Wednesday, December 2, 2020
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Freedom of speech needs legal protection

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A COUPLE of weeks ago I wrote an article in The Conservative Woman in which I suggested a framework for protecting freedom of speech.

I said: ‘The Government could introduce a new statutory tort (civil wrong) which would allow anybody to sue for civil damages who has suffered financial or other loss as a result of complaints from a third party about differences of political opinion.’

A commenter suggested a better formulation of the proposed tort, which I am happy to adopt, namely:

‘A person who suffers financial or other loss, including loss of reputation, shall have a cause of action for damages against any individual or corporate body that has caused or contributed to such loss by actively seeking to restrict, inhibit or suppress their exercise of free speech. In this Act, the expression of free speech means any statement, written or oral, that is not unlawful or defamatory.’

A point made by other commenters was that in order to provide clarity and a firm legal foundation for this new tort we need to enshrine freedom of speech in law, as in many other western countries.

Some of the most interesting comments related to the current legislation on equalities and hate crime, particularly the view of the Crown Prosecution Service and the police that a hate crime is a criminal offence which is perceived by the target or any other person to be motivated by hostility or prejudice towards the target’s race, religion, sexual orientation, etc. The fear is that this could be interpreted to mean that any disobliging comments of a conservative or traditional nature made in public about any protected group (to use the legal terminology) would leave that person open to prosecution if those comments were considered to cause offence.

The assumption is that the current raft of such legislation is a Left Liberal-inspired attempt to restrict free speech on a range of subjects, such as levels of migration or abuse of children in care in some northern cities, that they don’t want to see discussed publicly. In short, we are heading to hell in a handcart which could end up with the loss of our democratic freedoms.

The legal position is more complicated. The definition of hate crime was adopted by the CPS and the police in 2007 to promote consistency in the absence of a definition set out in law. It was aimed at helping the police to determine whether, for example, a common assault was a hate crime or motivated by some other reason. There is no such definition in the Crime and Disorder Act 1998.

There are a number of features of current legislation that are illiberal and a cause of concern to most conservatives. An example is the legislative requirement in the Criminal Justice Act 2007 that crimes against individuals who fall into one of the protected categories should receive longer sentences than crimes against individuals that don’t. This raises important issues about equality before the law.

The Equalities Act 2010 brought together 116 pieces of legislation, including the Race Relations Act 1968, with the aim of giving public bodies a duty to reduce inequalities of outcome which result from socio-economic disadvantage. Conservatives would strongly question the assumption that economic disadvantage flows primarily from membership of a protected group. Much of this legislation from the Blairite era is misguided or unnecessary in various ways. For example, I was intrigued to read about the prohibition of discrimination, harassment or victimisation of disabled people travelling by hovercraft.

Incitement to crime has been an age-old offence under the common law which is now subsumed within the Serious Crime Act 2007. The key aspect is that it is an offence to encourage another person to commit a crime. Human rights legislation bans any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Article 10 enshrines the right to speak freely without government interference, subject to the usual caveats. The difficulty is that human rights are statements of general principle and sometimes they conflict. Also, arguably, this system is not compatible with the British legal system, which is based on prescriptive statutory and common law.

Conservatives think, probably correctly, that much equal opportunities legislation goes further than prohibiting unfair treatment and discrimination and promotes political assumptions that they do not subscribe to. Human rights legislation, with its focus on stopping governmental attempts to curtail freedom of speech, may be out of date in countries like the UK and US where the main threat to the free expression of opinion comes from Woke zealots.  

The fact of the matter is that the legal position is messy and open to challenge by Left-wing lawyers. The government should recognise this fact and introduce the reforms proposed in this article. It might like to take a leaf out of Norway’s approach where Article 100 of their constitution states that:

‘Everyone shall be free to speak his mind frankly on the administration of the State and on any other subject whatsoever.’  Limitations to expression include defamation, hate speech and deliberate contempt of religion.

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Edward Smith
Edward Smith is the Shadow Cabinet Member for Housing and Regeneration for the London Borough of Enfield.

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