Chapter 1 Guidance on answering the exam questions

1. Critically assess the difference between, on the one hand, rights based and, on the other, utilitarian approaches to the limits of freedom of expression under the law. Your answer may include references to Article 10 case law but should focus on theory.

• You are asked to explore two different kinds of political theory that may underlie arguments that allow for limits to, or interferences with, freedom of expression.
• Begin by discussing in general terms a “rights based” approach in contrast to a “utilitarian” approach. The former evaluates actions against the standard of some conception of the individual. Human rights are expressions of human “dignity” or of “autonomy”; both characteristics of what it means to be a “person”. A utilitarian approach judges actions in terms of their consequences for others or for society generally.
• Outline general justifications for freedom of speech from both theoretical traditions. A rights-based approach to freedom of expression will focus on autonomy and the “rights” of individuals to express themselves or have access to ideas and information so that informed choices can be made. A utilitarian approach will focus as much on the social benefits of free expression (e.g. better governance, preventing over-conformity in manners and morals, etc.)
• But then point out that under either theory, and in terms of most people’s understanding, there can be reasons which justify state and legal interference with freedom of expression. This is allowed for in the two-paragraph structure of Article 10, for instance, as well as in the common law. Article 10 structures judgement on this in terms of the interference being lawful, for a legitimate purpose, consistent with democracy and, in the circumstances, proportionate.
• A rights approach will justify such interferences which protect the rights of others and the values of dignity and autonomy. Thus, as examples, the right of a person to a fair trial may justify interfering with the freedom of expression of the media (as shown in Worm v Austria, Article 10 supports laws of “contempt of court”); or penalising “hate speech” may protect the dignity and autonomy of the group being attacked. A utilitarian approach is, however, capable of a wider range of interferences such as those concerned with the upholding certain social values (e.g. through indecency laws) or protecting (e.g. through restricting certain advertising) the economic development of the country.
• In your conclusion you might suggest that Article 10 allows both rights based and more utilitarian interferences. The former found in, for instance, the state’s ability to interfere on the grounds of protecting the rights of others; but the second found in the ability of the state to balance an individual’s autonomy right to express her or himself with the needs of society to social order, for example. Having said that, however, it is necessary to make clear that the significant value of freedom of expression is the starting point, and the justification for any interferences must not just be abstract but, in the circumstances of any case, embody a pressing social need.

2. The government of Ruritania (a member of the UN and signatory to all UN human rights treaties) is considering how to give effect to human rights in its law. As a senior civil servant in the relevant ministry, write a position paper advising the government on the alternative approaches, in terms of the relationship of courts, legislature, the executive, and international law, that might be adopted.

• This is a question about the different forms in which internationally recognised human rights norms might be adopted into the national law and enforced by the national courts. There is a wide variety of possibilities and any scheme will reflect the particularities of the national law and constitution. Five general approaches are introduced below and should be discussed in your answer.
• Option 1 is the straight adoption into the law of Ruritania of all and any individual rights contained in the treaties that the country has signed. This “monist” approach is the system found in many European countries. The precise weight of international norms in contrast with the rights in the national constitution and with the rights found in the ordinary laws enacted by the legislature, will depend on further details of the constitution and constitutional practice of which we are not informed.
• Options 2(a)-(d) apply to countries (such as the UK) in which international legal obligations are not directly enforced in the national laws.
• Option 2(a): is to enact a constitution which contains human rights norms and leave it to a judiciary to enforce. These norms will be binding on all branches of the constitution; so the courts will have an ultimate power to strike down incompatible laws. This is strong human rights protection but, critics suggest, over-balances the constitution in favour of the judiciary.
• Option 2(b) is similar to 2(a) but permits some form of “override” to the legislature which may, under varying conditions (e.g. only for a period of years or in particular situations such as national emergencies) enact valid legislation which is incompatible with human rights (e.g. applies “not-withstanding” human rights norms). This enables the legislature (perhaps expressing popular opinion or reflecting a national emergency) to override human rights but only if done deliberately and openly.
• Option 2(c) is like the HRA 1998. It requires the courts to do what they can (without being irrational or deliberately contradicting the clear will of the legislature) to interpret and apply legislation so that it can only authorise actions (e.g. by public bodies) which are compatible with human rights. However incompatible legislation remains valid. The courts can, however, make the incompatibility clear and public and then leave it to the legislature or the executive to make any necessary changes if they wish to. Although this approach clearly re-balances the constitution more in favour of the judiciary it does allow for a form of “dialogue” with the political/democratic branches of the constitution.
• Option 2(d) is the weakest of all. It allows the courts only to interpret legislation for compatibility if this is possible to do on the basis of their normal approach to statutory interpretation which accepts and applies statutes in terms of the ordinary meaning of the text therein. Incompatible legislation is allowed and must be enforced by the courts.
• In your conclusion you could evaluate these general approaches. Your judgement is likely to reflect a prior view on whether a “legal” or “political” constitution is more valuable. This is an on-going debate in the UK which you are likely to have come across in your Constitutional Law course and to which you might refer.