Samuels, Alec

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Mountbatten Journal of Legal Studies
The BNP and the Law and Political
Freedom
Alec Samuels
Many minority and political groups tend to be "unpopular", almost
by definition. How far is it possible or, indeed, desirable to impose legal
restrictions or disabilities upon them, e.g., the British National Party
("BNP")? Minority groups subject to proposed or sometimes actual legal
restriction are legion, e.g., communists, BNP, Muslim extremists, religious
fundamentalists, homosexuals, Freemasons and the hunting fraternity.
From time to time the BNP issue arises. Could or should a member or
sympathiser of the BNP be refused employment in the public sector, the
private sector or particular areas of employment such as schools, the fire
service and the police, be refused membership of a trade union or be
rendered ineligible for public office, e.g., Member of Parliament,
councillor or quango?
The Law
As one would expect, rights to freedom of conscience, opmlOn,
expression and association, and freedom from discrimination are to be
found in all the human rights instruments: the Universal Declaration of
Human Rights 1948, articles 18, 19 and 20, the International Convention
on Civil and Political Rights 1966, articles 18, 19 and 22, the International
Convention on Economy, Social and Cultural Rights 1966, the European
Convention on Human Rights 1950, articles 9, 10, 11 and 14 and the
United Kingdom ("UK")'s Human Rights Act 1998.
Everybody may hold opinions without interference unless there are
implications for national security, public order or public health and morals.
In English law there are a number of restrictions upon unrestrained
free speech, e.g., treason, sedition, incitement to disaffection, public order,
incitement to crime, incitement to racial hatred, defamation, breach of
confidence and obscenity.
Discrimination against specific persons or classifications of persons
is statutorily proscribed, e.g., race, sex and disability; age and religion are
currently under discussion for possible extension of the UK discrimination
legislation.
117
Mountbatten Journal of Legal Studies
Freedom of Expression
In Gennany a communist language schoolteacher, a civil servant,
was dismissed for being a communist and member of the communist party
(at that time outlawed). She was a perfectly satisfactory schoolteacher and
there was no evidence of indoctrination of children by her. The European
Court of Human Rights ("ECHR") held that she was entitled to freedom of
expression and freedom of association under articles 10 and 11 ,
respectively, of the European Convention on Human Rights, and that her
dismissal was, therefore, unlawful. 1 In a pluralist, tolerant and broad-
minded democratic society views that offend or shock or disturb must be
tolerated. As a civil servant, the schoolteacher did owe a duty of loyalty,
but there was no evidence of any threat to national security. Her livelihood
was at risk. However, there could be cases where a person's ideology,
associations and loyalty to another country over his own could constitute a
threat to national security rendering it lawful for the state to take
appropriate and proportionate action.
Trade unions enjoy freedom of association, subject to national
security? The right to strike may be lawfully restricted for good reasons,
e.g., to protect patients at a hospital?
Senior local government officers may not engage in active politics as
they hold politically restricted posts. This is to ensure political neutrality
in their work, e.g., as decision-makers and officers offering advice on
policy matters to elected members. They may be passive members of a
political party if they wish. The trade union, Unison, objected to the
restrictions.4 But, the ECHR held that it was legitimate to impose the
restrictions in order to protect the rights of elected members and the
electors and local democracy in ensuring political neutrality and,
accordingly, there was no infringement of the right of expression (article
10) or the right of association (article 11). Civil servants are required to
resign if they stand for election to Parliament and senior civil servants are
I Vogt v Germany (1996) 21 EHRR 205, ECHR. See also United Communist Party olTurkey v Turkey (1998)
26 EHRR 21; Socialist Party v Turkey (1998) 27 EHRR 51; Relah Partisi v Turkey (2002) 35 EHRR 56;
Yazar v Turkey (2002) 36 EHRR 6; and Grande Oriente d'/talia de Palazzo Giustiniani v Italy (2002) 34 EHRR
629 - national requirement to disclose membership of Freemasons unlawful. See also NF v Italy (2002) EHRR
106.
2 Councillor Civil Service Unions v UK (1988) 10 EHRR 269. National Union olBelgian Police v Belgium
(1979) 1 EHRR 578.
3 Unison v UK (2002) IRLR 497, ECHR.
4 Ahmed v UK (2000) 29 EHRR I, ECHR. Councilfor Civil Service Unions v UK (1988) 10 EHRR 269.
118
Mountbatten Journal of Legal Studies
subject to restrictions on expression of views on political issues though
such restrictions must be justified as necessary, if challenged.5
Protection of Public Morals
A publisher was convicted in England of publishing an obscene
publication under the relevant legislation. The publication advocated
sexual licentiousness, including illegality, attacked conventional thinking
and was directed at schoolchildren. The ECHR held that the seizure of
obscene publications was proscribed by law, necessary in a democratic
society for the protection of morals, proportionate, within the margin of
appreciation of a member state and, accordingly, a lawful restriction upon
freedom of expression. 6
Public Order
Public order must be maintained. A person is entitled to express
unorthodox and provocative views in public, provided that there is no
intention to incite violence and a police officer does not objectively and
reasonably suspect a breach of the peace. The judge in Redmond-Bates v
DPP said that freedom only to make purely inoffensive utterances would
be valueless.7 It is the violent thugs who should be arrested. Lawful free
speech in a public place could also be contentious, outrageous,
unacceptable, disgusting, shocking, disturbing, heretical and unwelcome.
Conclusion
All of us can go along with majority platitudes. One basic test for
democracy has long been said to be the way in which an unpopular
minority is tolerated. Freedom of expression constitutes an essential
foundation of a democratic society.
Alec Samuels IP
Barrister
5 House of Commons Disqualification Act 1975 s I(b). Jersild v Denmark (1995) 19 EHRR 1, para 37. Otto-
Preminger Institut v Austria (1995) 19 EHRR 34, para. 50.
"Handyside v UK (1979) 1 EHRR 737, ECHR.
7 (1999) 163 JP 789; (1999) Crim LR 998. Scc also the Public Order Acts 1936-1986-1996 and the Criminal
Justice and Public Order Act 1994.
119


Legal comment:  The BNP and the law and political freedom

http://ssudl.solent.ac.uk/1002/1/2005_9_1%262_117.pdf

Legal comment: The BNP and the law and political freedom

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