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Arrowsmith v The United Kingdom

The Report of the European Commission on Human Rights in the Arrowsmith case (7050/75) raises several interesting questions concerning the scope of the protection of free speech under the European Convention. The applicant, Pat Arrowsmith, was convicted of offences under sections 1 and 2 of the Incitement to Disaffection Act 1934 for distributing at an army base leaflets advocating that soldiers should leave the forces or refuse to serve in Northern Ireland. The Court of Appeal dismissed her appeal, Lawton LJ characterizing the documents as 'mischievous' and 'wicked' and concluding that they constituted 'the clearest incitement to mutiny and desertion' ([1975] QB 678, 684). Miss Arrowsmith then lodged a petition with the European Commission, principally on the ground that her conviction violated Article 10 of the Convention protecting the right 'to receive and impart information and ideas without interference by public authority . . .' The application was held admissible (8 Commission Decisions 123), but on the merits the Commission (with two members dissenting) has now upheld the contention of the UK government that the prosecution and conviction should be regarded as a necessary restriction on the exercise of free speech in the interests of national security and for the prevention of disorder. It is hardly surprising that the Committee of Ministers agreed with this finding and concluded there had been no violation of the Convention by the United Kingdom (Resolution DH (79)4, reported together with the Commission's Report). Quite apart from the freedom of expression issues, which form the main subject of this note, the argument before the Commission touched on a number of other legal points on the interpretation of the Convention. The most important of these concerned the application of Article 9, affirming the freedom of conscience and religion. The majority of the Commission agreed with the government's submission that the applicant's leaflets, although motivated by her pacifist beliefs, could not be treated as a manifestation of those beliefs for the purpose of this Article, because they expressed political opinions about a particular situation. It is often a difficult point whether a constitutionally protected freedom of religion or belief extends to speech and acts which are influenced by a religious or other deeply held conviction. The United States Supreme Court, interpreting the First Amendment 'free exercise' of religion clause, has held that it may protect from regulation religiously based conductunless there is a compelling state interest justifying the restriction. Thus, in one of the leading cases, Cantwell v Connecticut 310 US 296 (1940), the Court ruled inapplicable a state statute requiring a permit from a local official to solicit money for religious causes, because it constituted an unlawful prior restraint on the appellants' 'free exercise' rights. The argument that the speech or activity must be an integral part of religious practice and worship
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has been consistently rejected by the American courts; it seems to be enough that the conduct is 'rooted in religious belief (see Burger CJ in Wisconsin v Yoder 406 US 205, 215 (1972)). The Commission's majority approach in the Arrowsmith case perhaps shows a more restrictive attitude to the scope of the conduct which is to be protected under Article 9 of the Convention; in this respect it shares the approach of some national courts in applying this provision, see in particular the Dutch case noted in Yearbook 3 of the European Convention 648. In view of these problems in determining the scope of conduct to be protected and also the difficulties in resolving what constitutes a 'religion' (or in some jurisdictions a secular conscientious belief) for this purpose, courts are understandably generally more willing to entertain arguments that restrictions on the publication of religious or pacifist literature violate rights to freedom of expression. The Commission's Report in the Arrowsmith case is accordingly largely devoted to determining whether the prosecution under the Incitement to Disaffection Act was a justifiable restriction under Article 10(2) on the freedom of expression conferred by the first paragraph of that Article. The remainder of this note is concerned to challenge its conclusion that it was. However, before discussing the principal reasons given by the Commission for its conclusion, it is as well to mention briefly an aspect of the case which might conveivably have influenced its approach. Miss Arrowsmith was prosecuted for distributing leaflets on an army base, not for making a speech or publishing an article advocating refusal by soldiers to serve in Ulster. Might it have been contended that the distribution of literature amounts to conduct rather than speech, and so falls outside the area of Article 10 altogether? The same questions may, of course, be raised with regard to similar activities such as the holding of meetings and processions or picketing. One passage in the Report might suggest that the Commission was attracted to this point: 'The Commission recognizes that freedom of expression constitutes one of the essential foundations of a democratic society. It finds, however, that the applicant by distributing the leaflets here in question went further than simply to express a political opinion' (para 90). It seems, however, from the context that the Commission was here attempting to draw a line between political speech and incitement to actiona distinction discussed later in this noterather than to place weight on any difference there may be between pure speech and the act of canvassing. In any case the fact that the UK government conceded that Miss Arrowsmith was exercising expression rights indicates that this point was not really in issue. And this was quite right. There can be no justification for treating canvassing and leafleting differently from the publication of literature for this purpose, except that time, manner and place regulations for the former can be supported on public safety or nuisance grounds; this has for long been the position of the US Supreme Court (see e.g., Schneider v State 308 US 147 (1939) and Martin v Struthers 319 US 141 (1943)). The initial steps in the argument leading to the application's dismissal were first, to examine whether the 1934 Act was as such a restriction on free speech imposed for one of the aims set out in Article 10(2) of the Convention ('. . .

