Free speech Bills are like buses, etc

One of the greatest threats to our freedom and liberties is the cancel culture promoted by the the small but vocal woke brigade. We will strengthen human rights laws to enshrine this freedom.

Jim is an Associate Editor at Wonkhe

Not my words conference, but the words of former Secretary of State for the preservation of statues and road names Oliver Dowden – in his exciting new role of Chairman of the Conservative Party – hark the heralding the arrival of Dominic Raab’s Independent Human Rights Act Review and associated consultation on a new plan to reform the act.

As human rights barrister Adam Wagner puts it, this government may be the first in the history of liberal democracies “which enacts a bill of rights which has the effect of reducing rather than increasing rights protections”, something which he argues is “like enacting a Clean Air Act which opens five new coal power stations”.

Before we get going here, worth noting that this is an independent review that was only commissioned a year ago and we already have both the report and the response from government! It’s now three years and ten months since Theresa May announced the Augar review.

The independent review itself barely mentions universities, let alone cancel culture or even freedom of speech. Its panel recommends that serious consideration is given by government to developing an effective programme of civic and constitutional education in schools, universities and adult education, which sounds great if money is coming.

The consultation to reform the Human Rights Act is a different kettle of fish altogether.

Shoehorned in at paragraph 210 is a note that the government is clear that freedom of speech and academic freedom are fundamental principles in the higher education sector:

Academic freedom has rightly enjoyed a special status, reflecting the high level of importance that the courts have consistently placed upon it in the context of the right to freedom of expression. This is due to the special place our universities have historically held as centres of enquiry and intellectual debate.

But it also notes that the internet has revolutionised our ability to connect with each other and express our views widely – and that there’s dangers in that insofar as a failure to police and regulate free speech can leave some voices out:

The government is committed to ensuring that the biggest social media companies protect users from abuse and harm, and in doing so ensuring that everyone can enjoy their right to freedom of expression free from the fear of abuse

Elsewhere the document deals with what we might call the “balancing” issue. Right now the current Human Rights Act 1998 says that all public bodies have to comply with the rights set out in the European Convention on Human Rights (ECHR), which includes Article 10, which protects the right to freedom of expression. Article 10 protects the right to hold opinions and express them freely without interference from public bodies.

But as the Equality and Human Rights Commission points out, sometimes those rights may conflict with the rights of other people affected by someone’s views, for example, a protester’s right to freedom of expression. Someone’s freedom of expression may need to be limited if it would lead to a breach of another person’s rights under the ECHR.

That careful balancing act that is carried out by public authorities is raised here, with both the courts and public authorities’ caution off the back of judgements coming in for criticism – with the MoJ arguing that public authorities have tended to take a cautious approach that is contrary to the public interest:

Everyone serving the public must act within the law and respect people’s human rights. Equally, those charged with delivering vital public services on the frontline need clarity as to what their obligations are, and what they can and cannot do within the bounds of human rights law, in order to do their jobs properly and serve the public.

The proposals that follow are hardly the simple and straightforward recipe implied by Dowden or Raab, with lots of umming and aahing about how to ensure that public authorities remain at arm’s length from government but are still, somehow, caused to make inconsistent judgements in balancing their duties in ways that would please Sunday Telegraph readers.

The key proposal suggested is changing the wording of the Human Rights Act to prevent human rights claims against public authorities.

Who knows how the consultation will pan out, but what is fairly extraordinary is that we now how three Bills floating around – each with its own policy framework, sponsoring government department, ministerial team and set of officials – that purport to address the balancing act between freedom from harm and freedom of speech.

There’s this stuff, the Freedom of Speech (Higher Education) Bill and the Online Harms Bill – and all three policy areas seem to define the balancing act differently, define harm differently and could mean three sets of things for universities to worry about rather than one.

This isn’t just a Westminster chaos amusement issue. I can think of plenty of HE cases that involve claims to freedom of speech on one side, and claims to protection from harm on the other, where some of the worst behaviour that one side throws at another is taking place online and in a way that may or may not involve actual students and academics “at” a particular university/public authority. Picking through all of that could be about to get more complicated, not less.

Still, the good news is that:

It is important to remember that in delivering vital services to help and protect people, public authorities face varied, and competing, operational priorities which they are required to reconcile with finite resources.

I’d tentatively suggest that to respond to that concern, a) the officials respectively working on this, the Free Speech Bill and the Online Harms Bill should at least meet up for a minuted chat, and b) there should be some Parliamentary scrutiny that looks across at all three Bills to look for clarity, consistency and simplicity if we’re going to continue to dump these competing duties on universities and other public authorities.

One response to “Free speech Bills are like buses, etc

  1. In 2017 I acted as a rapporteur to the Venice Commission (the European Commission for Democracy through Law, an advisory body of the Council of Europe) on the ‘academic freedom’ implications of new legislation in Hungary, the so-called ‘Lex CEU.’ Reporting rather nervously to, and hearing comments and analysis of competing issues from some of the more than 50 countries’ distinguished constitutional lawyers and constitutional court judges was both stimulating and fascinating. The relevance of this is clear. Issues around human rights are continually developing, as is the jurisprudence of the European Court of Human Rights. The idea that somehow HEI governing bodies, no matter how much they pay their lawyers( which I doubt have the expertise I saw in Venice) are going to be able to balance the competing rights around freedom of speech is to me a non-starter. It is difficult enough without new legislation. As Jim says, there should be serious concern about dumping the ‘balancing issue’ on those governing bodies.

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