In the great pyramid of liberty and the incremental progression of human enlightenment, freedom of speech is often celebrated as preeminent among civil liberties, but it was preceded by freedom of religion. In order for the mouth to be free, the mind had to be freed, and so did the heart: the freedom of conscience to believe or not to believe in a particular doctrine of God was the foundational freedom of mankind’s emancipation. You may apportion to Enlightenment Liberalism all the ills of the modernity (and postmodernity), but the individual’s freedom to debate and try to distinguish what may be ‘progressive’ from that which is believed to be ‘regressive’ is the most important freedom of all. We lose it at our peril.
There are quite a few ‘freedom wars’ going on at the moment. In academia, there is the ‘de-platforming’ strategy, by which chippy groups of minorities attempt to have a debate or lecture shut down before a word is uttered, simply because the invited expert is deemed to hold (or to have once expressed) views which may be considered ‘offensive’ to some. In the heritage sector, there is an increasing insistence that everything about a famous person or place must now be viewed through the diffracting lens of (for example) racism or slavery, and if anything should be uncovered in history which might not cohere with modern sensitivities, the statue must fall, and the place be subject to ‘special measures’, with some sort of written warning in guidebooks that its sandstone bricks, marble columns or magnificent works of art may be the fruits of a past exploitation and gross injustice. In wider society, the battle against freedom of speech (and expression) continues apace, especially in Scotland, where the SNP’s Hate Crime and Public Order Bill is being steadily chipped away wit amendments to defend legitimate debate on contentious issues and reinforce the freedoms of speech, expression and religion, but it is very hard going. A joint letter from concerned groups and individuals has been sent to MSPs:
We the undersigned have serious concerns about Part 2 of the Scottish Government’s Hate Crime and Public Order Bill, and increasingly so in light of recent parliamentary deliberations.
Over the last year, there has been a robust debate about Part 2 of the bill, which outlines new offences on the stirring up of hatred. We all condemn crimes motivated by hatred and prejudice. The difficulty with this Bill, in its current form, is its potential to have a wider, negative effect on freedom of expression in Scotland.
When the bill was published last year, the police, the legal profession, academics, civil liberties groups and others cautioned that the offences could catch legitimate debate on a range of issues. The vague wording of the offences and a lack of adequate free speech protections could, they warned, place a chill on free expression in the arts, the media and the public square when it comes to discussions about contentious issues such as religion and trans rights.
After a wide and sustained backlash, the Scottish Government announced several concessions. Most significantly, Ministers conceded that offending should be limited to ‘intent’. It also committed to ‘broadening and deepening’ a free speech clause covering religion and inserting a new clause on transgender identity.
Cabinet Secretary for Justice Humza Yousaf lodged amendments to effect these changes ahead of Stage 2 deliberations by the Justice Committee, which began on 2 February 2021. However, the Cabinet Secretary, in agreement with other MSPs on the Committee, decided to withdraw amendments on freedom of expression at the eleventh hour, saying he would seek ‘consensus’ on a ‘catch-all’ free speech clause, to be drafted ahead of Stage 3.
This move has, in our view, undermined the whole process of scrutiny to date. Amendments to safeguard freedom of expression on religion, sexual orientation and transgender identity – topics that are subject to strong and often controversial debate – were vitally important and agreed upon by the majority of stakeholders who have engaged with parliament over the last 12 months.
Providing separate and robust freedom of expression provisions on these topics was also the approach advocated by Lord Bracadale QC in evidence to the Committee last year. He said: “Such amendments to the bill would be an expression of the kind of line that we want to identify between ‘offensive behaviour’ on one side and ‘threatening and abusive behaviour’ on the other”.
The idea that a workable ‘catch-all’ provision covering these topics, as well as the characteristics of age, disability, and variations of sex characteristics, can be agreed upon by the government and other parties before final, Stage 3 proceedings take place is, frankly, untenable. Manufacturing such a clause over the next few weeks, behind closed doors, will also necessarily preclude the views of parliament, stakeholders and the public from being taken into account.
We strongly believe that producing workable provisions on the stirring up of hatred in this parliament is now entirely impracticable. These provisions could impact upon the most precious liberties in any democratic society: freedom of speech, freedom of expression, freedom of conscience and religion. They must be handled with the utmost care.
We urge MSPs in every party to oppose Part 2 of the Hate Crime Bill and allow other, non-contentious aspects of the bill to proceed without it. New proposals on the stirring up of hatred could be brought forward in the next parliament, where they would be scrutinised thoroughly over time, with renewed input by a wide range of stakeholders.
•Ruth Smeeth, Chief Executive, Index on Censorship;
•Emma Webb, Associate Fellow, Civitas;
•Ian Murray, Executive Director, Society of Editors;
•Peter Tatchell, human rights campaigner;
•Jim Sillars, former Deputy Leader, Scottish National Party;
•Stephen Evans, CEO, the National Secular Society;
•Simon Calvert, Deputy Director, The Christian Institute;
•Hardeep Singh, Deputy Director, Network of Sikh Organisations;
•Trina Budge, Director, For Women Scot;
•Andrew Allison, Head of Campaigns, Freedom Association;
•Kapil Summan, Editor, Scottish Legal News;
•Dr Kath Murray, Research Fellow in Criminology, Uni. of Edinburgh;
•Lucy Hunter Blackburn, researcher and former senior civil servant;
•Lisa MacKenzie, independent researcher;
•Dr Stuart Waiton, sociologist, Abertay University, Dundee;
•Madeleine Kearns, journalist;
•Jamie Gillies, Free to Disagree campaign.
According to an opinion poll in the Telegraph, just one in eight people in the UK believe we have greater freedom to speak freely than five years ago. Moreover, “more than four in 10 Britons (43 per cent) say they are afraid to speak their minds on immigration matters, compared with 28 per cent who felt they could. A similar percentage (42 per cent) admit they are scared to speak openly on transgender rights. A quarter say they feel OK to speak out.”
So what is the solution? How does one protect individuals from hate and prejudice without impinging upon freedom of speech? Will fining student bodies which stifle freedom of speech really change the trajectory? Will telling heritage groups that “public funds must never be used for political purposes” really torpedo efforts at rewriting Britain’s history? Will the appointment of a ‘Free Speech Champion’ in the Office for Students be sufficient to defend free speech and academic freedom on campuses?
Is it really the place of government “to defend our culture and history from the noisy minority of activists constantly trying to do Britain down”, as Culture Secretary Oliver Dowden appears to believe? Since when did governments in liberal democracies prescribe the inculcation of a particular version of history? Since when did governments in liberal democracies force universities to listen to some speakers but ban others? If transgender experts must be heard in university debating societies, why not Holocaust deniers and antisemites? One person’s ‘hate’ is manifestly another’s goodness and reason.
It is not for the Government (and certainly not a Conservative government) to tell independent organisations what they can say, think and do. You don’t defend individual freedom of speech by limiting institutional freedom of goodness and reason. We do not need a Ministry of Truth in this country to determine what disagreement is permissible (because it is ‘progressive’), and what disagreement is impossible (because it is ‘regressive’), not least because so few politicians truly grasp the ethical ontology of value-pluralism.
And yet something needs to be done.