- The Guardian,
- Monday February 18 2002
The newspaper is seeking a declaration that section 3 of the Treason Felony Act 1848, which makes it a serious crime to call in print for the abolition of the monarchy, does not apply to those who advocate the change by peaceful means.
The Guardian argues that the outdated law, under which no one has been prosecuted since 1879, violates article 10 of the European convention on human rights, the right to free speech. The convention was incorporated into English law in October 2000, when the Human Rights Act came into force.
The paper began a campaign in December 2000 calling for a referendum on the future of the monarchy and reform of the Act of Settlement 1701, which bars non-Protestants, adopted people and those born out of wedlock from succession to the throne.
As a preliminary move the editor, Alan Rusbridger, sought an assurance from the then attorney general, Lord Williams of Mostyn, that the paper's journalists would not be prosecuted under the Treason Felony Act. Lord Williams wrote back refusing to give the assurance, claiming he had no power to do so.
Mr Rusbridger and columnist Polly Toynbee began a high court challenge to his refusal, but two judges ruled last June that the attorney general's letter did not constitute a "decision". Only decisions may be challenged by judicial review.
Lord Justice Rose and Mr Justice Silber ruled that the letter did not amount to an "act" of a public authority, and that Mr Rusbridger and Ms Toynbee were not victims of a public authority's conduct.
The judges said the paper's application was "misconceived" because it was seeking an advisory opinion to which it was not entitled. Geoffrey Robertson, the Guardian's QC, will argue today that there is no requirement for the challenge to be brought within the straitjacket of judicial review. The court can simply be asked to declare whether the Guardian's campaign still amounts to a criminal offence.
Mr Robertson will cite a judgment from the House of Lords last November in the case of Diane Pretty, in which the law lords cast doubt on the attorney general's insistence that he has no power to state publicly his policy of prosecuting particular offences.
Mrs Pretty, who has motor neurone disease, wanted an assurance that her husband would not be prosecuted if he helped her end her life. The Guardian is not seeking such an immunity from prosecution, but an acknowledgment that, now the Human Rights Act is in force, the Treason Felony Act no longer criminalises advocacy of republicanism by peaceful means.
The appeal court hearing is expected to finish today with judgment reserved until later.
