DISSENTING OPINION OF JUDGE LOUCAIDES

I disagree with the majority as regards the complaints under Article 6 § 1 and Articles 8 and 13 of the Convention and, as far as the reasoning is concerned, the complaint under Article 14.

The case concerns primarily the question of the compatibility of an absolute privilege protecting defamatory parliamentary statements about private individuals with Article 6 § 1 and Article 8 of the Convention. I will come to the other questions later.

I consider it important to stress from the outset those facts of the case which demonstrate the problem and provide the necessary guidance in determining the question of proportionality of the immunity in question as a possible restriction on the rights under Articles 6 and 8 of the Convention (access to a court and respect for private life).

The applicant, a young black woman, lives with her two children in a house owned by the local housing association. The association moved the applicant and her children to 50 Concorde Drive in 1994 following a report that she was suffering serious racial abuse at her then current address.

The applicant was specifically referred to by her member of Parliament (MP) during a debate in the House of Commons about municipal housing policy in July 1996. The MP named the applicant, repeatedly stated that her brother was in prison, and gave her precise address, again repeatedly, in the course of making derogatory remarks about the behaviour of both her and her children in and around her home. He referred to them as the “neighbours from hell”, a phrase which was subsequently picked up by local and national newspapers and used to describe the applicant in articles published about her. The applicant stated that none of the allegations which the MP had made against her had ever been substantiated and that many of them had originated from neighbours who were motivated by racism and spite. The MP stated in his speech, inter alia :

“...

'Such behaviour manifests itself in many different ways and at varying levels of intensity. This can include vandalism, noise, verbal and physical abuse, threats of violence, racial harassment, damage to property, trespass, nuisance from dogs, car repairs on the street, joyriding, domestic violence, drugs and other criminal activities such as burglary.'

Inevitably, the majority – if not all – of these activities have been forced on the neighbours of 50 Concorde Drive ... by [the applicant], her children and their juvenile visitors, who seem strangely reluctant to attend school during normal hours, and even more adult visitors who come to the house at all times of the day and night, frequently gaining entry by unorthodox means such as the bathroom window.”

The MP never tried to communicate with the applicant regarding the complaints made about her by her neighbours and never attempted to verify the accuracy of his comments made in his speech either before or after the debate. Shortly before the debate, the MP issued a press release to several newspapers.

The following day certain newspapers carried articles consisting of extracts of the speech based upon the press release. There were also television interviews on the same subject. The articles included photographs of the applicant and mentioned her name and address. The main headline in the Evening Post was “MP Attacks 'Neighbours From Hell' ”.

In the Daily Express the headline was “MP names nightmare neighbour”.

The applicant subsequently received hate mail addressed to her at 50 Concorde Drive . One letter stated that she should “be in houses with your own kind, not in amongst decent owners”.

Another letter stated:

“You silly black bitch, I am just writing to let you know that if you do not stop your black nigger wogs nuisance, I will personally sort you and your smelly jungle bunny kids out.”

The applicant was also stopped in the street, spat at and abused by strangers as “the neighbour from hell”.

Following the MP's speech, the lives of the applicant and her children were put at risk. The responsible housing association advised that the applicant and her children should be moved as a matter of urgency just three months after the speech was given. They were re-housed in October 1996 and the children were obliged to change schools.

The applicant wrote through her solicitors to the MP outlining her complaints and seeking his comments thereon. She received in reply a copy of the letter prepared by the Parliamentary Speaker, which read as follows:

“Subject to the rules of order in debate, Members may state whatever they think fit in debate, however offensive it may be to the feelings or injurious to the character of individuals, and they are protected by this privilege from any action for libel, as well as from any other molestation.”

The applicant complained that the absolute privilege enjoyed by the MP blocked her access to the courts in order to assert her rights in respect of defamation proceedings, contrary to Articles 6 and 8 of the Convention. According to the applicant, this privilege was a disproportionate restriction on her rights under these Articles.

