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Free speech in the UK – a proposal from the Adam Smith Institute

Adam Smith, the Scottish intellectual figure most famous for his Wealth of Nations (1776) book, would, I like to think, have been deeply unamused by the abominations coming from the Scottish Parliament in recent times. The Adam Smith Institute, the UK think tank bearing the great doctor’s name, writes the following article. I pray the indulgence of the reader, and ASI, in quoting the article in full. I hope that this appalling Scottish piece of legislation fails, that those who seek to enforce it are humiliated and mocked.

Three and a half years ago, the ASI published a position paper and draft law proposing a “UK Free Speech Act” which would, if enacted, forever remove the regulation of nonviolent political discussion from the remit of law enforcement in the United Kingdom.

The censorship provisions of the Hate Crime and Public Order (Scotland) Act 2021 (the “Hate Crime Act”), entering into force this week, are deeply offensive to freedom of expression, and the only way to stop them is to implicitly repeal these new rules with UK-wide protection for freedom of speech.

The Hate Crime Act contains three provisions in particular – “aggravation of offences by prejudice,” “racially aggravated harassment” and “stirring up hatred” – which are, at least as-described, descriptions of the sort of speech that most members of polite society would rightly oppose as a personal, moral matter.

However, if we look at the substance of the language employed by the new laws and its derivation from similar, viewpoint-neutral English rules – in the case of the stirring-up offence and the “racially aggravated harassment” offences, the “alarm or distress” language from the English Public Order Act 1986, and in the case of the stirring-up offence only, the historic “threatening, abusive, or insulting” language from that same law – we know that these rules have proven capable of extremely overbroad application in England, and these new rules will prove just as terrible, if not more so, if allowed to stand in Scotland.

The position, outlined in a 2020 paper for the ASI, and the applicable English legal rules, remains entirely unchanged. It suffices for present purposes to note that existing English laws, which are nowhere near as intrusive as the new Scottish ones, have already been used in England to, variously:

· threaten a schoolboy with prosecution for nonviolently holding up a sign calling the Church of Scientology a dangerous cult;

· arrest republican protestors in the vicinity of King Charles’ coronation for nonviolent picketing;

· convict a protestor for nonviolently saying David Cameron had “blood on his hands” for cutting disability benefit at an event where the then-PM was speaking;

· convict protestors against the war in Iraq for nonviolently expressing their points of view in front of soldiers of the British Army returning home from that war;

· arrest students for nonviolently saying “woof” to a dog;

· arrest a woman for nonviolently praying silently; and

· arrest a preacher for nonviolently reading from the Bible, in public, verbatim.

The existing rules should have been repealed years ago, but few UK lawyers, being unaccustomed to an American perspective on free speech jurisprudence and thus unable to see that the frog was starting to boil, seemed to notice very much as the English judiciary lost its way after issuing its landmark, pro-free speech decision of Redmond-Bate [1999] EWHC Admin 733. In a few short years, the English courts went from protecting controversial speech to routinely acquiescing to the criminalization of what, pre-1999 at least, would have been entirely lawful, if somewhat controversial, expression (see: Norwood v DPP [2003] EWHC 1564, Manchester Crown Court ex parte McCann [2002] UKHL 39 and Abdul v. DPP [2011] EWHC 247).

The provisions of Article 10 of the European Convention concerning freedom of expression, enshrined in domestic law by the UK Human Rights Act, are little better than window-dressing. They have been of no assistance whatsoever in protecting English speakers of controversial ideas since that law’s enactment; indeed, the Human Rights Act may have harmed the cause of free speech in the country by formalising the broad derogations from that right permitted under Article 10(2) which have been abused, time and again, to stifle discourse.

Put another way, our experience with the English rules, in particular the Public Order Act 1986 but also the Malicious Communications Act 1988, and Section 127 of the Communications Act 2003, is that their application, especially in the last 25 years, has been subjective, unpredictable, inconsistent, politically-motivated, sometimes capricious, and thoroughly chilling to speech.

The Scottish law turbocharges all of these problems by abandoning viewpoint-neutrality and expressly targeting “culture war” issues around questions of identity within the four corners of the statute. This is particularly the case when we look at the “aggravation of offences by prejudice” law, which states that age, disability, national or ethnic origin, sexual orientation, and transgender identity are all to be considered when sentencing people in Scotland for criminal offences.

