http://www.brugesgroup.com/eu/free-speech-the-eu-version.html?keyword=10 Paper No.

46

Free Speech: The EU Version

Dr Brian Hindley

with a foreword by The Rt Hon. Oliver Letwin, MP

Foreword
I am delighted to have been asked to provide a foreword for Brian Hindley's seminal paper. His argument is that Article 54 of the Charter of Fundamental Rights, if incorporated within the new EU constitution, would severely limit freedom of speech. This argument is both novel and powerful. It relies upon a particular interpretation of the statement in Article 54 that the right to engage in activities which "aim at the destruction" of other Charter rights or freedoms is not given by the Charter. Dr Hindley argues that this denial of the right to engage in activities aiming at the destruction of other Charter rights will be taken as the equivalent of a prohibition against engaging in such activities-and he goes onto argue that the scope of this prohibition will be such as severely to limit freedom of speech. He believes, for example, that existing legal protections of the right to express views about politically controversial issues, such as positive discrimination, may become worthless in the face of legal appeals to Article 54. This leads into intricate argument across difficult legal and conceptual terrains: how far does the absence of a right to do X entail a duty not to do it? How far does the fact that a particular document, when it is as fundamental as the Charter of Fundamental Rights, fails to enshrine a particular right, automatically entail the non-existence of that right under other law? The question whether Article 54 will have the effects that Dr Hindley foresees, is one to which we would only know the answer if and when the Charter did become part of our law, and the judges had started interpreting it. But this would be too late. We surely do not want to run the risk of discovering, after the fact, that our freedom of speech has been severely curtailed by a vaguely worded article in a Charter never itself debated in the House of Commons and annexed to a new constitution for Europe, which many people in this country have not yet heard of. I have no doubt that many people will describe Dr Hindley's view as "alarmist". But history is on his side, not theirs. Over the past few years, we have seen very clearly, both how a fundamental shift in our law can be achieved through incorporation of items such as the European Convention on Human Rights, and how apparently opaque, ambiguous and obscure phrases in European treaties and directives can have a vast significance for everyday life in Britain.

The truth is that the proposals for a new constitution for the EU, and for the incorporation of the Charter of Fundamental Rights within it, amount to an effort to establish a United States of Europe-as M Giscard d'Estaing has so clearly and so helpfully himself indicated. This, if it occurs, will be the most fundamental change in our constitution since 1688. It is, to say the least, surprising that the Government should be contemplating such a change without giving any assurance that the nation will have a suitable opportunity to debate the Constitution and the Charter fully and openly in a referendum. Dr Hindley's critique of the possible effects on freedom of speech of Article 54 of the Charter is only one-though one of the most important-considerations that any rational debate would have to take into account. Before the people of this country find that centuries of independence are finally abandoned through the absorption of Britain into a United States of Europe, they should at least have the chance to discover what is happening to them, and to debate whether they want it to happen to them. I believe that, in bringing forward this important pamphlet at this time, the Bruges Group is doing an invaluable service to those of us who are concerned with the evolution of British law and with the evolution of British democracy as a whole.

Acknowledgements
I am grateful to Ken Minogue, Robert Oulds and Helen Szamuely for their comments on earlier drafts of this paper, but I remain responsible for all errors. Brian Hindley

An EU threat to Free Speech

Freedom of speech on political matters is a crucial part of the Anglo-Saxon political tradition. In that tradition, any opinion, even one popularly viewed as an evident truth, is, and should be, open to challenge. The political and intellectual vitality of the Anglo-Saxon world stems in large part from application of this doctrine. The affirmation that no authority should have the power to suppress discussion of an idea clears the ground for debate. And if freedom of speech facilitates challenges to current orthodoxy, it also offers it a benefit: unquestioned orthodoxy rapidly becomes mere dead dogma. John Stuart Mill's On Liberty, published in 1859, provides the classic elaboration of this position. But generations of Anglo-Saxons before that had regarded freedom of speech as part of their heritage. The 1689 Bill of Rights contains provisions for free speech, and a hundred odd years later, the first amendment to the Constitution of the United States guarantees freedom of speech and the press in unequivocal terms. Freedom of speech has served us well. We should not abandon it or allow it to be taken away or restricted. Continental Europe has a less straightforward record on this issue.1 Nevertheless, few British people think that British freedom will be compromised by Britain's political and legal connection with the Continent.

