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( 155 .)


imate business™ of the press of ˜collecting, disseminating and commenting upon
news which they regard as of interest to their reading public™ (Lord Oliver at
1315). The following passage, containing a stinging rebuke, is taken from the
dissenting speech of Lord Bridge:

I can see nothing whatever, either in law or on the merits, to be said for the maintenance
of a total ban on discussion in the press of this country of matters of undoubted public
interest and concern which the rest of the world now knows all about and can discuss freely.
Still less can I approve your Lordships™ decision to throw in for good measure a restriction
on reporting court proceedings in Australia which the Attorney-General had never even
asked for. Freedom of speech is always the first casualty under a totalitarian regime. Such
a regime cannot afford to allow the free circulation of information and ideas among its
citizens. Censorship is the indispensable tool to regulate what the public may and what
they may not know. The present attempt to insulate the public in this country from infor-
mation which is freely available elsewhere is a significant step down that very danger-
ous road.

When the case came to full trial in Attorney General v Guardian Newspapers Ltd
(No 2) [1990] 1 AC 109 the Attorney General™s claim for permanent injunctions
against the newspapers was refused, and this decision was upheld by the House
of Lords. The Law Lords were satis¬ed that further publication would do no
more damage to the public interest than had already been done, since the matter
was no longer secret and was in the public domain. Detriment to the public
interest was an essential condition of the grant of an injunction, at least if the
intended publication was to be made, not by the Crown servant himself or his
agent, but by a third party (such as the newspapers in this case).
Besides insisting on the requirement of detriment, the Law Lords in
Guardian Newspapers Ltd (No 2) allowed of the possibility of a limited defence
of revelation of ˜iniquity™ as a just cause for breaching con¬dence. Scott J, in
779 Liberty and the constitution

the High Court, had found this defence to be made out, holding that allega-
tions such as that of a plot to ˜destabilise™ the Wilson Government were not to
be suppressed: ˜the ability of the press freely to report allegations of scandals
in government is one of the bulwarks of our democratic society™. The House
of Lords held, however, that general publication of mere allegations of
this sort, not shown to be well founded, was not justi¬ed on the ˜iniquity™
While, in the result, the House of Lords gave a clear ruling that the suppres-
sion of disclosures of o¬cial information on the basis of con¬dentiality must
be supported by proof of harm to the public interest, it was only the prior pub-
lication of the information contained in Spycatcher that was found to have neg-
atived any such harm in this case. In principle, any demonstrated harm resulting
from breach of con¬dentiality should be balanced against the public interest in
freedom of expression. Lord Gri¬ths, for instance, said (at 273) that any detri-
ment ˜must be examined and weighed against the other countervailing public
interest of freedom of speech and the right of the people in a democracy to be
informed by a free press™; and Lord Go¬ declared (at 283) that ˜in a free society
there is a continuing public interest that the workings of government should be
open to scrutiny and criticism™, which can be defeated only by ˜some other
public interest which requires that publication should be restrained™. These are
sterling principles, but everything depends on how such a balancing operation
is performed, what is regarded as detrimental to the public interest, and what
weight is given to freedom of expression.
Their Lordships, it should be noted, were of the opinion that if Peter Wright
had been within the jurisdiction of the English courts, an injunction to prevent
him from publishing Spycatcher in this country might properly have been
granted. As a former o¬cer of MI5 he owed a lifelong obligation of con¬dence
to the Crown. The prior publication of the book overseas would not avail him
when he had himself brought that about, for he should not be allowed to bene¬t
from his own wrongdoing.
The interim injunctions granted in the ¬rst Spycatcher case in 1987 (above)
resulted in a hearing by the European Court of Human Rights of complaints by
the newspapers concerned that their rights under Article 10 of the European
Convention had been violated: Observer and Guardian v United Kingdom (1991)
14 EHRR 153. The Court of Human Rights held that the continuation of the
interim injunctions after Spycatcher had been published in the United States,
and the con¬dentiality of the contents destroyed, was not necessary in a demo-
cratic society and was a violation of Article 10. (See Leigh, ˜Spycatcher in
Strasbourg™ [1992] PL 200.)
(For comment on the Spycatcher cases see eg, Williams [1989] CLJ 1; Barendt
[1989] PL 204; Birks (1989) 105 LQR 501; Burnet and Thomas (1989) 16 Jnl of
Law and Soc 210; Michael (1989) 52 MLR 389; and Leigh [1992] PL 200. See also
Lord Advocate v Scotsman Publications Ltd [1990] 1 AC 812.)
780 British Government and the Constitution

