How did we get here? The modern erosion of freedom of speech in the UK

“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… would be justified in silencing mankind.”
John Stuart Mill, On Liberty[1]

One of the obvious phenomena in UK society over the last few years has been the effective dwindling of freedom of expression. In recent months this has been seen in the disciplining of England rugby player Billy Vunipola over a social media post, and his consequent ejection from Channel 4’s rugby punditry in the name of “inclusive values,” as well as in Cambridge University’s rescinding of a fellowship to Jordan Peterson. In the Telegraph on 4 July, the chair of the Equalities and Human Rights Commission, David Isaac, warned that Christian and pro-life societies were being excluded from university campuses by “hypersensitive” student unions. How did we arrive at this position?

The Human Rights Act 1998 embodies in UK law the principle of freedom of expression. Following the wording of European Convention on Human Rights, its Article 10 (on freedom of expression) states that,

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The implication of Article 10 is that people in the UK have the clear right freely to express views without fear of recrimination by the State or by public bodies, even when those views are unpopular and cause offence. Indeed the very idea that offence is permissible and even desirable is intimately bound up with freedom of expression. Freedom of expression is the freedom to cause offence; conversely, if a person cannot cause offence by what they say, there is no genuine freedom of expression.

It is clear, therefore, that a considerable gap currently exists between a person’s right to freedom of expression in the UK in law, and how that is working out in practice ‘on the ground.’

It isn’t all, of course, bad news. A major victory for freedom of expression came in the Court of Appeal on 3 July when the Court upheld Felix Ngole’s case against Sheffield University for expelling him from a social work course as being “unfit to practise,” on the basis of certain comments made several months earlier, and in a personal capacity, within the context of a Facebook discussion. The University’s decision had been made, apparently, on the risk that there could be a perception that Mr. Ngole would unlawfully discriminate against people in practice — in spite of positive evidence to the contrary.

This ruling follows last year’s ruling by the Supreme Court in favour of Ashers bakery in the “gay cake” case. If the Ngole ruling established the right of professionals in the social work field to hold and express unpopular views in a personal capacity without fear of undue interference or threat to their livelihoods, then the Ashers case uphold the principle that a person or organization cannot be coerced into manifesting a belief which he, she or it does not hold.

Both these rulings are in fact evidence of the gap between the law and the practice ‘on the ground.’ In order for the legal (and moral) truth to prevail, these cases had to be brought before, respectively, the Court of Appeal and the Supreme Court. In the Ngole case, the time, energy and money that had to be invested in resolving the dispute seems particularly ridiculous.

New Labour and the disappearance of liberty from the national narrative

One of the key reasons that such an environment exists in the UK, is that over the past twenty years the public narrative has lost the concept of individual liberty.

The narrative of individual liberty — the freedom the individual to choose his or her own course without interference from public authority — has been a distinctive hallmark of British society over the past three hundred years. Although not always consistently implemented, this concept of liberty has been a really key idea in the development of modern Britain.

In the latter chapters of his book, ‘What Price Liberty?’ — published in 2009 and already seeming quite out-of-date (but nonetheless important) — Ben Wilson charts the way the public narrative of individual liberty was steadily chipped away and eroded during the middle years of the New Labour government (1997—2010), a government which (to use a phrase in common parlance in the 2000’s) had lost its ‘moral compass.’

I can remember watching BBC Parliament around the end of 2005 when the Labour party — in the febrile atmosphere which followed the 7th July terror attacks in London that year — was trying to push through the House of Lords its version of what eventually became the Terrorism Act 2006. In the Parliamentary bill, Labour tried to introduce 90-day detention without charge for terror-related offences. Thankfully the House of Lords, with its much clearer view of the history of individual liberties than the Parliamentary Labour Party had at the time, rejected this detention period as an unjustifiable intrusion on human rights. The bill was sent back to the House of Commons and eventually was passed into law with only a 28-day detention period (which was itself a doubling of the previous 14-day period).