The problem with this, of course, is that merely talking about these issues and causing offence is already capable of constituting a crime under the Public Order Act 1986, both in England and in Scotland, and the Public Order Act was being abused in both England and Scotland to suppress speech even before the Hate Crime Act entered into force.

Only last month transgender activists sought to have J.K. Rowling arrested there after English prosecutors declined to prosecute her for prior “gender critical” remarks. The Hate Crime Act now requires Scottish judges to take into account Rowling’s motivations when judging her speech, which we think would be fairly described as emanating from the identitarian, and therefore definitionally “prejudicial,” ideology known as second-wave feminism, and would require, in a Public Order Act 1986 prosecution for those feminist remarks, for a Scottish judge to consider a sentencing enhancement.

It makes no sense to criminalise these conversations. Indeed it makes sense to expressly legalise them, given that national politics seems, increasingly, to cluster around identity issues and, in a democratic society, require their open discussion in order for these disputes around the proper ordering of society to be satisfactorily resolved.

On the gender theory question, in particular, the debate seems to be between, on one side, critical theory-informed intersectional activists who seek to view all power relationships through the lens of what they call immutable characteristics, and on the other, we see a coalition of classical liberals and religiously-minded traditionalists from the usual suspects like the Catholic Church but also newly aggrieved groups such as traditionalist Muslim parents of schoolchildren. As the fact that the Prime Minister himself felt the need to chime in on these matters this week plainly evidences, identity issues, whether we like it or not, now sit squarely at the centre of contemporary UK political discourse.

We take no view on the merits of either “side” here, because taking a viewpoint does not matter and, in any case, is inadvisable, to the extent anyone here at the Institute plans on ever setting foot in Scotland again. This is because it is now quite unsafe, legally speaking, to take a vigorously-defended public position on these questions in Scotland from any perspective, as long as there is a hearer who is offended enough to file a police report against the hearer’s perceived political enemies, or calculating enough to pretend to be so offended.

To see how the Hate Crime Act potentially cuts in all directions, we need look no further than criminal complaints which have already been made under the new law. See, for example, the fact that Scottish First Minister Humza Yousaf, the law’s primary advocate and promoter, was immediately reported by the Indian Council of Scotland to the police for thoughtcrime contained in a speech he himself delivered in Scottish Parliament in 2023 as soon as the Hate Crime Act entered into force. Under the new regime, even the First Minister will need to take care not to express those same thoughts in the same manner again.

There are not many reasonable people who wish to live in a country where the first response to any political disagreement is to call for a speaker’s arrest. Nonviolent speech should never warrant a violent response. Yet, as was proven on day 1 of this new law, we already see that the Scottish law will be used, and is being used, to call down state-sanctioned violence, namely arrests and imprisonment, to suppress broad swathes of viewpoints from all political quarters.

To the few back-benchers who are engaged by this pertinent issue: This is the hill to die on. Rishi Sunak, the Prime Minister, has said he opposes the Scottish law.

Push the Prime Minister to back up that opposition with decisive action. Permanently abolish political censorship enforced at gunpoint. Enact the UK Free Speech Act.

So there you have it from the ASI. I endorse every word.

20 comments to Free speech in the UK – a proposal from the Adam Smith Institute

  • bobby b

    It’s time to flood the zone. (American football term, for those unfamiliar.) Send so much their way that they cannot deal with it.

    It’s time for people who want these provisions quashed to start proclaiming, loudly and publicly, statements that will be found to be offensive. Make them react. Make them cite you, and arrest you.

    Refuse to pay fines, or to stay at home in confinement. Make them arrest you and take away your liberty. Make them pay for your jail stay. Cause unbearable costs to the system.

    It would take many people doing this to make a difference. But, if you cannot come up with “many people”, then maybe the provisions are acceptable to society?

    And then it becomes a whole different fight.

  • Steven R

    Jury Nullification may be the only thing that can save liberty at this point. And if that doesn’t work, we’re going to see lead flying downrange, either towards or from government types.