(c) Freedom of expression as a common law ˜constitutional right™
Even before the Human Rights Act 1998 came into force, freedom of expression
had won recognition in a number of common law cases as a ˜constitutional
right™. It was so characterised by Browne-Wilkinson LJ in a dissenting judgment
in the Court of Appeal in Wheeler v Leicester City Council [1985] AC 1054, 1065.
For Salmon LJ in R v Metropolitan Police Commissioner, ex p Blackburn (No 2)
[1968] 2 QB 150, 155, freedom of speech was ˜one of the pillars of individ-
ual liberty . . . which our courts have always unfailingly upheld™ and for Laws J
in R v Advertising Standards Authority Ltd, ex p Vernons Organisation Ltd
[1992] 1 WLR 1289, 1293, it was ˜a sinew of the common law™. The courts
repeatedly a¬rmed that Article 10 of the European Convention on Human
Rights mirrored the common law “ for instance, in Attorney General v Guardian
Newspapers Ltd (No 2) [1990] 1 AC 109, 283; Derbyshire County Council v Times
Newspapers Ltd [1993] AC 534, 551; Rantzen v Mirror Group Newspapers (1986)
Ltd [1994] QB 670, 691; and R (Wagsta¬) v Secretary of State for Health [2001] 1
WLR 292, 316“17.
Yet in the ¬rst cases in which the European Court of Human Rights found that
the United Kingdom had violated the terms of Article 10 (the provision in the
Convention that protects the right to freedom of expression), it was a decision
of the domestic courts, rather than a piece of legislation, that was found to be
in breach. Sunday Times v United Kingdom (1979) 2 EHRR 245 concerned an
injunction that the House of Lords had granted to the Attorney General, which
stopped the Sunday Times from publishing a story about the drug thalidomide
(see chapter 5, above, p 269). The House of Lords had granted the injunction on
the basis that it would be in contempt of court (on which, see further below) for
a newspaper to publish an article where there was a possibility that publication
would prejudice legal proceedings (see Attorney General v Times Newspapers
[1974] AC 273). The Court of Human Rights ruled that this (common law) test
gave insu¬cient weight to the newspapers™ freedom of expression. (This common
law test has now been replaced by the Contempt of Court Act 1981, section 2(2),
which provides that such injunctions may be granted only where there is sub-
stantial risk of serious prejudice to legal proceedings.) In Observer and Guardian
v United Kingdom (1991) 14 EHRR 153, as we saw in the previous section, the two
newspapers successfully argued before the European Court of Human Rights that
the ruling of the House of Lords in Attorney General v Guardian Newspapers
[1987] 1 WLR 1248 was in breach of Article 10.
In this light, not all judicial dicta about the compatibility of the common law
with values of freedom of expression are to be taken at face value. As Lord
Bingham stated in R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL
55 (at [34]), ˜The approach of the . . . common law to freedom of expression
and assembly was hesitant and negative™. That said, however, there are undoubt-
edly some cases where common law protection of freedom of expression has
been high. The following is an example.
781 Liberty and the constitution

