification that can be said to actually incite violence may be legitimately prohibited.

    In light of threat to freedom of expression posed by this new offence, the Committee may consider putting the following question to the United Kingdom:

    ; How will the United Kingdom ensure that the vaguely worded offence of

    ‘encouragement of terrorism’ does not discourage the peaceful expression

    of controversial opinions?

    5. Threat of libel claims limiting the free expression of

    writers and publishers

    The difficulties and cost of defending - or even settling - defamation claims in the United Kingdom are such that they create a serious chilling effect for the exercise of the right to freedom of expression. Faced with a threat to sue, newspapers or publishers will often abandon a story, not because it is untrue but to avoid the substantial burden of defending a lawsuit. English courts are so attractive as a forum for libel plaintiffs that London has earned nicknames such as ―Club Med for libel

    tourists and a city called Sue.

     28 See, for example, UN Doc E/CN.4/1996/39, 22 March 1996, para. 154. 29 See UN Doc. E/CN.4/1996/53, 19 April 1996. The Johannesburg Principles have also been referred to by superior courts of record around the world. See, for example, Athukoral v. AG, 5 May 1997, SD

    Nos. 1-15/97 (Supreme Court of Sri Lanka) and Secretary of State for the Home Department v.

    Rehman [2001] UKHL 47 (United Kingdom House of Lords). 30 8 July 1999, Application No. 23168/94. 31 Ibid, paras. 50-52. Submission to the 91st Session of the United Nations Human Rights Committee Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland ARTICLE 19, London, 2007 LAW/2007/10/United Kingdom

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    A particular problem of English law is that it is easy to make an allegation of defamation, and it is the defendant who then bears the burden to prove the truthfulness of the impugned statement or to show that it was made in the public 32interest. Although some problems with this system were addressed by Jameel and 33others v Wall Street Journal Europe Sprl, the odds are still stacked in favour of the

    claimant in any action for defamation.

    Apart from the procedural difficulties of defending a libel claim, the costs of doing so have increased significantly as a result of the introduction of Conditional Fee Agreements (CFAs) and ‗after the event insurance‘ (ATE insurance). CFAs were

    legalised by the Courts and Services Act 1990 and allow lawyers to accept a case on a ‗no win, no fee‘ basis. If the claimant wins, the lawyers may charge not only the

    normal fee for their services, but also an additional ‗success fee‘, which is designed to

    reflect the risk of not being paid and may be as high as 100%. Both fees are recoverable from the defendant. CFAs are often used in combination with ATE insurance, a type of policy which guarantees that if the claimant loses, the insurance company will pay the defendant‘s legal costs and expenses. However, if the claimant

    wins, the defendant must pay the insurance premium as well as the claimant‘s legal

    fees and the success fee.

    CFAs and ATEs make it easy for claimants of limited means to sue for libel, at very little risk to themselves. If the defendant is successful, the costs of the litigation will often not be fully recoverable, even if the claimant has taken out ATE insurance. One reason for this is that many ATE insurance policies are capped at a level below the actual costs incurred by the defendant. Additionally, anecdotal evidence suggests that the insuree may have told the insurer untruths which have been challenged in the proceedings, resulting in the voiding of the insurance policy.

    If, on the other hand, the claimant is successful, the costs claimed under CFAs and ATE insurance can be very significant. Premium payments under ATE policies are usually large, reflecting the high risk of such a policy. Secondly, because claimants will not have to pay their own legal costs, there is little incentive for them to control legal expenditures and to refrain from hiring expensive solicitors or counsel. Importantly, as these costs are incurred by the claimant, the defendant has little power 34to limit them, and they can reach levels out of all proportion to the actual damages 35awarded. In Campbell v. MGN, the model Naomi Campbell was awarded just

    ?3,500 for her breach of confidence claim, while the costs for the two day hearing in the House of Lords amounted to ?594,470, including a 100% success fee of

     32 The defences of justification or public interest respectively. 33 [2006] UKHL 44; Here the House of Lords identified that the list of factors set out by Lord Nicholls in the earlier case of Reynolds v. Times Newspapers Ltd, (2001) 2 AC 127, was not a strict series of

    hurdles that has to be cleared by the defendant for the defence to succeed. Instead whether a newspaper has acted responsibly and whether the matter is in the public interest will be a matter for the court to decide with regard to all the circumstances of the case. 34 Although provisions for cost-capping do exist, they cannot be instigated by the court in its own motion and nor can they be put in place retrospectively. Furthermore a condition of allowing cost-capping is that the costs incurred cannot be provided for by conventional means such as a detailed costs assessment after trial. 35 [2005] UKHL 61. Submission to the 91st Session of the United Nations Human Rights Committee Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland ARTICLE 19, London, 2007 LAW/2007/10/United Kingdom

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