The author is a British writer, who has a background in law and writes here. ‘Tony Dowson’ is a pseudonym.
Earlier this week, on 16 April, Emir Kir, the Mayor of Sint-Joost-ten-Noode, shut down the National Conservatism Conference, which was being held at the Claridge event space in Brussels.
The conference had been attended by several right-wing political figures, amongst them Suella Braverman and Nigel Farage. More controversially, other speakers also included Viktor Orbán, the Hungarian Prime Minister, and the former French Presidential candidate Éric Zemmour.
Organised by the Edmund Burke Foundation, the aim of the National Conservatism movement, according to its official website, is to promote the idea of national independence and the “revival of the unique national traditions that alone have the power to bind a people together and bring about their flourishing”. Although characterised as far right by critics, the movement attracts figures within the mainstream for whom the label far right is a smear.
Kir justified his ban on the conference by citing threats to public order. He did not allege that the speakers themselves were engaging in unlawful speech. In an English translation of the Mayor’s order, it can be seen that he placed weight on the “ethically conservative” nature of the movement’s thought, as well as its “Eurosceptic attitude”.
Given the lack of risk assessments due to the short notice for the conference venue, and the fact that the event could “undeniably lead to violent reactions”, Kir decided that the gathering would be immediately prohibited. If there was any ambiguity about his motivations, Kir later left little room for doubt when he said on X (formerly Twitter) that “the far-right is not welcome”.
In a Politico article, it was reported that the authorities told the owner of the building that electricity would be cut off if the event was not shut down, the original caterers were pressured to drop their contract, and the police barricaded the venue and prevented further speakers, including Zemmour, from entering.
Braverman reacted to this by saying that the Mayor had sought to “denigrate what is free speech and free debate”. That view was justified since there did not appear to be a serious actual threat to public order and the police could have been prepared to meet such threats that arose.
The Mayor’s reasoning was therefore unconvincing, especially considering his clear objections to the views of the speakers themselves. The public order argument was a legal fig-leaf, hiding his less defensible position.
This hasn’t stopped the National Conservatives’ critics trying to spin the whole affair against them. For example, rather than dealing with the substance of whether the ban was justified Adam Bienkov, a journalist for the Byline Times, wrongly stated that Braverman had exposed herself as a hypocrite, as she had acted against protest in the past as the Home Secretary and Attorney General.
Bienkov ignored the principled difference between street protest and political conferences. The kind of protest that Braverman objected involved serious disruption: Just Stop Oil and Extinction Rebellion, amongst others, have stood in roads, not as part of a planned march, but in an effort to prevent members of the public from going about their business. The economic effect has been substantial.
Additionally, Braverman, as Attorney General, referred the case of the Colston Four to the Court of Appeal; the Court of Appeal established that the right to freedom of expression did not protect violent criminal damage or significant criminal damage.
There is a difference between serious disruption and criminal damage on the one hand, and lawful speech–making as part of a conference on the other. The impact of the latter raises fewer issues that justify interference with rights.
Although the reasoning of the Mayor seemed unconvincing, human rights advocates and apparently liberal politicians nevertheless showed no small degree of sympathy for his decision. Wes Streeting laughed, and the Labour frontbench laughed, about the Mayor’s order.
Normally a staunch defender of the European Convention on Human Rights (ECHR), Jessica Simor KC seemed more equivocal about the rights to freedom of expression and assembly in this instance, saying, “To what extent to we tolerate intolerance in the public square?”. Simor also objected “God botherers” in her post. A human rights lecturer from the University of Leeds cited Article 17 of the ECHR as a reason to restrict freedom of expression in the circumstances. It should be noted that these justifications did not even argue that the Mayor had made the decision on public safety grounds, but rather assumed that the content of the speeches and the identities of the speakers meant that interference was warranted.
However, the protection of expression in the Convention is clear. It is not apparent that the right to freedom of expression under Article 10 could have been acceptably interfered with in the circumstances. Sedley LJ’s comments in Redmond-Bate should always be remembered: free speech includes not only the “inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence”.
The Article 17 argument likely does not apply here. Article 17 prohibits the “abuse of rights”. If an applicant to the European Court of Human Rights (ECtHR) asserts that his rights are being breached, but his actions themselves are abusing the rights of others, Article 17 may prevent him from relying on Convention rights. Yet, in Perinçek v Switzerland, where the applicant had been convicted for denying that events in 1915 and the following years had constituted a genocide of the Armenians, the Grand Chamber of the ECtHR confirmed that Article 17 should only be applicable “on an exceptional basis and in extreme cases”.
Further, one of the problems with the Mayor’s reasoning is that allows the possibility of violent counter-demonstrations to shut down lawful expression. The ECtHR articulated this principle in Ouranio Toxo and Others v Greece, stating that:
it is incumbent upon public authorities to guarantee the proper functioning of an association or political party, even when they annoy or give offence to persons opposed to the lawful ideas or claims that they are seeking to promote. Their members must be able to hold meetings without having to fear that they will be subjected to physical violence by their opponents. Such a fear would be liable to deter other associations or political parties from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right of association.
For those ECHR advocates who object to any notion of the UK withdrawing from the Convention, it seems to be an unwise strategy to perversely interpret the Convention in such a way as to give the impression that right-wing speech is not protected. It is rather difficult to accept, as we are told, that the ECHR is a tool that protects the political right just as much as anyone else if its chief advocates in academia and legal practice have such a dim view of protecting the speech rights of their political adversaries.
In a judgment handed down the day after the Conference was stopped, the Council of State found that the order of the Mayor should be suspended. In the event that there were demonstrations against a meeting held indoors, the police should have made efforts to prevent disturbances so as to protect the right to freedom of assembly under Belgium’s Constitution. The actual threat to the assembly was not so serious as to justify measures to shut it down for fear of demonstrations leading to serious public order disturbances. Reacting to the judgment, the Mayor implausibly maintained that he was not motivated by lack of sympathy for “those who preach hatred”.
The whole affair has shown how far free expression is one of the more awkward ECHR rights to several lawyers and politicians. The National Conservatism Conference had reportedly been forced to abandon two previous event spaces after left-wing pressure. When this third space was subjected to an unlawful order, human rights advocates, save for a few exceptions, either said nothing or attempted to defend the decision.
As much as the judgment of the Council of State is welcome, the incident exposes a disturbing attitude towards freedom of expression and assembly.
The post Tony Dowson: Too many defenders of the ECHR don’t accept that it applies even to their opponents appeared first on Conservative Home.
Click this link for the original source of this article.
Author: Tony Dowson
This content is courtesy of, and owned and copyrighted by, http://www.conservativehome.com and its author. This content is made available by use of the public RSS feed offered by the host site and is used for educational purposes only. If you are the author or represent the host site and would like this content removed now and in the future, please contact USSANews.com using the email address in the Contact page found in the website menu.