Before entering into the merits I must consider the preliminary objection of the Government that the complaint regarding absolute privilege in respect of the speech in the House of Commons was incompatible rationae materiae on the ground that an applicant had no civil right to the protection of his reputation in respect of statements covered by absolute privilege. In this connection, the Government relied on a decision of the Commission in 1976 in Agee v. the United Kingdom (no. 7729/76, Decisions and Reports (DR) 7, p. 164). However, this case was superseded by Young v. Ireland , decided in 1996 (no. 25646/94, DR 84-A, p. 122), by Fayed v. the United Kingdom , decided by the Court in 1994 (Series A no. 294-B, p. 23), and by Osman v. the United Kingdom ( Reports of Judgments and Decisions 1998 ‑ VIII, p. 3124) and Z and Others v. the United Kingdom (no. 29392/95, ECHR 2001-V), which to my mind deal with immunities as being procedural bars on access to a court, rather than delimiting of the relevant cause of action. In any case, I believe that it is clear from the exposition of the United Kingdom law on this subject that the privilege is simply a defence to an action for libel. Therefore it only operates as a procedural shield against an action in the same way as other defences such as truth. For example, in the case of the defence of truth, it cannot seriously be argued that there is no cause of action in respect of a defamatory statement because it will be proved that the statement was true. A defence does not extinguish a right. It simply serves to neutralise responsibility for a cause of action if and when the prerequisites of the specific defence are satisfied.

Therefore I find that the relevant objection of the Government must be dismissed.

As regards the merits of the case, it is true that absolute privilege in England serves the legitimate aim of protecting free debate in the public interest and of regulating the relationship between the legislature and the judiciary. And this is conceded by the applicant.

Coming now to the question of whether absolute privilege is a proportionate restriction to the right of access to a court, the position of the parties is the following.

The Government argued that absolute privilege was proportionate to the importance of the public interest which it was intended to serve. The Government relied in this connection on the following statement in an English judgment:

“The important public interest protected by such privilege is to ensure that the member ... at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he was saying. Therefore he would not have the confidence the privilege is designed to protect.”

The argument regarding encouragement of an uninhibited debate on public issues is understandable. But the opposite argument appears to me to be more convincing: the suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and improves the overall quality of public debate through a chilling effect on irresponsible parliamentarians.

The Government argued that once it was recognised that the rule of absolute parliamentary immunity was justified in principle in the public interest, there was no basis for distinguishing between the facts of individual cases.

Both parties, in support of their positions, referred to Young , cited above, which was decided by the Commission in 1996. The Government suggested that this case was an authority for the proposition that where a public interest was of sufficient importance an immunity from suit for defamation was proportionate even if it was absolute in nature. On the other hand, the applicant submitted that that decision supported the proposition that the question of proportionality of a privilege to the aim pursued should be decided in the light of the facts of each case. I believe that the text of the relevant decision of the Commission supports the latter view.

Like myself, the majority agreed with the applicant's submissions to the effect that

“the allegations made about her in the MP's speech were extremely serious and clearly unnecessary in the context of a debate about municipal housing policy. The MP's repeated reference to the applicant's name and address was particularly regrettable ... the unfortunate consequences of the MP's comments for the lives of the applicant and her children were entirely foreseeable”. (paragraph 88 of the judgment)

However, the majority go on to state that

“these factors cannot alter the Court's conclusion as to the proportionality of the parliamentary immunity at issue, since the creation of exceptions to that immunity, the application of which depended upon the individual facts of any particular case, would seriously undermine the legitimate aims pursued”. (ibid.)

