This article is taken from the June 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

---

Over the last decade, Britain’s free speech advocates have faced a frustrating puzzle. They seem to have the public on their side: a ComRes poll earlier this year found that half the population agrees with the statement “Free speech is under threat”, and less than a quarter disagrees. The government, too, seems sympathetic. “Freedom of speech is at the core of our democracy,” Boris Johnson declared in February as he outlined plans to appoint a “free speech champion” for the higher education sector. And yet, on the ground — in workplaces, in universities, even in how people relate to their neighbours — there’s never been more fear of expressing an honest opinion. 

Partly it’s a simple question of power dynamics. When people fall foul of the new speech codes, they often find themselves alone against a much bigger opponent. If your boss receives a complaint that you’ve created a “hostile environment” with your sceptical views about Black Lives Matter, he may find it easier to get rid of you than to launch a long, careful inquiry into what is really happening. 

If the police inform you that your tweets about the trans debate have been registered as a “hate incident”, it takes some courage to just carry on regardless. If your students’ union decides that your small pro-life society contravenes their values, they can simply ban you without needing to justify the move.

But there’s a tried-and-tested way to change a power imbalance: get organised. In the last year or so, defenders of free expression have started to band together, often with considerable success. At Cambridge University, a group of academics successfully campaigned for stronger free speech protections. At the High Court, the pressure group Fair Cop won a major victory against police interference with free expression. Most significantly, a new organisation, the Free Speech Union (FSU), formed in February 2020 to give advice and legal support to “anyone who feels their speech rights are under threat.” 

One of the FSU’s most dramatic victories concerned its member Nick Buckley, the founder of the charity Mancunian Way, which works with vulnerable young people in Manchester. When Buckley wrote a blogpost raising concerns about the “neo-Marxist” influences on Black Lives Matter, his long record of service (which has earned him an MBE) counted for nothing: 465 people signed a petition demanding his removal, and the charity’s trustees removed him from his position. In response, the FSU started a counter-petition which gained 17,500 signatures, and found Buckley a lawyer specialising in charity law. Within weeks Buckley was reinstated and the trustees had all resigned.

The FSU has caused trouble for censors elsewhere. It advised Stu Peters, the Isle of Man radio presenter suspended for querying the notion of “white privilege”; Peters was reinstated after an inquiry. When students at the University of Chicago demanded disciplinary action against an unwoke geophysics professor, the FSU successfully lobbied the university to issue a forthright defence of academic free speech. Today the FSU has nearly 8,000 members, and may soon go international: its founder Toby Young says branches will be opening in the US and New Zealand, and he has received requests from several other countries.

“I’ve been surprised by how many successes the Free Speech Union has managed to chalk up, often without much effort,” Young says when I ask him about its first year. “I think the reason is that no-one has fought back until now, or very few people have,” yet “it’s remarkable how often, just by making those few moves, institutions quickly back down.”

Arif Ahmed, the philosophy lecturer who led the Cambridge campaign for a stronger university policy on protecting free expression, was similarly taken aback by its effectiveness. “That was something that struck me with a great deal of force — the extent to which the Emperor really does have no clothes,” he tells me. The other side “just crumbles as soon as you have a determined, principled resistance to it. It just falls apart. And it gives you a sense of the extent to which it relies on intimidation and fear.”

‘‘I was sitting in a pub about 18 months ago,” says Harry Miller, the founder of Fair Cop, which challenges police infringements on free speech. “It was packed out solid. And I remember chatting to a mate and saying, ‘How many people in this pub do you reckon are terrified of the police knocking on their door because of something they’ve said?’ And the answer was, probably just me, maybe one other, who knows. But then I said, ‘How many people are terrified of being called to their HR department because of something they tweeted?’” That figure, Miller reckons, would be far higher. “People are terrified, absolutely terrified — and rightly so. You lose your house, you lose your income, you lose all the rest of it.” And the costs aren’t just material: “You lose it because you’re a ‘hater’, because you’ve said something ‘hateful’. It’s terrible.”

A couple of years ago Miller, a Lincolnshire businessman, was “just a person in the crowd”, he says. On his Twitter account he would occasionally comment on politics or football, but it wasn’t setting the world on fire. “If I got one or two likes for a post, I’d think I’d done really really well.” That was until January 2019, when for his satirical tweets about the trans debate, Miller received a visit from the police. 

What happened next has been much debated, in news reports and at the High Court, but the essentials are clear: Miller was warned that he had committed a “non-crime hate incident”, that he was offending trans people and that, although he had committed no offence, his actions might “escalate” to become one. As an ex-policeman, Miller says, he knew immediately that this kind of treatment was wrong. With a fellow activist, Rob Jessel, Miller founded Fair Cop; after taking legal advice, they decided to bring a judicial review against Humberside Police and the College of Policing. Miller was unusual, he says, “in that I had the time, the energy, and I suppose the guts, as well as some money, to enable me to do that.” 

The case shone a spotlight the whole category of “non-crime hate incidents” (NCHIs), of which — to take the most recent figures — the police recorded 120,000 from 2014 to 2019. They include, as Sarah Phillimore has written for this magazine, complete trivialities: to test the system, Phillimore’s friend reported her for joking that her cat was a Methodist. The police obediently recorded it.

NCHIs represent a strange blurring of the line between criminal activity and merely holding a controversial opinion. Although you won’t be arrested for committing an NCHI, you are nevertheless recorded on a police list in association with “hate” — and a potential employer can be informed if they perform an enhanced DBS check. “Nobody knew these things existed until I challenged it,” Miller says. It seemed to him an obvious affront to liberty.

