. 142
( 155 .)


a crime was about to be committed could not have made it reasonable for the defendants
to use force of any kind to obstruct military activities . . .

(See further Lustgarten, ˜National security, terrorism and constitutional
balance™ (2004) 75 Political Quarterly 4 and Blick, Byrne and Weir, ˜Democratic
audit: good governance, human rights, war against terror™ (2005) 58
Parliamentary A¬airs 408.

3 Freedom of expression
The ¬nal two sections of this chapter are case studies of liberty and constitu-
tional law in Britain. Our case studies consider both common law and statute.
Neither focuses exclusively on protection under the Human Rights Act: rather,
one of the themes of the case studies is that protection under that Act needs
to be understood in the context of what the law already o¬ered. We recognise
that numerous such case studies could have been selected. Police powers of
arrest and detention, or the scope of the protection a¬orded to privacy, are
examples. The two we have selected, however, are freedom of expression and
freedom of assembly. Neither is dealt with comprehensively “ for reasons of
space we have had to be selective in our choice of materials. Within the broad
area of freedom of expression, we have been particularly selective, focusing
773 Liberty and the constitution

only on what might be called freedom of political expression. Other impor-
tant areas of free speech law (such as obscenity, defamation, ¬lm and theatre
censorship and broadcasting regulation, for example) are not considered in
any detail.
(On other areas of law concerning personal liberty, see H Fenwick, Civil
Rights: New Labour, Freedom and the Human Rights Act (2000) and N Whitty,
T Murphy and S Livingstone, Civil Liberties Law: The Human Rights Act Era
(2001). On other areas of freedom of expression, see E Barendt, Freedom of
Speech (2nd edn 2005); D Feldman, Civil Liberties and Human Rights in England
and Wales (2nd edn 2002), chs 13“17 and S Bailey, D Harris and D Ormerod,
Civil Liberties: Cases and Materials (5th edn 2001), chs 6, 7.)

(a) Freedom of expression and democracy
Freedom of speech, or expression, has two aspects: it is both a liberty of the indi-
vidual to impart information and the freedom (or perhaps more naturally the
˜right™) of others to receive it. This twofold freedom can be supported, by a
variety of arguments, as being essential to ˜self-realisation, social life, politics,
economic activity, art, and knowledge™ (Richard Abel, Speech and Respect
(1994), pp 28“9; see further Barendt, Freedom of Speech, above). A principal
justi¬cation of freedom of expression is its contribution to the buttressing of
democracy, and we shall consider it mainly from this perspective. It is believed
that democracy is most secure, responsive and e¬cient “ most likely to realise
the high hopes placed in it “ if there is a free exchange of information and
opinions and freedom to criticise those who exercise governing power. This is
a necessary freedom if the accountability of government is to be assured.
Additionally freedom of expression, in fostering ideas, argument and under-
standing, counters o¬cially-sanctioned nostrums and versions of the facts and
enables citizens “ and voters “ to make informed choices. Accordingly, freedom
of the press and other media of communication is rightly regarded as a bulwark
of democracy. Judges have recognised this, Lord Bingham, for instance, saying
in McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, 290“1
that ˜the proper functioning of a modern participatory democracy requires that
the media be free, active, professional and inquiring. For this reason the courts,
here and elsewhere, have recognised the cardinal importance of press freedom™.
For Lord Steyn in R v Secretary of State for the Home Department, ex p Simms
[2000] 2 AC 115, 126:

freedom of speech is the lifeblood of democracy. The free flow of information and ideas
informs political debate. It is a safety valve: people are more ready to accept decisions that
go against them if they can in principle seek to influence them. It acts as a brake on the
abuse of power by public officials. It facilitates the exposure of errors in the governance and
administration of justice of the country.
774 British Government and the Constitution

The importance of freedom of expression in a democracy was directly in issue
in the following case.

Derbyshire County Council v Times Newspapers Ltd [1993]
AC 534 (HL)
Articles published in the Sunday Times alleged that Derbyshire County Council
had entered into improper ¬nancial transactions to the prejudice of its pension
fund. The council brought an action against the publishers claiming damages
for libel. The defendants applied to have the action struck out as disclosing no
cause of action, so raising as a preliminary point of law the question whether a
local authority could sue for libel in respect of words re¬‚ecting on the conduct
of its governmental and administrative functions. The authorities established
that both trading and non-trading corporations could sue for libel calculated to
injure their business or governing reputations; was a local authority, itself a
body corporate, in a di¬erent position?
Morland J was not persuaded that it was and declined to strike out the
council™s action, but the Court of Appeal reversed his decision, holding that a
local authority could not sue for libel. The council appealed to the House of
Lords, which unanimously dismissed the appeal, Lord Keith giving the only

