UK’s new ‘Bill of Rights’ exempts government from free speech protections
Boris Johnson’s new ‘bill of rights’ exempts the government itself from complying with its new free speech protections, legal experts have warned.
Justice Secretary Dominic Raab said last week that the new charter would prevent free speech from being “diminished” by “error and political correctness”.
But clauses included in the bill specifically exempt laws created by ministers from its new free speech test – meaning it will not protect people from “the various threats to free speech posed by the government”.
Activists said the bill of rights would “end up hampering efforts to hold the government to account”.
A law professor said The Independent that the exclusion was “very, very strange” because bills of rights around the world, such as in the United States, tend to apply to government as well.
“I think Americans, for example, would just be in disbelief – you have a special extra right to free speech, but not against the government,” said Gavin Phillipson, a law professor at the University of Bristol.
Professor Phillipson, who is also a visiting scholar at the University of Oxford and an authority on comparative free speech law, added: ‘They say you have these very strong protections for free speech – except against the government.
“Generally, if you look at most threats to free speech, and most bills of rights around the world, it’s the various threats to free speech posed by the government. It’s very, very strange.
“The fact that the government finds it necessary to exempt a whole host of things that it does – particularly the thing that people are most concerned about, being ‘prosecuted for what you say’ – is a very strange aspect of what is meant to be a bill of rights. ”
Section 4 of the new bill states that “in determining an issue which has arisen in connection with the right to freedom of expression, a court shall give great weight to the importance of protecting the right ” – a measure intended to generally strengthen freedom of expression in judicial decisions.
But clause 4(3) states that this section “shall not apply” in criminal proceedings or “in any question whether a provision of primary or subordinate legislation which creates a criminal offense is inconsistent with a right of the agreement”.
This means that government-created offenses cannot be considered inconsistent with the right to freedom of expression under the bill, even if they restrict a person’s right to freedom of expression.
The Justice Ministry denied the approach was an “exception” for ministers and said it was necessary to prevent free speech being “abused”.
Other parts of the bill also narrow the definition of freedom of expression in a way that appears to exclude certain types of protest, defining it as the transmission “of ideas, opinions or information by speech, writing or image”.
“They actually limit the definition of expression to which it applies only to that involving words or pictures,” Prof Phillipson said.
“There have been cases involving hunting saboteurs – direct action protest – which the ECHR [European Court on Human Rights] considered as an expression.
He said that “the restrictive definition of the phrase must be there to ensure that the various forms of direct action which involve more than chanting slogans and waving banners do not even fall under this clause at all. “.
“Where people have committed the new public order offenses they would be exempt from this clause anyway, but I think this definition is intended to ensure that the new police powers in the public order can be used against them.”
While claiming to protect free speech with the new Bill of Rights, the government has simultaneously pushed through authoritarian new legislation that cracks down on protests in its Policing, Crimes, Sentences and Courts Act.
New police powers came into force this week and have been used to confiscate speakers and amplifiers from longtime anti-Brexit protesters outside Parliament – causing an outcry.
The bill’s exemption clauses mean that the new free speech powers would not protect people from prosecution for offenses such as glorifying terrorism or publishing an image that raises reasonable suspicion of being a supporter of a banned organization.
“These are the kinds of things that under the US First Amendment, for example, would be simply flat-out unconstitutional, and that wouldn’t even be a hard case,” Prof Phillipson said. The Independent.
There are also specific exclusions in other clauses so that the government can ban someone from entering the UK on the basis of what they have said and protect the powers of the Home Secretary to strip people of their citizenship.
Charlie Whelton, head of policy and campaigning at human rights group Liberty, said: ‘As well as the Rights Abolition Bill which weakens all our other rights, it will also weaken our right to freedom of expression.
“The government falsely claims it will improve protections for free speech, but that is not true. Clause 4, which orders courts to give “great weight” to the importance of freedom of expression, is limited to applying to criminal proceedings, to determining the compatibility of legislation with human rights rights or privacy, immigration, citizenship or national security issues. The government ensures that free speech is only valued when it is not used against the government.
“This clause will not protect protesters or whistleblowers, nor will it allow the courts to review whether the government is infringing on our free speech rights. Along with the Police Act, the Public Order Bill, the Online Safety Bill and many others, this is characteristic of a government that claims to protect freedom of expression but just wants to avoid accountability wherever he can.
A spokesperson for the Index on Censorship organization also criticized the bill, saying, “We categorically disagree with the government’s assertion that the bill will strengthen freedom of expression.
“We believe the bill will only serve to expand the power of the state and will ultimately hamper efforts to hold the government to account, including on all matters relating to national security and citizenship. , as specifically mentioned in clause 4 of the bill.
“These are questions of enormous public interest. We must ensure that the necessary checks and balances are in place to protect our democracy and fundamental civil liberties.
Ministers have generally referred to culture war issues, such as uninvited lecturers at universities, as “freedom of speech” issues, but these have little to do with the legal right to freedom of speech. freedom of expression as it is generally applied in the world.
“In fact, if you think about the major cases of cancel culture, they’re usually not legal cases, they’re people being shamed on Twitter or without a platform,” Professor Phillipson said.
“In cases where people have been fired from their jobs or formally disciplined, they have mostly won. It’s really a cultural phenomenon, not a legal one. Universities turning away speakers because students think they are offensive and so on – these are not infringements on their legal right to free speech because you are not entitled to a particular platform .
He added: “The idea that this clause is aimed at combating ‘wokery’ doesn’t make sense to me and suggests that it is more rhetoric aimed at pleasing their supporters and elements, may -be, of the right-wing press. Because much of what the government would consider culture cancellation or “wokery” actually has nothing to do with the law, it is a cultural matter.
A Department of Justice spokesperson said: “The Bill of Rights strengthens freedom of expression but rightly provides for a limited number of exceptions, such as maintaining a patient’s right to confidentiality or when a criminal act takes place, for example a hate crime. These exceptions apply to everyone – they are not an exception for the government.