Ben Boult is a politics graduate and civil liberties campaigner.
Following February’s Munich Security Conference, during which JD Vance decried the erosion of free speech in the UK, I began to wonder what the future might hold for the protection of this right.
If, as some are predicting, we are taken out of the European Convention on Human Rights in the next Parliament, and if the Human Rights Act 1998 is replaced with the oft-fabled ‘British Bill of Rights’, there may be an opportunity to enhance, rather than diminish, the protection of British speech rights.
To that end, I have prepared a draft of four speech-protective safeguards which we could include within a future Bill of Rights.
I’m not going to lie folks: the following article is a challenging read. But if we are serious about breaking the cycle of censorship that chills our national conversation, we are not going to get there through yet another click-baity, ‘culture war’ opinion piece. It is time that we looked at this issue sensibly:
1) Add a ‘free and democratic society’ test to the future Bill of Rights
Under Article 10 of the European Convention on Human Rights, British courts can limit speech rights when “necessary in a democratic society”.
Under the Canadian Charter of Fundamental Rights and Freedoms, the New Zealand Bill of Rights Act 1990, and the Australian Capital Territory’s Human Rights Act 2004, their courts can limit speech rights when “demonstrably justified in a free and democratic society”.
In other words, whereas the European Convention gives implicit recognition to individual liberty interests (via the word “democratic”), our ‘CANZ’ partners give explicit recognition to individual liberty interests (via the word “free”).
This may seem like a trifling detail, but in borderline cases it may just tip the scales. Take, for instance, a police constable responding to a complaint about an ‘inflammatory’ protest placard.
Initially, he is of two minds as to how to proceed. On the one hand, he is sympathetic to the free speech interests of the protester, who was seeking to contribute to a timely national debate; on the other, he feels that the phraseology used was unnecessarily derisive.
The “free and democratic society” clause, with its greater emphasis on personal freedom, would encourage the said constable to err on the side of free expression. It would also send a clear signal to the rest of the world that after years of legislative overreach in this space, the UK wishes to reclaim its heritage as a free country.
Accordingly, the “free and democratic society” test should be included within any future ‘Bill of Rights’. The new provision, which I shall refer to as Article ABC, might read as follows:
Article [ABC]. Freedom of expression
1) Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to impart information and ideas without interference by public authority and regardless of frontiers.
2) The exercise of this right, since it carries with it duties and responsibilities, may be subject to such limits as are prescribed by law and can be demonstrably justified in a free and democratic society.
2) Add a ‘right to offend’ to the future Bill of Rights
The Human Rights Act 1998 has a rather sketchy record when it comes to protecting the right to offend. A quick glance at the Free Speech Union’s in-tray (I encourage you to visit their website) reveals what a mess our case law is.
A large part of the problem can be traced to a half-baked Section 12 of the Human Rights Act. Under Section 12, the courts are directed to pay “particular regard” to the “importance of freedom of expression”. While this may sound great on its face, the protections of Section 12 only apply to civil cases (think defamation and privacy) not criminal cases (think malicious communications and harassment).
In other words, if you find yourself in the dock for sharing a ‘grossly offensive’ post on X (a criminal offence under Section 127 of the Communications Act 2003), there is no equivalent to Section 12 that will come to your defence…
If we are to succeed in reducing the high number of criminal prosecutions/fixed penalty notices in this space, we will need an interpretative clause that makes no distinction between criminal and civil proceedings – one that also provides for a broad spectrum ‘right to offend’:
Section [DEF]. Interpretation of the freedom of expression
1) As a general principle, Article [ABC] protects the communication of unpopular opinions and ideas. This includes –
a) opinions and ideas which others may regard as offensive, shocking, disturbing or insulting;
b) opinions and ideas concerning sensitive cultural, sociological, philosophical, religious and/or scientific topics.”
My proposed Section DEF would combine a seldom heeded safeguard from the case of Handyside vs UK (a right to “offend, shock or disturb” – a rare ray of light from the European Court…) with a more recent safeguard recommended by Robert French AC in his review of university speech codes in Australia (a right to leave people feeling “offended, shocked or insulted”). It would also enshrine a prima facie protection for the discussion of “sensitive” social issues in public (for instance, issues relating to protected characteristics).
Taken together, sub-sections a and b would encourage the drafting of new laws/ministerial guidance in which ‘perceived hostility’ and ‘injury to feelings’ were no longer considered sufficient grounds – in and of themselves – to restrict speech.
For the avoidance of doubt, this section would only apply to public authorities (for instance, the government, the police, local magistrates and universities), not to private businesses performing non-public functions. The increasingly thorny issue of private sector employers limiting the political speech of their employees should be dealt with via an ordinary public bill, not a ‘constitutional’ bill of the kind I am proposing here.
A constitutional bill is comprised of ‘general principles’, whereas an ordinary Public Bill would allow for very specific and nuanced compromises to be struck. The Equality Act 2010 is one possible vehicle for this approach – given that it already protects the ‘philosophical beliefs’ of employees both inside and outside the workplace…
3) Grant the House of Lords a qualified veto over Bills that would limit free expression
The House of Lords has proven very effective at challenging speech-limiting legislation in recent years. It has managed to persuade several governments to change course.
