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How do liberal democracies respond to the fact of multiple speakers in public discourse? Previous approaches to media regulation were predicated upon a few speakers-many readers/listeners/viewers m...

This article interrogates restrictions on speaking events in universities created both by recent student-led efforts at ‘no-platforming’ and by Part 5 of the Counter-terrorism and Security Act 2015 which placed aspects of the government’s existing Prevent strategy on a statutory basis for the first time. The statutory Prevent duty as it applies in universities includes, under the accompanying Guidance, curbing or monitoring such events on the basis that they could have an impact in drawing persons into terrorism. This article will place the combined impact of Part 5 and student-led curbs on campus speech in context by juxtaposing a range of pre-existing restrictions with the various free speech duties of universities. Focusing on speaking events, it sets out to evaluate the results of this chequered situation in terms of the current state of free speech and academic freedom in universities. It finds potential violations of established free speech norms due to the impact of pre-emptive strikes against some campus-linked speech articulating non-mainstream viewpoints. But it also argues that not all such speech has a strong foundation within such norms.

Protocol 15 inserts a new recital into the Preamble of the European Convention on Human Rights (ECHR) which affirms the primacy of national authorities in securing the effective realization of Convention rights. The article discusses the context for Protocol 15, notably the Brighton Declaration, and the democratic principles it engages. A selective retreat from substantive supranational review towards systemic supranational review in political expression cases may be occurring. The article questions the emerging pattern by which newer and transitional democracies remain subject to strict levels of supranational scrutiny, whilst their more established counterparts look set to be the main beneficiaries.

How easy ought it to be to enact constitutional amendment? In the absence of constitutionally prescribed procedures, fundamental reforms in the UK can often appear hurried, under-consultative and controlled by transient political majorities. In the recent referendum on Scottish independence, the NO campaign's promise of additional powers to Holyrood in the face of a possible ‘Yes’ vote appears to fit this pattern (even if, for reasons of political sensitivity, it was not driven directly by members of the Coalition government). A recent sample of concluded constitutional reforms, including the Constitutional Reform Act 2005, the Constitutional Reform and Governance Act 2010 and the Fixed-term Parliaments Act 2011, have drawn criticism from within Westminster on the grounds of defective process. Specific options to improve pre-parliamentary and parliamentary stages of constitutional reform have been proposed with a view to attaining principled procedures of constitutional reform removed from executive control that signal attachment to process values such as wide and effective consultation, deliberation outside and inside Parliament, and informed scrutiny. The foregoing prescriptions for remedying defective processes may, however, be said in the ultimate analysis to retain a normative preference for a more formal, elite-managed vision of constitutional change that is premised upon a limited conception of the citizens' ‘informed consent’. In any case, in purely descriptive terms, top-down managed change does not capture the totality of patterns of past constitutional reform in the UK. In the nineteenth and early twentieth centuries, for example, radical grassroots campaigns for the extension of the franchise resulted ultimately in universal adult suffrage. More recently, the Scotland Act 1998 can be seen as the culmination of a civic society–led, deliberative engagement with ordinary voters over decades that offered an alternative vision of ‘bottom-up’ constitutional reform to that seen in more formal, elite-led processes of constitutional reform. The inclusive and participatory nature of the campaign for Scottish devolution marked out a radically different model of constitutional reform to that which has typified Westminster-style amendment and which is still largely directed by political elites. In such circumstances as prevail currently at Westminster, it is difficult to give much credence to claims that the outcomes of constitutional reform processes enjoy the ‘informed consent’ of the people.

"You have to ask yourselves, Why is it that foreign law would be relevant to what an American judge does when he interprets interprets, not writes 1 mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it's full of discussions of the Swiss system, German system. It's full ofthat. It is very useful in devising a constitution. But why is it useful in interpreting one?" Justice Scalia, US Supreme Court (speaking extra-judicially at American University, Washington College of Law, Washington DC).1

Systems of representative democracy require that the electorate be given at regular intervals the opportunity to replace the party in government with a rival political association. In this context, the right of individuals to freedom of association permits the formation of competitor parties and prevents forms of state intervention that might otherwise privilege existing office holders and their political programmes. It follows then that restrictions on the right to political association are deserving of particularly close scrutiny. At the same time, liberal democratic constitutions usually insist that participants in electoral process manifest a level of commitment to core liberal democratic norms (such as the rule of law, toleration, the equal worth of each individual and the peaceful resolution of grievances). In the case of intolerant, extremist parties that would reject some/most of these norms, the state may invoke a range of defensive measures up to and including proscription in order to safeguard democracy. This paper takes as its focus the constitutional issues raised by the banning in Spain of Batasuna – the political wing of ETA. A legal challenge to the ban is currently before the European Court of Human Rights. Making reference to work of John Rawls, this paper considers whether the ban on Batasuna is justifiable in terms of liberal political theory, before analysing the extent to which proscription conforms to international human rights law and European Court of Human Rights jurisprudence.

In the wake of the first ever Al Qaeda-inspired bombings in Britain in July 2005, there has been much discussion about the appropriate form(s) of counter-terrorism response. This article focuses on one aspect of the “war on terror” usually afforded less prominence than other counter-terrorist measures; namely a range of existing and proposed constraints on media freedom and the constitutional/human rights issues provoked. The United Kingdom is the focus because terrorism laws intended for the ethno-nationalist conflict in Northern Ireland have been replaced by legislation in 2000 and 2001 claimed to reflect the changed nature of terrorism and that arguably has serious implications for freedom of expression. Measures that would impact adversely on speech are being debated in Parliament presently, measures that go considerably further than the previous bans on the direct broadcasting of Sinn Fein representatives and their sympathisers.

