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Speech in the Pre-HRA Case Law Durham E-Theses Critiquing the UK Judiciary's Response to Article 10 Post-HRA: Undervaluing the Right to Freedom of Expression? WRAGG, PAUL,MARTIN How to cite: WRAGG, PAUL,MARTIN (2009) Critiquing the UK Judiciary's Response to Article 10 Post-HRA: Undervaluing the Right to Freedom of Expression?, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/68/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 CRITIQUING THE UK JUDICIARY’S RESPONSE TO ARTICLE 10 POST-HRA: UNDERVALUING THE RIGHT TO FREEDOM OF EXPRESSION? ______________________ PAUL WRAGG A thesis submitted to Durham University for the degree of DOCTOR OF PHILOSOPHY University College, Durham University, Durham Law School, SEPTEMBER 2009. 1/385 TABLE OF CONTENTS ______________________ ABSTRACT ....................................................................................................................... 5 1. Object of the enquiry .......................................................................................... 5 2. Place of the enquiry within the academic literature ........................................ 8 3. Parameters of the enquiry ................................................................................ 11 CHAPTER ONE – Introduction .................................................................................... 14 1. Introduction ....................................................................................................... 14 2. Focusing on the judiciary ................................................................................. 17 3. Backdrop to the UK judiciary’s approach to Article 10: the pre-HRA case law and expectations for human rights development under the HRA ............. 24 a) Free speech in the pre-HRA case law ............................................................. 24 b) Expectations for the HRA ............................................................................... 32 c) The Strasbourg approach to Article 10 ........................................................... 35 d) Conclusion ...................................................................................................... 43 4. The domestic judicial response to Article 10 .................................................. 45 5. Conclusion .......................................................................................................... 50 CHAPTER TWO – Established free speech theories and Article 10 ......................... 53 1. Introduction ....................................................................................................... 53 2. The interplay between theory and practice .................................................... 54 3 The argument from democracy ........................................................................ 58 4. The argument from truth ................................................................................. 68 5. The arguments from self-fulfilment and autonomy ....................................... 81 6. Conclusion .......................................................................................................... 88 CHAPTER THREE – The Strasbourg approach to freedom of expression compared to theory: Examining recent Article 10 decisions in the European Court of Human Rights .................................................................................................. 90 1. Introduction ....................................................................................................... 90 2. The Strasbourg approach in outline: mechanics and rationale .................... 91 a) Mechanics ....................................................................................................... 91 b) Rationale ......................................................................................................... 96 3. Recent decisions ............................................................................................... 100 a) Political expression ....................................................................................... 100 b) Non-political expression ............................................................................... 114 4. Analysis: comparisons between the Strasbourg jurisprudence and established theory ................................................................................................ 118 5. Conclusion ........................................................................................................ 127 CHAPTER FOUR – Key issues under the Human Rights Act: Is there scope to diverge from Strasbourg? ............................................................................................. 129 1. Introduction ..................................................................................................... 129 2. Section 2, HRA: decisions and debate ........................................................... 132 a) Introduction .................................................................................................. 132 2/385 b) No departing from Strasbourg without good reason .................................... 133 c) Qualifications to this apparent rigidity? ....................................................... 136 d) The use of section 2 in the UK Article 10 case law ...................................... 144 e) Section 2 is a Gateway to a UK Bill of Rights: Aspiration or Aberration? .. 149 f) Conclusion ..................................................................................................... 154 4. The Margin of Appreciation doctrine and the Ullah principle ................... 155 5. Conclusion ........................................................................................................ 166 CHAPTER FIVE – Offensive political expression and the ‘right not to be offended’: Toward a heckler’s veto? ........................................................................... 168 1. Introduction ..................................................................................................... 168 2. The commitment to protect offensive political expression .......................... 171 a) The terms of the commitment to protect political expression ....................... 171 b) The inclusion of offensive political expression within the definition ............ 175 c) Two recent decisions on the definition of ‘political’ in the context of offensive expression .......................................................................................................... 179 i) Sanders v. Kingston ................................................................................... 179 ii) Livingstone v. the Adjudication Panel for England .................................. 184 iii) Conclusions ............................................................................................. 188 3. Development of the ‘rights of others’ exception ........................................... 190 4. The threat to free speech ................................................................................ 195 5. A resolution? .................................................................................................... 203 6. Conclusion ........................................................................................................ 214 CHAPTER SIX – Beyond a simple taxonomy of the speech content: Speaker, speech and speech target valuations in determining the Article 10 weight ............. 217 1. Introduction ..................................................................................................... 217 2. Outlining the ‘speaker, speech, speech target’ pattern ............................... 218 3. Of greater value: the media and politicians .................................................. 221 a) Journalists ..................................................................................................... 221 i) Open justice ............................................................................................... 221 ii) Matters of public interest .......................................................................... 225 iii) Matters of interest to the public? ............................................................. 234 b) Politicians ..................................................................................................... 242 4. Of lesser value: from non-journalists to prisoners ....................................... 251 a) Non-journalists ............................................................................................. 252 b) Prisoners ....................................................................................................... 261 5. Conclusion ........................................................................................................ 262 CHAPTER SEVEN – Identifying
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