At the High Court last year, Fair Cop won an important clarification: turning up at Miller’s workplace and discouraging him from tweeting, Mr Justice Julian Knowles ruled, “had a chilling effect on his right to freedom of expression,” and was unlawful. On the other issue — whether NCHIs should be scrapped entirely — Knowles sided with the police. Fair Cop have now taken the matter to the Court of Appeal; at the time of writing, a judgment is expected soon. Meanwhile, home secretary Priti Patel has asked the College of Policing to review its guidance on NCHIs.

The free speech movement, perhaps inevitably, has more than its fair share of controversialists and pugilists. But not everyone with a commitment to free expression is a political partisan. Emma Stopford, the director of the trade union Affinity, sees free speech simply as an aspect of workers’ rights. “We act with the sole purpose to protect our members,” says Stopford. 

Affinity, which represents “many thousands” of workers, mostly in the banking industry but also ranging from “ballet school staff to boatyard managers”, is independent of any employer or political party and is determinedly non-partisan: “The people who work for Affinity have all sorts of political views.” That sets it apart, she argues, from other trade unions: “So many of them are heavily driven by activists with a single political agenda. And when they’re presented with a case which doesn’t align with that agenda, they can’t or they won’t act, and they let their own narrow views get in the way of representing their members.” 

How often do employment disputes involve free speech issues? “They do come along quite often. Free speech issues touch many cases, because very often it’s an opportunity: people say something on social media, and people who have a grudge see an opportunity to get their own back on somebody. So it’s not uncommon.” The internet, she observes, has made it much easier to get into trouble. 

Free expression, Stopford says, is a “really difficult area”, because employers have a right to protect their reputation. The trouble is that, even when employees have a strong legal case, “It can be so isolating … But with a trade union behind you, supporting you and funding your case, it becomes far easier to do.”

Not so long ago, trade unions were reliable defenders of free speech. But Britain’s institutions have rapidly become more politicised. The police are a particularly blatant example. “I can remember the day when you weren’t allowed to wear anything on your uniform that was not standard issue,” recalls Harry Miller of his police service in the 1990s. “Not anything, absolutely nothing. So it came as quite a shock to me when I started to see police officers wearing rainbows and BLM stuff.” 

One reason, he believes, is the 2002 change to the police’s oath of attestation: as well as upholding the Queen’s peace and the law, police now had to pledge to “uphold fundamental human rights”. Given the range of definitions of “human rights”, that inevitably led the police into political areas. 

But the biggest single change in creating Britain’s censorious culture, in the police and elsewhere, was the 2010 Equality Act, passed in the dying days of Gordon Brown’s Labour government and enthusiastically implemented by the Tories. 

Section 26 of the Act defines “harassment” as “creating an intimidating, hostile, degrading, humiliating or offensive environment” — which in practice can allow employees to claim they are being harassed by someone else’s opinions. Section 149 imposes a legal duty on organisations that carry out a public function — to achieve objectives such as “eliminating harassment” and “advancing equality of opportunity”: reasonable enough in theory, but this too has become an open door to politicisation.

Repealing the Equality Act is scarcely politically possible. But there are ways to strengthen free speech protections in law: Toby Young points to the government’s proposed Higher Education (Freedom of Speech) Bill, which would provide an enforcement mechanism if universities in England failed to live up to their statutory free speech duties. 

Yet ultimately, Young says, legislation can’t solve a cultural problem. “Culturally, if there isn’t the will within institutions to defend free speech, then it’s very difficult to force them to do so by appealing to documents, policies, laws.” Attitudes have shifted in the last 10 years: “judges now in the courts and tribunals service, magistrates, undergo mandatory training by organisations such as Stonewall and Gendered Intelligence.” Wokeness is, he says, “an evangelical movement, and it’s been very successful at making converts across the professions, particularly in the public sector.”

Arif Ahmed, a fellow of Caius College, Cambridge since 2015, has witnessed an “intellectual shift” in the higher education sector over the last decade or so: many people in universities, he says, are more concerned with preventing the “harm” done by certain ideas than with encouraging free debate. When the university proposed a new free speech policy, requiring students and staff to be “respectful” of others’ views, Ahmed saw a danger. “Calling for ‘respect’ is so vague,” he says: it could easily be abused. “And it’s not just that it’s vague, but it advantages the groups that are most quick to feel — to claim to feel — disrespected.” 

What was his fear? “You might think about using a provocative example in a lecture. You might think about disagreeing in a tutorial with someone who pushes a certain kind of view of religion or trans or whatever it is. And people just wouldn’t, because they would feel that if they did and they got into trouble, the university wouldn’t have their back because of this policy.” In that kind of atmosphere, Ahmed says, humanistic education could hardly flourish.

Ahmed put forward an amendment: members of the university would have to show not “respect”, but “tolerance”. The Universities and College Union condemned Ahmed’s proposal. “A big setback,” he says. So did many within the university. But in the end, an overwhelming majority of the university’s governing body — 1,378 votes to 208 — backed his proposal. 

At the very start, Ahmed had been the only person to speak up. But he soon realised that there was far broader support. “We started going out and having conversations with people, and it turned out lots of people were saying in private that they were supportive.” Those one-to-one chats, he says, can make a crucial difference within an institution.

“There are some things that you can try and do something about,” Ahmed reflects. “And if you want to be able to look at yourself in the mirror, then you’d damn well better do something about them.”