On Friday, the High Court in Northern Ireland deflected a serious threat to the right to free speech, not only in the province but also in the country as a whole. It was, however, a very close-run thing, and the affair is still highly worrying.
A Northern Ireland Assembly law that came into effect last year, the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022, made it an imprisonable crime to publish the fact that someone had come under police investigation for a sexual offence unless and until they were charged. If they were never charged the matter had to be hushed up until 25 years after their death (or even longer, if a court agreed to their relatives’ request). As I pointed out at the end of last year, this law was incredibly wide-ranging. Not only did it severely limit what could be said about the dead, it also affected investigations that had taken place at any time. Thus it rendered it illegal at a stroke to state, for example, the historic fact that Jimmy Savile had been reported to the PSNI in 2013 for pederasty but never charged.
The Act in question applies to anything readable in the province. This matters
Mr Justice Humphreys in Belfast has now invalidated these suspect anonymity provisions as infringing the ECHR protection for free speech. They had, he decided, two fatal flaws. One was the lack of any public interest defence available to the press; the other, the fact that while the police or the suspect could apply to have the ban lifted during the latter’s lifetime, the press were deliberately denied any such right.
Quite right too. Both these matters amounted to monstrous intrusions on the press’s right to disclose embarassing facts in the public interest without anyone’s by-your-leave. But we should also remain very concerned. The courts’ mercy we need to be grateful for is actually a rather small one.
First, the invalidation was on narrow grounds. If supplemented with a public interest defence and a right in the press to ask a court to set aside the anonymity, the law would be entirely effective, despite the fact that it contained large numbers of other unacceptable features. Newspapers would still have to go cap-in-hand to the courts before referring to sex scandals affecting prominent people, risking that the story would stale in the meantime. Biographers and historians wanting truthfully to truthfully document the sex life of an Ulsterman who died twenty years ago would have to show this was in the public interest and if necessary apply to a Northern Ireland court for permission to write.
Secondly, entirely unaffected by the judgment is a further worrying provision of the same law banning publication of the name even of a dead alleged victim for 25 years. So a biographer of, say, a deceased IRA gunman who died ten years ago would not be allowed to mention that he had alleged that he had been brutalised in prison.
Add to this that it is by no means unlikely that Sinn Fein, currently controlling the Northern Ireland Assembly, will now reintroduce the legislation in amended form, if only to score points against Westminster. If it does, we will need to be worried, not only for the reasons already stated, but also because its effects would go well beyond Northern Ireland.
The point is that the Act in question applies to anything readable in the province. This matters. Since even someone with no connection with Northern Ireland can be fairly readily arrested in England and sent to face trial in Ulster for an offence allegedly committed there, theoretically we could see a London newspaper editor or blogger being woken up to find a PSNI officer outside, waiting to bundle him into a police car and take him to to Belfast for the crime of publishing material whose publication was entirely lawful in England.
All this shows two things. First, while providentially human rights laws intervened to strike down the legislation in this instance, as regards free speech the ECHR is in practice something of a broken reed. Most of the objectionable features of the Northern Ireland law – for example, its application to historical events before the Act was passed, and its severe restrictions on the publication by journalists, historians and obituarists of entirely true facts about the dead – are entirely human rights consistent. This shows that we need a much more robust legal protection of the right to free speech than the pusillanimous version offered by the ECHR model.
Secondly, we need to deal with an unintended consequence of devolution. It is one thing to allow devolved authorities to pass misguided restrictions on free speech applicable to what people say in their jurisdiction. It is quite another to allow these restrictions potentially to criminalise what people say elsewhere. At the very least, we urgently need legislation from Westminster to make it clear that statements lawfully made in one part of the UK cannot be made unlawful by devolved legislation in another part of it.
Freedom of speech tends to be lost not wholesale, but by repeatedly chipping away at small parts of it by those with an axe to grind. The episode of the Ulster anonymity legislation shows that we need to watch carefully if we want to prevent this process taking further hold in the UK.