R v Secretary of State for the Home Department,
ex p Simms [2000] 2 AC 115 (HL)
Two prisoners serving life sentences for murder protested their innocence and
wished to have oral interviews with journalists who were willing to investigate
the safety of their convictions. They hoped that by this means their cases would
be reopened and their convictions be referred to the Court of Appeal by
the Criminal Cases Review Commission. Acting in accordance with a policy
adopted by the Home Secretary, the prison authorities refused to allow the
interviews to take place unless the journalists signed written undertakings not
to publish any part of the interviews. The journalists having refused to do so,
permission for the interviews was denied. The prisoners sought judicial review
of the lawfulness of the minister™s policy. Their claim was based on the right to
freedom of expression, as supporting their object of challenging the safety of
their convictions.
It was argued for the Home Secretary that the ban on interviews was autho-
rised by provisions of the Prison Rules, made under power conferred by the
Prison Act 1952. As we saw above, p 729, a statute is not to be interpreted as
allowing the infringement of what the courts hold to be a fundamental right
unless it expressly or by necessary implication authorises this to be done. In the
present case a like approach was taken to the interpretation of subordinate
legislation, and it was held that the Home Secretary™s policy was not authorised
by the Prison Rules.

Lord Hoffmann: . . . What this case decides is that the principle of legality applies to subor-
dinate legislation as much as to Acts of Parliament. Prison regulations expressed in general
language are also presumed to be subject to fundamental human rights. The presumption
enables them to be valid. But, it also means that properly construed, they do not authorise
a blanket restriction which would curtail not merely the prisoner™s right of free expression,
but its use in a way which could provide him with access to justice.

It was further held that even if the provisions of the Prison Rules could prop-
erly have been construed as permitting a blanket ban, those provisions would
have been ˜exorbitant in width™ in undermining the prisoners™ fundamental
rights: so construed, the provisions would have been ultra vires and invalid.
The relatively strong role given to freedom of expression in Simms may be
contrasted with the controversial ruling in R v Secretary of State for the
Home Department, ex p Brind [1991] 1 AC 696. Brind concerned the power of
the Home Secretary, under section 29(3) of the Broadcasting Act 1981, to
require the Independent Broadcasting Authority (IBA) to refrain from broad-
casting any matter he speci¬ed, and a like power with regard to the BBC under
clause 13(4) of the licence and agreement which governed the operations of the
BBC. Acting on these powers the Secretary of State directed the IBA and the
BBC not to broadcast words spoken (ie direct statements, not reported speech)
782 British Government and the Constitution

by persons representing speci¬ed organisations, including Sinn Fein and the
Ulster Defence Association. The aim of the directives was to cut o¬ the ˜oxygen
of publicity™ for various political actors who were allied (or deemed to be allied)
to certain terrorist groups in Northern Ireland. The directives were debated in
Parliament and approved by resolutions of both Houses.
Radio and television journalists brought proceedings for judicial review
against the Home Secretary, contending that the directives were unlawful as
exceeding the minister™s powers. In the House of Lords the attack on the valid-
ity of the directives rested on two principal grounds. The ¬rst was that the
Secretary of State had failed to have proper regard to Article 10 of the European
Convention on Human Rights. This argument was unsuccessful. As the
European Convention was, at the material time, not part of domestic law, the
Secretary of State was not obliged to take account of it in exercising an admin-
istrative discretion. (Since the Human Rights Act 1998 this ruling no longer
holds good. If an administrative decision is found to be incompatible with a
Convention right, such as freedom of expression, it is unlawful: section 6(1) of
the HRA.) The second argument was that the decision to issue the directives
was in the circumstances so unreasonable as to be perverse. This ground
invoked the standard of unreasonableness or irrationality derived from
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223:
if the decision was one that no reasonable minister could in the circumstances
reasonably have made, it would be unlawful by this standard. Their Lordships
held that the Home Secretary™s decision was not defective in this respect: the
complaints fell ˜very far short of demonstrating that a reasonable Secretary of
State could not reasonably conclude that the restriction was justi¬ed by the
important public interest of combating terrorism™ (per Lord Bridge). As we saw
in the previous chapter, were a case such as Brind to be argued now, the court™s
approach would focus on whether the broadcasting ban was proportionate,
rather than on whether it was Wednesbury unreasonable. However, while the
argument in a case like Brind would today proceed on di¬erent lines, it may be
that the result would be the same. It is of interest (although not conclusive of
the matter for our courts in any future case) that when the journalists in Brind,
having failed in the House of Lords, took their complaint to the European
Commission of Human Rights, it was rejected as manifestly ill-founded. The
Commission accepted that the interference with their freedom of expression
was in pursuit of a legitimate aim and was not disproportionate to the aim
pursued: Brind v United Kingdom 77-A DR 42 (1994).

