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Freedom of Speech

My Lords, like so many of your Lordships, I add my thanks and congratulations to my noble friend Lady Knight of Collingtree on her incisive and perspicacious speech. We are fortunate, too, that it has taken place at a time when many of the issues that she intended to include in her speech have been given even greater relevance by current events. I entirely agree with everything that has been said by those of your Lordships who addressed the principles that lie behind the doctrine of freedom of speech. I was particularly interested, as I am sure that all your Lordships were, in the observations made by the noble Lord, Lord Plant of Highfield. Freedom of speech is fundamental to the principle of minority rights; and as the noble Lord, Lord Goodhart, said, that is particularly important when a society has minorities that espouse different, deeply held, religious beliefs. But it is equally important to note that a majority government benefits from freedom of speech—because, if minorities have the right to express their views, they have the consolation that even if the majority takes the different view, at least those minorities have had an opportunity to influence majority thinking. So both minority rights and majority rule are enmeshed by the principle of freedom of speech. As many of your Lordships have observed, particularly my noble friend Lord Inglewood, freedom of speech is not a comfortable constitutional doctrine to live with. People who are at the wrong end of observations of other members of society are often the subject of some very critical and sometimes distasteful remarks—even abusive and insulting ones. Yet those are essential ingredients to the doctrine of freedom of speech. A society, to incorporate successfully freedom of speech, has to have a very well developed sense of humour; and the cartoon, in my submission, is a vital component of freedom of speech, because, if the cartoonist is good, the reaction of the reader initially is one of humour. Is the cartoon is good, the cartoonist is seeking to ridicule people in power—the most damaging weapon that can be used against a sitting government. But I agree with all your Lordships that the cartoons that appeared in the Danish press totally failed to meet those vital principles; it was, indeed, unwise to publish them—though I also agree with the noble Lord, Lord Goodhart, and other noble Lords, that legally they certainly could be published. The second difficulty with the principle of freedom of speech is that it is not an absolute principle. You only have to look at Article 10 of the Convention on Human Rights to see that the doctrine is qualified by other important social objectives, such as public security and public safety. So, in any given set of circumstances, the police, and other authorities that have power over the ability to express freedom of speech, must engage in a balancing act to reach a decision. Indeed, with some of our most important laws, that balancing operation is inherent in construing what the law means. For example, the law of peaceful public assembly states that the continued legality of that assembly depends, in part, upon the reaction of those who are present for an initially peaceful reason. Quite often, because of the reaction of others around those engaged in peaceful assembly, something that was originally not a crime may become one. Once again, those in authority have to make a fine judgment about whether to bring a prosecution. The noble Lord, Lord Goodhart, had an extremely pertinent question when he asked upon what we should focus. Should it be on the incitement by the banners of those manifesting, or on the reaction of those who observe that manifestation? Was the intention to incite violence, or to provoke others to violence? Those are all crucial questions, which the police have to take into account before they decide how to react. Another factor, aside from the circumstances of a particular case, is the circumstances of the nation. The approach of the authorities to freedom of speech in the 1930s was very different from that of the authorities in the course of the Second World War, when the nation was under threat. What you might or might not say about fascism or national socialism in the 1930s you could not say in the 1940s, and for good reason. The balancing act came out with a different solution, because of the overriding importance of public security. That is one reason why we have particular difficulty in making that balance today; for we live in a world of international terrorism. We have no idea when we will next be hit by a terrorist act. Are we in a state of war or of peace? In a sense, the problem that the authorities face today is much more difficult than that which they faced in the 1940s. As the noble Baroness, Lady Falkner of Margravine, said, when we come to pull the strands of these issues together it is absolutely vital that those who have the authority to prosecute act in a totally even-handed manner. That is, across not just particular activities but across all ethnic groups. Indeed, if they do not we will lose confidence in them. My noble friend Lady Knight placed particular emphasis on the growing disease of political correctness, and rightly so. The right reverend Prelate also had a number of extremely pertinent observations to make on that. Frankly, I am outraged at some of the investigations that the police have made into perfectly legal observations made by members of different ethnic groups about matters where they were, in any case, only responding to questions asked by interviewers. I am also extremely disappointed in the way that the police have operated Section 132 of the Serious Organised Crime and Police Act 2005. What was originally intended to protect Parliament is now being used to protect the executive offices in Whitehall as well. Some of the arrests that have been made have, frankly, done much more to discredit the police than they have to enhance public security. Different views have been expressed by your Lordships about whether arrests ought to have been made in the course of the demonstration in front of the Danish embassy. It is difficult for those of us who were not there to take a final view on that; as with the jury in a court, you can only come to a correct conclusion if you have heard all the evidence in court and have been influenced by no other. In those circumstances, one must always allow the police a margin of appreciation. However, having seen some of the banner texts, had I been there—given that I am making these observations at a distance in both space and time—my inclination would have been to make some arrests. The key is for the police to be even-handed. That is the issue on which I am most interested to hear the Minister as he gets up to respond to the debate.