  • jgh

    Nothing can be “permanently” abolished in UK law. Parliament can reverse any decision of any prior Parliament.

  • Nothing can be “permanently” abolished in UK law. Parliament can reverse any decision of any prior Parliament.

    That assumes Parliament is actually where the regulations that entangle every aspect of life get imposed. That is generally not the case. Jacob Rees-Mogg quixotically thought he was going to get a ‘bonfire of the QUANGOS’, only to discover that is actually beyond the power of any government to implement as things currently stand, 80 seat majority not withstanding.

  • Ferox

    Didn’t the Scottish PM make a long speech a few years ago decrying the “whiteness” of Scottish governance?

    It seems to me that it this is precisely the sort of thing the new law is intended to address. A timely report to the authorities is in order.

    No need to be overly specific as to the identity of the speaker when making the report, of course. Merely listing the time and place and a few choice quotes ought to suffice to get the investigation rolling.

  • Fraser Orr

    @bobby b
    It’s time to flood the zone.

    The problem with this approach is that laws can be enforced discretionally, so if everybody is a criminal then the cops and the Procurator Fiscal (as they call the DA in Scotland) can put anybody they like in jail. It is horrifying, but it is what happens (see for example, drug possession crimes which are used exactly that way.)

    @Steven R
    Jury Nullification may be the only thing that can save liberty at this point. And if that doesn’t work, we’re going to see lead flying downrange, either towards or from government types.

    But what if the people like these sorts of laws? What if this is what a significant portion of the population wants? Obviously you aren’t getting your jury nullification. Are you still in favor of the lead, forcing your views of liberty onto people who don’t want it?

    The problem is not the First Minister of Scotland or the Scottish MPs, it is that the people of Scotland, for the large part, are kind of sort of vaguely in favor of this sort of thing. And there ain’t no fixin’ stupid.

    BTW, can I just give a shout out to Jo Rowling. For someone a crazy leftie like her, she has my deepest admiration for her bravery, her willingness to pay the cost, her purely selfless motives in her actions on this matter. Bravo, her commitment to free speech and the rights of girls and women is, as we’d say in Scotland, pure magic.

  • Paul Marks

    Perry – sadly correct, Jacob Rees-Mogg assumed that ministers could change policy – and he found that policy is often not made by ministers or Parliament – that his orders would be subverted, basically ignored. Just how incredibly grim that is – is hard, very hard, for people to grasp.

    Chief Justice Hewart warned, in his book “The New Despotism” (as far back as 1929), that power was starting to slip into unelected hands – but his warnings were mocked and then ignored, and the process has gradually continued. Ministers today have far less power than they did even as recently as the 1980s – and even then ministers and the Prime Minister, Margaret Thatcher, often complained about how officials obstructed their efforts to roll back state, and how international agreements were blatantly misrepresented to them by both officials and government lawyers.

    As a young man I can remember being appalled by the government agreeing to the EEC (as it then was) “Single Market” in (I think) 1986 – which opened the flood gates to endless regulations from the EEC – but that was NOT how it was presented to ministers and the Prime Minister.

    Margaret Thatcher was told that it was a “free trade” measure – all the government officials and government lawyers said that, and being cut off from people outside the establishment, that is what ministers (and the Prime Minister) believed.

    It was much the same with Covid – ministers and Prime Minister Johnson were NOT told that effective Early Treatments were being smeared (they were told these treatments were useless or dangerous), nor were they told that “lockdowns” were medically useless against an airborne respiratory virus – they were told that lockdowns would “save lives”.

    And Prime Minister Johnson was certainly NOT told that the Covid “vaccines” were not really vaccines, that they were not very effective and were certainly NOT safe.

    When everything is controlled by officials and “experts” loyal to an international agenda, democracy is subverted.

  • Paul Marks

    As for the Adam Smith Institute’s proposal for a Free Speech Act – I SUPPORT the proposal, but it would need two things.

    Pro liberty judges to enforce it – in the United States the Federalist Society exists to support lawyers and judges who are not corrupted by Modernism and Progressivism – the United Kingdom does not really have a such a body as the Federalist Society, and how British judges are appointed is rather weird.

