01 June 2009

Will Smith be Savaged?


"Home Secretary Jacqui Smith will fight defamation proceedings launched against her by a US "shock jock" barred from entering the UK, the Home Office said today."

Reports The Independent in, "Smith fights defamation claim."

It started with a speech to Parliament in October 2008 where Smith announced an exclusions review.

"The Secretary of State for the Home Department (Jacqui Smith): My right hon. Friend Prime Minister made a commitment in the National Security Strategy statement of 19 March 2008, Official Report, column 929, to take “stronger action against those we suspect of stirring up tensions”. In the light of that, I have reviewed existing policy on the exclusion from the UK of those individuals who encourage violence or hatred in support of their ideology."

Mrs Smith explained that most of the necessary measures had been implemented and (only tangentially related to the main point but of interest) that the The Immigration (European Economic Area) Regulations 2006 (No. 1003) will be amended so that "I personally may exclude EEA nationals and their family members."

(The amendment can be found in "The Immigration (European Economic Area) (Amendment) Regulations 2009, specifically:

"Regulation 19 (exclusion and removal from the United Kingdom)

6. In regulation 19 —

(a) after paragraph (1) insert –

...

(1B) If the Secretary of State considers that the exclusion of an EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 21 the Secretary of State may make an order for the purpose of these Regulations prohibiting that person from entering the United Kingdom.”;
".

On the 5th May 2009, related to all of the above, the Home Office issued the following press release.

Home Office name hate promoters excluded from the UK

"Individuals banned from the UK for stirring-up hatred have been named and shamed for the first time, the Home Secretary announced today.

The list covers people excluded from the United Kingdom for fostering extremism or hatred between October 2008 and March 2009.

It follows the Home Secretary’s introduction of new measures against such individuals last year, including creating a presumption in favour of exclusion in respect of all those who have engaged in spreading hate.

The Home Secretary Jacqui Smith also announced today that the government is now able to ban European nationals and their family members if they constitute a threat to public policy or public security.

In the period from 28 October 2008 to 31 March 2009 the Home Secretary excluded a total of 22 individuals from coming to the United Kingdom. It is not considered to be in the public interest to disclose the names of six of these individuals. The remaining 16 individuals are:

...

Michael Alan Weiner (also known as Michael Savage)

Controversial daily radio host. Considered to be engaging in unacceptable behaviour by seeking to provoke others to serious criminal acts and fostering hatred which might lead to inter-community violence.
"

The statement may well be defamatory but surely Mrs Smith has the defence of privilege?

In the schedules of the Defamation Act 1996 we have,

"Schedule I

...
Part II
Statements privileged subject to explanation or contradiction


9. — (1) A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of—
...
(b) the government of any member State, or any authority performing governmental functions in any member State or part of a member State, or the European Commission;
".

I'd be curious to find out what happens next. Based upon the information given so far and the analysis above, the case should be thrown out. I can appreciate that there may be some sort of argument but as to whether or not this lies in a defamation suit or simply an appeal against being banned, isn't clear? Anyway, as to whether or not the case does get thrown out, time will tell.

If this case does make some headway it will focus attention upon the credibility of the government and their criteria for banning people.

Another aspect of the Home Office's statement - who are the six individuals not named?

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