Law vs Chaos: the Case of Freedom of Expression

On the regulation of 'scaremongering conspiracy theories'

‘We see the social meaning of law in the fact that there are social consequences if expectations can be secured as stable expectations over time.’

-Niklas Luhmann

What is law for? Modern legal theorists offer many different accounts. But the Greeks would not have had much difficulty in answering the question. It is writ large across the Oresteia. In Aeschylus’s trilogy of plays, the characters live in barbarism and chaos - child sacrifice, murder, vendetta - until the law frees them from all that unpleasantness, and provides them with a more harmonious mode of living. The rule of law, that is, creates a stable structure upon which a civilised society can rest, because it affords the members of such a society stability of expectations. Put very plainly, the existence of general, abstract, intelligible, clear rules, which will be enforced if broken, helps people to know where they stand - and to plan their lives accordingly. Without the existence of such rules, chaos beckons.

I was thinking of all of this while reading through Adil v General Medical Council [2023] EWCA Civ 1261, a decision handed down by the Court of Appeal late in 2023. (I wrote about the High Court’s judgment in Adil v GMC [2023] EWHC 797 (Admin), which gave rise to the appeal in question, here.) The judgment reveals how confused we have become about the rule of law. And it reveals in particular the entropic consequences, if I can put the matter in those terms, of that confusion. We are, in short, in a bit of a muddle about law, and - as Aeschylus might have predicted - this is having chaotic and disorderly consequences for society in the round.

Mr Adil is a surgeon, originally from Pakistan, but who has been living in the UK since around 1990. He had a basically unblemished career until early 2020, when coronavirus began to dominate the news, whereupon he began uploading and appearing in various YouTube videos to propagate views which Swift J, in the High Court, later called ‘outlandish’: that the SARS-CoV-2 virus did not exist at all; that the ‘pandemic’ had been concocted by the British, American and Israeli governments; that the vaccine had been developed by Bill and Melinda Gates in order to inject microchips into the bloodstream, and so on. He was disciplined by a Medical Practitioners Tribunal¹ and given a six month suspension for undermining public health, expressing views that were contrary to widely-accepted medical opinion, and undermining public confidence in the medical profession; it was also heavily implied that he had to take down his videos and demonstrate evidence of ‘insight’, which seems to be a code-word for contrition. He appealed that decision to the High Court, and lost; and later appealed that decision to the Court of Appeal - and also lost.

There are a few reasons why he lost, most of them demonstrating the extent to which we have departed from the application of what I earlier called ‘general, abstract, intelligible, clear rules’. Here, I am afraid we have to go into a bit of detail, but it will be worth it in the end.

The main grounds on which Mr Adil’s defence rested before the Medical Practitioners Tribunal, and the main grounds of his appeal, concerned (naturally) his right to freedom of expression under Article 10 of the European Convention on Human Rights. Article 10 reads as follows; the important phrases being highlighted in bold:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

To simplify somewhat, Mr Adil made two basic arguments deriving from Article 10.

The first was that he had not been subject to a formality, condition, restriction or penalty that was ‘prescribed by law’, and hence had no way of knowing in advance that what he was saying would be treated as misconduct. The Medical Act 1968 (in s. 1(1A) and (1B)) sets out what the General Medical Council (GMC) is for: to ‘protect the public’, meaning to ‘protect, promote and maintain the [public’s] health, safety and well-being’, to ‘promote and maintain public confidence in the medical profession’, and to ‘promote and maintain proper professional standards and conduct for members of that profession’. And in connection with these aims the GMC issues ‘guidance’ to medical professionals, notably a document called Good Medical Practice (GMP), paragraph 65 of which says:

‘You [i.e., the medical professional], must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession.’

Since this was the basis on which he was charged, part of Adil’s argument here was the formalist point that although he had been found by the Medical Practitioners Tribunal to have ‘undermined public health, expressed views that were contrary to widely-accepted medical opinion, and undermined public confidence in the medical profession’, paragraph 65 of the GMP does not use that phrasing. Both the High Court and Court of Appeal had some sympathy with this argument, but found it not to be a matter of substance since the spirit, as it were, of paragraph 65 was closely connected to what Adil had been charged with.