The EU, though, now threatens free speech in Britain. The threat derives from the Charter of Fundamental Rights, acclaimed by EU leaders at the Nice Summit in December 2000, and now part of the draft EU constitution proposed by the Constitutional Convention presided over by M. Giscard d'Estaing. The Charter contains an implicit list of subjects that EU citizens have no right to talk about. This result comes about through Article 54, the final article of the Charter. Article 54 says (in its entirety): "Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein". Any activity...any act. A speech that is critical of one of the rights recognised by the Charter must surely be an act or activity aimed at the destruction or limitation of that right; a fortiori if the speaker expressly urges that the right be rescinded or limited. A newspaper or magazine article to the same effect must also be such an act-if it is not, what is? Nothing in this Charter. Article 54 therefore trumps Article 11, which grants EU citizens a "right to freedom of expression" and provides that they should be free "to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers". Article 11 should be annotated to say that its pretty sentiments apply only to ideas that don't challenge the content of the Charter. The first fifty-three articles of the Charter set out many rights and freedoms. But when Article 54 is combined with any one of these, it defines an area in which the Charter withholds the right of free speech from those who oppose that right or freedom. If the EU proposed as part of the EU constitution a document called "Arguments from which the right of free speech is withheld", and which listed these outlawed arguments, there would be an outcry. That, though, is the effect of Article 54. That hard fact isn't altered by the fact that the list is implicit and that it appears in a document called "Charter of Fundamental Rights".2 Article 23 of the Charter, for example, authorises positive discrimination "in favour of the under-represented sex". Reasonable people can be either for or against positive discrimination. The right of the under-represented sex contained in Article 23, however, combines with Article 54 to withhold the right to make arguments against positive discrimination for one sex or the other. You can imagine earnest persons in favour of equality of treatment between the sexes being led away from Women's Institute meetings by sympathetic Bobbies: "No, no, Madam, you can't say that. It's in the Charter and you don't have the right". Free speech was a fine tradition while it lasted. A magazine or newspaper article might make the same case, and might go on to advocate revocation of Article 23. What penalty will the offending author and publisher suffer under EU law? That the Charter gives rise to the question disgraces the Charter. There should be no penalty. We should not be asked to endorse a process that might provide a different answer, and, if asked, we certainly should not comply.

If the statement that you have no right to do something is to have meaning, then somebody else must have a right to penalise you if nevertheless you do it. The Charter doesn't specify who in the EU has that right or what the penalties will be. Setting out empty legal boxes, though, invites ambitious politicians and bright lawyers to try to fill them. Do we really want to allow such a process to start? Surely not: freedom of speech is too important to become a plaything in the political process-especially the political process of the EU, where support for free speech is often so qualified that it is closer to hostility than support. Some shrug Article 54 aside. It is, they say, mere rhetoric or bombast, of a type that EU membership should by now have familiarised us with: we ought not to worry about it. Over the years, though, a lot of words and provisions that successive British governments dismissed as idle Continental rhetoric have damaged us. Even if it is bombast, we should worry about Article 54. Tolerating Continental posturing that has no injurious potential is one thing: to shrug aside postures that threaten vital freedoms is quite another. Why does the EU want such a provision in what it calls a Charter of Fundamental Rights? The Council of the EU provides an on-line exegesis of the Charter (db.consilium.eu.int), but, when it comes to Article 54 the Council merely comments that Article 54 is based on Article 17 of the European Convention on Human Rights (ECHR). It doesn't explain why such a provision was included in the ECHR, or why it was thought necessary to transfer it to the Charter. The presence of a silly provision in the ECHR, though, is a bad reason for putting a similar provision into the Charter. Article 54 CFR, however, is not identical to Article 17 ECHR. Article 17 says that "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity...", and then continues essentially as Article 54. The emphasised words do not appear in Article 54. That has no obvious effect on the meaning of Article 54, but it does makes it clear that the conversion of Article 17 ECHR into Article 54 CFR was not automatic: it has been thought about. The effect on freedom of speech of Article 54 is therefore unlikely to be a mistake-it is more likely that some person or persons thought through the free-speech implications of Article 54 and wanted them. Nor is Article 54 CFR likely to be identical in its effects to Article 17 ECHR. The ECHR possesses few sanctions, whereas the EU and its member states have many. Translated into the sanction-rich environment of the EU, Article 54 threatens free speech in a way that the presence of a similar provision in the ECHR could not and did not. Some might think that even if the EU constitution withholds a right, that right can instead be guaranteed through national law. Perhaps: but as the draft constitution reminds us, EU law takes precedence over the national law of the member states. In the light of that, there must be doubt as to whether a right withheld by the Union constitution can be satisfactorily guaranteed through the national law of the member states. Such thoughts, though, should not be forced upon us. No useful purpose for Article 54 has been demonstrated, and it is difficult to conceive of how one could be shown or what it could be. Why, therefore, wrestle with the problems that Article 54 raises? The sensible course is to get rid of it.

