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1987-07-09 09:31 COMMS. OFFICE (GOV'T HSE)
852 5 845 0995 P.07
TEX
-6-
3.
The third of the criteria in the Covenant relates to
necessity. The restrictions must be necessary to achieve the
purposes that are permitted. Here again there is scope for different views, Some might argue that there is a need for some
universal objective test which strikes a constant balance between
the individual rights on the one hand and their restrictions on
the other. This is not the way of the world. Concepts such as the needs of national security and public policy vary from place to place, and from community to community. And so with the
consequent necessity for restrictions upon the rights of the
individual. And Members will not be surprised to find that a
sensitive approach to the judgment of necessity has been adopted in a number of cases. It has been recognised that a contracting State has a margin of appreciation as to whether it is necessary
to apply an authorised restriction, and if it is, how far it needs
to go to reflect its assessment of the need.
14.
I think Dr. Barendt has acknowledged the validity of
that approach. He has however gone on to suggest that if a State
believes it necessary to restrict the right of self-expression for
a particular purpose, then a restriction on films could only be
justified if it can be shown that similar restrictions have been
imposed on the right of expression across the board in the media.
But, it is our considered opinion that this view is not correct in
law, and in particular that it is at variance with the decision in
the Handyside case (referred to in paragraph (e) of our comments
on Dr. Barendt's opinion) which illustrates how a community may
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