    Although, to be fair, British judges are no where near as corrupt and politically biased as New York judges – who are essentially bandits, criminals, in robes (anyone who thinks “they will just hurt Trump – they will not hurt me” is a fool). Having property in the United States is risky – having property in New York (city or State) is insane.

    What a Free Speech Act would also need is clear wording in the text that it applied to “Hate Speech” – that “Hate Speech” was allowed and protected.

    If speech that was deemed to “incite hatred” was not covered by the Act then the Act would be worthless – as any political or cultural speech can be deemed an effort to “incite hatred”.

  • They got round this by ensuring the law is not retrospective….

  • Mr Ed

    Margaret Thatcher was told that it was a “free trade” measure – all the government officials and government lawyers said that, and being cut off from people outside the establishment, that is what ministers (and the Prime Minister) believed.

    She was a barrister and a chemist, she had analytical skills by the bucket-load, and Dennis to bounce things off. It really was a poor show after 1985, better than now, but not a good show.

    With a loyal 80-seat majority, any PM could pass any law they liked, even if the House of Lords delays for a year. Is there one piece of law passed by the current government that anyone can point to so as to show that they have achieved anything remotely ‘libertarian’?

    If President Milei had been in Johnson’s shoes in early 2020, we would have a very different country.

    And good show by the ASI.

  • staghounds

    “Why do you want to yell mean, hurtful, racist things at my (protected class) (friends and relatives)?”

    The enemies of freedom are clever, because that’s the question the public has been trained to ask.

    And why this legislation passes.

  • Ian Rons

    The ASI proposal, while being adequate in its principles, doesn’t quite diagnose all of the problems in my opinion – and obviously they haven’t worked out the specifics of any proposed legislation. My thoughts on this general topic are here (and discussed by Toby Young here), and are pretty similar to ASI but I think the rot started with clause 6 of the Race Relations Act 1965, not the 1980s stuff. And in fact if we exclude things like treason, heresy/blasphemy and licensing laws (OK, that’s a lot of exclusions) we already effectively had Brandenburg v. Ohio (and in quite specific terms) before all that happened.

    I’m not quite sure how this is likely to unfold, but I think we need to build on the work of the ASI and get something out there to crystallize everything in UK-wide draft legislation (which would mostly be a repeal bill). The example of 1A jurisprudence brings great clarity to it all, but given we don’t have a difficult-to-amend written constitution, we also need to win the argument convincingly for the next generation.

  • AFT


    “Why do you want to yell mean, hurtful, racist things at my (protected class) (friends and relatives)?”

    The enemies of freedom are clever, because that’s the question the public has been trained to ask.

    And why this legislation passes.

    It isn’t just the question the public has been trained to ask, if by that you mean that those orchestrating the attack on free speech know that they’re manipulating the public. It’s how a lot of those pushing the buttons approach life themselves, in all sincerity. They don’t know how to step back from the particular, specific instance and see things in broader terms, because they’ve been trained too, over decades. Most of the truly cynical manipulators have long ago left the scene. It’s very easy to overestimate the extent to which even those in power are capable of grasping the very idea of an abstract principle.

  • Fraser Orr

    @AFT, I’m not sure I 100% understand what you are saying, but if I do, I think you make a great point. The idea that there are puppet masters pulling the strings to make this great woke conspiracy is true in a limited sense, but it is also not the whole story. These ideas, transgenderism being a prime example, take on a life of their own. Those who would be its master very quickly become its slaves. It is like morality itself, in fact I suppose it is part of morality. We often act as if morality comes on tablets of stone from above, but the historical data doesn’t support that idea at all. Instead morals are a kind of evolved system, a distilled set of ideas that people have. But they also take on a life of their own outside of the decisions of people. So that it is not the people controlling the ideas, but the ideas controlling the people.

    You can see this when people get stuck on ideas and are willing to accept the most absurd ideas to protect the original idea. Here in the US more than half the population believe the earth is a few thousand years old, or they say the do, anyway. Many sophisticated Muslims believe the Prophet rode a magical horse into the heavens. Or more prosaically, many people believe that masks saved millions of lives despite all the contrary evidence.

