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Lord Goodhart: My Lords, I am also grateful to the noble Baroness, Lady Knight of Collingtree, for introducing this important debate. I agree with much of what she said, although some of her examples concerned rather silly, self-imposed political correctness, rather than any actual restrictions on freedom of speech. However, I hope that she will excuse me if, like my noble friend Lady Falkner, who made a brave and impressive speech, I concentrate mainly on the issue that has dominated the media throughout the past couple of weeks—the Danish
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cartoons. The issue is topical, it is important, and it raises and illustrates many of the threats and problems of freedom of speech.

As the noble Baroness, Lady D'Souza, said, the great American judge, Oliver Wendell Holmes said that the right to freedom of speech did not include the right,

The question is whether Jyllands-Posten, the newspaper that published the now notorious cartoons, shouted "fire" in the theatre. It is widely known that pictorial images of the Prophet Muhammad are offensive to most Muslims, whatever the nature of the pictures. The cartoons clearly went beyond mere images because some of them carried messages linking the prophet to terrorism. Publishing the cartoons was misguided, irresponsible and possibly also hypocritical because apparently, three years ago, Jyllands-Posten refused to publish cartoons of Jesus Christ on the grounds that that would offend its readers.

It was a wise decision of the United Kingdom media not to republish the cartoons. It would have been grossly irresponsible to do so at a time when thousands of British troops are serving in Iraq and Afghanistan. But should the publication be illegal? In my view—I think that most speakers have agreed with me—the answer is "No". I agree very much with the noble Baroness, Lady D'Souza, that freedom of speech is one of the basic pillars of a democratic society. Indeed, its special importance is recognised in Section 12 of the Human Rights Act 1998. Of course, it is not an absolute right, but under that Act restrictions must be strictly limited. To prohibit the publication of matter that is offensive to a section of the community is to give that section a veto over the freedom of speech of the rest of the community. In principle, that is unacceptable.

Should it be the rule, then, that we can say things that cause offence to other sections of the community, only if we say them in some serious or responsible way? I do not think that that is much better. It is difficult to distinguish between arguments carried on in the voice of what we used to call the broadsheets and arguments carried on in the voice of the tabloids, so I do not believe that speech should be banned simply because some people who hear it will be offended or because those who speak it are behaving irresponsibly. Freedom of speech is a freedom for satire, lampoons, bad-taste jokes and not just for serious and responsible argument.

To return to Oliver Wendell Holmes, when are we shouting "Fire"? Let us look at the metaphor. Shouting "Fire" when there is not one is wrong because it may lead to panic or stampedes in which people might die or be hurt. In this context, the test is: are the words or, in this case, the pictures intended to encourage violence against another section of the community or provoke hatred of that section? On that test, the cartoons do not seem to me to be shouting "Fire". They are not likely to increase hatred of Muslims or violence against them. They will appeal
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only to those who already hold hostile views. But there is a more difficult question. If violence is the test, should it be illegal to publish material that is not so much intended to encourage violence against those who are the targets of that material, as to provoke violence by the targets in order to ratchet up the divisions in the community? That was the effect—to some extent, perhaps, the intention—of the publication of the cartoons by Jyllands-Posten. That is the strongest case that can be made against that newspaper.

It is not an altogether easy question to answer. As I said, it is obvious that you cannot give any section of the community a veto, simply because it says that it will riot if you criticise it in particular ways. Yet I can imagine circumstances, in times of intercommunal violence, when a government might find it necessary to ban the publication of material intended to provoke violence by people of the opposite viewpoint. That would be permissible under Article 10.2 of the European Convention on Human Rights as being necessary for the prevention of disorder or crime. Any ban would have to be temporary, exceptional and spelled out in law in order to come within Article 12. I do not think that the circumstances now exist that would justify such legislation.

We should also look at the reverse of the picture: what about the rights of the demonstrators against the cartoons to express their views? The demonstrators who were carrying placards calling for the beheading or massacre of those responsible for the cartoons were, plainly, inciting murder. They are plainly shouting "Fire" in Justice Holmes's theatre. Whether it is right to prosecute them is a matter for the police and the Crown Prosecution Service, and I would not be critical of the restraint shown by the police at the demonstration last weekend. Some of the demonstrators may have been deliberately provoking arrest in the hope of stirring up over-reaction by the police and getting the sympathy of moderate Muslims. It should and must be the objective of the police in the future to prevent the display of placards inciting murder. On this issue only am I not in entire agreement with the noble Baroness, Lady D'Souza. The BBC's "Today" programme also made an error of judgment in giving airtime to the repulsive views of Omar Bakri Mohammed.

The debate is extremely important, as it shows the importance of freedom of speech and the difficulty of deciding where it stops. I agree with many of those who have spoken. I have some difficulty with some of them and am not in agreement with the views of the right reverend Prelate the Bishop of Durham, who rather reflected the viewpoint attributed to Professor Akbar in the speech of the noble Lord, Lord Plant. This does not give sufficient attention to the position of those who, like myself, do not have religious faith. Perhaps I have misunderstood it—the right reverend Prelate is indicating that I have—and I will certainly look at it again.

I also agree with the noble Lord, Lord Dubs, that this is not such a clear case as that of the Satanic Verses, where the reaction of some fundamentalist
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Muslim groups was a reaction of bigotry and not one of faith. Jyllands-Posten was knowingly offensive to Muslims. It was at best irresponsible and may possibly have been deliberately provocative. The same is true of newspapers in other countries that have reprinted those cartoons. Yet I believe that the law should not prevent the publication of material that is offensive to some on religious grounds. The right to freedom of speech is a vital defence for all in a multicultural society. In very recent times, the Government have, in the Racial and Religious Hatred Bill and the Terrorism Bill, made unjustified attacks on the right to freedom of speech.

