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Human rights and legal wrongs

Why doesn’t British legislation protect free speech?

You probably haven’t heard of Harry Hammond. It is nearly twenty years since his death in August 2002, shortly after his conviction under the Public Order Act 1986. Mr Hammond’s “offence” took place in Bournemouth in October 2001, when he held up a placard bearing the following words: “Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord”. Soon afterwards he was physically assaulted by a large crowd. He was then arrested and charged. No-one who had taken part in the assaults was charged with any offence. At the time of this incident, Mr Hammond was 69 years old. 

In 2004 Hammond’s conviction was posthumously appealed, on the grounds of the Human Rights Act. Lawyers argued that his free speech was protected under Article 10 of the European Convention on Human Rights (ECHR), but the High Court rejected the appeal, on the grounds that the proceedings against Mr Hammond had been necessary to prevent disorder. The European Court of Human Rights (ECtHR) also dismissed an appeal. 

Compare with the directness and simplicity of America’s First Amendment

It is cases like Mr Hammond’s that make me a little doubtful about the seemingly widespread notion that British law’s incorporation of the ECHR, through 1998’s Human Rights Act, is a vital shield for our liberties. Freedom of speech and thought have not noticeably advanced in the UK in the near-quarter century since the HRA became law. 

Part of the problem is that Article 10 of the ECHR comes in two quite different and contradictory parts. Part 1 states that everyone has freedom of expression, which is great as far as it goes, but Part 2 heavily qualifies this right, introducing seven — yes, seven — categories of possible exception. Particularly when coupled with the “margin of appreciation” concept in ECtHR jurisprudence, which allows national governments some latitude in how they apply the ECHR in domestic law, these categories are so broad that they can be, and have been, used to justify almost any imposition on free speech.

Compare and contrast with America’s First Amendment, which states with admirable directness and simplicity that “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble”. Of course that right has been qualified and nuanced somewhat by American judges in the two centuries since the US Bill of Rights, and particularly in the modern era it is being eroded by hate crime legislation and speech codes. All the same, that fundamental and clear statement is much better than the windy and verbose Article 10, with its interminable loopholes.

Article 10 did not prevent, for example, section 127 of the Malicious Communications Act 2003, which prohibits “grossly offensive” messages on electronic media. This statute continues to be used by the police to harass and silence people for their opinions, jokes and ill-judged reactions to current events. Perhaps you recall the “Count Dankula” affair, where a man was prosecuted for teaching his dog to do a Nazi salute, or the teenager jailed for sending an offensive Tweet to the footballer Marcus Rashford. Or consider the man convicted of sending an unpleasant Tweet about Captain Tom Moore, or the man given a suspended prison sentence for a grotesque joke about the Grenfell Tower Disaster. The arrest and questioning of street preachers is a regular occurrence. 

As progressive activists know very well, the process is the punishment

Nor has it impeded the British police’s unilateral creation of so-called “non-crime hate incidents”. Various forces continue to send officers to interview people for expressing opinions on political matters — remember Harry Miller, who was told by a PC that the officer was there “to check his thinking” after he expressed reservations about transgender ideology? Not long ago, a woman of my acquaintance was investigated for “misgendering” someone, which is plausibly a form of rudeness but should have nothing to do with the police in a free country. Other gender-critical women have found themselves targeted in the same way. Scottish feminist Marion Millar ended up in court because of her views on gender, and the case was only dropped at the last minute. 

It might be argued that the final outcomes of many such cases mean the free speech situation remains healthy. The Ashers Baking Company, a Northern Irish firm accused of unjust discrimination because they would not make a cake with the slogan “support gay marriage”, were eventually vindicated in the Supreme Court, as was Harry Miller when his case reached the High Court. Marion Millar’s prosecution was discontinued.

However, as the progressive activists who usually instigate these kinds of cases know very well, the process is the punishment. Non-crime hate incidents continue to be recorded, and supported, by the College of Policing. Being investigated or charged by the police is a very unpleasant experience for most people, with potentially heavy financial and reputational costs, even if the investigation does not result in a prosecution or conviction. The Ashers had to spend almost half a decade fighting the “gay cake” lawsuit — half a decade of worry and stress, with the potential loss of their family business looming over them. 

It seems very clear that Britain no longer has a culture of robust free expression, as we once did. The Human Rights Act is not necessarily to blame for the decline, but nor has it done much to arrest or reverse the trend. At a time when repeal of the HRA is once again being debated, and its critics derided as apologists for arbitrary and authoritarian government, this is a deeply important point. Assessing the costs and benefits of the HRA as a whole is a complex task. A supposed human rights framework that neglects such a basic area as free expression and open debate, nonetheless, is at the very least incomplete.

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