The inside of the ECHR (FREDERICK FLORIN/AFP via Getty Images)
Artillery Row

Silenced in Court

The ECHR thinks a country is beyond the pale if it allows its citizens to say what they like

Last week in The Critic, Brian Monteith quite rightly called out the Scottish SNP administration over its wretched hate crime bill and its cavalier attitude to freedom of speech. In doing this he was in excellent company, including Scottish Labour and the Scottish Conservatives, and otherwise ranging from Secularism UK to the Free Church of Scotland, from the Free Speech Union to the Scottish Police Federation, and the LGB Alliance to the Orange Order. (According to one report, indeed, no public submissions whatever in favour of the Bill have been made by any organisation that is not heavily funded by the Scottish government).

But there is a very interesting omission here. The European Convention on Human Rights explicitly protects free speech in its Article 10 (“Everyone has the right to freedom of expression”), such protection being subject only to limits prescribed by law and necessary in a democratic society for a number of purposes, of which he only relevant ones are public safety, the prevention of disorder or crime, health or morals, and the protection of the reputation or rights of others. It is, to say the very least, highly plausible that proposals might fall foul of this in so far as they aim to criminalise great swaths of speech, not to mention the possession of a wide category of material with a view to showing it to anyone, even in private. Yet, it seems, not a single body of human rights activists has said a thing. Even the official Equality and Human Rights Commission (EHCR), tasked by law with promoting human rights and freedoms and normally very quick in both England and Scotland to criticise government policies it sees as objectionable, has kept a stony silence.

Why the reticence? In part, it reflects the mindset of the ECHR, which it is fair to say chooses its targets carefully and selectively. For a long time it has been considerably more interested in abstract equality than concrete liberty: witness most recently the COVID lockdown, where it had almost nothing to say about the infringement of the freedom of individuals, but a great deal about what it saw as its disparate effects of the virus on particular interest groups.

But there is a deeper point. Within human rights discourse the treatment of freedom of speech is changing, and has been for some years. Those who see it in the old-fashioned way, as primarily concerned with the right of the individual – or the columnist, or the editor – to speak his mind without interference, may need to alter their perspective. It is now, ever so gradually, turning not simply illiberal but anti-libertarian. How this is happening will become apparent.

One strand in this development is that today’s UK and European human rights activists, very largely egalitarian and anti-individualist as befits the academics, international civil servants and second-rank politicians that most of them are, regard freedom of speech in the traditional sense with suspicion. They see it as something rather dangerous, a little bit like the right to bear arms in the US constitution, an institution which needs to be paid lip-service but kept within strict bounds. The US position under the First Amendment, comprising a right to speak your mind even if this does cause difficulty or offence (and which reflects the traditional English view held until the 1960s), they despise. Instead, they regard it as axiomatic that the law must continue to be able to suppress the kind of things that European countries have traditionally forbidden, including not only deliberate stirring-up of hatred but also such things as holocaust denial and offence to religious and other sensibilities. Freedom of speech may be accepted in this view, but it must cut its cloth accordingly.

The European Court of Human Rights, which holds the levers of power in this field, agrees with them. True, it often piously proclaims that freedom of speech embraces not only the unexceptionable but also the unpopular and offensive: but these protestations belie the fact that it nearly always sides with governments when they want to limit what people can say in order to prevent offence to particular groups. Curbs on speech seen as racist, offensive about adherents of particular religions, or insulting to the LGBT community, are routinely upheld. Indeed this hand-off attitude goes further, as a case a couple of years ago showed. There the court was quite happy when an Austrian politician was fined for insulting, not Muslims, but Muhammad. Even though the charge was essentially one of mere blasphemy against Islam, the judges were unfazed by this point: they merely said, suavely though highly dangerously, that the politician had infringed the rights of others, in the shape of their own religious feelings, and deserved to be punished.

This slightly pusillanimous attitude to freedom of speech may disappoint some. But on its own, people who believe in liberty could probably live with it. Essentially it throws important social issues wholeheartedly into the democratic sphere; and there they arguably belong, since we should be slow to sideline democratic decision-making by reference to human rights law except in extreme cases.

Unfortunately, however, matters do not stop here. There are indications that human rights law on speech is on the march yet further. At present it leaves the decision whether to penalise offensive speech up to states. They can do so if their electors wish it, but they certainly do not have to: if they wish to promote an expansive, almost absolutist view of free speech, that is equally their prerogative. But there are ominous signs that the European Court of Human Rights is, together with the human rights establishment, moving towards a practice of invoking other provisions – for instance, those protecting private life – to require states to have and enforce hate crime laws whether their electors like it or not.

If it hadn’t been silent, the human rights establishment might argued that the Scottish government was required to pass the hate crime bill

Six years ago, following their publication of a picture of themselves embracing on social media, a gay Lithuanian couple were attacked online in strong, and predictably vulgar and crass, terms. Lithuania is a strongly Catholic nation with specific protection for the family; and the official prosecutor, following a report of the attacks, read them, weighed the matter carefully, and concluded that even though there was a potentially applicable criminal code provision, what had been said did not merit prosecution. The couple protested; and earlier this year the matter reached the European Human Rights Court. That body decided that the prosecutor’s inaction had been an unacceptable interference with the couple’s private life. If a state had a hate crime law, it said, it had to apply it across the board; it added, in an important aside, that where essential aspects of private life were at stake, human rights law actually required efficient criminal-law provisions. At least in some cases, in other words, it was unacceptable not to prosecute hate speech.

Meanwhile the European Commission against Racism and Intolerance (ECRI), a Council of Europe body closely connected with the ECHR set up to monitor non-compliance with human rights laws, had also been active in much the same direction. In June last year it reported that Lithuania was not doing enough in its view to prosecute speech seen as racist or homophobic.

Events last month, again in Lithuania, showed that these developments were likely to continue. An overtly gay journalist on a Lithuanian paper faced forceful online vituperation after he placed a piece on same-sex rights on the paper’s online portal. A criminal investigation was opened into the comments, a process which in this case was overseen by the criminal court. The court reviewed the case, and eventually discontinued it on the ground that the comments complained of constituted their authors’ opinion and while they had been improper, they were not serious enough to justify criminal proceedings. The journalist has now complained to Strasbourg, saying that the non-prosecution infringes his own right to privacy. The case is still caught up in the wheels of the leisurely ECHR bureaucracy; but the smart money among human rights lawyers is on a win by the journalist, and a holding that the lack of criminal sanctions against what was said infringes his human rights.

To sum up, we are approaching a situation where the ECHR has quietly morphed from a protection of liberty into a document that actually requires an extension of the things we are not allowed to do. It is now an instrument that potentially licenses a person feeling aggrieved by what others say to demand, as a matter of his human rights, the criminalisation of speech on account of its content, and its prosecution even if it is regarded by the state as relatively trivial.

If this is right, then perhaps we should after all be grateful that the human rights establishment has remained silent about the proposed hate crime legislation: it could have come in to argue that the Scottish government was actually required to pass it. But in any case, this development is worrying enough. There is something seriously wrong with the argument that a country which allows its citizens to say what they like is not only misguided but not worthy to belong in the club of civilised states: if this is indeed the future position of the European Convention on Human Rights we must consider carefully whether we continue to be part of it. But for the moment, closer to home, the issue is clear. The decision whether to introduce an authoritarian measure like the hate Crime Bill should be regarded as a matter for the Scottish people, and certainly not for a collection of unelected quangocrats in Strasbourg.

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