In the aftermath of the attempted assassination of Representative Gabrielle Giffords and the murder of six other people in Arizona last week, a fierce debate has broken out over the heated political rhetoric – often coarse, martial, and vitriolic – that is now distressingly commonplace in US political discourse. The specific background is a map which appeared on Sarah Palin’s website targeting the seats of political opponents – including Rep. Giffords – in rifle-sight cross-hairs, and which has therefore focussed signficant attention on Palin’s confused response to the tragedy. Of course, politicians and pundits across the political spectrum have used such language and imagery, and the issues of principle arise in the context of the general standard of debate rather than in the context of any particular politician, pundit or party. I want in this post to set out some of the general free speech arguments that I have come across since Saturday. Read the rest of this entry »

In the UK, the Deputy Prime Minister, Nick Clegg (pictured left) has announced significant reforms of Britain’s libel laws, which I consider a very good thing.

During a wide-ranging speech today on civil liberties, he said:

We will be publishing a draft defamation bill in the Spring. We intend to provide a new statutory defence for those speaking out in the public interest, whether they be big broadcasters or the humble blogger. And we intend to clarify the law around the existing defences of fair comment, and justification.

We believe claimants should not be able to threaten claims on what are essentially trivial grounds. We are going to tackle libel tourism. And we’re going to look at how the law can be updated to better reflect the realities of the internet. Separately, we are also going to address the high costs of defamation proceedings. … Our aim is to turn English libel laws from an international laughing stock to an international blueprint.

Welcome though this is, as with many political developments, it is in danger of being overspun or at least oversold. According to yesterday’s Guardian:

Britain will become the first country to ask parliament to set out its libel laws, and provide greater clarity, his officials said.

No so, Mr Clegg, not so. As I have frequently discussed on this blog, Ireland introduced a full-scale reforming Defamation Act in 2009, which came into force on 1 January 2010. Similarly, in Australia, a uniform Defamation Act, 2005 was passed in each of the states and came into force on 1 January 2006. Indeed, New Zealand introduced a comprehensive Defamation Act in 1992, and it came into force on 1 February 1993. Far from being “first”, the UK is coming very late to this particular party. But better late than never!

I have on this blog regularly discussed the extent to which offensive speech can be restricted. For example, there are many (many) posts on this blog on censorship and blasphemy. Furthermore, I have referred to the censorship of Guillaume Apollinaire (here and here), Carolina Gustavsson, Aldous Huxley, DH Lawrence (here, here and here), James Joyce, John Latham, Robert Mapplethorpe and Vladimir Nabokov. Moreover, I have analysed the kinds of reasons why this kind of speech should not be censored: free speech means freedom for the thought we hate, even that of David Irving (eg, here, here, here, and here), Jean-Marie le Pen, or Kevin Myers, and even – especially! – in multi-cultural societies, especially – especially!! – online.

I was reminded of all of this by two recent blogposts. Read the rest of this entry »

As I have observed on this blog in the past, The Hunting of the Snark is a nonsense poem written by Lewis Carroll, which describes “with infinite humour the impossible voyage of an improbable crew to find an inconceivable creature” (Williams and Madan (1974) via wikipedia). We have waited so long for the Hunt Report that it has taken on much of the mythical quality of the “inconceivable” Snark. In February 2009, the Minister for Education and Science established a high level Strategy Group, chaired by Dr Colin Hunt, to develop a National Strategy for Higher Education in Ireland. The Report does not seem to be on the relevant page of the Higher Education Authority (HEA) website, but the Irish Times has today published a draft of the Report on its website (pdf). There have already been many press pieces and blog comments on the Report, so I’m only going to highlight a few of the recommendations that I find particularly interesting.

The Report is a difficult mixture of platitudes (”Ireland’s higher education system has played a major role in the development of Irish society and the economy”) and management jargon (”Ireland’s higher education institutions need to continue to break new ground in research of the highest standards across the spectrum of disciplines and activity”), but that is probably inevitable. For all that, it does say some very important things. Read the rest of this entry »

On this blog last year, I discussed the circumstances in which a university student could challenge a grade in court. Just before Christmas, the Northern Ireland High Court handed down a very important judgment on this issue. In Re Croskery [2010] NIQB 129 (8 December 2010), the applicant, Andrew Croskery, sought leave to apply for judicial review against a refusal by Queens University Belfast to reclassify his degree. In the Queen’s Bench Division of the Northern Ireland High Court (pictured left), Treacy J denied the application. In cases of this kind, where an objection is simply to matters of academic judgment, the courts show great deference to such matters, and are very slow to interfere. The deference is stated in different ways in the cases, and the parties accepted a strong form of it in Croskery. As Treacy J held

on the authority of Re Wislang’s Application [1984] NI 63 (.doc) and Thomas v University of Bradford [1987] AC 795 (.doc) the matters in dispute would presently fall exclusively within the visitorial jurisdiction of the university – subject only to the possibility that any ultimate decision of the Board of Visitors might itself be judicially reviewable. [emphasis in original]

Given the extreme reluctance on the part of the courts go behind purely academic decisions, the best strategy for an applicant is to object to a different matter, not to the academic judgment but the procedures that led to it or to the subsequent appeal procedures. The two main routes to put such procedures in issue are to seek judicial review or to allege that the failure to follow them constituted a breach of contract (and such claims are becoming increasingly common). The applicant in Croskery sought judicial review. Some internal procedures were still available to the applicant, up to and including the Board of Visitors [in England and Wales, the Visitorial jurisdiction has been replaced by the Office of the Independent Adjudicator], but he sought to argue that Article 6 of the European Convention on Human Rights applied to ensure that such hearings complied with Article 6, so that, in particular, that he will have the benefit of legal representation. His essential argument was that the decisions in Wislang and Thomas could no longer be regarded as sound law because of the application of Article 6 of the Convention. It provides, in pertinent part:

In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …

Applying Andre Simpson v UK 14688/89 (Commission decision of 4 December 1989) and Hanuman v UK 56965/00 (admissibility decision) [2000] ELR 685, and distinguishing Emine Arac v Turkey 9907/02 [2008] ECHR 1883 (23 September 2008), Treacy J held that there was nothing in the caselaw of the European Court of Human Rights

to support the proposition that the assessments and/or the procedures for determining disputed degree assessments and classifications fall within Article 6. The assessments themselves are plainly a matter of academic specialised judgment and whilst the outcome of the procedures for determining disputed classifications is a matter of considerable import for an individual they are not concerned … with determining rights of access or any other civil right within the meaning of Art 6. The assessments and, more importantly for present purposes, the reviewing supervision of the relevant subject Board of Examiners, which is made up of senior academics in the relevant subject field, does not, in my view, involve the determination of any civil right … [emphasis added]

The applicant also relied on Article 2 of the First Protocol to the Convention, providing that “No person shall be denied the right to education”, but Treacy J held this right had not been denied; rather, the applicant has had access to and has exercised his right to third level education. Moreover, Treacy J held that the Article “says nothing about rights to degrees or other academic qualifications much less to their academic assessment” and therefore did not apply in this case.

As a consequence, since neither Article of the Convention was engaged, the matter remained exclusively within the jurisdiction of the Board of Visitors, Wislang and Thomas applied, and the application for leave to apply for judicial review was refused.

Pink champagne cupcakes for the new year: