Boris Johnson‘s new “bill of rights” exempts the government itself from having to comply with its new free speech protections, legal experts have warned.
Justice secretary Dominic Raab said last week that the new charter would stop free speech from being “whittled away” by “wokery and political correctness”.
But clauses included in the bill specifically exempt laws created by ministers from its new free speech test – meaning it will not protect people from the “various threats to free speech posed by the government”.
Campaigners said the bill of rights would “end up hampering efforts to hold the government to account”.
One senior law professor told The Independent that the carve-out was “very, very odd” because bills of rights around the world, such as in the United States, tend to also apply to the government.
“I think Americans, for example, would just be incredulous – you have a special extra right of free speech, but not against the government,” Gavin Phillipson, professor of law at the University of Bristol, said.
Prof Phillipson, who is also a visiting fellow at the University of Oxford and an authority in comparative free speech law, added: “They’re saying, you have these really strong protections for free speech – except against the government.
“Generally if you look at most threats to free speech, and what most bills of rights around the world are concerned with, it’s the various threats to free speech posed by the government. That’s very, very odd.
“The fact that the government feels it necessary to exempt a whole range of things it does – particularly the thing people most worry about, being ‘prosecuted for what you say – is a very odd look in what’s meant to be a bill of rights.”
Clause 4 of the new bill states that “when determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right” – a measure meant to generally beef up free speech in judicial decisions.
But Clause 4 (3) says this section “does not apply” in criminal proceedings or “of any question whether a provision of primary or subordinate legislation that creates a criminal offence is incompatible with a Convention right”.
This means that offences created by the government cannot be held to be incompatible with the right to free speech under the bill, even if they restrict someone’s right to freedom of expression.
The Ministry of Justice denied the approach was a “carve-out” for ministers and said it was necessary to stop free speech from being “abused”.
Other parts of the bill also narrow the definition of free speech in a way that appears to exclude some types of protest, by defining it as imparting “ideas, opinions or information by means of speech, writing or image”.
“They actually restrict the definition of expression to which this applies to only that involving words or images,” Prof Phillipson said.
“There were cases involving hunt saboteurs – direct action protest – that the ECHR [European Court on Human Rights] has held do count as expression.”
He said that the “restrictive definition of expression must be there to make sure that the various forms of direct action protest that involve more than just chanting slogans and waving banners don‘t even fall within this clause at all”.
“Where people committed the new public order offences, those would be exempt from this clause anyway, but I think that definition is to make sure that the new police powers in the Public Order Bill can be used against them.”
While claiming to be protecting free speech with the new bill of rights, the government has simultaneously pushed through new authoritarian legislation that cracks down on protest in its Police, Crime, Sentencing and Courts Act.
New police powers came into effect this week and were used to confiscate speakers and amplifiers from long-running anti-Brexit protesters outside parliament – causing an outcry.
The exemption clauses in the bill mean that the new free speech powers would not protect people from being prosecuted for offences such as glorifying terrorism or publishing an image that arouses reasonable suspicion of being a supporter of a proscribed organisation.
“These are the kind of things that under the US first amendment, for example, would be just categorically unconstitutional, and that wouldn‘t even be a hard case,” Prof Phillipson told The Independent.
There are also specific carve-outs in other clauses so the government can ban someone from entering the UK on the basis of what they have said, and protect the home secretary‘s powers to strip people of their citizenship.
Charlie Whelton, policy and campaigns officer at the human rights group Liberty, said: “As well as the Rights Removal Bill weakening all of our other rights, it will weaken our right to free speech too.
“The government is falsely claiming they will improve protection for freedom of expression, but this is not true. Clause 4, which directs courts to give ‘great weight’ to the importance of free speech, restricts itself from applying to criminal proceedings, determinations of whether legislation is compatible with human rights, or questions of confidentiality, immigration, citizenship, or national security. The government is making it so that free speech is only valued when it is not used against the government.
“This clause will not protect protesters or whistleblowers, nor will it allow courts to keep a check on the government infringing our free speech rights. Alongside the Policing Act, the Public Order Bill, the Online Safety Bill and more, this is characteristic of a government that claims to protect free speech but wants only to avoid accountability wherever it can.”
A spokesperson for the organisation Index on Censorship also criticised the bill, stating: “We categorically disagree with the government‘s claim that the bill will strengthen freedom of expression.
“We believe the bill will only serve to expand state power and will end up hampering efforts to hold the government to account, not least of all around issues relating to national security and citizenship, as mentioned specifically in section 4 of the bill.
“These are issues that are of huge public interest. We must ensure that the necessary checks and balances are in place in order to protect our democracy and our fundamental civil liberties.”
Ministers have generally characterised culture war issues, such as speakers not being invited to universities, as “free speech” questions, but these have little to do with the legal right to free speech as generally enforced around the world.
“Actually if you think about the major instances of cancel culture they‘re not usually legal instances, they‘re people being shamed on Twitter or no-platformed,” said Prof Phillipson.
“In the instances of people being sacked from their jobs, or formally disciplined, they’ve mainly won their cases. This is a cultural phenomenon really, not a legal one. Universities disinviting speakers because students think they’re offensive and so on – these are not infringements of their legal right to free speech because you don’t have a right to a particular platform.”
He added: “The notion that this clause is aimed at combatting ‘wokery’ doesn‘t make sense to me and suggests that it‘s more rhetoric aimed at pleasing their supporters and elements, perhaps, of the right-wing press. Because a lot of what the government would think of as cancel culture or ‘wokery’ is not actually to do with the law at all, it‘s cultural stuff.”
A Ministry of Justice spokesperson said: “The Bill of Rights strengthens freedom of speech but rightly provides for a limited number of exceptions, such as maintaining a patient’s rights to confidentiality or where a criminal act takes place, for example, a hate crime. These exceptions apply to all – they are not a carve-out for government.”
