Nigel Farage has launched the Reform election manifesto, Our Contract with You, and we’ve reviewed the document for what it has to say about the five freedoms we defend – freedom of speech, academic freedom, freedom of expression, freedom of the press and freedom of religion. Here are the key pledges.
LEAVE ECHR, REFORM HUMAN RIGHTS ACT
“Leave the European Convention on Human Rights [ECHR]. Commence reform of the Human Rights Act so that it puts the rights of law-abiding people first.” (p.21).
More detail is needed on these two interlocking pledges.
The ECHR is an international initiative separate from the EU which was spearheaded by the UK as a way to safeguard liberty in Europe in the wake of World War II. Freedom of expression was heralded as the “the touchstone of all freedoms” by the authors of the ECHR and took the form of Article 10, which says: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
New Labour’s 1998 Human Rights Act (HRA) incorporated the ECHR into UK law, with the result that British courts have since had to take into account rulings by the European Court of Human Rights (ECtHR) in Strasbourg.
Over time, some provisions in the HRA have been interpreted by British judges as a duty to follow Strasbourg case law closely, leading to rulings that many people in the UK would recognise neither as part of human rights, nor protective of freedom of expression.
The ECtHR has, for instance, shown a worrying tendency to prioritise Article 8 “personality rights” (i.e., privacy, reputation and personal autonomy) over Article 10 rights. This, in turn, has had a chilling effect on journalists, including citizen journalists and, also, academics, as they strive to fulfil their role as ‘public watchdogs’.
Under s.12 of the HRA, domestic courts are supposed to have “particular regard” to freedom of expression in defamation cases brought against press organisations and in cases where companies are seeking a court order to compel disclosure of press sources. In practice, they tend to apply Strasbourg’s expansive approach to Article 8 such that s.12 has, in the words of the Executive Director of the Society of Editors, Dawn Alford, been “emasculated”.
This is nicely demonstrated by the recent decision of the Supreme Court in Bloomberg LP v ZXC. Here, the Supreme Court ruled that a private media organisation – Bloomberg LP – breached the privacy rights of the CEO of a publicly listed company for an article which revealed he was subject to a criminal investigation. Perhaps most disturbing is the judgment’s conflation of defamation and privacy law as it relates to a person’s reputation, essentially asserting that the latter is protected by the former. This is highly problematic and has obvious, far-reaching implications for press freedom.
If Reform is proposing specific provisions to strengthen protections for freedom of expression in the HRA, the FSU would support that.
PROPOSE NEW BILL OF RIGHTS AND FREE SPEECH BILL
“A British Bill of Rights. Our freedoms must be codified and guaranteed.” (p.21).
“Propose a comprehensive Free Speech Bill.” (p.22).
These proposals are clearly of interest to the FSU. To understand the broader legislative framework within which these pledges sit, it is useful to consider the rationale behind the previous Conservative government’s Bill of Rights, which was floated then quickly scrapped, which aimed at a similarly comprehensive overhaul of human rights law in the UK. Introduced to Parliament by the then Justice Secretary Dominic Raab in June 2022, the draft legislation underscored the major challenge Reform would face in bringing forward their own Bill of Rights.
Intended as a replacement for the HRA, Raab’s proposal aimed to strengthen traditional UK rights such as freedom of speech, which, as the then Justice Minister was keen to emphasise, have long been “under attack” from the ECtHR and its expansive approach to privacy law.
The then government’s solution was for the UK to remain a member of the ECHR, with the Bill of Rights effectively steering domestic judges away from Strasbourg case law – which, as noted above, has slowly expanded the ECHR Article 8 right to privacy at the expense of the Article 10 right to freedom of speech – and back toward the Convention text itself, where neither right takes automatic precedence over the other.
However, given that Reform intends to quit the ECHR and make Parliament and the Supreme Court the ultimate arbiters on whether and how to implement European judgments, much will depend on the specific wording of their proposed Bill of Rights and Free Speech Bill, as well as the extent to which a Reform-led government could successfully navigate the task of defining terms like free speech and freedom of expression in legislation. That said, with risk comes potential reward. Faced with a blank legislative slate of this kind, the FSU would campaign for a return to the English Common Law approach, whereby nearly all speech is permitted provided it won’t lead to a breach of the peace.
REVIEW THE ONLINE SAFETY BILL
“Review the online safety bill. Social media giants that push baseless transgender ideology and divisive Critical Race Theory should have no role in regulating free speech.” (p.16).
This controversial, long-awaited piece of legislation, which contains sweeping new surveillance and censorship measures, received Royal Assent last year and is now known as the Online Safety Act.
The FSU was disappointed when it passed into law – although thanks to our lobbying and campaigning, as well as our members who contacted their MP to express their misgivings about the Bill, the version that reached the statute books was at least an improvement on earlier drafts.