Lord Keith Of Kinkel: . . . There are . . . features of a local authority which may be regarded
as distinguishing it from other types of corporation, whether trading or non-trading. The most
important of these features is that it is a governmental body. Further, it is a democratically
elected body, the electoral process nowadays being conducted almost exclusively on party
political lines. It is of the highest public importance that a democratically elected govern-
mental body, or indeed any governmental body, should be open to uninhibited public criti-
cism. The threat of a civil action for defamation must inevitably have an inhibiting effect on
freedom of speech. In City of Chicago v Tribune Co (1923) 139 NE 86 the Supreme Court
of Illinois held that the city could not maintain an action of damages for libel. Thompson CJ
said, at p 90:
˜The fundamental right of freedom of speech is involved in this litigation, and not
merely the right of liberty of the press. If this action can be maintained against a news-
paper it can be maintained against every private citizen who ventures to criticise the
ministers who are temporarily conducting the affairs of his government. Where any
person by speech or writing seeks to persuade others to violate existing law or to
overthrow by force or other unlawful means the existing government, he may be
punished . . . but all other utterances or publications against the government must be
considered absolutely privileged. While in the early history of the struggle for freedom
of speech the restrictions were enforced by criminal prosecutions, it is clear that a civil
action is as great, if not a greater, restriction than a criminal prosecution. If the right to
criticise the government is a privilege which, with the exceptions above enumerated,
775 Liberty and the constitution

cannot be restricted, then all civil as well as criminal actions are forbidden. A despotic
or corrupt government can more easily stifle opposition by a series of civil actions than
by criminal prosecutions™.
After giving a number of reasons for this, he said, at p 90:
˜It follows, therefore, that every citizen has a right to criticise an inefficient or corrupt
government without fear of civil as well as criminal prosecution. This absolute privilege
is founded on the principle that it is advantageous for the public interest that the citizen
should not be in any way fettered in his statements, and where the public service
or due administration of justice is involved he shall have the right to speak his
mind freely.™
These propositions were endorsed by the Supreme Court of the United States in New York
Times Co v Sullivan (1964) 376 US 254, 277. While these decisions were related most directly
to the provisions of the American Constitution concerned with securing freedom of speech,
the public interest considerations which underlaid them are no less valid in this country. What
has been described as ˜the chilling effect™ induced by the threat of civil actions for libel is
very important. Quite often the facts which would justify a defamatory publication are known
to be true, but admissible evidence capable of proving those facts is not available. This may
prevent the publication of matters which it is very desirable to make public. In Hector v A-
G of Antigua and Barbuda [1990] 2 AC 312 the Judicial Committee of the Privy Council held
that a statutory provision which made the printing or distribution of any false statement
likely to undermine public confidence in the conduct of public affairs a criminal offence con-
travened the provisions of the constitution protecting freedom of speech. Lord Bridge of
Harwich said, at p 318:
˜In a free democratic society it is almost too obvious to need stating that those who
hold office in government and who are responsible for public administration must
always be open to criticism. Any attempt to stifle or fetter such criticism amounts to
political censorship of the most insidious and objectionable kind. At the same time it
is no less obvious that the very purpose of criticism levelled at those who have the
conduct of public affairs by their political opponents is to undermine public confidence
in their stewardship and to persuade the electorate that the opponents would make a
better job of it than those presently holding office. In the light of these considerations
their Lordships cannot help viewing a statutory provision which criminalises statements
likely to undermine public confidence in the conduct of public affairs with the utmost
It is of some significance to observe that a number of departments of central government
in the United Kingdom are statutorily created corporations, including the Secretaries of State
for Defence, Education and Science, Energy, Environment and Social Services. If a local author-
ity can sue for libel there would appear to be no reason in logic for holding that any of these
departments (apart from two which are made corporations only for the purpose of holding
land) was not also entitled to sue. But as is shown by the decision in Attorney-General
v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, a case concerned with confidentiality
[on which, see below], there are rights available to private citizens which institutions of
central government are not in a position to exercise unless they can show that it is in the
776 British Government and the Constitution

public interest to do so. The same applies, in my opinion, to local authorities. In both cases
I regard it as right for this House to lay down that not only is there no public interest favour-
ing the right of organs of government, whether central or local, to sue for libel, but that it
is contrary to the public interest that they should have it. It is contrary to the public interest
because to admit such actions would place an undesirable fetter on freedom of speech.
The conclusion must be, in my opinion, that under the common law of England a local
authority does not have the right to maintain an action of damages for defamation.