(d) Freedom of expression and statute
A number of statutes expressly protect particular forms of expression.
Parliamentary speech is protected under the Bill of Rights 1689, Article IX. The
Public Interest Disclosure Act 1998 provides limited protection for ˜whistle-
blowers™. On the other hand, several statutes impose restrictions on freedom of
783 Liberty and the constitution

expression: the Obscene Publications Act 1959, the Public Order Act 1986 and
the O¬cial Secrets Act 1989 are all examples. Under section 3 of the HRA, of
course, our courts are now required to read and give e¬ect to such legislation in
a way which is compatible with the Convention rights, ˜so far as it is possible to
do so™. The courts must therefore strive to interpret a statute (whenever
enacted) in such a way that it does not constitute or permit a restriction of
freedom of expression which is not justi¬ed in terms of Article 10(2) of the
European Convention. If this is not possible, the court may make a declaration
of incompatibility (s 4). In consequence of these provisions the courts may be
called upon to reconsider their previous interpretations of statutory provisions
and to review the balance between freedom of expression and other interests
which is e¬ected by particular statutes.
A statute of particular importance in the context of freedom of expression is
the Contempt of Court Act 1981. Section 2 of the Contempt of Court Act,
although it makes no express reference to freedom of expression, implicitly
recognises its value by placing limits on the rule of strict liability for contempt,
which applies to publications tending to interfere with the course of justice in
particular legal proceedings. Section 2(2) provides:

The strict liability rule applies only to a publication which creates a substantial risk that the
course of justice in the proceedings in question will be seriously impeded or prejudiced.

This subsection, as we saw above, was enacted in response to the judgment of
the European Court of Human Rights in Sunday Times v United Kingdom
(1979) 2 EHRR 245. It is for the courts to determine whether the test of sub-
stantial risk of serious prejudice is met in any particular case. This is an exercise
in evaluation rather than in balancing, but the Act™s recognition of the value of
freedom of expression is downgraded if the words ˜substantial™ and ˜seriously™
are not given their full weight. Indeed, the courts may appear to have devalued
the requirement that the risk be ˜substantial™ in holding this to mean only that
there must be more than a remote or minimal risk of serious prejudice (Attorney
General v English [1983] 1 AC 116; Attorney General v News Group Newspapers
Ltd [1987] QB 1, 15), but it has been remarked that the cases in which section
2(2) has been applied show that its provisions ˜limit the scope of the old,
common-law, strict liability rule . . . in a more than cosmetic way™ (D Feldman,
Civil Liberties and Human Rights in England and Wales (2nd edn 2002), p 984).
Section 5 of the Contempt of Court Act, which comes into play if the risk
speci¬ed in section 2(2) is found to exist, provides as follows:

A publication made as or as part of a discussion in good faith of public affairs or other
matters of general public interest is not to be treated as a contempt of court under the strict
liability rule if the risk of impediment or prejudice to particular legal proceedings is merely
incidental to the discussion.
784 British Government and the Constitution

The policy re¬‚ected in this section is that the risk of prejudice to a trial must be
accepted if it is an incidental by-product of a discussion in good faith of matters
of public concern. Here again it is left to the courts to resolve the con¬‚ict
between ˜fair trial and free press™, in deciding whether, in a particular case, the
criteria in section 5 (˜good faith™, ˜general public interest™, ˜merely incidental™)
are satis¬ed. (See Attorney General v English, above, and Attorney General


. 143
( 155 .)