Proscribed Topics
Article 54 targets "acts or activities that are aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein". Hence, the content of the Charter itself defines the issues from which Article 54 withholds rights to criticise or to suggest amendment and revision. The provisions of the Charter are based almost entirely on the dominant political credo in the EU-soft social democracy. Indeed, Article 54 could be viewed as an attempt to "lock-in" that credo by using the EU constitution to exclude alternatives. Here, though, the focus is on the broader issue of freedom of speech. The provisions of the Charter will be acceptable to many Europeans. The content of the Charter, though, is not a central issue here. The central issue in this paper is the right to argue against its provisions-the right of free speech threatened by Article 54. Three of the areas affected are discussed below. These issues are chosen for illustration. The complete list of outlawed topics, of course, is much longer. Death Penalty Article 2.2 of the Charter says that "No one shall be condemned to the death penalty or executed". The emerging identity of the EU lies in substantial part in its rejection of the death penalty (as compared, of course, with the United States). Many Europeans regard the death penalty as absolutely immoral. Some even argue that it is "unchristian"-a curious claim to surface in an irreligious age after 2000 or so years of Christian co-existence with death sentences (and worse). It is not the rights and wrongs of the death penalty as such, however, that are at issue here. It is whether arguments for that punishment are so dangerous that the right to make them should be withdrawn. Suppose evidence appeared, for example, that showed that application of the death penalty reduced the number of murders. It would follow that executing murderers reduces the number of victims of murder. Such a finding would make no impression on those who believe that the death penalty is absolutely immoral. But the presence of such absolutist views in the EU provides no good reason to withhold the right to make arguments based upon consequences. In the light of evidence, such arguments might conclude that the death penalty should be restored to save potential victims of murder. Article 54, though, withholds the right to put such an argument. Article 19.2 also bears on this issue. It says that "No one may be removed or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment". Thus, a person who flees to the European Union after committing multiple murders in the United States probably could not be extradited to the United States.

Even a European who rejects the use of the death penalty in Europe, though, might think that the US (and its individual states) are entitled to their own view on what punishments are appropriate to murders committed on their soil by their own citizens. A European with such views might believe that those who commit murders in the US should be extradited to the US if found in the EU, regardless of the likely punishment in the event that the alleged murderer is found guilty. You might not like arguments of the kind sketched above. You may think that only unpleasant people would make them. But a right to free speech that is conditional on the amiability of the speaker, or the acceptability or political correctness of the case she is making is not much of a right. To say that arguments such as those sketched above are so obnoxious that the right to make them should be withheld-the effect of Article 54-is to display a quite unacceptable level of intolerance. Discrimination Article 21 prohibits "discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation". This list is for the most part unobjectionable, though "genetic features" is problematic-what is intended (and portended) by its inclusion, given that sex, race and colour are already accounted for? Article 23, however, strikes out on another track. Its first paragraph certainly says, consistent with Article 21, that, "Equality between men and women must be ensured in all areas, including employment, work and pay". But, as noted in the introduction to this paper, it continues: "the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex". So, for this good cause, equality is abandoned and discrimination adopted. Gender, though, is the only good cause so recognised. That's odd. The case for affirmative action to counter racial discrimination seems at least as strong as the case for action to counter gender discrimination. Yet the Charter expressly permits affirmative action when gender is at issue (Article 23), but expressly bans it when race is at issue (Article 21). Article 54, as already noted, combines with Article 23 to withhold the right to make the case for equality of treatment between the sexes. But, also, it arguably strikes at attempts to make the case for affirmative action for members of disadvantaged races. The provision calling for equality of treatment for members of different races, it could be argued, implies a right of members of advantaged races not to be discriminated against. If that implied right is interpreted as a right or freedom "recognised in this Charter", than Article 54 applies to any attempt to restrict it-that is, withholds the right to suggest that there should be discrimination in favour of members of disadvantaged races. Rights of Workers Consistent with its social-democratic cast, the Charter sets forth many rights for workers. As with the prohibition of the death penalty, these will be acceptable to many Europeans, and possibly to a majority of Europeans. The issue here, though, is different: it is whether the EU constitution should withhold the right to put opposing views.

