The new Boris Johnsonbill of rights” frees the government itself from the need to fulfill its new freedom of speech protection, warn legal experts.
Minister of Justice Dominic Raab said last week that the new charter would stop free speech from being “diminished” by “vague and political correctness.”
But clauses included in the bill specifically exempt laws made by ministers from the new free speech test – meaning it will not protect people from “various threats to free speech by the government”.
Campaigners said the Bill of Rights would “ultimately thwart efforts to hold the government accountable”.
One senior law professor said The Independent that the nomination was “very, very strange” 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 additional right to free speech, but not against the government,” said Gavin Phillipson, a law professor at the University of Bristol.
Professor Phillipson, who is also a visiting fellow at Oxford University and an authority on comparative free speech law, added: “They say you have really strong protections for free speech – except against the government.
“In general, if you look at most threats to free speech and what concerns most white people about rights around the world, it’s various threats to free speech from the government. This is very, very strange.
“The fact that the government feels it necessary to exempt a whole range of things that it does – especially the thing that bothers people the most, being persecuted for what you say – is a very strange look at what a bill of rights should be.” .
Clause 4 of the new draft law states that “when deciding a question that arose in connection with the right to freedom of speech, the court must attach great importance to the importance of protecting this right” – such a measure should generally strengthen freedom of speech in court decisions.
But clause 4(3) says the section “does not apply” in criminal proceedings or “to any question whether a provision of primary or secondary legislation creating a criminal offense is inconsistent with a Convention right”.
This means that government-created offenses cannot be deemed inconsistent with the right to free speech under the bill, even if they limit someone’s right to free expression.
The Ministry of Justice rejected the approach as a “cut-off” for ministers and said it needed to stop “abuses” of free speech.
Other parts of the bill also narrow the definition of free speech in ways that appear to exclude certain types of protest, defining it as the communication of “ideas, opinions or information by means of speech, writing or images”.
“They effectively limit the definition of the expressions it covers to those that include words or images,” Professor Phillipson said.
“There were cases related to the hunt for saboteurs – a direct action protest – that the ECHR [European Court on Human Rights] takes place, is considered an expression.
He said that “the restrictive definition of expression should be to ensure that various forms of direct action protest, which involve more than simply chanting slogans and waving banners, do not even fall under this clause”.
“If people have committed new public order offences, they will be exempt from that clause anyway, but I think this definition should ensure that the new police powers in the public order bill can be used against them.”
While claiming to protect free speech with a new bill of rights, the government simultaneously pushed through new authoritarian protest-suppressing legislation in the Police, Crime, Sentencing and Courts Act.
New police powers came into force this week and were used to confiscate speakers and amplifiers from protesters who continued to hold anti-Brexit rallies outside Parliament, sparking an outcry.
Exemption provisions in the bill mean the new free speech powers will not protect people from prosecution for offenses such as glorifying terrorism or publishing an image that raises reasonable suspicion of support for a banned organisation.
“Those things would be flatly unconstitutional under, say, the US First Amendment, and it wouldn’t even be a hard case,” Professor Phillipson said. The Independent.
There are also special exemptions in other clauses so that the government can ban someone from the UK based on what they say, and to protect the Home Secretary’s power to strip people of their citizenship.
Charlie Welton, policy and campaign officer at human rights group Liberty, said: “As well as the disenfranchisement bill weakening all our other rights, it will also weaken our right to free speech.
“The government falsely claims that it will improve the protection of freedom of speech, but this is not true. Clause 4, which directs courts to give “great weight” to the importance of freedom of speech, limits its application to criminal proceedings, determining whether legislation is compatible with human rights or matters of privacy, immigration, citizenship or national security. The government makes sure that freedom of speech is valued only when it is not used against the government.
“This clause will not protect protesters or whistleblowers, nor will it allow courts to control a government that violates our free speech rights. Along with the Police Act, the Public Order Bill, the Internet Safety Bill and many others, this is typical of a government that claims to protect free speech but only wants to avoid accountability wherever possible.”
A representative of Index on Censorship also criticized the bill, saying: “We strongly disagree with the government’s claim that the bill will strengthen freedom of speech.
“We believe that the bill will only serve to expand government power and ultimately thwart efforts to hold government accountable, not least in matters of national security and citizenship, as Section 4 of the bill states.
“These are issues of great public interest. We must provide the necessary checks and balances to protect our democracy and our basic civil liberties.”
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Ministers routinely characterize culture war issues, such as not inviting speakers to universities, as “free speech” issues, but these have little to do with the legal right to free speech that is commonly enforced around the world.
“In fact, if you think about the main cases of cancellation culture, they’re usually not legal cases, they’re people being shamed on Twitter or not using the platform,” Professor Phillipson said.
“In cases where people were fired or formally disciplined, they mostly won the cases. It’s really a cultural phenomenon, not a legal one. Universities refusing to invite speakers because students find them offensive and so on – that’s not a violation of their legal right to free speech because you don’t have a right to a certain platform.”
He added: “It makes no sense to me to suggest that this provision is aimed at tackling ‘labour’ and suggests it is more rhetoric to please their supporters and elements of possibly the right-wing press. Because a lot of what the government would consider a cancellation of culture or ‘work’ has nothing to do with the law, it’s cultural stuff.”
A spokesman for the Ministry of Justice said: “The Bill of Rights strengthens freedom of speech, but it is fair to make limited exceptions, such as respecting a patient’s privacy rights or where a criminal act, such as a hate crime, takes place. These exemptions apply to everyone – they are not the government’s responsibility.”