More importantly, though, the phrase ‘prescribed by law’ means that an interference with freedom of expression has to derive from a fairly precise rule. The reason for this was stated in the European Court of Human Rights’ judgment in the case of The Sunday Times v United Kingdom (1980), again with emphasis added:

[T]he following are two of the requirements that flow from the expression ‘prescribed by law’. Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

This is not a requirement for absolute and perfect precision, which is not realistic, but one for a reasonable level of precision. The point of law, to take us back to the opening to this article, is to provide stable expectations: people should know where they stand. Mr Adil’s argument here, in essence, was that it had been impossible for him to know where he stood. How could he have known in advance that what he was saying would fall foul of paragraph 65 of the GMP, given the vagueness and open-endedness of its wording, and given that reasonable people can disagree about what would ‘justify trust’? And, more broadly, how is any medical professional to know in advance whether they should publicly say anything, given that speaking in such a way as to ‘justif[y] your patients’ trust in you and the public’s trust in the profession’ is to be interpreted subject to the almost complete discretion of whoever is sitting in the Medical Practitioners Tribunal on any particular day?

Mr Adil’s second main argument deriving from Article 10 was that although freedom of expression may be restricted (i.e., in a manner prescribed by law) to ‘protect health’, it is a longstanding principle of human rights jurisprudence in the European Convention system that qualified rights (like the right to freedom of expression) may only be curtailed when it would be proportionate to do so. Basically, a qualified right may only be curtailed in the least restrictive way possible to achieve the aim desired, and only if that aim is itself ‘legitimate’ and the restriction necessary. Mr Adil’s argument here was that it simply was not necessary to restrict his freedom of expression vis-a-vis the pandemic, vaccines, and so on. While his views were admittedly far outside of the mainstream of public health opinion, that in itself was not a reason why the expression of them had to be sanctioned, and it was always legitimate for medical practitioners to express views on scientific or political matters short of saying anything gratuitously offensive.

Neither of these arguments - that the restriction on Mr Adil’s freedom of expression was not prescribed by law, and was not, in any case, proportionate - was successful. And they failed in a slightly contradictory way. The first argument failed simply because the Court of Appeal held that Mr Adil ought to have known that he would face disciplinary action for expressing the views which he had expressed. The rule in paragraph 65 of the GMP might have been vague, but he was still able to ‘regulate his conduct’ in light of it, and he had not done so. The second argument failed because the Court held that the restriction on Mr Adil’s freedom of expression had indeed been proportionate. His views were ‘baseless’ and ‘dangerous’, and it was therefore legitimate and necessary to restrict his expression of them - simple, in the end, as that. (I leave to one side the obvious point that a great many things were said by mainstream ‘public health experts’ and ‘medical professionals’, not to mention politicians, during the Covid years that were also both baseless and dangerous.)

Explaining the contradiction here requires us to go into a bit more detail about how proportionality is assessed when it comes to freedom of expression cases. The ‘test’ (I use the term loosely) has nowadays been elaborated into a series of questions, stated in the case of DPP v Ziegler (2020) and recently restated by the Supreme Court in In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill (2022):

(1) Is what the defendant did in exercise of one of the rights in Article 10 [i.e. the right to freedom of expression as formulated above]?

(2) If so, is there an interference by a public authority with that right?

(3) If there is an interference, is it ‘prescribed by law’?

(4) If so, is the interference in pursuit of a legitimate aim as set out in paragraph 2 of Article 10 [e.g., for the protection of health]?

(5) If so, is the interference ‘necessary in a democratic society’ to achieve that legitimate aim? And this in turn gives rise to four sub-questions:

(a) Is the aim sufficiently important to justify interference with a fundamental right?

(b) Is there a rational connection between the means chosen and the aim in view?

(c) Are there less restrictive alternative means available to achieve that aim?

(d) Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?

Let’s remind ourselves: Mr Adil’s first main argument was that a restriction on freedom of expression had to be ‘prescribed by law’ and that this meant (in the language of The Sunday Times judgment) it must derive from a rule ‘formulated with sufficient precision to enable the citizen to regulate his conduct’. Let’s recall that the Court of Appeal determined that the rule in paragraph 65 of the GMP satisfied this criterion. But now I want you to re-read the test for proportionality in assessing Article 10 cases, with all of its nine questions, as I have just stated it. Does it sound to you like something that is formulated with sufficient precision to enable the citizen to regulate his conduct?

Picture yourself about to make any vaguely controversial remark - anything you like. Now ask yourself: would you be able to know in advance whether a public body could legitimately censure you for making that remark, let’s say in the interests of ‘preventing disorder’ or ‘protecting the reputation or rights of others’, on the basis of the nine questions listed above? The truth is you would have no way of predicting it. Because everything depends on the assessment of concepts that can only either be interpreted subjectively (Is the aim ‘sufficiently important’? Is there a ‘rational connection’? Is there a ‘fair balance’?) or on the basis of evidence you cannot possibly grasp in its entirety (Are there ‘less restrictive means available’?). The test for proportionality itself, in other words, does not satisfy the requirement that a restriction on rights must be ‘formulated with sufficient precision to enable the citizen to regulate his conduct’. Yet in Adil v GMC the Court of Appeal was applying that test explicitly in relation to the interpretation of a rule which it insisted itself met that requirement.