In particular, the obligation on social media companies to “address” so-called ‘legal but harmful’ content, as set out in Clause 13 of the original legislation, didn’t make the cut. Our objection to this clause was essentially that the phrase “address” risked becoming a euphemism for “remove”. If the Government had published a list of legal content it considered harmful to adults and imposed an obligation on social media companies to say how they intended to “address” it, that would have nudged them to remove it. But thanks to the lobbying of the FSU, that obligation was dropped.
We were also ahead of the curve in promoting user empowerment as an alternative to the de facto removal of ‘legal but harmful’ content – in the final iteration of the legislation, the locus of responsibility for online safety has shifted from providers to users. The result is that instead of saying how they intend to “address” harmful content in their terms of service, social media companies will now have to say what tools they’re going to make available to their users so they can act as their own content moderators.
Nevertheless, and as Reform rightly suggests, the legislation remains a threat to online free speech.
For instance, the Head of Ofcom, Dame Melanie Dawes, recently confirmed that the broadcast regulator will now be in charge of setting “standards” that it expects social media companies to meet when it comes to offering users the option to filter out ‘harmful’ content that they don’t want to see. At the FSU we’re watching closely to see how these “standards” end up influencing the user empowerment tools that each social media platform subsequently offers its users.
There remains a significant risk that the big providers will establish a ‘safe’ mode as their default setting, so that if adult users want to see ‘lawful but awful’ content they will have to opt in.
That may mean perfectly lawful yet politically contentious views – e.g., an article in the Spectator by a gender critical feminist challenging Gender Identity Ideology, or a social media post by a conservative commentator criticising Critical Race Theory – will be blocked by default since woke victim groups will argue that any such views constitute incitement to hatred based on their protected characteristics.
Of course, users will have the option of adjusting their settings so they can see that content, but some won’t want to in case, say, a colleague sees something ‘hateful’ over their shoulder and reports them to HR for ‘harassment’. And what about those who won’t even be aware they have a choice, or who are aware but don’t have the technical expertise to do anything about it?
We know that’s likely to be a lot of people thanks to research carried out by behavioural scientists on what’s known as ‘choice architecture’ – i.e., the way in which customers are presented with choices will influence their subsequent decision-making. As countless studies in this area have now shown, one of the most powerful tools available to organisations wishing to ‘nudge’ consumers down certain behavioural pathways is the humble ‘default setting’. That’s because consumers tend to be too lazy to revise those settings or don’t know how.
The devil will be in the detail of what each social media platform’s version of ‘safe browsing’ looks like. If a platform’s ‘safe mode’ becomes the default setting, how easy will it be to switch it off? As one recent study put it, “If defaults have an effect because consumers are not aware that they have choices… [they] impinge on liberty.”
That’s why the FSU endorses Reform’s call for post-legislative scrutiny of the Act, whether directly via government, a parliamentary select committee, or an independent reviewer.
CUTTING FUNDING FOR UNIVERSITIES THAT BREACH FREE SPEECH LAW
“Cut Funding to Universities that Undermine Free Speech. The government’s Free Speech Act is toothless. Allowing political bias or cancel culture must face heavy financial penalties.” (p.11).
The FSU would dispute the idea that this Act – the Higher Education (Freedom of Speech) Act – is “toothless”. This legislation, which represents our biggest legislative victory to date, comes into effect from 1st August, and does two things that will help secure academic freedom and free speech on campus.
First, it will impose a legal duty on higher education providers (HEPs) in England to uphold and promote free speech and extend that duty to students’ unions. The Education (No 2) Act 1986 already required HEPs to “take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”, but the new Act goes further. It will impose a duty on HEPs to actively promote freedom of speech, and to protect academics’ freedom to question and test received wisdom, put forward new ideas and express controversial opinions.
Second, it will create two new enforcement mechanisms, so HEPs aren’t able to ignore these duties.
The first is the appointment of a Director of Freedom of Speech and Academic Freedom to the Office for Students (OfS), whom students and academics can complain to if they believe their speech rights under the Act have been breached. This new ‘free speech tsar’ has already been appointed – it’s Dr Arif Ahmed, a professor of philosophy at Cambridge with impeccable free speech credentials – and he will have the power to fine HEPs if he finds them at fault.
The second enforcement mechanism is the creation of a new statutory tort, whereby students and academics will be able to sue HEPs in the County Court if their speech rights have been breached.
Taken together, this package of measures will go some way towards addressing the free speech crisis in our universities – although, to be clear, the new law only applies to English universities. About 20% of the 2,500+ cases we’ve dealt with in the past three years have involved HEPs and we believe that in almost every one the student or academic who has got into trouble would have been in a stronger position if this new law had been on the statute books.