Lord Keith did, however, note the possibility that individual councillors or
o¬cers of a local authority might sue for libel if publication of defamatory
matter about the authority re¬‚ected on them personally. This quali¬cation pro-
voked the response that ˜a suit launched by an individual is not demonstrably
less chilling than an action by a council™ (Loveland (1994) 14 LS 206, 217). As
Christopher Forsyth remarks (in J Beatson and Y Cripps (eds), Freedom of
Expression and Freedom of Information (2000), p 88), ˜if free and vigorous criti-
cism of public authorities is a necessary part of a democratic society how can
free and vigorous criticism of the individuals in charge of those public author-
ities be avoided?™
These issues arose in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 in
proceedings for libel brought by a politician and former Taoiseach (Prime
Minister) of Ireland, arising out of allegations published in the Sunday Times
that he had misled and lied to the Dáil (the Irish Parliament) and Cabinet col-
leagues. It was contended for the newspaper that the defence of quali¬ed privi-
lege (forfeited only on proof of malice) should be available in a case such as
this arising out of political discussion and re¬‚ecting on the reputation of
Mr Reynolds as Taoiseach and as an elected member of the Dáil in the exercise
of his public responsibilities. It was argued that the common law should
be developed so as to admit a new category of quali¬ed privilege covering
the publication of ˜political information™, which would give due recognition
to the investigative role of the media in a democratic society. The House of
Lords declined to develop the law in this way. A generic category of quali¬ed
privilege, protecting the publication of political information whatever the cir-
cumstances (in the absence of proof of malice) would not, said Lord Nicholls
in the leading speech, give adequate protection to reputation and would be
unsound in principle in distinguishing political discussion from discussion of
other matters of serious public concern. The elasticity of the established
common law approach was to be preferred, by which the court should ˜have
regard to all the circumstances when deciding whether the publication of par-
ticular material was privileged because of its value to the public™ “ or, more
simply, ˜whether the public was entitled to know the particular information™.
Lord Nicholls listed, by way of illustration, ten speci¬c matters to be taken into
account by the court (at 205), adding that the court ˜should be slow to conclude
that a publication was not in the public interest and, therefore, the public had
777 Liberty and the constitution

no right to know, especially when the information is in the ¬eld of political dis-
cussion™. (See comments on this case by Loveland [2000] PL 351 and Williams
(2000) 63 MLR 748. See further Loutchansky v Times Newspapers Ltd (No 2)
[2002] QB 783, Jameel v Wall Street Journal Europe [2006] UKHL 44, [2006] 3
WLR 642 and Loveland, ˜Freedom of political expression: who needs the
Human Rights Act?™ [2001] PL 233.)

(b) The ˜Spycatcher™ cases
A constraint on freedom of expression may result from the equitable doctrine
of breach of con¬dence, which has been fashioned and re¬ned by the courts
over many years. We saw in chapter 3 that in Attorney General v Jonathan Cape
Ltd [1976] QB 752 this doctrine was carried over from the sector of domestic
and commercial relationships so as to provide a legal sanction for Cabinet
con¬dentiality, although one that proved inapplicable to the particular facts of
that case. The doctrine was again relied upon by an Attorney General in the
Spycatcher cases, in attempts to prevent publication by newspapers of matters
that it was believed should be kept secret in the public interest.
Peter Wright, a former member of the Security Service, MI5, gave an account
of his experiences in the service in his book, Spycatcher, which was to be pub-
lished in Australia. The book described the organisation and operations of the
Security Service and contained allegations of serious misconduct by members of
the service, including a 1974 plot to instigate rumours intended to undermine the
Wilson Government. The Attorney General, acting for the British Government,
brought proceedings in the Australian courts for an injunction to prevent the
publication of the book. The Guardian and the Observer then published articles
about the Australian proceedings which disclosed allegations made in Spycatcher,
and subsequently the Sunday Times began the publication of a series of extracts
from the book. The Attorney General took proceedings in the English courts for
injunctions against these newspapers, as well as for interlocutory (interim) relief.
(There were also certain collateral proceedings for contempt of court: see
Attorney General v Newspaper Publishing plc [1988] Ch 333 and Attorney General
v Times Newspapers Ltd [1992] 1 AC 191.) Meanwhile Spycatcher was published
in the United States “ the British Government had been advised of the impossi-
bility of obtaining a judicial restraint on its publication there “ and copies became
readily available in the United Kingdom.
The ground on which the Attorney General sought relief from the courts,
both in Australia and in Britain, was that the information to be published had
been acquired by Mr Wright in con¬dence as an o¬cer of MI5 and that he, or
anyone who obtained the information knowing of the circumstances, was
under a duty of con¬dentiality which would be breached by publication of the
Interlocutory injunctions were granted against the newspapers and were
upheld by a majority of the House of Lords in Attorney General v Guardian
778 British Government and the Constitution

Newspapers Ltd [1987] 1 WLR 1248. The Law Lords recognised that the case
concerned ˜the public right to freedom of expression in the press™ and that this
public interest and the public interest in the protection of the secrecy of the
Security Service would have to be ˜weighed against each other and a balance
struck between them™ (Lord Brandon at 1291). The majority were, however,
persuaded of the necessity to restrain publication of the material until a ¬nal
decision was reached on the Attorney General™s application for permanent
injunctions. They believed that, although the essential information contained
in Spycatcher had already become known to some, wider dissemination would
do further harm, and the need to prevent this must take precedence over the
right of the public to be provided with information, at all events until the full
trial of the case. The dissenting Lords, on the other hand, thought it wrong to
maintain a fetter on the disclosure of information which had become publicly
available, and they placed greater emphasis on freedom of speech and the ˜legit-


. 142
( 155 .)