It was pleasing to see common sense prevail with the high court verdict in the case of Adrian Smith, who was demoted by his employer for expressing views on gay marriage.
In voicing his concerns over the government’s plans to introduce gay marriage, Smith wrote on his Facebook page in 2010: “The Bible is quite specific that marriage is for men and women.”
He added: “If the state wants to offer civil marriages to the same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience.”
Despite publishing the Facebook comments in his own time, and visible only to his friends, his employer found him to be in breach of their Code of Conduct for employees, and subsequently removed him from his management position in the company while also cutting Mr Smith’s pay by 40%.
But today, Trafford Housing Trust were found to be in breach of contract, with the judge stating that Adrian Smith had done nothing wrong.
Speaking on Sky News, a media spokesman for the gay rights organisation Stonewall – who recently came under fire for handing out a ‘Bigot of the Year’ award to an opponent of gay marriage – agreed that Trafford Housing had acted in a “very heavy-handed way”, and had treated Adrian inappropriately.
The case again raises concerns over the way in which people on each side of debates such as gay marriage are too easily labelled for having a differing opinion, and again highlights a Britain which is becoming less and less tolerant – despite an increase in organisations claiming to be interested in equality.
In this instance, it would be common to hear the phrase ‘bigot’ thrown around.
Yet by definition, the only parties who could be considered to be bigoted in the case of Adrian would be the person responsible for reporting the comments, and the company itself – both of whom were so unwilling to hear a different viewpoint that they felt it necessary to launch disciplinary action.
On sensitive matters such as gay marriage, there has to be room for people to express views in a way that reflects their own beliefs. Believing something that may go against a majority does not automatically equate to causing offence – it’s merely an alternative voice in a bigger debate.
Thankfully, the verdict delivered by Mr Justice Briggs allows for such debate to continue – for the time being, at least.
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I am concerned about the Adrian Smith case specifically in relation to rights of freedom of speech in English law. This case connects that right with legal aspects relating to homosexuality and felt to be so connected in the mind of Mr Smith’s employers, Trafford Housing Trust. Nonetheless they remain separate issues.
It is obvious that the legal position of a citizen in English law is obscured by various let-out clauses in legislation (please see below); and it appears to Wikipedia that we may have to rely on the Common Law for our right to exercise free speech. To my mind that position is ambiguous, undesirable, and incorrect – unless we think it lawful to reserve the ultimate judgement in such matters to a jury, which would leave our rights in a legal no-man’s-land.
We usually take it for granted that Britain leads the way in the exercise of human freedoms, to the extent that it seems scandalous that this might not be the case. Britain and the USA were among the founders of the United Nations, and for some years during WWII we WERE the United Nations, and had already adopted what became the United Nations Declaration of Human Rights, whose Article 19 is concerned with freedom of speech.
My question is: does the UN Declaration of Human Rights have legal force in Britain or not? I don’t think this is an idle question, and I really don’t have the answer. As an original founder of the UN, and who voted for the UN Declaration in 1948, and indeed as original propounders of the Declaration itself during WWII, we ought to be able to take it for granted that it has legal force in Britain; but does it? (If it does not, where was our victory over tyranny?)
If it does, then its language is the language of English law, and Article 19 says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Wikipedia’s article “Freedom of speech” quotes a significant variation to Article 19, under the auspices of the International Covenant on Civil and Political Rights (ICCPR): “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. Wikipedia dates this from 1966 and “in force” from 1976. QED. This should bring ultimate clarity beyond dispute, as well as instant judgement for Mr Smith. According to Wikipedia the UK signed the Covenant in 1968 and ratified it in 1976, so it surely has the force of law in Britain…
It is therefore clear that the right to free speech is not impeded by choice of media or frontiers of any sort. For example, I am not aware of anyone in the UN seeking to amend Article 19 of either the Universal Declaration or the Covenant to take notice of social media on the internet, so the rights agreed in 1948 and subsequently remain in force.
This being the case no one – and certainly not an employer – has any right to impede Mr Smith’s exercise of his rights, and they ought to be judged guilty in punishing him has they did and as they continue to do until they have remedied the wrong they did in demoting him and cutting his pay. I understand that Trafford HT plead that Mr Smith acted contrary to their “Code of Conduct for employees”, so that Code ought to be judged oppressive and illegal, null and void.
In parenthesis, this is not the first time I have heard of someone running up against such a “Code of Conduct” and paying the price for their sins; bureaucracies tend to labour under the fantasy that their Codes have the force of law, which is usually arrant nonsense.
Back to the UN: I understand the UN Charter itself commits member states to legally uphold such instruments as the Declaration. I am not a lawyer but need to refer again to Wikipedia, which offers contradictory comments: that “references to human rights in the Charter are general and vague” and contrarily that this is “binding treaty provision applicable to both the Organisation and its members and has been taken to constitute a legal obligation for the members of the United Nations” – which is clear enough.
As to our own human rights legislation, we have the well-known “Charter of Fundamental Rights of the European Union” which has treaty force since December 2009; the second title of which covers freedom of speech. This Charter seems to have been retro-actively accepted into English law through the UK’s acceptance of the European Convention of 1998, with guarantees of free speech in its own Article 10. But there is a big “however”: Wikipedia lists “a broad sweep of exceptions” for the UK, which I dare say are making millions for the lawyers and leaving the rest of us in doubt as to our real, actual, exercisable, fundamental rights.
I am not aware of any legislation abrogating pre-existing UN law, or superseding it with EU law. However, if English law remains as clear as mud, I am darned sure I know what it OUGHT to be saying, and with which the learned judge in Mr Smith’s case clearly agrees. That the judge lacks legal power to enforce the remedy leaves us with a sick feeling.
Thanks for taking time to read my rambling analysis, Peter Buell-Fay 21 November 2012