Threats to free speech can come from unexpected places these days. A law passed in Northern Ireland has troubling implications for what can be said or reported about serious sexual misconduct, not only in Belfast, but also in London.
Victims of sexual offences are granted lifetime anonymity in the UK. The law bans publications from printing anything that could publicly identify them. But since September, the Northern Ireland Justice (Sexual Offences and Trafficking Victims) Act goes way further. It extends the gag to 25 years after the victim’s death unless a court decides otherwise, and allows any relative down to a great-grandchild to petition the court to prolong it if it thinks this in the public interest.
Free speech must be freedom to say what one thinks without permission
The Act has also introduced a new legal gag which now applies to reports about anyone investigated by, or even reported to, the Northern Irish police (PSNI) for a sexual offence. If the suspect isn’t charged or convicted in their lifetime, this continues until 25 years after their death – unless a court graciously decides otherwise. Again the court can make this period even longer if it sees fit. Shockingly, it even applies to events that took place before the Act was passed and, therefore, to events that before September could be freely reported. Breaching the gag carries a potential six months in prison.
The Northern Irish courts’ power to continue to legally suppress true information for more than 25 years after the suspect’s death is alarming. There is no justifiable case whatsoever for allowing this, however much one wants to safeguard the sensibilities or self-respect of a person’s granddaughter or great-nephew.
But that isn’t where the matter ends. The Act criminalises any publication taking place in Northern Ireland: the fact that material is written or produced somewhere else does not matter. And arrest warrants issued for crimes in Northern Ireland can, with small formality, be executed anywhere in the United Kingdom.
What might this mean for free speech in Britain? Suppose The Spectator reveals, absolutely truthfully, that Jimmy Savile was reported to the PSNI in 2013 for alleged sexual offences, though no charges ensued. As Joshua Rozenberg has rightly pointed out, saying this publicly is now technically a crime in Northern Ireland. It follows that the editor could, in theory, find himself in hot water even though there is no law in England against publishing the piece.
This legislation is unusually illiberal and misguided. For one thing, it seriously saps the established principle of journalism and authorship that you can say what you like about a person after they die. If the rule that says you cannot libel the dead protects you when you say untrue things about the deceased, it is strange that speaking the truth about them can now apparently land you in prison.
Should it really be a crime, for example, to hypothetically tweet that a prisoner who died a couple of months ago had complained repeatedly of being brutalised while inside? Or to publish a book about an IRA man who died in 2005 who had frequently been accused of sexually assault but had never been charged? Under this Act, both these are criminal unless you pre-apply to a court to relax the prohibition.
There is also an interesting moral hazard here. Suppose a paper, having checked its sources meticulously, wishes to publish an inconvenient story that a public figure in Ulster is guilty of repeated indecent assaults. No need now for troublesome court injunctions: to suppress the story until it’s stale, all the public figure has to do is get an accomplice to mention the allegation to the police, and it’s immediately an imprisonable crime for anyone to say anything more. Job done.
Of course, people may argue that all this is in the capable hands of the courts, who can be trusted to balance matters judicially after a person’s death and give proper weight to any relevant free speech arguments. But this isn’t good enough. Free speech must be freedom to say what one thinks without permission: no journalist or writer, still less a blogger, should have to go cap in hand to a court to be allowed to discuss the private life of someone now deceased. Handing the judiciary power to decide what bits of modern history or recent news is in the public interest for ordinary citizens to read about is frightening.
This problem, of the tail of restrictions in Northern Ireland wagging the dog of free speech in the United Kingdom, is potentially serious one. This sexual offences legislation aside, there are proposals under the 2020 Marrinan report for some of the most draconian hate crime laws in the UK to be introduced in Northern Ireland. With every chance they could be introduced by a restored Assembly in Stormont, there would be almost no safeguards for free speech other than the meagre protection offered by the European Court of Human Rights. Again, anything readable in Ulster would be covered; again, therefore, anyone in London publishing material entirely lawfully in England could potentially find themselves criminalised and sent to Belfast.
What do we need to do? In Ulster the devolved political process must prevail. But here, there is a crying need for a simple piece of UK-wide legislation to protect our freedom at home. Publication by a person living in one part of the United Kingdom of anything said lawfully in that part should be explicitly protected from criminal liability under the law of any other part.
This government admittedly has much on its plate. But it also has a chance to gain a reputation as a guardian of free speech against the excesses of devolved governments. That could be worth having.
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