Strasbourg takes over
Marcel Berlins
The significance of the European Court of Human Rights decision in the Sunday Times case goes much further than the immediate effect it will have on the content of Britain's law of contempt of court. The Court ruled, by a majority of 11 to 9, that a House of Lords decision, upholding an injunction preventing the newspaper from Publishing an article on the background to the thalidomide tragedy, was in violation of the European Convention of Human Rights. It is now up to the British government to see to it that the law is changed to conform to that decision. But the Court's reasoning in coming to its conclusion has Wider implications, affecting more than the law of contempt. The Convention protects the right to freedom of expression, and allows it to be interfered with only when 'necessary in a democratic society' to protect other interests such as health, morals, the fight against crime, national security, and the impartiality and authority of the judiciary. In the Sunday Times case, the Court asserted. more strongly than it has ever done before that it will allow restrictions on the right to free expression only in exceptional circumstances, interpreting 'necessary in a democratic society' strictly. The media had the task of imparting ideas and information, including those which might offend, disturb or shock the state or any section of the Population, the Court said; the public, for its part, had the right to receive such ideas and information.
The message is clear: the public interest, the public's right to know, the media's right to inform, must not lightly be interfered with. And that principle would apply not just to cases involving contempt but, arguably, to such areas of the law as blasphemy, criminal libel (which an English law lord has already suggested is contrary to the Convention) and, perhaps, even ordinary libel and the less serious aspects of 'official secrets' legislation. The European Court's. decision could well play a considerable role in the current debate over 'freedom of information'.
In addition, the Court made it clear that it had the right to make up its own mind about prevailing circumstances in the country involved. The British government had argued that the House of Lords was best placed to decide whether its injunction was necessary to uphold the authority of the judiciary. Not so, said the European Court, insisting that its supervisory role extended to making assessments of the situations in other countries.
The extent to which the contempt laws will be reformed as a result of the decision in Strasbourg is to a large extent within the government's control. It has an international obligation to see to it that the law is changed to conform to the court's judgment, but that judgment can bear both a narrow and a wide interpretation. A reluctarn government could relatively easily find a way of doing just enough to meet the minimum legal principles enunciated by the Court without more than minimally affecting the existing law. The spirit of the Court's decision, however, clearly calls for a substantial reform.
The increasing publicity being given to the human rights institutions in Strasbourg — the Court has given three decisions against the British government in the last twelve months — and the growing level of awareness of the Convention amongst lawyers and judges (it is no longer uncommon for reference to it to be made during a hearing before a British court) raises a separate and. in the longer term, highly important issue. More and more individuals will be taking their complaints to the European Commission and Court. Inevitably, attention will be focused on the lack of adequate remedies in our courts. In particular, the absence of a system of administrative courts and/or a Bill of Rights means that decisions made by administrative bodies or persons in positions of authority can often not be challenged in our courts at all. For some individuals, therefore, Strasbourg is the first and only avenue for airing complaints.
It is a condition of applying to the Commission that all legal remedies available through the national courts shall have been exhausted. The Sunday Times, for instance. could not have approached Strasbourg had it not first been to England's highest court. the House of Lords. But at the moment the Commission has 40 complaints by prisoners in English jails alleging interference with their right to correspond with people outside. There is no English court which can deal with such issues, and the result is that the national legal avenues are exhausted before they can begin, and all that the prisoners have to show to the Commission is a letter from the Home Office rejecting their complaints. The same short cut to Strasbourg is being used by prisoners in H block in the Maze prison in Northern Ireland, who are alleging inhuman and degrading treatment. How much more satisfactory, supporters of administrative courts argue, it would be to have a British court to which an individual could go to have wrong decisions put right, and how shaming that the much vaunted English system of justice allows an international body to be a court of first. rather than last, resort. Campaigners for a British Bill of Rights go even further. B■ incorporating the European Convention into British law as the Bill of Rights, issues that now have to go to Strasbourg could he dealt with by our own judges. The European Court's decision in the Sunday Tunes case may contribute just a little to a revival of the flagging debate.
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