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restrictions or penalties . . . in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime . . .') and secondly, to determine whether the prosecution of Miss Arrowsmith on the facts was similarly related to these aims. The Commission had little difficulty in concluding that the Incitement to Disaffection Act could be justified as a measure which has as its goal the preservation of national security and territorial integrity, and also the maintenance of order within the forces (see the Engel case, Decisions of the Court No. 22). The applicant's contention that the Act was ex facie invalid under the Covention was, therefore, rejected. The Commission clearly took the reasonable view that permissible measures to achieve these goals went beyond those necessary to protect official secrets and to guard against external invasion. (The applicant's subsidiary argument that the Act was too broad and vague and was thus incompatible with Article 5 of the Convention, guaranteeing the right to liberty and security of the person, was relatively summarily rejected.) What is much more controversial is the second conclusion that on the facts of the case the prosecution was initiated in pursuance of the prescribed aims. Miss Arrowsmith's case was that she was only expressing her opinions, albeit in a forcible way and to those most intimately concerned, on the undesirability of the military presence in Northern Ireland and providing information for soldiers how they might leave the army. In essence the claim was that to regard the prosecution as undertaken in pursuit of a permissible restriction on free expression would be completely to undermine this freedom in its most important spherepolitical debate. The Commission, however, here drew a distinction between the expression of political opinion concerning the situation in Ireland and the encouragement of soldiers not to serve there or go absent without leave. But this is surely a distinction without a real difference, reminiscent of the attempts by the US Supreme Court to distinguish between the abstract advocacy of political doctrine and incitement to action (see e.g., Brandeis J in Whitney v California 247 US 357, 376 (1927), and Yates v US 354 US 298 (1957))- As Holmes J put it so memorably in Gitlovi v New York 268 US 662, 673 (1925), 'Every idea is an incitement . . . The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result'. In the most recent major American case in this area, Brandenberg v Ohio 395 US 444 (1969)cited to the Commission in argumentthe line is drawn between on the one hand advocacy of law violation which is to be protected under the First Amendment, and on the other the advocacy of imminent lawless action, likely to produce such action, which may be constitutionally prevented. This maximizes the protection of free speech in this area and removes the troublesome distinction between pure advocacy and incitement. Had it adopted this approach, the Commission would not have been justified in simply distinguishing between political argument and incitement to disaffection. After all, presumably members of the forces are free to read newspaper articles attacking troop presence in Ulster and relating the treatment of army deserters in various countries; it is hard then to see why they should not have access to pamphlets advocating refusal to serve in

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Ireland, when such literature would not contain any ideas or information not implicit in freely available material (see the dissent of Mr. Opsahl, para 5). This conclusion can be supported by reference to an argument which has been put forward to justify the special protection afforded free speech (T. Scanlon, 'A Theory of Freedom of Expression', in The Philosophy of Law, ed R. M. Dworkin (Oxford University Press 1977), reprinted from 1 Philosophy and Pub Aff 204 (1972)). It proceeds from the premiss that the fundamental autonomy of individuals precludes the State from telling them what to believe or hindering their consideration of various courses of action. From this it follows that there must be general access to ideas and information for the determination of truth, and more relevantly to the Arrowsmith case, the State is not justified in preventing its citizens being exposed to various inducements to act, including incitements to disobey the law. It is one thing to proscribe action, it is another to proscribe advocacy or incitement to that action. If some soldiers had been persuaded by the arguments in the leaflets to desert, this would have been their decision; it might be legitimate for the State to punish them, but it could not be right to impose penalties on those who had urged this course, for in no significant sense would they be responsible for the soldiers' conduct. This view was supported in separate dissents by Mr. Opsahl and Mr. Klecher, both of whom regarded the aim of influencing others who are themselves responsible for their actions as an integral aspect of free speech. Scanlon's argument may also serve to explain the narrow exception to free speech protection stated by the Supreme Court in Brandenberg. Incitement which will probably lead to imminent unlawful action may properly be restricted because the listener or reader may well have had no opportunity to reflect on the merits of the course of action urged on him. To put it another way, in some situations the persons incited may not be regarded as fully responsible for their actions and it is legitimate to punish those influencing them. In opposition to this application of Scanlon's thesis, it may be said that members of the forces have surrendered their autonomy, and consequently restrictions on free speech in this context are politically and legally justifiable. (The same might be said of other groups, e.g. the police and civil servants, and for different reasons, minors and prisoners.) In the Engel case, the European Court of Human Rights recognised that the circumstances of military life could justify penalties imposed on servicemen for writing articles which undermined discipline. But there may be arguments for tolerating restrictions on speech by members of the forces (as in Engel) which do not apply so strongly to speech addressed to them by civilians; it is far from clear that soldiers have in any sense given up their right to receive information and ideas, particularly those communications which attempt to persuade them to change their status. In any event the Commission did not really consider the case for insulating members of the forces from general political debate. In practice, as already suggested, this goal could not be completely achieved, for there is no legal means of preventing a soldier from reading material of the kind at issue in Arrowsmith as long as it is addressed to the general public (see Horridge J's charge to the jury in Bowman

