R (Rusbridger and another) v Attorney General
| Jurisdiction | UK Non-devolved |
| Judge | LORD STEYN,LORD HUTTON,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGTHORPE |
| Judgment Date | 26 June 2003 |
| Neutral Citation | [2003] UKHL 38 |
| Date | 26 June 2003 |
| Court | House of Lords |
ex parte Rusbridger and another
[2003] UKHL 38
The Appellate Committee comprised:
Lord Steyn
Lord Hutton
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
HOUSE OF LORDS
My Lords,
Behind the procedural questions brought before the House by the Attorney General lies the question whether the editor of a newspaper, who conducts a press campaign advocating the peaceful and constitutional replacement of the monarchy by a republican form of government, may be guilty of an offence under section 3 of the Treason Act 1848. The same question could be asked about the rights of an individual. The Attorney General has invited the House to concentrate on procedural issues with minimal reference to the ultimate question. Judges, however, ought not to work in the dark.
I. The 1848 Act.
1848 was the year of revolutions on continental Europe, but there was only one Chartist demonstration on 10 April 1848 in a relatively tranquil Britain. But there was a fear that the contagion of revolution, with its associations with the Terror after 1789, might spread to Britain. This was probably one of the reasons why Parliament passed the Treason Felony Act 1848. A further factor was that while the Treason Act 1351 applied to the whole United Kingdom it was unclear whether later statutes (such as the Treason Act 1795) extended to Ireland. Certainly Parliament was told that this was the principal mischief to be addressed. There was another objective. The Treason Statute of 1351 was still in place as it is in part to this day. The Treason Act 1795 was passed to facilitate the prosecution of constructive treasons: it did so by criminalising them as treasons. But juries were reluctant to convict defendants of what were sometimes perceived to be political charges but carrying the death penalty. The 1848 Act therefore provided that certain constructive treasons were to be felonies, punishable by life imprisonment. It did, however, specifically provide that conduct penalised by the 1848 Act could still be charged as treason. This is the relevant historical setting of the statute.
Section 3 of the 1848 Act provides:
"… If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, … from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty's dominions and countries, or to levy war against her Majesty, … within any part of the United Kingdom, in order by force or constraint to compel her … to change her … measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty's dominions or countries under the obeisance of her Majesty, … and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, … or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable, … to be transported beyond the seas for the term of his or her natural life …"
The gaps in the text reflect words repealed by the Statute Law (Repeals) Act 1891 and the Statute Law (Repeals) Act 1892. The old common law classification of crimes as treasons, felonies and misdemeanours has been abolished: section 1 of the Criminal Law Act 1967. The reference in section 3 to "felony" is to be read as a reference to an offence. The penalty under section 3 is now imprisonment for life or any shorter period: Penal Servitude Act 1857 and Criminal Justice Act 1948. Subject to these statutory changes, section 3 remains in full force.
The question has been raised whether section 3 makes punishable a press campaign to seek to persuade the British people to make a peaceful change from a monarchical form of government to a republican one. The way in which this point arises on the wording of the section can be briefly explained. Despite the quaintness of the language it is possible to divide the scheme of section 3 into (1) the compassing (contriving), etc., generally and (2) the compassing specifically by publishing etc., in order to -
(a)
to deprive the Sovereign of the Crown;
(b)
to levy war against the Sovereign;
(c)
to encourage foreigners to invade the United Kingdom.
This is how the section is approached in Halsbury's Laws of England 4th ed., Vol 11 (1), para 86, and in Smith and Hogan, Criminal Law, 6th ed., 1988, 832-833, the relevant section being omitted from subsequent editions of this book. For present purposes the material part of section 3 is that directed against compassing by publication to deprive or depose the Queen from the Crown. This provision had as a prime target editors of newspapers and this was indeed the main use made of it in prosecutions in Victorian times. No prosecutions have, however, been brought under it since 1883.
It will be noted that in parts (b) and (c) identified above the use of force is expressly made a necessary ingredient of the offence. The question is whether it is also an ingredient of the offence contained in part (a). At first glance the language is wide enough to cover a press campaign advocating the adoption of a republican form of government by constitutional processes. If that is so, peaceful political debate on the virtues of republicanism is criminalised. The question could be posed whether this is the correct reading. Interpretation is not infinitely expandable; there is a Rubicon which may not be crossed. On the other hand, counsel for the Attorney General accepted that the 1848 Act must be construed as an always speaking statute in a modern democracy. In this context it may well be that the strong operative words "deprive or depose" import the idea of changing our form of government by unlawful force. If this interpretation is correct, the reason for the present litigation collapses at the threshold. For reasons which will become clear it is not necessary to express a view on this point.
II. The Human Rights Act 1998.
The United Kingdom became a party to the European Convention on Human Rights in 1950. Its provisions are well known. The establishment and recognition of fundamental individual rights was its main aim but its preamble envisaged that this aim could only be established by creating conditions of "effective political democracy". Plainly that involved the idea that peaceful political debate about constitutional and governmental structures should be encouraged. Political free speech, criticising an existing form of government, was regarded as central to the development of European liberal democracies.
The Human Rights Act 1998 has potential implications for interpretation of section 3 of the 1848 Act if it makes punishable the advocacy of republicanism by individuals or the press by constitutional methods. The convention right at stake is freedom of expression. Article 10 provides:
"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 without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
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, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Freedom of political speech is a core value of our legal system. Without it the rule of law cannot be maintained. Whatever may have been the position before the Human Rights Act came into operation, it is difficult to think of any rational argument justifying the criminalisation of the conduct of citizens who wish to argue for a different form of government.
Section 3(1) of the 1998 Act provides:
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute: In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, 313, para 40, per Lord Nicholls of Birkenhead. If it is unavailable, incompatibility of legislation with a Convention right brings section 4 into play. Section 4, so far as material, provides:
"4 (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied -
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any...
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