A Bone Tossed to the Europhobes – Free Speech in Britain’s Proposed Bill of Rights

by | Jun 30, 2022

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About Eric Heinze

Professor of Law and Humanities and Queen Mary University of London. He is the author of Hate Speech and Democratic Citizenship (OUP 2016) and The Concept of Injustice (Routledge 2013). He co-founded and currently directs Queen Mary’s Centre for Law, Democracy, and Society. and the author of The Most Human Right: Why Free Speech is Everything (MIT Press 2022)  

Image Description: Graffiti of “Free Speech” on a red brick wall with a person with their back to the camera in a pink t-shirt, baseball cap and shorts standing beside the graffiti. At the bottom of the brick wall there is a *condition apply

Amid post-Brexit disasters and a smattering of scandals, Boris Johnson’s Government has now proposed a UK Bill of Rights, apparently devised to achieve for human rights what Brexit was supposed to achieve for the economy: ‘Take Back Control’.

If voted into law, would this proposed legislation indeed recapture national sovereignty more convincingly than Brexit has done? Many experts have voiced concerns about the Bill as nothing but part of the government’s broader power grab, and if we focus for a moment on the free speech provisions it becomes clear that the Bill keeps loads of power for the state while returning very little to the rest of us.

Cetainly, Johnson’s acolytes like to seize every opportunity to vaunt their love for individual freedom and loathing of cancel culture. So surely any changes the Government has in mind would serve only to enlarge individual free speech – right?

Starting with the European Convention on Human Rights, to which Britain has been a party for decades, Article 10(1) begins by formulating the free speech right in general terms and Article 10(2) follows up by setting forth grounds for permissible restrictions. Accordingly, when petitioners bring free speech disputes to the European Court of Human Rights (ECtHR) it is only because they believe that a national government has unjustly limited this freedom. After all, no one brings a case asking for less freedom.

By definition, then, the ECtHR cannot grant people less free speech than they would have had under their domestic law. The Convention is a floor, not a ceiling. The ECtHR cannot take away individual freedoms that people already enjoy under national law. The ‘worst’ it can do is to enhance individual freedom by finding that a state had limited free speech in violation of Article 10. Yet if the ECtHR can only increase free speech and cannot decrease it, then what would this self-styled freedom-loving Government want to tinker with?

It helps to bear in mind that most cases do not even reach the ECtHR. In those cases, national law prevails, so for a sizeable volume of cases the proposed Bill would certainly not change anything for the better.  More importantly, even when cases do end up in Strasbourg, either petitioners win, in which case an individual right is strengthened, or they lose, in which case, once again, national law stays as it had been.

In sum, the further we probe, the clearer it becomes that the only concrete effect the Bill of Rights Bill (in its current form) could have would be to limit free speech, not to expand it. Nor can this observation come as any surprise, given the recent Police, Crime, Sentencing and Courts Act, which further restrict individuals’ freedoms to take part in public protests. At the very moment I am typing these words, that Act has been in force for twelve hours and already police are silencing an anti-Brexit protest.

Drafted in a dense legalese uncommon for basic human rights documents, clause 3(3) of the proposed Bill of Rights directs British courts to reject any ‘interpretation of the right that expands the protection conferred by the right unless the court has no reasonable doubt that the European Court of Human Rights would adopt that interpretation if the case were before it’.

When politicians aim to ‘Take Back Control’ through this kind of jargon, it is a safe bet that their plan is to keep any regained power for themselves and not to pass it on to the very citizens for whom human rights were first designed. Of course, Parliament would still be free to reverse that course by expanding free speech rights, but under the Convention it always enjoyed ample leeway to do this anyway.

Note also that this clause’s ‘no reasonable doubt’ provision once again means that a UK court would simply be expected to do what it believes the ECtHR would do anyway. Certainly, if you happen to be a hardcore nationalist, then the words preceding that phrase might seem, if not a boon, then at least a good first step toward reducing European influence. After all, surely it is better for Britain to narrow its citizens’ individual freedoms than for Europe to widen them – right?

Reading further, Clause 4 goes on to direct that British courts ‘must give great weight to the importance of protecting’ free speech, but then goes on to state that this factor ‘does not apply’ to many of those citizens for whom free speech becomes essential, such as persons charged with criminal offenses, as well as persons whose rights ‘to enter, or remain in, the United Kingdom’ or whose citizenship is in question – all the more so because these persons’ legal difficulties might arise precisely from their free speech activities, such as persons wrongly charged with terrorism offenses.

In sum, a government supposedly passionate about individual freedom and national sovereignty gestures toward strengthening the latter, but only by jeopardizing the former. This may be a bone tossed to Europhobes but is certainly no assurance that the rights of UK citizens will become stronger or even clearer than they are today.

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