The attempt to introduce a 90-day detention period without charge was but one prong of the government’s strategy to keep the public ‘safe’ from terrorism in the wake of the 7th July attacks. The fact that it would have been a major incursion into the UK’s long tradition of personal liberty seemed, to the government of the day, an annoying inconvenience.

Aside from the pre-charge detention period, the government was no less concerned that Islamic terrorism in the UK was being fomented by language which encouraged violence (e.g., preaching in certain mosques). It was, of course, already a legal offence for a person to incite others to carry out a terrorist act. Not satisfied that this legal provision went far enough, a further provision of the Terrorism Act made it an offence to indirectly incite or to encourage terrorism.

Thus, with the Terrorism Act, a sort of Rubicon was crossed. The government had stepped into the realm of policing words and ideas. Suddenly, for the first time in hundreds of years, it was illegal in the UK simply to say certain things.

The government’s argument for bringing about such an incursion into personal liberty was, of course, that such powers would only be used sparingly and appropriately. This is short-sighted, to say the least: as soon as any law is enacted, those with a vested interest in that law will always interpret it as they wish it to be applied and not ‘in the spirit’ in which it was enacted.

So it turned out. Various absurd police investigations and criminal trials quickly followed on the back of the Terrorism Act. In 2007, the Channel 4 Dispatches team made a documentary film named Undercover Mosque which exposed the fact that certain preachers in mosques in the UK were using their preaching to foment violence. To their surprise, the Dispatches team found themselves under police investigation for stirring up racial hatred.[2] And in November 2007, British woman Samina Malik was convicted under the Act of “possessing records likely to be useful in terrorism,” and sentenced to a nine-month suspended prison sentence. Her conviction was later overturned by the Court of Appeal as unsafe.[3]

Under the guise of preventing terror and keeping people safe, the government had set itself (or at least, the authorities) up as the arbiter of people’s words and ideas. In all its talk of the ‘war on terror’, the public notion of individual liberty — that idea that certain human rights were universal, and had to be protected in spite of the risks — disappeared from view.

Towards the end of New Labour, and under the new Prime Minister Gordon Brown, the government became increasingly chaotic and short-sighted. That they had altogether forgotten the concept of the principle and rule of law became apparent to everyone after the 2008 financial crisis, when Labour’s deputy leader Harriet Harman vowed to strip former Royal Bank of Scotland (RBS) chief Sir Fred Goodwin of his £16 million pension package. In an astonishing statement, Ms. Harman said,

“The Prime Minister has said it is not acceptable and therefore it will not be accepted. It might be enforceable in a court of law this contract but it’s not enforceable in the court of public opinion and that’s where the Government steps in.”

That Sir Fred was deserving of his £16 million pension is highly to be doubted. That is beside the point. The fact was, it was owed to him by legal contract with RBS; Harman’s threatening to snatch it away from him smacked of Ahab’s annexation of Naboth’s vineyard. As a qualified solicitor, Ms. Harman should have known better.

During these death-throes of New Labour in office, opposition leader and future Prime Minister David Cameron stated that Labour — to use that phrase again — had “lost its moral compass.”

The Coalition government and the rise of “British Values”

When the Conservative-Liberal Democrat coalition government came to power in 2010, its message was like a breath of fresh air after the toxic self-implosion of the end of New Labour. The ‘old politics’ of suspicion and back-biting seemed to have been swept away. No picture embodied this change more obviously than the Cameron-Clegg ‘rose garden’ love-in.

However, in the face of continued terrorist threats and, in particular, the ‘Trojan Horse’ scandal which engulfed a Birmingham school in 2014, David Cameron developed an idea that British schools must be made to teach “fundamental British values.” This idea of proud Britishness was accompanied by rousing speeches celebrating our great, British history: such as his article in the Mail on Sunday marking the 799th anniversary of Magna Carta.

