Chapter 17 Guidance on answering the exam questions

1. Suppose that a local government department bans all officials from wearing any badge or insignia with racist overtones, and does so, as required under the Race Relations Act 1976 (amended in 2000), to ‘promote good race relations’. If the ban is challenged, how would the issue be approached by an English court in respect of considering its compatibility with Article 10?

• This question requires an answer which explores the general approach of a court to an Article 10 case – it involves demonstrating understanding of the impact of “qualified rights” in the law.
• Note, first, the ways in which Article 10 can be relevant to this case.
• First, the question does not confine itself to the HRA. So, note that a challenge could be brought under “ordinary” principles of judicial review. Administrative decisions can be challenged on the basis of being “unreasonable” and this legal term includes a decision that is an unjustified breach of fundamental rights recognised by the common law. These fundamental rights are themselves likely to be interpreted by reference to Article 10. An example, relevant to the facts of the question, is Wheeler v Leicester City Council.
• Secondly, the challenge could be brought under the HRA – section 7. This requires that the respondent be a “public authority”. Since local authorities are obviously “governmental” they can be thought of as core public authorities bound in all they do by convention rights (HRA section 6(1) and Aston Cantlow v Wallbank).
• Thirdly, there is a statute involved and this must be interpreted “so far as possible” so that it can only authorise actions by public authorities which are compatible with convention rights. A term such as “promote good race relations” can clearly be interpreted in this way.
• Therefore, Article 10 may be relevant.
• If Article 10 is to apply the behaviour restricted (the wearing of badges, etc.) must be a form of “expression”. Article 10 is not restricted to “speech”, it can clearly include expressions of political opinion such as the wearing of badges with a political message. Furthermore, Article 10(1) protects expression which may “shock, offend or disturb”.
• Given that “expression” is involved, the next issue is whether there has been an interference. This is clearly the case.
• Now a court must consider the issue of justification under article 10(2).
• First the court must be satisfied that the local authority has acted according to law. Law is defined by reference to accessibility, foreseeability and non-arbitrariness. Given that the local authority acts on the basis of a statute, this criterion is likely to be satisfied.
• Secondly, the local authority must act for a legitimate purpose (as listed in Article 10(2)). Article 10(2) does not expressly refer to racist messages but it has been recognised that the “rights of others” includes the rights of people not to be subject to race hatred (Jersild v Denmark). It is likely, therefore, that the ban will be for a legitimate purpose.
• Finally, the question is whether the ban is “necessary in a democratic society” – that it meets a pressing social need and is proportionate (represents a fair balance of interests). Here it is worth noting that the expression is “political” and so enjoys a high level of protection. Nevertheless, a court may take the view that the public interest in the political impartiality of a local authority and its proper commitment to respect all its population equally may outweigh the applicant’s interest in wearing the badges.
• It may be worth noting Article 17 which could be used to prevent the case being admissible (rights should not be used to interfere with the rights of others). However, the ECtHR has made it clear that it is preferable to use Article 10(2) since this allows the case to be fully argued and the justification considered.

2. Discuss the approach taken by the ECtHR and the courts in the United Kingdom to the borderline between restraints on political speech, protected by Article 10, which cannot be justified under Article 10(2), and restraints on such speech which can be justified. Consider, giving reasons, whether the courts have got the balance right.

• This question requires the disclosure of knowledge and understanding about the limits to the ECtHR’s protection of political speech. In a question like this it is important to back-up your points with examples from the case law either of the ECtHR or of domestic courts (examples can be found in Chapter 17).
• Provide a general introduction to Article 10, in particular its two paragraphs, qualified rights, structure.
• Note in particular that political expression, broadly defined as expression dealing with public affairs, receives the highest level or protection under Article 10. Give some examples, from different areas, of this protection (e.g. actions for defamation brought by politicians; legal measures against journalists; etc.).
• However, the text of Article 10 makes it clear that the protection of freedom of expression is not near absolute (as, by contrast, is the case in the USA).
• Under Article 10(2) expressive acts can be restricted on the basis of law, for a legitimate purpose and if legitimate. A great deal turns on the specific circumstances of any case. Often the court’s judgment is based upon proportionality and the significance of any ban in the circumstances of the case. Give some examples.
• However, an important distinction is between expression which is and which is not protected by Article 10(1). Speech which merely “offends, shocks and disturbs” is protected and so any interference needs justification in terms of Article 10(2) – such as this speech also interferes with the rights of others and that a ban is not disproportionate. Expression which incites to violence or to hatred, on the other hand, may not even enjoy the protection of Article 10(1). Thus the issue of justification need not be relevant (though, in practice, a court is likely to find any restriction justified in the terms of Article 10(2).
• On the other hand there are a number of cases in which, it seems, speech that is merely offensive has been legitimately restricted on the grounds of protecting the rights of others (Article 10(2) including a right not to be offended in, for example, racial identity or religious belief. This appears contradictory and suggests that the practice of Convention law is, in relation to offensive but otherwise non-harmful expression, unclear. Examples from UK domestic law include: Norwood v DPP and Hammond v DPP. Another example, from the ECHR and involving sexual identity is Vejdeland v Sweden.
• The ECtHR has also recognised a category of expression which seeks to promote a state of affairs that is so hostile to Convention values that it cannot enjoy Convention protection under Article 10(1). This includes “holocaust denial” which is not only morally worthless speech but also based on the denial of acknowledged facts.
• Finally note the role of Article 17 under which expression aimed at undermining the rights of others and Convention values can be refused access to legal consideration under Article 10.