This is all a roundabout way, of course, of saying that the law in respect of freedom of expression simply does not fulfil the function of law at all. It is not ‘formulated with sufficient precision to enable the citizen to regulate his conduct’. It puts the citizen in the position of, basically, guessing as to whether what he says will or will not fall foul of the law. There are two things that need to be said about this.

The first is that it puts us in a pre-legal (or post-legal, depending on how you want to look at things) state. In her great, posthumous book, On the History of the Idea of Law (2005), Shirley Letwin tells us that (as, again, was abundantly evident to the Greeks), if you don’t have law in the sense that you have a general framework of intelligible rules which are ‘formulated with sufficient precision to enable the citizen to regulate his conduct’, you are going to end up being subject to one (or both) of two things: the vagaries of custom or of tyranny. In short, matters are going to be decided by the mob or by an autocrat’s personal whim. And you will not like either of those things.

The position of Mr Adil illustrates this quite neatly. Not being subject to anything like a clear rule of law, his conduct instead ended up being decided by a combination of mob justice and subjective opinion, albeit transmitted through the lens of a formal series of trials. On the one hand, his views conflicted with received wisdom and would have been seen as ‘outlandish’ in polite society in 2020, and that in itself was enough to put him in a precarious position. And on the other hand, the Tribunal members and judges hearing his case, having no clear rules to apply, resorted in the end simply to their evident personal distaste: he was, to cite the Tribunal, in language later approvingly references by the High Court and the Court of Appeal, spouting ‘scaremongering conspiracy theories’ - and therefore restricting his freedom of expression and suspending him was, well, fair enough.

To repeat: in the absence of a general framework of intelligible rules which are ‘formulated with sufficient precision to enable the citizen to regulate his conduct’, you are going to end up being subject to the rule of the mob or the personal whim of decision-makers, or both.

The second thing to say is of broader societal importance. The alternative to the rule of law is chaos. That is the result of the rule of the mob or the autocrat: unpredictability, arbitrariness, irrationality. A society which deliberately abandons the rule of law is therefore one which is embracing entropy as its governing dynamic.

We can of course see this playing out across the piece - it is evident in almost every feature of our public life. But its effect is somewhat overlooked. When one uses the words ‘chaos’ and ‘entropy’ one conjures images of disorder and conflict. And we can in fact see those things emerging in our societies at a disturbing rate. But of course one important consequence of public life becoming defined by entropy is a retreat into the private sphere. When people do not feel themselves to inhabit a stable social framework, they turn inwards.

An important consequence of the law concerning freedom of expression being so unclear and unpredictable is therefore the chilling effect. This does not arise because people are necessarily scared of the consequences of expressing themselves freely - although in many circumstances they clearly are. It is rather that they feel as though they cannot regulate their conduct; they do not, to deploy a phrase used in the introduction to this piece, know where they stand. And, not knowing where they stand, they feel it safest not to express themselves at all. This more than anything else I think defines modern workplace culture in particular (though here the matter is made more complicated by the fact that the employment relationship is basically a creature of private law) - not so much a censorious atmosphere as one in which people just don’t want to have to worry about the unpredictable consequences of expressing themselves freely, and therefore don’t.

It probably goes without saying that this is not a good place at which to have arrived. Long-time readers will know of my penchant for citing Foucault. One of Foucault’s aphorisms was that ‘freedom is a practice’. You have to do it. If you aren’t acting freely, you aren’t free. What he - like a great many intellectuals - of course overlooked was that while chaos entailed the decay and destabilisation of rules, its consequences were not freedom, but actually a much more harshly authoritarian mode of governance, and hence an ever-shrinking horizon for liberty. For people to be able to act freely - without concern for the mob or the tyrant - they need a stable system of enforceable law. That we do not have such a thing in respect of freedom of expression is therefore closely connected with a precipitous decline in that freedom. On the long list of things we therefore need to remedy, this is close to the top.

[*There is a sad coda to this post. After I had written the piece I discovered that Mr Adil has now been struck off - the word the Medical Practitioners Tribunal Service uses is ‘erased’, since it involves erasure of his name from the Medical Register - for failing to show sufficient ‘insight’ and persisting in expressing his views. This means that he will no longer be able to practice medicine in the country, subject to appeal. You can read the decision of the Tribunal, reached in September 2023, here. I may write a follow-up piece on it.]

1. I feel strongly that there ought to be an apostrophe in the name of this Tribunal after ‘practitioners’, but there is apparently not one.