The right to freedom of speech is a vital defence for all in a multicultural society; all groups must be able to explain and, when challenged, justify their points of view. All of us will be weakened is freedom of speech is restrained.

4.40 pm

Lord Kingsland: My Lords, like so many of your Lordships, I add my thanks and congratulations to my noble friend Lady Knight of Collingtree on her incisive and perspicacious speech. We are fortunate, too, that it has taken place at a time when many of the issues that she intended to include in her speech have been given even greater relevance by current events.

I entirely agree with everything that has been said by those of your Lordships who addressed the principles that lie behind the doctrine of freedom of speech. I was particularly interested, as I am sure that all your Lordships were, in the observations made by the noble Lord, Lord Plant of Highfield. Freedom of speech is fundamental to the principle of minority rights; and as the noble Lord, Lord Goodhart, said, that is particularly important when a society has minorities that espouse different, deeply held, religious beliefs. But it is equally important to note that a majority government benefits from freedom of speech—because, if minorities have the right to express their views, they have the consolation that even if the majority takes the different view, at least those minorities have had an opportunity to influence majority thinking. So both minority rights and majority rule are enmeshed by the principle of freedom of speech.

As many of your Lordships have observed, particularly my noble friend Lord Inglewood, freedom of speech is not a comfortable constitutional doctrine to live with. People who are at the wrong end of observations of other members of society are often the subject of some very critical and sometimes distasteful remarks—even abusive and insulting ones. Yet those are essential ingredients to the doctrine of freedom of speech. A society, to incorporate successfully freedom of speech, has to have a very well developed sense of humour; and the cartoon, in my submission, is a vital component of freedom of speech, because, if the cartoonist is good, the reaction of the reader initially is one of humour. Is the cartoon is good, the cartoonist is seeking to ridicule people in power—the most damaging weapon that can be used against a sitting government.
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But I agree with all your Lordships that the cartoons that appeared in the Danish press totally failed to meet those vital principles; it was, indeed, unwise to publish them—though I also agree with the noble Lord, Lord Goodhart, and other noble Lords, that legally they certainly could be published.

The second difficulty with the principle of freedom of speech is that it is not an absolute principle. You only have to look at Article 10 of the Convention on Human Rights to see that the doctrine is qualified by other important social objectives, such as public security and public safety. So, in any given set of circumstances, the police, and other authorities that have power over the ability to express freedom of speech, must engage in a balancing act to reach a decision.

Indeed, with some of our most important laws, that balancing operation is inherent in construing what the law means. For example, the law of peaceful public assembly states that the continued legality of that assembly depends, in part, upon the reaction of those who are present for an initially peaceful reason. Quite often, because of the reaction of others around those engaged in peaceful assembly, something that was originally not a crime may become one. Once again, those in authority have to make a fine judgment about whether to bring a prosecution.

The noble Lord, Lord Goodhart, had an extremely pertinent question when he asked upon what we should focus. Should it be on the incitement by the banners of those manifesting, or on the reaction of those who observe that manifestation? Was the intention to incite violence, or to provoke others to violence? Those are all crucial questions, which the police have to take into account before they decide how to react.

Another factor, aside from the circumstances of a particular case, is the circumstances of the nation. The approach of the authorities to freedom of speech in the 1930s was very different from that of the authorities in the course of the Second World War, when the nation was under threat. What you might or might not say about fascism or national socialism in the 1930s you could not say in the 1940s, and for good reason. The balancing act came out with a different solution, because of the overriding importance of public security. That is one reason why we have particular difficulty in making that balance today; for we live in a world of international terrorism. We have no idea when we will next be hit by a terrorist act. Are we in a state of war or of peace? In a sense, the problem that the authorities face today is much more difficult than that which they faced in the 1940s.

As the noble Baroness, Lady Falkner of Margravine, said, when we come to pull the strands of these issues together it is absolutely vital that those who have the authority to prosecute act in a totally even-handed manner. That is, across not just particular activities but across all ethnic groups. Indeed, if they do not we will lose confidence in them.

My noble friend Lady Knight placed particular emphasis on the growing disease of political correctness, and rightly so. The right reverend Prelate
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also had a number of extremely pertinent observations to make on that. Frankly, I am outraged at some of the investigations that the police have made into perfectly legal observations made by members of different ethnic groups about matters where they were, in any case, only responding to questions asked by interviewers.

I am also extremely disappointed in the way that the police have operated Section 132 of the Serious Organised Crime and Police Act 2005. What was originally intended to protect Parliament is now being used to protect the executive offices in Whitehall as well. Some of the arrests that have been made have, frankly, done much more to discredit the police than they have to enhance public security.

Different views have been expressed by your Lordships about whether arrests ought to have been made in the course of the demonstration in front of the Danish embassy. It is difficult for those of us who were not there to take a final view on that; as with the jury in a court, you can only come to a correct conclusion if you have heard all the evidence in court and have been influenced by no other. In those circumstances, one must always allow the police a margin of appreciation. However, having seen some of the banner texts, had I been there—given that I am making these observations at a distance in both space and time—my inclination would have been to make some arrests. The key is for the police to be even-handed. That is the issue on which I am most interested to hear the Minister as he gets up to respond to the debate.

4.50 pm

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