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The Establishment doesn’t understand free speech

The Government needs to bite the bullet and demonstrate political conviction over free speech

Like most of Westminster these days, the architecture of Queen Anne’s Gate off St James’s Park neatly juxtaposes bourgeois English restraint with twentieth-century brutalism.

Politically, hate speech has always been a hot potato

The Law Commission, the government-sponsored body tasked with keeping our law logical and up to date, is unsurprisingly housed at the brutalist end. Last week that organisation invited a select group of journalists, activists and others to talk to it – virtually, given Covid-19 – about hate speech and free speech. The result was highly instructive.

Politically, hate speech – speech apt to denigrate particular groups of people – has always been a hot potato. It was the coalition government that first lobbed it into the Law Commission’s lap in 2012; and then discussion was reignited in 2018. Eight years on, the question of how far people should be free to speak their mind, or punished for saying beastly things about each other remains as unresolved as ever.

Last week’s meeting was called in order to discuss the Commission’s latest ideas which, it is fair to say, would amount to a spectacular extension of cases where you are not allowed to speak your mind. The classes of people protected from incitement to animosity would be extended to cover transgender people, and possibly women.

The need to prove intent to foment hatred would be drastically scaled back in favour of a proscription of material merely likely to do so; any communication intended to encourage hatred would become illegal even if entirely moderate and not otherwise abusive or threatening; and speech would be potentially criminalised even in an entirely domestic setting.

Most of those invited to discuss these proposals were sceptics at the free speech end of the spectrum, and their questions reflected this.

Provided you used moderate language and avoided provocation, you should have nothing to fear

What about campaigning atheists’ right to engage in forthright criticism of all religion as arrant nonsense, despite the foreseeable distress to the faithful? If even non-threatening incitements to hatred were to be criminalised, would it become illegal in England to publish polemics such as French writer Pauline Harmange’s notorious book  Moi, les hommes, je les deteste? What of the right to discuss matters like the Charlie Hebdo Mohammed cartoons (and if desired, to reproduce them for the public to see); of open opposition to transgender points of view; or of heated discussions generally on social media?

For that matter, what should be the position of journalists? Were they to be bound to censor news about what undesirable people had said in order to avoid falling foul of the new laws themselves (there being no provision for protection for journalism in the proposals, or for that matter any protection for discussion of matters in the public interest)?

The response was the kind of mandarin language we have come to expect from lawyers and administrators. Every care had, they purred, been taken to balance rights to free speech against the very real need to make sure pronouncements everyone regarded as undesirable were effectively punished, abuse of the right of free speech carefully circumscribed, and that rabble-rousers denied loopholes allowing them to spread their poison. If you were sensible and acted reasonably and discreetly, you could almost always avoid falling foul of the new laws.

Allowing people to say what they liked at home was going much too far

Provided you used moderate language and avoided provocation, you should have nothing to fear. When you posted online, all you had to do was take care and think about who might be listening, and thus perhaps discuss controversial matters in closed groups rather than making your outlandish views public for all to see. The burden of proof, we were assured, would be firmly on the prosecution. Hatred was a strong concept; prosecutions would not be brought without good reason; and so on.

And so it went on. The fact that wide hate speech laws might give the police a de facto right to tell a member of the awkward squad to shut up or face arrest, whether or not he intended anything wrong, was fairly swiftly dismissed. The legislation would be carefully drafted to protect everyone’s rights to say what they thought, and besides the possible actions of the police were outside the Commission’s remit, which was to suggest legislation.

Interestingly, even the feature of the proposals that had attracted most attention from the press in the previous week and caused a great deal of pushback from those present: the withdrawal of the exception from hate speech law of events occurring entirely inside a dwelling, was regarded as no big deal.

The legal technocrats at the Law Commission don’t get free speech

There might be a case for going easy on private speech, but allowing people carte blanche to say what they liked at home was going much too far. If there was no protection for provocative speech in the street or the pub, why create an anomalous exception just because the place where bile was spouted happened technically to be someone’s home? If other offences generally could be equally committed in the home or out of it, why should harmful speech be any exception?

Now, there is an obvious point to make about these responses. They show that, like most of the administrative class in Britain, the legal technocrats at the Law Commission don’t get free speech. Not really.

This isn’t for lack of background knowledge. Quite to the contrary; the Commission are very well-briefed. They know their law backwards; they will tell you, correctly, that in the abstract your right to speak your mind is a long-standing tradition in England. And they will most certainly know to a tee how far Article 10 of the European Convention on Human Rights demands at the international level that states protect free speech, and will strain every muscle to ensure that anything they suggest is consistent with it.

Unfortunately, the problem is a deeper one: the idea of free speech is infinitely more than a dry scientific exercise in applying knowledge to a problem of social engineering, conflict prevention and finding a Europe-compliant way of legally discouraging people from saying beastly things about each other.

If you take freedom of speech seriously, your support for it is a matter of social and political courage, bound intimately with the value of freedom itself. It is something that applies not subject to the need to prevent distress or social harm, but despite it. Where the two collide, then faced with the choice of suppressing an opinion or putting up with the distress or other harm it might cause, we should instinctively do the latter.

Such outsourcing of political decisions to technocratic organisations has appalling effects

The point that the Law Commission doesn’t think in these terms is neither surprising, nor for that matter particularly discreditable to it. For one thing, its members are largely the product of the UK university system of legal education, where most participants have now largely stopped reasoning in terms of individual freedom or the need for a free marketplace in ideas. Classes dealing with free speech are increasingly technical classes in human rights law as propounded by a limited class of supranational judges, themselves often conditioned to a cosmopolitan, socially progressive, rather statist approach that sees human rights issues as essentially exercises in balancing interests in order best to achieve social peace.

Moreover, the Commission is in any case set up to be a semi-scientific body with a civil service ethos. It is a group of legal technical experts, such that if you give it a problem it will come up with a technical legal solution. In many ways this is one of its strengths. Faced with a knotty problem connected with the law of bills of lading, or difficulties arising with conveyancing, it will come up with an extremely competent report in the best Sir Humphrey style for its masters in the Ministry of Justice, who can then present it to Parliament confident in the knowledge that the proposals are likely to work. The fact that this is a terrible way to deal with issues of serious political controversy is inherent in the nature of the organisation, and there isn’t much that can be done about it.

So, however dissatisfied you may feel, you can’t really criticise the Law Commission over all of this. But there is one body you can blame, and that is the government that dropped the problem into its inbox in the first place, despite it being an entirely inappropriate body to handle it. Unfortunately, the temptation placed on ministers to do just this is all too strong.

The solution is for governments to bite the bullet and demonstrate their political convictions

Political awkwardness that could put your party on the spot, with competing demands coming from free-speechers on the one side and safe-spacers on the other and an inability to please both? Easy: hand over the whole file to the Law Commission, and say it’s now in the hands of the experts. And when you get the report back in a year or two, with luck after the original furore has died down, announce that the issue has been looked at in a transparent and objective way and proudly present your suggestions for dealing with it to Parliament, as if that laundered away the element of controversy.

Of course such outsourcing of political decisions to essentially technocratic organisations has appalling effects, in particular that it leads to solutions that read like a technical report and miss the major issues associated with politically contentious matters like freedom of speech. Of course the proper solution is for governments to bite the bullet and demonstrate the courage of their political convictions. But that is easier said than done. Try putting this point to a minister stuck in a tight corner and desperately looking for a spot of the quiet life. I wish you luck.

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