There is a growing sense, here in Britain and abroad, especially in the United States, that freedom of speech is being diminished under Margaret Thatcher’s government. The indictment rests on a number of specific instances. In the coming session of parliament Section 2 of the Official Secrets Act of 1911 is to be rewritten. A White Paper setting out the government’s proposals for revising the act was published last July.1 It is Section 2 of the 1911 Act that, above all, has given Britain the unenviable reputation of being an unusually secretive society.
Then there has been the Spycatcher case,2 now brought to final judgment in the House of Lords, our nearest equivalent to a Supreme Court. The Law Lords found against the government for the press, which for three years had been restrained from publishing any information concerning Peter Wright’s allegations of wrongdoing by Britain’s security service, M15. But the terms of the judgment by no means ensure the future freedom of the press.
A more recent instance has been the government’s recourse to an administrative power, contained in broadcasting legislation, in order to ban broadcast interviews with members of the IRA, Sinn Fein, and similar extremist organizations on the Loyalist side. This action has followed a series of incidents in which the government has either sought (and sometimes obtained) prior restraints on the broadcast of television or radio programs or resorted to bullying tactics against the broadcasters.
Finally, there is the move (which Parliament will have to approve) to restrict the right to silence when people are arrested and questioned, or when they are brought before a magistrate to be charged. At first this restriction is to apply only in Northern Ireland, where trial by jury has long been suspended, but Mrs. Thatcher’s government intends to introduce a similar (although probably more restricted) change in the remainder of the United Kingdom. In addition, Parliament has passed a law that forbids local authorities “to promote homosexuality” or allow their schools to teach “the acceptance of homosexuality as a pretended family relationship.”
I will deal here mainly with freedom of speech in Britain, but there are other worries for civil libertarians. One concern is with academic freedom, another with trade union rights. In addition there is the pervasive worry that liberties are being weakened by the casual disdain of the government, by the narrow preoccupations of judges, and by the indifference of the public. When the bans on broadcasting interviews were announced the talk-show phone lines were kept busy with proposals for a myriad of other proscriptions on free speech. These concerns were recently the subject of a special issue of Index on Censorship, the first ever to be devoted to a Western democracy. 3 In an introductory article, Ronald Dworkin, the distinguished American legal philosopher, who spends half of his time at Oxford, where he is the Professor of Jurisprudence, warned that “liberty is ill in Britain…. The sad truth is that the very concept of liberty…is being challenged and corroded by the Thatcher government.”
Mrs. Thatcher would be quick to pooh-pooh any suggestion that she is in any sense an enemy of liberty. Exactly the opposite, she would say: it is she who over the last nine years has set the British people free. She has set them free, she claims, from the heavy hand of socialism and has reinstated the freedom of the individual against the state. “We have successfully rolled back the frontiers of the state in Britain,” she told a European audience the other day.
And so she has in many ways. If economic freedom is thought to be an aspect of liberty, Mrs. Thatcher’s government has extended the freedom of the individual against the state. Consumer freedom, she would argue, has been extended by her economic liberalizations. More specifically, the public housing tenant now has the legal right to purchase his house, and the parents have the right to remove their children’s schools from the control of local authority. The rights of workers against trade unions have been extended, if the right not to belong to a trade union or go on strike is to be seen as a valid liberty. Moreover, those who choose to join trade unions can now be said to have their rights better protected by democratic procedures that are imposed by law.
One of the ironies of “Thatcherism” is that in order for the state to get “off the backs of the people” the state has claimed new powers. Mrs. Thatcher is an economic liberal but in no way a libertarian. In the matter of broadcasting, for example, she told executives summoned to 10 Downing Street, “I am a regulator, it is the government’s duty to restrict too much violence and pornography.”
Concerning fundamental rights she has an entirely traditional and English point of view. British liberty consists in the freedom to do anything that the law does not prohibit, no less but no more than that. A.V. Dicey’s third principle of the British constitution was that the fundamental rights of the citizen should not rest on a special guarantee by the constitution but should arise from the ordinary law. Mrs. Thatcher, herself once a lawyer, echoed this classic doctrine recently when the government attempted (unsuccessfully on this occasion) to suppress a television program about the incident on the Rock of Gibraltar in which three IRA bombers were shot dead by agents of the secret security force called SAS (Special Air Services). “The freedom of people depends on the rule of law and a fair legal system. The place to have trials is in a court of law. If you ever get trial by television or guilt by accusation, that day freedom dies,” she said. She is adamantly opposed to the notion that Britain needs a Bill of Rights. The idea that freedom of speech should extend to terrorists or traitors is thoroughly alien to her.
