Balancing act… falls off a cliff
“The government’s withdrawal of the Bill of Rights stunts efforts to grant additional protections for freedom of expression, but the draft Media Bill presents a convenient vehicle to supplant its provisions.”
“We will update the Human Rights Act…”; the pledge contained within the 2019 Conservative Party manifesto which led to the introduction in June 2022 of the Bill of Rights, which was intended to repeal and replace the Human Right Act 1998 and clarify and re-balance “the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament”.
“…we have decided not to proceed with the Bill of Rights, but the Government remain committed to a human rights framework that is up to date, fit for purpose and works for the British people”; the words with which the Lord Chancellor and Secretary of State for Justice Alex Chalk withdrew the Bill of Rights on 27 June 2023. The Bill had not progressed from its first reading.
The first of the eleven features of the Bill identified by the Government in its press release was that it “Strengthens the right to freedom of speech”. This was to be achieved through clause 4 of the Bill, requiring the courts (but not other public authorities) to accord “great weight” to the importance of protecting the “right to freedom of speech” and would apply to defamation, misuse of private information and data protection claims, among others, as well as to proceedings pertaining to the enforcement of the provisions of the Online Safety Bill. The clause was intended to enhance the protections already contained in s.12 Human Rights Act 1998, which requires the courts to have particular regard to the importance of the right.
Clause 21 of the Bill would have enhanced the protections afforded to journalists against court orders to reveal their confidential sources, by supplementing the requirement under s.10 Contempt of Court Act 1981 that the disclosure be “necessary in the interests of justice or national security or for the prevention of disorder or crime” to also require that there be “exceptional and compelling reasons why it is in the public interest for the disclosure to be made”, giving “great weight to the public interest that exists in protecting journalistic sources”. Again, however, this would not have served to prevent public authorities from exercising their powers to identify confidential journalistic sources.
Clause 22 of the Bill would also have enhanced the protection currently provided by s.12(2)(b) Human Rights Act 1998, which prohibits the grant of relief, such as an injunction, if the respondent is neither present nor represented unless, inter alia, “there are compelling reasons why the respondent should not be notified”, to require that those reasons be both compelling and exceptional.
At this stage, there appears to be no government plan to incorporate these protections into other legislation; when the withdrawal of the Bill of Rights was announced, specific reference was made to measures introduced in other draft legislation, specifically the “Illegal Migration Bill, the Victims and Prisoners Bill, the Overseas Operations (Service Personnel and Veterans) Act 2021 and the Northern Ireland Troubles (Legacy and Reconciliation) Bill”. The draft Media Bill, published in March 2023 and currently undergoing pre-legislative scrutiny by the Commons Culture, Media and Sport Committee, would provide a suitable vehicle for addressing these issues; the Bill already includes clause 43 which would serve to repeal s.40 Crime and Courts Act 2013 which, if brought into force, would have exposed certain publishers of news-related material which were not members of the only regulator approved by the Press Recognition Panel, IMPRESS, to liability for the legal costs of even unsuccessful claimants, a measure which would undoubtedly have a chilling effect on freedom of expression and encouraged the pursuit of unmeritorious claims.
The government has recently shoe-horned a clause into the Economic Crime and Corporate Transparency Bill in an effort to provide additional protections against so-called Strategic Lawsuits Against Public Participation (‘SLAPPS’). Given that these are limited to cases concerning allegations of economic crime, the government has indicated that it is “open to going further and to considering further matters” which ought to be protected. While it has indicated a preference to “see how they bed in”, the reality of the Parliamentary calendar is that opportunities and willingness to debate and enact such provisions is limited.
If it is the government’s intention to re-instate the balance of the right to privacy and the right to freedom of expression, it should utilise the draft Media Bill to enact clauses 4, 21 and 22 of the Bill of Rights.