Dr Huw Evans unpacks two recent cases that have invoked the legal status of freedom of expression in Wales.
This article looks at article 10 of the European Convention on Human Rights (ECHR), which is about freedom of expression, and its application to Welsh public life, touching on two case studies. The first relates to Professor Nigel Hunt, the Wrexham University academic, who lost his position because of his comments about the Welsh language and bilingual road signs. The second relates to the Senedd Commission’s decision to remove GB News from the Senedd internal television system. We first consider article 10 before looking at the two case studies and issues arising.
What does the law say?
The most relevant parts of article 10 of the ECHR state:
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas…
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…
Three points can be made. First, it is not an absolute right (unlike, for example, article 3 of the ECHR (which is about prohibition of torture)). It is qualified and restrictions can be justified; the law intervenes in various contexts. Obvious examples include public order law (especially, where aggravated by religious, racial, or other factors) and defamation. It is not hard to see why there can be restrictions. It is about protecting others’ rights (and which may include their right to freedom of expression).
Freedom of expression is important because the right and its exercise are essential for a free society.
Second, the right promotes the exchange of ideas and information to inform opinion. For opinion to be better informed it will depend, surely, on the quality and range of information and ideas. Plurality is important. In a functioning democracy, vibrant, free media covering a full range of opinions is essential to help give best effect to the exchange.
Third, although the exercise by a person (A) of the right to freedom of expression may be lawful, A may suffer adverse consequences lawfully, as the exercise ‘carries with it duties and responsibilities’. For example, it is not unlawful for A to deny that there is a god: but if A is a priest, it cannot be seriously argued that A should continue to be a priest. The adverse consequence of A’s dismissal would be a lawful outcome of A’s exercise of the right.
The dismissal of Professor Hunt
In our first case study, Professor Hunt raised freedom of expression to justify his comments. By implication, he also challenged the decision that he and Wrexham University should part company. However, his comments show a misunderstanding about the right.
As happened here, it is a common response by A, when challenged about a statement made by A, that A has the right to make that statement because of the right to freedom of expression. There are two implicit premises: that this is an absolute right (that the right covers the ability for A to say anything, no matter how objectionable) and that A should be protected in the exercise of that right (that A should not suffer adverse consequences).
As has been already established, freedom of expression is not an absolute right.
Professor Hunt, however, did not say anything unlawful, which takes us to the second implied premise (that A should not suffer adverse consequences). Professor Hunt’s comments displayed an apparent insensitivity and/or ignorance of Wales and the Welsh language. But he has a right to those views and express them. This should be protected but not to the extent of restricting others’ rights to respond lawfully, even if due to that response he suffers adverse consequences.
Professor Hunt exercised his right to free speech, and he was legally protected. His employer had the ability to impose an ‘adverse consequence’. It considered that his views were inconsistent with its publicly stated position concerning the Welsh language. On the face, it was legally entitled to use this as a reason to terminate his contract. The former Home Secretary Suella Braverman has acquired the title ‘former’ in comparable circumstances.
Gofod i drafod, dadlau, ac ymchwilio.
Cefnogwch brif felin drafod annibynnol Cymru.
The ban of GB News
Our second case study is different. Objection has been made by Andrew RT Davies, the Welsh Conservatives’ leader, among others, that removal of GB News from the internal Senedd television system is an interference with freedom of expression. And this view seems correct.
Professor Hunt’s comments displayed an apparent insensitivity and/or ignorance of Wales and the Welsh language. But he has a right to those views and express them. This should be protected but not to the extent of restricting others’ rights to respond lawfully, even if due to that response he suffers adverse consequences.
But can that restriction be justified? The Senedd is a public democratic body, and its proceedings should be informed by a wide range of legitimate information and ideas. The key considerations for justifying restricting freedom of expression relate to significance and legitimacy.
GB News’s core values are probably not shared by the majority of Senedd users, but they will be representative of some and, also, a strand of public opinion. And those core values are part of a range that encompass a legitimate whole in a free and pluralistic society. On that basis, it has a legitimate voice.
There needs to be further consideration about legitimacy though, about the manner of expression. Judging from comments made, GB News ‘offending’ primarily related to the Lawrence Fox interview and the fact of multiple Ofcom investigations.
As to Lawrence Fox, GB News condemned what happened and acted quickly. To use this incident as a reason for GB News removal is wrong as it is disproportionate.
As to Ofcom, the picture painted by multiple complaints can suggest a more systemic issue. But the outcomes in most of these cases are awaited and if a complaint is upheld there will be Ofcom sanctions. For the Senedd to remove GB News before resolution is premature.
Overall, therefore, the removal of GB News from the Senedd internal television system seems to be an unjustified restriction on freedom of expression.
Because of the GB News removal, plurality of expression is being restricted, especially as GB News’ perspective is not otherwise represented.
A Lack of Plurality?
But at a wider level, plurality of expression in Welsh public life is significantly absent even on the most cursory review of broadcast, print, and online media. The complaint that Wales’ media are too London-centric is common. The recent decision by the Welsh Government to fund a Senedd reporter’s post for a one-year pilot project is an acknowledgement of that lack of plurality.
Freedom of expression is important because the right and its exercise are essential for a free society. While there is a right to freedom of expression in Wales, there is a problem about its exercise. One way to help remedy that deficiency is for public interest journalism to be publicly funded. Funding for one Senedd reporter is a (very) small start but much more needs to be done.
The case studies outlined here raise issues about freedom of expression. The case of Professor Hunt helped us define what the right entails. The second case study, of the removal of GB News, helps define its value as an adjunct to a genuinely free society. Greater consideration suggests that, unfortunately, due to the lack of Wales-focused public interest journalism, there is a landscape in which freedom of expression is not exercised as it should be concerning Welsh public life.
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