The trouble was, nobody could really quite pin down what these “fundamental British values” were. Certainly the government didn’t articulate them clearly; David Cameron’s list of them was described by one commentator in the Telegraph as “vacuous nonsense.” The “fundamental British values” seemed, at core, to be more about stamping out extremism than about promoting individual liberty and freedom of expression.

This idea of “fundamental British values,” badly articulated, simply served to perpetuate the notion that the State had to take an active rôle in defining what was acceptable speech. If something was deemed ‘extreme,’ it would be stamped out — certainly by Ofsted, which was made responsible for ensuring the nation’s schools adhered to this new educational orthodoxy.

The problem is — as always with State attempts to regulate speech — who is the arbiter of what is ‘extreme’? Ofsted? The government? As the Catholic Herald pertinently asked in 2015, “Can the authorities tell the difference between real extremists and the religious?” The evidence of recent years suggests not.[4]

Speaking in 2015 of the government’s Counter-Terrorism and Security Bill (now Act of Parliament), which sought to promote these “British values” in schools, Karma Nabulsi noted that,

Extremism is here described as “vocal or active opposition to British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”. Yet even a cursory reading of the workings of this bill demonstrates that it goes against each of these goods. It is against British values. It goes against the very meaning of democracy. It is completely against the rule of law and individual liberty. It flies in the face of mutual respect and tolerance.

This bill represents the rise of ideological extremism masquerading as British values.

And so the government which came in like a breath of fresh air in 2010, promising to do away with the failed politics of New Labour, ended up perpetuating the same policies.

Both governments should have understood where the ‘war on terror’ was leading us as society, and stood firmly and clearly on the principle of freedom of expression which has been such a hallmark of historic British identity. Instead, both governments weakly acceded to calls to legislate against the threat of terrorism/extremism, and so set up the State as the arbiter of words and ideas. Thereby both governments ended up not only intruding upon personal liberty, but upon the idea of personal liberty.

And so here we are

As mentioned at the top, the law in the UK still strongly supports freedom of expression; the eventual outcomes of the Ashers and Felix Ngole cases demonstrate this very clearly.

What is equally clear, though, is that the law’s position on freedom of expression is not clearly understood — apparently even by much of the judiciary.[5]

Meanwhile freedom of expression in our universities is not faring well. I am grateful to the Sunday Times for printing a piece here and here showing that genuine debate is being shut down all over our campuses (and this in spite of a whitewashing ‘Reality Check’ article that recently appeared in the BBC — one of the least convincing BBC articles I have ever read).

Successive governments since 1997 have failed to articulate clearly what genuine freedom of expression means and what struggles our forebears had to go through in past centuries to achieve it. Instead they have followed the path of least resistance (i.e., popular demand) and imposed ever-increasing curbs on individual freedom.

Perhaps the real meaning of freedom of expression and an undistorted history of those struggles are the “fundamental British values” that the government needs to encourage in our schools, if freedom of expression is to have any place in the future of UK society.

Sources

Ben Wilson’s 2009 book, ‘What Price Liberty?’, is a valuable resource for understanding how New Labour eroded the concept of individual liberty during the 2000’s. See particularly chapters 16—17 (pp.361—411).

For a valuable discussion of the impact of the Coalition government’s “fundamental British values” agenda, see Bill Bolloten and Robin Richardson’s contribution from February 2015 here.

Various other articles were used in researching this post, for which see hyperlinks in loc.

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[1] Quoted in Ben Wilson, What Price Liberty? (London: Faber and Faber, 2009), p.363.

[2] Ibid., p.401

[3] https://en.wikipedia.org/wiki/Terrorism_Act_2006#Effects

[4] See also https://barnabasfund.org/news/In-2017-the-UK-capitulated-to-a-new-blasphemy-law-Christian-street-preachers-convicted-for-quoting-the-King-James-Bible for a more balanced view of the incident which led to Messrs. Overd and Stockwell’s convictions.

[5] Witness, again, the fact that the Ashers and Felix Ngole cases had to go, respectively, to the Supreme Court and the Court of Appeal in order to reach the correct verdict.