Consider, for instance, its defeat of Tony Blair’s plans to criminalise “insulting words likely to stir up religious hatred” in 2005, its amendment to the Crime and Courts Bill to remove the word “insulting” from Section 5 of the Public Order Act in 2012, and its defeat of the Coalition Government’s plans to prohibit “annoying” behaviour in 2014.
But in the face of a determined majority in the Commons, the House of Lords would struggle to fight back. This is because the Lords is only able to delay legislation. Ordinarily, it has no power of veto. If the objections of their Lordships run into the next Parliamentary session, the Commons can invoke the Parliament Act 1911 to override those objections.
In most cases, it is only right and proper that the democratically elected chamber should prevail. But the protection of free speech is no ordinary case. As John Stuart Mill argued in his classical-liberal tome On Liberty:
“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
In simpler terms, there is no Commons majority – 66 per cent, 99 per cent, or even 100 per cent of MPs – that would justify depriving an unpopular author or commentator of their legitimate speech rights. As a relief valve to an illiberal House of Commons, we could grant the House of Lords a qualified legislative veto. The relevant safeguard might read as follows:
Section [GHI]. Consent of the House of Lords required for Bills limiting the freedom of expression
If, in the view of the 12 members of the Joint Committee on Human Rights, a Bill is likely to limit the freedom of expression protected by Article [ABC] 1 of this Act, and if the Joint Committee on Human Rights makes a declaration to that effect, the said Bill cannot receive Royal Assent unless it has secured the consent of both Houses of Parliament.”
So how would the new veto work? Firstly, its use would have to be authorised by the Joint Committee on Human Rights (the JCHR). The JCHR is a parliamentary committee comprised of six MPs and six Peers. It scrutinises Bills for their compatibility with human rights and equality law and issues recommendations to ministers. It has regularly demonstrated its willingness to stand up to the government, making it the perfect choice for the new gatekeeper role outlined in Section GHI.
Assuming the JCHR voted to ‘unlock’ the new veto power, the House of Lords would then have three choices: approve the speech-limiting bill passed by the Commons, return it to the Commons with amendments, or dig in and block its passage – potentially indefinitely.
From a civil libertarian perspective, the Upper House could not be better placed to weigh the balance. Peers are appointed for life and can only be removed from office by Act of Parliament. This job security gives them considerable scope to defend the speech rights of unpopular personalities.
With a veto at their command, peers would be able to block the creation of new, overly broad speech offences (for instance, the ‘Extremism disruption order’ regime proposed by the last government). They would also be able to block the resurrection of successfully repealed laws (for instance, blasphemous and seditious libel).
In effect, we would be handing peers a ‘strike-down power’, such that the Court of Appeal and Supreme Court would never need to be entrusted with that power themselves.
There are already two legislative precedents for my proposed veto. Under Section 2 (1) of the Parliament Act 1911, any Bill which seeks to suspend a general election must be approved by both Houses of Parliament (parliamentary elections were last suspended during the Second World War).
Moreover, under Section 16 (3) of the Human Rights Act 1998, any attempt to derogate from (i.e. ignore) a particular human right must be approved by a resolution of both Houses of Parliament within 40 days or the ‘derogation order’ would cease to have legal effect.
Simply put, the House of Lords is already regarded, both in law and in practice, as a constitutional guardian. Granting it a third power of veto over speech-limiting legislation would be a perfectly sensible iteration of its oversight role.
4) Grant the House of Lords an absolute veto over changes to the future Bill of Rights
What would be the point of enshrining the constitutional safeguards outlined above (‘free and democratic society’, a ‘right to offend’ and a ‘qualified legislative veto’) if a future Labour or Conservative majority in the Commons could repeal the legislation underpinning those safeguards with a simple majority vote?
This brings me to my final amendment – Section JKL – which would grant the House of Lords an absolute veto over changes to the future Bill of Rights (i.e. a majority of Peers could block those changes on their own authority, without having to secure the consent of the JCHR):
Section [JKL]. Entrenchment
This Act [i.e. this ‘Bill of Rights’] cannot be amended or repealed without the consent of both Houses of Parliament.
The idea of ‘soft entrenching’ our human rights framework is hardly a new one. In a 2008 report, the JCHR raised the possibility of enshrining a House of Lords veto in such circumstances.
Under our parliamentary system, a simple majority veto is probably as far as we could go in terms of ‘locking in’ the Bill of Rights. A super majority clause (i.e. a requirement that 66 per cent of MPs/peers agree to the Bill’s repeal) would violate the common law maxim that ‘no Parliament may bind its successor’. The joys of having an uncodified constitution!
Nevertheless, if we were to combine the four basic safeguards outlined above with an interpretive power akin to Section 3 of the Human Rights Act 1998 (the power to give rights-limiting legislation its best possible ‘spin’), we would be left with free speech protections not dissimilar to those of the First Amendment of the US Constitution.
In view of our ever-widening panoply of communications offences, and reflecting on our waning international reputation as a champion of open public debate, this is surely an idea whose time has come.