Argument about the rights of workers and owners of property are at the centre of political debate. To risk stifling one side of the argument therefore risks a grievous effect on the vitality of democratic debate. Among the rights the Charter sets out for workers are:

"Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests" (Article 12). "Everyone has the right to education and to have access to vocational and continuing training" (Article 14). "Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices" (Article 27). "Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflict, to take collective action to defend their interests, including strike action" (Article 28). "Every worker has the right to protection against unjustified dismissal..." (Article 30). "Every worker has the right to working conditions which respect his or her health, safety and dignity" (Article 31.1). "Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave" (Article 31.2).

Article 34, moreover, "recognises and respects the entitlement to social security benefits and social services, providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment...". Flexible Words A major problem in addressing the substance of these articles is to know what they mean. They are filled with flexible terms. Interpreteding these terms in one way, the provisions might be tolerable: interpreteding them in another way, the provisions are thoroughly objectionable. In the provisions quoted above, the flexible words-"unjustified" dismissal, for example, or the provision of working conditions that "protect dignity"-are invariably open to interpretations that expand the protection offered. Indeed, interpretation consistent with the language has the potential to expand those "protections" to an almost unlimited extent.3 This elastic language provides a perfectly good ground upon which to resist the Charter. What, after all, would we be agreeing to? There is every reason to be suspicious of a document that uses words in such a way that interpretation can radically change effects, and change them in ways that are economically adverse. The loose language of the Charter also raises a question about the scope of Article 54. That article removes any right to attempt to limit rights and freedoms "to a greater extent than is provided for" in the Charter, but the extent to which they are provided for is a matter of interpretation. Article 31, for example, gives workers "...the right to working conditions which respect his or her health, safety and dignity". Once a court has defined dignity in this context,

does Article 54 remove the right to suggest that a looser interpretation might be better for workers? Debatable Issues Looser interpretations of "dignity" might be better for workers because strong interpretations are likely to be expensive for employers, and therefore to threaten employment. Similarly, there can be too much "respect' for health and safety - that is, a level of respect so expensive that workers would rationally prefer to have higher wages and less provision for health and safety. In the present context, though, it is not the substance of these arguments that is at issue: it is the right to put them. How can it be thought that it is proper to withhold the right to say such things? Or, to take another example, how can it be thought proper to remove the right to say that employers should be able to negotiate no-strike agreements? Such agreements appear to be contrary to the right given by Article 28 "to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflict, to take collective action to defend their interests, including strike action". Even a strong supporter of trade union powers, surely, might balk at removing the right of opponents to make a case against a generalised and irrevocable right to strike? Consider finally Article 34, which "recognises and respects the entitlement to social security benefits and social services, providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment...". Article 34 describes the way things are currently done in Europe in this area. As with other provisions of the Charter, it will be acceptable to many Europeans. There is, though, an alternative case. That case is that responsibility for dealing with these eventualities should fall upon individuals themselves (with the exception of industrial accidents, when employers may be better placed than workers to take action to avoid accidents). The European social model gains much of its popularity from the notion that someone other than workers pays for the benefits listed in Article 34; and that notion gains credence from the fact that employers make tax contributions to the social security funds. The tax, though, is typically a payroll tax, and if an employer is willing to hire 100 workers at a wage of W and a payroll tax of p, she will be willing to hire 100 workers at a wage of W(1+p) and a payroll tax of zero. Workers pay for the benefits that workers receive under the European social model, although some workers may receive more benefits than they have paid for, and others less. An attraction for politicians, of course, is that "government" is able to take the credit for doing for workers what workers mistakenly think they can not do for themselves. But Article 34 combines with Article 54 to remove the right to put the alternative case. That such a result should be part of a proposed EU constitution shames the EU.

Free Speech: the EU and the US

The US constitution guarantees freedom of speech and expression in unambiguous terms: "Congress shall make no law...abridging the freedom of speech, or of the press". No "except....", or "...unless it serves the public interest". The articles dealing with freedom of speech and the press in the Charter of Fundamental Rights provide no such guarantee. Indeed, they come close to a guarantee that speech will not be free. The EU in the twenty-first century cannot play in the same league as the US in the eighteenth. If Article 54 contained some virtue to balance the potential threat it poses, it might be necessary to think again about accepting it. But it does not. Nothing would be lost if Article 54 were removed from the Charter.

