Freedom of expression in the United Kingdom is still defined negatively. The freedom not to be offended, abused, plagiarised or blasphemed against outweighs in most legislative terms the freedom to engage in any of these potentially enjoyable and fulfilling activities. What is forbidden dominates the debate, whilst the right to free speech is on the retreat. This was not what we expected when the Human Rights Act (HRA) introduced a specific commitment to free expression into British law. The Act’s incorporation of Article 10 of the European Convention should have sent out a very clear message to anyone seeking to constrain free speech – a dearly held right in British public life.
Yet the opposite has happened, and free speech is eroded with almost every new piece of legislation. Freedom of Information is protected in its own Act, whilst Freedom of Expression struggles in the margins of hostile legislation. While freedom of information is a post-facto freedom, a way of checking up on government and other public bodies, freedom of expression is a fundamental right, without which there would be no way to publicly enforce or police any other rights. Yet it languishes in the relegation end of the rights table. With every new public debate on ‘the limits of free speech’ our rights recede. Why not, instead, launch a public debate on the limits of censorship? Why not, indeed, lobby for a Freedom of Expression Act with the same monumental force as the First Amendment to the United States Constitution? Such an Act should include details of penalties for eroding others’ rights to free expression. This would give the police the guidance they need when dealing with violent protesters. It might also set out the balance between the right to free expression and the (developing) right to privacy, copyright protection and public order, in a way that would disable future governments from placing more emphasis on the constraints than the
fundamental freedom.
Such an Act would in no way merely repeat the terms of the HRA, which for all its good intentions has gifted the government a Get Out of Jail card. The exemptions to the free expression clause are so numerous, yet so ill-defined, that a government can always appeal to public order, public morality or national security when they seek to simplify the challenges they face in managing an increasingly complex society. A new, tough FOE Act would set out precisely how and when such constraints might be applied, and would place oversight of this universal freedom in the hands of an independent scrutinizing body – the public.
Jonathan Heawood is director of English PEN