The ease with which sexually explicit computer images of children can be created, disseminated and downloaded in the digital era has given renewed impetus to the efforts of national governments and supranational organisations to protect minors from the harms associated with child pornography. One common strategy has been to criminalise the mere possession of such material. In Canada, a recent constitutional challenge to the validity of penal restrictions has required the Supreme Court to consider the boundary between protected expressive activity and the welfare interests of children. In what follows, the legitimacy of this judicial intervention in an admittedly complex area of social policy is queried. In particular, it is suggested that the court may have failed to evaluate the true value of the expression interests at stake in child pornography in the face of the legislature's attempt to advance other significant Charter values.

(1998). Free speech, fair trials, lawyers and the media—an overview of recent developments. Legal Ethics: Vol. 1, No. 2, pp. 119-122.

In the UK Constitution, the major weapon of judicial control over the exercise of governmental power is provided by the action for judicial review. This action serves to keep public bodies within the scope of the powers conferred on them by law. Prior to the present Law Commission inquiry into procedural aspects of judicial review, the matter was last examined in 1977 since when there have been significant changes in the ways in which governmental power is exercised and controlled. This article takes as its focus the Law Commission's Report No.226 Judicial Review and Statutory Appeals and examines specific proposals contained therein arguing that, underlying the reforms, there exists no coherent vision of the future role of public law. Instead, what is revealed is a confused cocktail of measures in which the tension between the legitimate needs of public administration and the opposing requirement that government act according to law remains unacknowledged and thereby unresolved. There is, moreover, a disappointing failure to evaluate the experience of public law procedures found in other jurisdictions. In response to these perceived deficiencies, the authors set out an alternative and principled account of judicial review, the central feature of which is to ensure that public power is subjected to an appropriate degree of judicial scrutiny. This alternative account is later used to inform arguments about specific reforms. In this regard, the valuable experience of other jurisdictions’public law procedures is also drawn upon.

In 1983, a report by the organisation JUSTICE into the state of prisons considered that the ability of convicted prisoners to communicate with those outside prison, by letters or visits was, as prison regulations then stood, ‘severely restricted’. Recent years have, however, witnessed a relaxation in the controls imposed on prisoners’ legal and non-legal correspondence, including the abolition of the prior and simultaneous ventilation rules and many restrictions affecting those convicted of less serious offences. Despite this fact, a number of restrictions remain, and the practices of prison authorities in opening, examining, reading and stopping legal mail continue to occupy domestic and international courts.

Ever since the enactment of the Contempt of Court Act 198 1, concern has been expressed’ about the use of orders under sections 4 and 11 restricting the media’s ability to report court proceedings in accordance with the principle of open justice.* However, the absence of any empirical survey of these orders has hampered a proper evaluation of their worth. This article seeks to elucidate the operation of reporting restrictions at Crown Court level by presenting and analysing the results of a survey of nine Crown Courts during the period 1982-89. The findings are prefaced by an exposition of the legal framework.

The decision of a unanimous House of Lords in X Ltd v Morgan-Grampian Ltd and Others ' will probably be remembered as the occasion when the ability of the media to protect their sources under section 10 of the Contempt of Court Act 1981 was seriously eroded. Such an account would, however, fail to record the efforts which were made to give substance to the general legislative policy behind s 10 namely, ensuring the flow of information into the public domain via the media (ie by protecting media sources). It will be argued that, whilst certain criticisms may be made of the decision to order disclosure, the case ultimately raises doubts about the adequacy of the statutory formula itself.

This chapter presents a legal and constitutional examination of the legitimacy of ‘offence’ as a ground for limiting expression by the coercive force of law. It sets out to tackle a number of questions. First, it discusses the likely outcome of a challenge before the European Court of Human Rights to national authorities' restrictions on expressive activities, where those restrictions rest on the claim that the expression in question does or is likely to cause offence to genuinely held religious beliefs. It discusses some reasons in favour of tolerating offensive expression, including what for many is the least deserving form of offensive expression, namely, ‘gratuitously offensive’ speech. Finally, some issues around the outer limits of offensive expression are explored.

This chapter is concerned with the treatment in international law of claims to freedom of expression and association in the context of ‘the war on terror.’ Where international law is relevant to the construction of domestic legal norms it offers the prospect of a check upon the liberty-encroaching tendencies of gov-ernments. In those constitutional settings where automatic overriding status is conferred upon it, the powerful transformative potential of international human rights law is obvious.

The state's ability to protect defence and national security interests is rightly thought to require that intelligence and security activities be conducted under a certain degree of secrecy. Historically, the UK legislature has shielded state-held information by enacting wide-ranging offences to punish the disclosure of official information. Indeed, the loose and sometimes hurried drafting of official secrets legislation has typically provoked fears that the reach of the criminal law staunched the flow of information whose disclosure would have been justified in the public interest. Today, the struggle to bring security and intelligence services under public scrutiny and, thereby, informed democratic control by the electorate has never seemed so vital. Public distrust concerning the accuracy of security services' intelligence material and the UK Government's assessment of such intelligence pre-dates events connected with the Iraq War in 2003

Legal protection of journalists' sources and materials has been said to be a pre-requisite for freedom of expression and information. The maintenance and development of an informed, self-governing democracy requires that newsgatherers be free to a significant extent from a compulsion to disclose either their sources of information or notebooks and/or other documents. Coerced disclosure is problematic on a number of counts. For example, once it becomes known that a media organisation has complied with a demand for disclosure of images of demonstrators at a public protest, the safety of journalists and camera crews at demonstrations is put in jeopardy.

In the previous chapter I argued that international law offered at best an equivocal measure of protection on unpopular expression and minority associations. The indeterminacy of international legal norms in general and the failure of the international community to agree upon a comprehensive definition of terrorism have meant that national legal systems remain centre stage in the articulation, enforcement and policing of counter-terrorist strategies.