Origins and Destinations

The Charter of Fundamental Rights is generally regarded as a German initiative. It is the product of a 62-member "convention" established at the 1999 Cologne summit of the EU and was chaired by a former president of Germany, Roman Herzog. In the view of the EU powers-that-be, apparently, the convention worked well. The success they attributed to it paved the way for the Constitutional Convention presided over by M. Giscard d'Estaing that is currently preparing proposals to be put to the grand EU constitutional conference to be held in 2004. Supporters of the Charter wanted the Nice IGC, at the end of 2000, to annex the Charter to the Nice treaty, so that it would become part of the treaties that govern the EU. That did not happen, largely due to the opposition of the British government. Currently, however, the Charter is Article 6 of the draft EU constitution of M. Giscard d'Estaing, and the opposition to it of the British government has been weakening.4 Mr Blair will soon come under intense pressure to accept the Charter as part of an EU constitution. The Charter largely reproduces the European Convention on Human Rights (ECHR). Large sections of the Charter therefore seem to be redundant. The Convention, however, is not an EU institution and possesses its own court and judges. The judgements of that court may therefore conflict with those of the senior court of the EU, the European Court of Justice, where their domains overlap. An attraction of the Charter, for integrationists, is that its acceptance by the EU would remove this potential conflict. Disputes concerning the material of the Charter would come before the European Court of Justice, not the European Court of Human Rights. Integrationists may also hope that an integrationist ECJ will interpret the loose language of the Charter in such a way as to bring Continental labour-relations practices to Britain and other recalcitrant member states. Admiration for those practices, of course, is not universal (indeed, it is largely restricted to Continental states). It is a widely held opinion, for example, that those practices play a leading role in causing the high rates of unemployment seen on the continent. A principal part of the approach to the EU of Mr Blair and Mr Brown, the Chancellor of the Exchequer, is based on their stated belief that they can persuade the Continentals to replace their current labour-market practices with more flexible ones. But they

have not yet been very successful, and the Charter is a potential means of bringing about the opposite result-the importation into Britain of Continental-style labour-market rigidity. The ambiguity of so many provisions of the Charter, which led to the objections to it of the British government at Nice, still provides a sound basis for rejecting it. The threat posed to free speech by Article 54, however, is in a different class. The problem is still, in one sense, ambiguity. The Charter creates a legal grey area, filled with propositions that the Charter says EU citizens have no right to make. The ambiguity lies in the fact that is impossible to know how this grey area will be treated, just as it is impossible to know how the ambiguous articles concerning the labour market, for example, will be resolved. In neither case, however, does ambiguity have anything to be said for it. But while the ambiguity of other provisions of the Charter primarily threatens economic dislocation, the ambiguity created by Article 54 threatens fundamental liberties. Moreover, it does so without any apparent good reason: indeed, without any conceivable good reason. The British government should resist the creation of a list of arguments that EU citizens have no right to make-whether as part of an EU Constitution or any other document. That there might not be a bad outcome-the list may lie dormant and no action be based upon it-does not balance the risk that there will be action based upon it, which can only be bad. EU proposals that offer Britain the status quo as a best outcome, but otherwise something worse, should always be treated with suspicion. That rule should be applied with special rigour, however, when fundamental liberties are at stake. The British government must veto the Charter of Fundamental Rights.

Endnotes
1. Many of the blemishes on the Continental record are historical, but not all. An article in the March 2003 issue of Prospect ("France Profonde", p.46), offers some reflections on a case in which a magazine in Lyon was recently fined 254,143 for publishing a critical opinion of Beaujolais wine. Nor is wine all that is protected by French law. It is in France a criminal offence to "disparage" the president. 2. One is reminded of the loudspeaker announcement in Orwell's 1984: "Citizens, good news. Your chocolate ration has been increased from eight ounces to six ounces". 3. In contrast, Article 17, the only article of the Charter to deal with property, is anaemic: "Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest". In Article 17, moreover, interpretation of the flexible words-"the public interest', "the general interest"-is likely to contract the protection ostensibly offered by Article 17. 4. The Financial Times (18.2.02) carried the headline "London is open to rights Charter being added to an EU constitution". The article reported that "Britain is open to incorporating the Charter of Fundamental Rights into a European Union constitution so long as it would not be enforceable in UK courts, Peter Hain said yesterday". Mr

Hain was then Minister for Europe, and still represents the British government at the Constitutional Convention. It would be interesting to know how Mr Hain visualises the Charter being part of an EU constitution but not enforceable in UK courts. Presumably he is thinking of some kind of opt-out a la Maastricht; but that seems difficult to contrive for a constitution.