I entirely disagree with this approach. I believe that, as in the case of the freedom of the press, there should be a proper balance between freedom of speech in Parliament and protection of the reputation of individuals. The general absolute privilege of parliamentarians has an ancient history. It was established about 400 years ago when the legal protection of the personality of the individual was in its infancy and therefore extremely limited. In the meantime such protection has been greatly enhanced, especially through the case-law of this Court. This is exemplified by the expansion of the protection of privacy. The right to reputation is nowadays considered to be protected by the Convention as part of private life (see N. v. Sweden , no. 11366/85, Commission decision of 16 October 1986, DR 50, p. 173, and Fayed , cited above, pp. 50-51, § 67). Therefore “the State must find a proper balance between the two Convention rights involved, namely the right to respect for private life guaranteed by Article 8 and the right to freedom of expression guaranteed by Article 10 of the Convention” ( N. v. Sweden , op. cit., p. 175). This balance can only be achieved through a system which takes account of the individual facts of particular cases on the basis of the relevant conditions and exceptions attached to both rights. Such balancing implies that neither of the two rights should be allowed to prevail absolutely over the other. There should be a harmonious reconciliation, through appropriate qualification, so that the necessary protection is given to both rights. If freedom of speech were to be absolute under any circumstances it would not be difficult to imagine possible abuses which could in effect amount to a licence to defame or, as the US Supreme Court Justice Stevens said, “an obvious blueprint for character assassination” [ Philadelphia Newspapers Inc. v. Hepps , 89 L Ed 2d 783 (1986)].

As is rightly pointed out by US Supreme Court Justice Stewart, “the right of redress for harm to reputation reflects no more than our basic concept of the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty” [ Rosenblatt v. Baer , 383 US 75, 92 (1966)].

The Government highlighted the conclusions reached by the recent review of parliamentary privilege by a joint committee of the House of Commons and House of Lords in support of retaining the rule of absolute parliamentary immunity (see paragraph 32 of the judgment). This review does not affect my approach because (a) it was not carried out by any organ independent of the persons enjoying the privilege in question, and (b) it does not seem to address the question that we face in this case in terms of the European Convention on Human Rights and in the light of developments regarding the right to reputation.

On the facts of the present case I believe that absolute immunity is a disproportionate restriction of the right to access to a court. In this respect I take into account the following:

(a) the fact that the defamatory allegations, in which the applicant was named and her address identified, were “clearly unnecessary in the context of a debate about municipal housing policy” (paragraph 88 of the judgment);

(b) the severity of the defamatory allegations (ibid.);

(c) the foreseeable harsh consequences for the applicant and her family, including even the publication of the photographs of the applicant and her children (ibid.);

(d) the reaction of the MP to the letter from the applicant;

(e) the fact that the MP never tried to verify the accuracy of his defamatory allegations and did not give the applicant an opportunity to comment on them before uttering them;

(f) the lack of any effective alternative remedies.

I would even go as far as to support the view that, even without any regard to the facts of the case, the immunity is a disproportionate restriction on the right of access to a court because of its absolute nature, which precludes the balancing of competing interests.

It is true that there are several other countries with absolute privilege, for example Norway , the Netherlands and Turkey . But it is equally true that there are other countries in Europe (the majority) where the privilege is not absolute, either because it does not apply to defamatory statements or because it can be lifted. In the case of the Council of Europe it can be waived by the country concerned.

As regards the complaint concerning the unavailability of legal aid for the purposes of bringing defamation proceedings in respect of the unprivileged press release, I again find myself in disagreement with the majority. Defamation proceedings entail various legal issues for which legal advice and assistance is necessary in order to have effective access to a court and pursue the proceedings. The arrangements set out in paragraph 98 of the judgment do not seem to be a satisfactory solution to the problem, with the result that the applicant could not in my opinion exercise effectively her right of access to a court in this case. Consequently I consider that there has also been a breach of Article 6 § 1 of the Convention on this ground.

Furthermore, the absolute privilege, which protected the MP's statements in Parliament about the applicant, in my opinion violated her right to respect for her private life under Article 8 of the Convention because it amounted to a disproportionate restriction of that right. In this connection, I refer to the reasons given above in relation to the applicant's Article 6 complaint.

I agree that there has been no violation of Article 14 in this case but my reasoning differs from that of the majority. As everybody in the situation of the applicant was treated in the same way under the legal system of the respondent State as regards the operation of the parliamentary immunity under consideration, no question of a violation of Article 14 arises on that basis.

Finally, the undisputed lack of any remedy against the defamatory statements in this case, arising from the absolute parliamentary privilege, does amount, in my opinion, to a violation of Article 13.