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(1912) 76 JP 271, 272 on the provision in the Incitement to Mutiny Act 1797, comparable to s. 1 of the 1934 legislation). The third question considered by the Commission was whether the prosecution was a measure 'necessary in a democratic society' to achieve the goals, in pursuance of which restrictions on free speech may be justified under Article 10(2). This phrase has given the Court some difficulty in the handful of cases which have been referred to it on freedom of expression. In the Handyside case (Decisions of the Court No. 24) and the Sunday Times case (Decisions of the Court No. 30) it developed the principle that bodies in the member states have a 'margin of appreciation' in determining what restrictions are 'necessary', and that the role of the Court is to review the exercise of this discretionthough this supervisory power is not limited to an examination whether the State legislature or court has acted reasonably and in good faith. In Arrowsmith the Commission accepted the applicant's argument that a measure was only to be regarded as 'necessary' if some test equivalent to the American 'clear and present danger' rule was satisfied. Under this, restrictions on speech are only justified if there would be a serious risk of significant injury to the State if the speech were not abridged (Dennis v US 341 US 494 (1951)). The 'dear and present danger' test, as any student of American constitutional law appreciates, abounds with difficulties (see G. Marshall, Constitutional Theory, Oxford University Press (1971) 17779). and it is unfortunate that the Commission has added the concept to the guidelines already formulated by the Court for applying Article 10(2). One question which has proved troublesome for the Supreme Court is the level at which the test is to be applied: is the task of the reviewing court to determine whether it was reasonable for the legislature to proscribe a certain type of speech as likely in the abstract to constitute a clear and present danger, or should the court ask itself whether prosecution was justifiable on this ground on the particular facts? The Commission correctly adopted the latter approach; this is consonant with the Court's jurisprudence and reduces the risk of undue deference to legislative judgement. But it then misapplied the test. The Commission noted that the Director of Public Prosecutions, whose consent is necessary for prosecution under the 1934 Act, took into account the possible effects of the applicant's campaign if it were not stopped, and then concluded that it was within the authorities' discretion to find that the distribution of the leaflets should be prevented as a necessary restriction on free speech. But it may be objected first, that merely to consider possible effects hardly satisfies the 'clear and present danger' test in American law (see Brandenberg), and secondly and more importantly, it seems incompatible with the European Court's requirement that the restriction must meet a 'pressing social need' (see Handyside, para 48). As the dissents point out, there was really no substantial evidence that the UK authorities ever seriously asked what the likely repercussions of the applicant's activities were going to be. On the facts, the Arrowsmith case appears distinguishable from an earlier application arising from a prosecution under the 1934 Act, which the Commission had ruled manifestly ill-founded and therefore

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inadmissible: X v United Kingdom (6084/73, 3 Commission Decisions 62). There the leaflets were circulated to troops in Northern Ireland, contained bribes to induce soldiers to join the IRA and hand over officers and arms, and urged disobedience to orders to return fire. An inference that may be drawn from this Report is that the Commission seems reluctant to protect freedom of expression against restriction in politically sensitive cases, although it is in these circumstances that governments are most tempted to encroach on civil liberties. One would not expect the US Supreme Court these days to uphold a prosecution on these facts under a statute equivalent to the British Incitement to Disaffection Actthough it must be said that in the First World War cases such as Schenk v US 249 US 47 (1919), it refused to quash convictions for causing insubordination in the forces by the circulation of documents opposing American participation in the war. In any case, whatever the position in the United States, the European Commission and Court are not, as the UK government submitted in Arrowsmith, institutions comparable to a State supreme court. Their role is to ensure a minimum degree of protection throughout the member states of the rights enshrined in the Convention, rather than to achieve uniformity. Whether the Commission achieved even this limited task in Arrowsmith may be doubtful, but at least its Report may be of some comfort to those hostile to the development of a strong European Bill of Rights.
E. M. BARENDT

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St. Catherine's College, Oxford

Contract law reform in New Zealand: the Contractual Remedies Act 1979
In passing the Contractual Remedies Act 1979 the New Zealand Parliament has, in the space of sixteen relatively short sections, effected sweeping changes to the general law of contract. The purpose of this note is to provide a brief account of the background to the Act, an outline of its most important provisions and some of the writer's thoughts thereon. The Act affects such a large part of the law of contract that little more than an introductory survey is possible here.
I. BACKGROUND TO THE ACT

The Act has its origins in the 1967 report of the Contracts and Commercial Law Reform Committee on Misrepresentation and Breach of Contract. For a long time the report seemed to have been shelved. However, in January 1978, the Committee, presented a further brief report reaffirming its earlier proposals, and on this occasion the Government was quick to respond. The Contractual Remedies Bill was introduced into Parliament on 4 October 1978 and, after recess study by the