CHANGING THE POLICE DEFINITION OF ‘HATE CRIME’
“De-Politicise the College of Policing.” (p.9).
“Change the Definition of Hate Crime. The CPS and police definition of a hate crime has led to systemic bias. Members of the British public must not be investigated because ‘any’ person ‘perceives’ that a hate crime has been committed.” (p.10).
We endorse both pledges. The police and the Crown Prosecution Service (CPS) currently define a hate crime as: “Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person’s disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity.”
As to what ‘hostility’ means, the CPS go on to say that “because there is no legal definition of hostility, we [i.e., the CPS and the police] use the everyday understanding of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike”.
One of the most troubling aspects of this subjective form of policing is that where an incident is reported as a hate crime, but the police then determine that no crime has been committed, they can still log it a ‘non-crime hate incident’ (NCHI) because the ‘victim’ perceives that the ‘perpetrator’ is motivated by ‘hostility’.
We don’t think people realise just how many of these deeply Orwellian NCHIs have been recorded in England and Wales since the College of Policing (CoP) – a taxpayer-funded quango that provides national advice to police forces in England and Wales – first came up with the concept in its Hate Crime Operational Guidance in 2014.
That document made it mandatory for the police to record any report of a ‘hate incident’ as an NCHI, often in such a way that it can show up against a person’s name if an employer asks to see an enhanced criminal record check before offering them a job. In the years following the publication of the CoP’s guidance, the FSU estimates more than 250,000 NCHIs have been recorded in England and Wales.
The FSU has been campaigning against NCHIs since we formed in 2020, so we were delighted last year when the then Home Secretary Suella Braverman published new guidance on the recording and retention of NCHIs. Although she didn’t do away with the practice altogether, her new Code of Practice marked a huge step forward. It ensures the police now have to exercise common sense and have due regard to the right to freedom of expression before recording an NCHI, and that “all efforts should be made [by officers] to avoid a chilling effect on free speech (including, but not limited to, lawful debate, humour, satire and personally held views)”.
The reason we endorse Reform’s pledge to ‘de-politicise’ the CoP isn’t just because it came up with the Orwellian concept of the NCHI, but because when the Home Office Code of Practice was released it immediately published its own “interpretation” in which Suella Braverman’s proposals were watered down and given a ‘woke spin’.
As we pointed out in a tip-off to the Telegraph at the time, the Code provided 11 scenarios where officers should or should not record an NCHI. In seven (or 63%) of those hypothetical cases, the explicit advice was not to record an NCHI. However, the CoP’s “interpretation” contains just eight scenarios, all of which are different to those contained within the Home Office code. Of those eight, just one (or 12.5%) culminated in advice for officers not to record an NCHI.
Thankfully, when we kicked up a stink about it the CoP backed down. Small wonder, though, that Reform appear to agree with Sir John Hayes, the Conservative MP, who at the time called for a “clear out” of “some of the bad apples that are [in the CoP] before they affect the whole of policing’s reputation”.
DIVERSITY, EQUALITY AND INCLUSION AND/IN THE POLICE
“Common Sense Policing not ‘Woke’ Policing. Scrap all Diversity, Equality and Inclusion (DE&I) roles and regulations to stop two-tier policing.” (p.8).
While we endorse the sentiment behind this pledge, our chief concern is that the police need to receive better training on the law as it relates to freedom of expression.
In a recent research briefing we revealed that a majority of police forces in England and Wales provide next to no training to officers on freedom of speech while a huge amount of time is spent on Equality, Diversity and Inclusion (EDI) training. Partly as a result, the police have neglected the protection for freedom of expression in Article 10 of the ECHR as well as common law free speech protections, when investigating and recording NCHIs.
The FSU submitted Freedom of Information (FoI) requests to all 41 English and Welsh police forces, excluding the British Transport Police, Civil Nuclear Constabulary and Ministry of Defence Police. Nine forces failed to respond within the statutory deadline or notified us that their response was indefinitely delayed, 10 forces provided partial information, and 22 answered in full.
Based on these responses, we calculated that 78% of the police forces who responded to our requests are providing no training at all on Article 10, or providing no more than one line on it. The remainder did not answer the question.
By contrast, 32 forces answered a question asking for details of the training carried out in relation to EDI. One force claimed to hold no information on the subject and a further four stated that EDI was so highly integrated into every aspect of their training that it would exceed the cost limit of the Freedom of Information Act to provide the necessary information. Fourteen forces described EDI training as a “golden thread” running through every part of their training or reported that EDI was integral to standard training.
This means that for 56% of the police forces we surveyed, EDI is inextricably embedded in their training.
If Reform is serious about wanting to rein in the police’s nasty habit of recording NCHIs against anyone accused of saying something politically incorrect, it is essential that England and Wales’s 41 police forces receive proper free speech training.
