Britain Needs a Free Speech Bill. Here’s What it Should Look Like

Britain needs a Free Speech Bill to flush away the mushrooming censorship and make up for the lack of a First Amendment, says Toby in the Spectator. It should be as ambitious as we can get away with. Here’s an excerpt.

Preston Byrne, the radical American lawyer, says his new Freedom of Speech Bill, which the Adam Smith Institute publishes today, was inspired by something I wrote. To better protect free speech, I said, we don’t need to transplant the first amendment into British law. Rather, we just need to pull up the weeds obscuring the beautiful rose garden that is English common law. The American Bill of Rights, after all, was an attempt to embed the best of the common law tradition in the US constitution.

I’m flattered because there’s much to admire in Preston’s proposal. This is his second attempt at drafting a free speech bill and an improvement on the first, which urged lawmakers to create an “inviolable liberty” that would be “immune from interference by Parliament itself”. By this he meant a departure from the principle of Parliamentary sovereignty, with a British version of the first amendment enjoying the same constitutional status as the American one. But I can’t see how that would work.

Let’s suppose the Preston Byrne Party wins a majority at the next election and passes a law that not only protects free speech, but says the new law can only be repealed by a two-thirds majority in both houses of Parliament. In reality, there would be no constitutional impediment to that law being repealed in its entirety by a simple majority in the next Parliament, including the two-thirds clause.

Preston’s second version is more pragmatic, seeking to repeal a raft of laws that fetter our right to free speech, rather than upend our constitution. This is the right approach and many of the laws he wants to scrap are on the ‘hit list’ drawn up by the Free Speech Union, where Preston sits on our Legal Advisory Council. The aim, he says, has been to draft a bill that could be taken up by the Conservatives or Reform. Has he succeeded?

I think there’s much in here that both parties might embrace, such as the repeal of section one of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003, both of which criminalise the sending of “grossly offensive” messages. In 2023, the police in England and Wales arrested an average of 33 people a day under suspicion of having committed those two offences, so repealing them should be a priority. But for the Tories, at least, they might have to be replaced by something tougher than Preston’s “threatening communications offence”. The Conservatives also won’t like his watering down of the Terrorism Act 2000, removing the power to proscribe terrorist groups, or his straight repeal of the Online Safety Act, which they passed three years ago.

What about Reform? Preston’s bill would repeal the Public Order Act 1986 in its entirety, replacing it with all-purpose prohibitions on inciting violence and threatening conduct. I have a good deal of sympathy for that, but would Reform be prepared to scrap Part III of that act which criminalises stirring up racial hatred? Given how sensitive Nigel Farage is to accusations of being soft on racism, I doubt it. Reform would also balk at Preston’s dismissal of the devolutionary settlement – he recommends just imposing his new act on Scotland and Northern Ireland, even though much of it deals with reserved areas of legislation. That would be manna from heaven to the nationalist parties Reform is competing with in the devolved nations.

This points to a general difficulty with the bill which is that it tries to do too much too quickly.

Toby concludes that he’s “all for a Freedom of Speech Bill, but a more modest one which isn’t going to be immediately repealed by a Left-wing government”.

Worth reading in full.

Watch Toby interview Preston on the latest FSU podcast.

And a bit of fun…