Guardian claims right to free speech
Clare Dyer, legal correspondent
Wednesday May 21, 2003
The Guardian
The attorney general, Lord Goldsmith, is taking the Guardian to Britain's highest court today to try to stop the newspaper's challenge to a 155-year-old law which still makes it a criminal offence, punishable by life imprisonment, to advocate abolition of the monarchy in print.
Lord Goldsmith is appealing to the House of Lords against a ruling by three appeal court judges last year that the paper should be allowed to argue its case in the high court for a reinterpretation of the Treason Felony Act 1848 in the light of human rights law.
The act, passed amid concern over the spread of republican sentiment after the French and American revolutions, made it a serious offence, punishable by transportation, to call for the establishment of a republic in print or writing, even by peaceful means. It remains in force, though last used in 1883, with life imprisonment as the maximum penalty.
The Guardian's challenge followed the launch of its campaign in December 2000 for the establishment of a republic by peaceful means in the UK. Before publishing a series of articles on the subject, the editor, Alan Rusbridger, asked the then attorney general, Lord Williams of Mostyn, to confirm that the paper and its staff would not face prosecution under the act. He wrote back: "It is not for any attorney general to disapply an act of parliament; that is a matter for parliament itself."
The paper argues that section 3 of the act, which makes it an offence to call for an end to the monarchy, can no longer stand since the Human Rights Act, which came into force in December 2000, incorporates into English law article 10 of the European convention on human rights, guaranteeing freedom of expression.
The paper is seeking a court declaration that section 3 is incompatible with the guarantee in the convention. Alternatively, it wants the court to reword the 1848 act so the offence is limited to seeking a republic by violent means.
The application was thrown out by two high court judges, but the appeal judges sent the case back, saying: "We consider it would not be in the interests of justice to prevent the matters raised in this application from being fully argued." Lord Justice Schiemann found "powerful arguments in favour of free speech and also of having our criminal law formulated in such a way that the citizen can see what is prohibited and what is not".
Lawyers for the attorney general are expected to argue in the Lords that a ruling in favour of the Guardian would open the civil courts to being asked to give advice on whether or not an action would be a criminal offence.
Such declarations, they will argue, should be limited to the most exceptional cases, such as that of the Hillsborough disaster victim Tony Bland, who was in a permanent vegetative state but not allowed to die while possible prosecution hung over his doctors.
Mr Rusbridger said yesterday: "I'm slightly surprised the attorney general should be going to such lengths to preserve a law last used to persecute journalists for daring to criticise Queen Victoria.
"Last week the government was protesting about Robert Mugabe deporting journalists. This week it is fighting to keep a similar law on the books in Britain. It's ridiculous and, in the example it sets, dangerous."
Article From: The Guardian