ARTICLE 19 considers that the decision of the Secretary of State for the Home Department (the “Secretary of State”) to ban Geert Wilders, a member of the Dutch parliament, from travelling to the UK on the basis that “his statements about Muslims and their beliefs, as expressed in film Fitna and elsewhere, would threaten community harmony and therefore public security in the UK” is in contravention with international and European human rights law on freedom of expression and should be reversed.
In a letter to Mr Wilders dated 10 February 2009, the UK Border Agency on behalf of the Secretary of State states that his “presence in the UK would pose a genuine, present and sufficiently serious threat to one of the fundamental interests of society”. Mr Wilders, who will face prosecution in the Netherlands for inciting hatred following the decision of the Amsterdam Court of Appeal last month, was due to attend a screening of his controversial film Fitna in the House of Lords.
ARTICLE 19 argues that the decision of the Secretary of State was unjustified and should be reversed for the following reasons:
First, in our opinion, the restriction on Mr Wilders’ entry does not meet standards contained in international and European Convention on Human Rights (ECHR) law on permissible restrictions to freedom of expression. Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”) provides that restrictions on freedom of expression on national security grounds can only be imposed if they “are provided by law and are necessary … for the protection of national security”. Article 10 of the European Convention on Human Rights (“ECHR”) provides that restrictions on freedom of expression must not only be “prescribed by law” but also must be “necessary in ademocratic society … in the interests of national security…public safety, for the prevention of disorder …or for the protection of the rights of others …” amongst other legitimate aims (emphasis added). We question whether Mr Wilders’ presence in the UK really would have posed a threat to public order. Security in and around Parliament might have been shored up for Mr Wilders’ visit had a threat been identified. The restriction was not necessary in a democratic society: there are no convincing and compelling reasons to justify the travel ban to the UK based on Mr Wilders’ statements. Indeed, the democratic values of “pluralism, tolerance and broadmindedness” that underpin the system of the ECHR involve the protection of expression even when it is offensive, shocking or disturbing. We also contend that Mr Wilders’ statements do not represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” as required by section 21 of the Immigration (European Economic Area) Regulations 2006. We argue that this provision must be read compatibly with the criteria for legitimate restrictions on Article 10 ECHR.
Second, we acknowledge that limitations on freedom of expression may be imposed in order to protect equality: a restriction to freedom of expression may be imposed to protect “the rights of others” under Article 10 ECHR; and Article 20(2) of the ICCPR requires states to proscribe any “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. However, we believe that the denial of Mr Wilders’ entry into the UK fails to fulfil the criteria for legitimate restrictions on the freedom of expression indicated above. The protection of the right to equal treatment of others could have been achieved through less intrusive means, such as by simply ensuring there was sufficient advocacy on equality issues at or around the time of the showing of the film. Furthermore, it is our view that permitting Mr Wilders entry into the UK would not have been in contravention of the UK’s obligations under Article 20(2) ICCPR. International human rights law does not oblige states to impose travel restrictions on individuals who have expressed previously racist views or who have produced racist material. The film Fitna does not constitute “incitement” under Article 20 ICCPR, even though it advances a racist point of view. The film, which remains available on the internet to anyone who wishes to view it, was to be shown in the House of Lords rather than a setting (such as a meeting of a racist right-wing group) where it would have been actually possible to stir up racial incitement.
Third, Mr Wilders’ exclusion from the UK is not only contrary to ECHR law and the requirements of the ICCPR, but is also counterproductive to the aims of those who oppose Mr Wilders’ views as well as one of the grounds for the exclusion – the protection of “community harmony”. Whilst Mr Wilders’ views as they are expressed in Fitna are clearly offensive to some, the result of the decision of the Secretary of State is to bring a higher level of publicity for his views than had it been the case if he had been permitted to enter the UK, and also and potentially to attract more support for the racist views he advances. The exclusion will also discourage free debate and open discussion on important issues involving religion, Islam in particular, and is likely to polarise individuals from different religious and ethnic communities in the UK. Had Mr Wilders been allowed into the UK, his views could have been more directly challenged by UK-based equality and human rights advocates and bodies as well as by UK politicians, as part of a broader debate on religion, racism, intolerance and/or the limits of hate speech in Europe.
ARTICLE 19’s position is that intercultural understanding will bloom and strengthen within a society where speech, even if it is offensive, is permitted, provided it does not amount to incitement to hatred. In such an environment, the voices of political leaders against racist expressions and racism should be heard loud and clear.