Dworkin rests his assertion that “liberty is ill in Britain” on two principles. “The first is the sovereign idea that liberty of speech, conviction, and information figure among fundamental human rights. The second is a set of working assumptions about how these rights must be protected, assumptions we might characterize as together forming the culture of liberty” (original italics). The phrase “the culture of liberty” is later used to describe a part of Britain’s national heritage as handed down from Milton through Mill.
There is no doubt in my mind that freedom of speech has been, and is being, diminished under Mrs. Thatcher’s government, but we must be careful, all the same, about the “culture of liberty.” Britain’s culture is very different from the American. The British “culture of liberty” is essentially parliamentarian. Most of the great battles for liberty were fought by Parliament and for Parliament. The press had to fight its own battles, beginning with the right to report on Parliament. The Bill of Rights of 1689 laid down only the right to parliamentary free speech. Nowhere is the right to a free press enshrined in the constitution. To this day Parliament is more likely to be concerned about infringements of its own prerogatives by the press than by erosions of press freedom by the executive. Only the other day a left-wing MP protested that reporters in the gallery were being provided with texts of the Chancellor of the Exchequer’s speech which he was delivering to the Chamber.
On the traditional view Parliament is the guarantor of liberty; liberty is not the guarantor of parliamentary government. True, there have been many splendid assertions of the contrary. For example, by Thomas Erskine, who in Paine’s defense said, “Other liberties are held under governments, but the liberty of opinion keeps governments themselves in due subjection to their duty.” But there is nothing in the British constitution that gives freedom of speech the fundamental and dynamic role it is allotted in the First Amendment to the American Constitution.
It is in the setting of the British “culture of liberty” that recent developments must be placed. Consider, first, the proposed reform of Section 2 of the Official Secrets Act. The present Section 2 is a catchall. It applies to official information originally obtained by any person holding government office, politician or civil servant, or by contractors to the government and their employees. It covers not only information in the possession of these people but extends to information communicated by them to others, whether officially or unofficially. In theory it is an offense—a criminal offense, punishable by imprisonment—for a cafeteria worker in Whitehall to disclose to me, as a journalist, the volume or quality of tea consumed there and an offense for me to publish that information if it is disclosed to me in unauthorized fashion. If I were to be so charged, I could not plead that tea drinking had nothing to do with national security. And I would have no defense that I acted in the public interest, not even if I had revealed that the civil servants’ tea contained powerful sedatives inserted by the KGB.
Section 2 was shown to be unworkable in the case of Clive Ponting. Ponting was a middle-range civil servant employed in the Department of Defense at the time of the Falklands war. He came to believe that the government was covering up the true circumstances surrounding the sinking of the Argentinian cruiser the General Belgrano. The official story was that the cruiser had been maintaining an aggressive course toward the British task force; subsequently it was alleged that she had changed course and had been heading back toward port, and that the British were aware of this but sank her all the same. In 1985, two years after the event, Ponting supplied two official documents to a Labour MP, Tam Dayell, who was campaigning for the truth about the Belgrano. He was discovered and prosecuted under Section 2. Ponting attempted a novel defense, arguing that it could not be contrary to the “interests of the state” to communicate its secrets to Parliament, which was a part of the state. The judge took the view that the interests of the state and the government were synonymous and directed the jury to ignore Ponting’s defense. Nevertheless, the jury unanimously acquitted him.
That was the last prosecution attempted under Section 2 but by no means the last attempt by Mrs. Thatcher’s government to guard the state’s, or the government’s, secrets. In the Spycatcher case, and in some of the other recent attempts to suppress or censure BBC programs touching on matters of national security, the government has had recourse not to the criminal law but to the civil law. Proceedings against the would-be publishers of Wright’s book were not taken under the official Secrets Act but under the civil law protecting confidentiality.
White Paper, Reform of Section 2 of the Official Secrets Act 1911. Command 408 (London: Her Majesty's Stationery Office).↩
See Noel Annan's review (The New York Review, September 24, 1987).↩
Index on Censorship, Vol. 17, No. 8 (September 1988).↩