We are just a few weeks into this administration, and everything suggests that Sir Keir Starmer’s attitude to free speech has changed significantly since 2013, when as Director of Public Prosecutions (DPP) he warned that too many prosecutions of people for social media posts would have a “chilling effect” for free speech.
“The CPS is bound by the Human Rights Act 1998, which enshrines Article 10 [the right to free expression], so as long as article 10 gets it right, there’s an inbuilt safeguard,” he said while outlining his organisation’s then recently revised – and eminently sensible – guidelines on prosecuting cases involving communications sent via social media.
It was, he explained, “about trying to get the balance right, making sure time and resources are spent on cases that really do need to go to court, and not spent on cases which people might think really would be better dealt with by a swift apology and removal of the offending tweet”.
Sir Kier the Prime Minister would do well to heed the words of Mr Starmer the DPP.
In the wake of civil unrest that spread across the UK following the murder of three children in Southport, he has overseen the harshest of crackdowns on those suspected of online involvement, and on several occasions spoken approvingly about the ensuing wave of prosecutions.
This includes one man who has been sent to jail for 18 months for sharing something “offensive” that someone else said on Facebook, and another man who has been sent down for three years for posting “anti-Establishment rhetoric” and a third man was jailed for 18 months for chanting “Who the f*** is Allah?”.
It also includes a woman who was arrested, held in custody for 36 hours, and then released pending further investigation for wrongly identifying the Southport attacker in an X post she prefaced with the phrase “if this is true” and then, once the facts became known to her, rectified with – in the former DPP’s own words – “a swift apology and removal of the offending tweet”.
Sir Keir’s successor as DPP, Stephen Parkinson, has even warned that people sharing footage of the riots online may be prosecuted. “People might think they’re not doing anything harmful, they are, and the consequences will be visited upon them,” he said.
This threatening language is more reminiscent of a tin-pot dictatorship than the birthplace of parliamentary democracy and it has unleashed a wave of terror across the country, with hundreds of thousands of people now worried that they may be sent to prison for posting something un-PC on social media.
If you’re concerned about the Labour Government’s assault on free speech, please use our campaigning tool to write to your local MP, using our template letter.
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Sadly, Sir Keir’s authoritarian response to the riots adds fuel to the suspicion that his government is uninterested in the hard work of balancing equal yet competing rights, including the right to freedom of speech, and is altogether too keen to reach for the ‘quick fix’ of relegating the latter to a position of secondary – or, indeed, ‘marginal’ – importance.
Witness, for instance, the torpedoing of the Higher Education (Freedom of Speech) Act, a carefully crafted piece of legislation designed to address the free speech crisis in English universities. Having received cross-party support during the last Parliament, its most important clauses were due to be commenced on 1st August.
However, because Rishi Sunak called an election before the Act had been fully implemented, Sir Keir’s government decided to quash it, in part because it was felt the legislation would endanger the safety of Jewish students – a claim which Akua Reindorf KC, the UK’s leading equality barrister, has effectively despatched in an excellent recent article for the New Statesman.
Sir Keir has also dropped heavy hints that social media companies, whom he blames for whipping up the recent riots, need to be forced to do more to remove supposedly harmful content from their platforms, with his government now mulling plans to strengthen the already draconian Online Safety Act 2023.
It remains unclear how the Prime Minister would amend the Act or why his political comrade-in-arms, the Labour Mayor of London Sadiq Khan, thinks it is “not fit for purpose”.
Is the Prime Minister suggesting that one of the criminal offences created by the Act – the section 179 false communications offence, which came into force in January – is inadequate because it applies only to messages that are knowingly false (i.e., ‘disinformation’) and fails to catch those spreading messages which they are unaware are false (i.e., ‘misinformation’)?
Or does he wish to reinsert into the Act a clause the previous Conservative government dropped during the legislative process, which would empower his secretary of state at the Department of Digital, Culture, Media and Sport, Lisa Nandy, to lay a statutory instrument identifying a list of lawful content that social media companies would be obliged to remove as ‘dangerous misinformation’?
Either way, the problem for those of us concerned to protect free speech in a pluralist liberal democracy is that ‘misinformation’ all too often becomes little more than a euphemism for any point of view that the government of the day happens to disagree with.
The key phrase there is ‘government of the day’.
Sir Keir and his Cabinet ministers need to remember that any revisions to the Online Safety Act along these lines would one day be inherited by a government of a different political persuasion. As the civil rights activist Ira Glasser once remarked: “Speech codes are like poison gas: they seem like a good weapon when you have the gas, and a detested enemy is in your sights. But it all depends on who has the gas, and how the political winds blow.”
Some of the other risks coming down the legislative track include a Westminster version of the Scottish Hate Crime Act, the criminalisation of ‘Islamophobia’, a ‘conversion practices’ ban that will punish parents, doctors and teachers who dissent from gender ideology, a Race Equality Act that will embed Critical Race Theory across workplaces, and an attempt to force newspapers and magazines to bend the knee to a state-controlled press regulator.
It is of course true to say that the UK’s international reputation as a bastion of liberty has been in decline for some time – according to Article 19’s most recent Global Expression Report, the UK ranks lower than in previous years across a range of key indicators – including freedom of peaceful assembly and freedom from government censorship efforts – while the latest Academic Freedom Index compiled by researchers at Friedrich-Alexander-Universität lists the UK as one of just three Western countries where academic freedom has substantially worsened over the past 50 years.
These facts notwithstanding, the rapidity with which the current Labour Government has plumbed new and uncharted depths is nicely illustrated by the ease with which Javier Milei, the President of Argentina – a country that could hardly be described as having an unblemished record when it comes to protecting the speech rights of its citizens – was able to make political capital out of “crazy socialist” Sir Keir’s apparent enthusiasm for “putting people in jail for posting on social networks”.
Over the coming weeks and months, MPs will need to scrutinise the government’s legislative plans for this Parliament very carefully, making sure the risks posed to free speech are identified, scrutinised, and challenged. Free speech is not just a fundamental human right, but the most important one of all, since without it we wouldn’t be able to defend the others.
While engaged in this endeavour, their guiding principle should be the old English Common Law ‘breach of the peace’ principle.
As summarised in R v Howell (Errol), a breach of the peace occurs “whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affect, a riot, unlawful assembly or other disturbance”.
In other words – and contra the safetyist rationale behind the Labour Government’s approach to on- and offline speech, public discourse and debate thus far – speech should be permitted unless it is going to lead to a breach of the peace.
If you’re concerned about the Labour Government’s assault on free speech, please use our campaigning tool to write to your local MP, using our template letter.
Completing the form is a simple, fast process that can have a significant impact. We’ve even provided a template to help, but feel free to personalise it. Your voice matters and it’s vital that you make it heard.