    I think you can see this writ small on facebook. You will see a meme with some silliness. Presumably some human created it to get attention for themselves, but it spreads and propagates well outside of the control of the original human. And you see that certain characteristics designed to get the attention and propagation of readers (and sharing forward is the raison d’etre of these things, much as the propagation of genes is the raison d’etre of the designs of evolution) cause something very akin to biological evolution. Just to give one example I have noticed recently: a meme with a multiple choice math problem where none of the answers is correct. This causes HUGE amounts of reaction from the readers, and hugely improves this little memetic lifeform’s chance of being propagated by the self satisfied person who is “in the know.” What caused this? Did the original human simply make a mistake? This seems remarkably similar to a genetic mutation to me, a favorable random mutation that makes it a more robust propagator of its “genes”. Maybe the designer did this deliberately, though I doubt the designers of these things are really all that smart.

  • Kirk

    They’ve already “declined to prosecute” J.K. Rowling, so… Yeah. I expect her to either escalate and force them to do something to her, or she’s going to take her money and make them look incredibly stupid when they go after someone smaller than her. I imagine her lawyers will have a field day for selective prosecution, especially when they’ve got wossisname saying narsty things about whipeepul…

    You can get away with what these morons have been up to for a little while, but I’m thinking that they’re now in the opening stages of running up against the hard stops of reality. Might be amusing to observe, from afar. I feel for anyone caught up in the mangle, though…

  • Fraser Orr

    And the answer to the question “why do you want to say hurtful mean things to ….” is simply; “I don’t particularly, but I also don’t trust the government to decide what is hurtful and mean. And you shouldn’t either, because once they muzzle me you’ll have to look over your shoulder every time you say something controversial, every time you say something critical of the government. If people think I am saying hurtful and mean things they have a very easy solution — just stop listening to me. Words only hurt if you hear them, so stop listening.”

  • GregWA

    Paul Marks, quoting Chief Justice Hewart, “…power is starting to slip into un-elected hands…” Well, can’t we make them “unpaid hands”?

    Can the Congress or Parliament just cut funding to the bureaucracies?

    Don’t get me wrong: I know they don’t want to, but it would call their (the pols) bluff.

    Maybe Trump, if allowed to be elected, could start by bulldozing a few major Federal office buildings. Hard to reverse that!

  • staghounds

    Fraser Orr- I am juuuust old enough to remember that the first amendment revolution in the U. S. was led by the pornography industry and its customers. It all started with a good tactic- choosing a work, pretending it had “artistic merit”, and selling it as the improper victim of censorship. “We just want to read D. H. Lawrence, this won’t be used for gross porn movies.” So of course the next thing was to dress up the porn movies to cosplay the “art”, and everything went.

    The problem now is that we are at the reverse side of the process, and the censors are wisely picking words of no merit, that no one can even pretend aren’t vile, that no decent person wants to say or hear. No one cares that Alex Jones or Westboro Baptist is silenced, they actively approve. The statutes just pick things no one will defend to censor- and no one does. Our Masters will do the dressing up later, they are itching to.

    Your counter argument is sensible and wise- but too abstract and historically aware for most people. We are too concrete. No one will tell jokes about the new seven. https://en.wikipedia.org/wiki/Seven_dirty_words

  • Fraser Orr

    Can the Congress or Parliament just cut funding to the bureaucracies?

    Congress can, via the budget, but they won’t. Nixon was the last person to shut down a government department. Can you name ten senators who want to defund a whole government department? I can’t. They are in the business of government, why on earth would they want to shut it down?

    Maybe Trump, if allowed to be elected, could start by bulldozing a few major Federal office buildings. Hard to reverse that!

    Why do you think Trump would do that? He is the biggest spending president, the biggest debt president in history save Biden. If you wanted that you should have voted for Ramaswamy. I mean Trump is better than Biden in a lot of ways, but borrowing and spending are not two of them. And bulldozing the buildings? Can’t reverse that? Sure they can. They’d love it. “Build back better” for some bureaucratic definition of “better”.

  • NickM

    I am a Complex Hypernormative Abelian Pansexualist.

    I haven’t decided to come out here (of all places!)because Samizdata is a “safe space” but because I just realized it about 50 seconds ago.

    Just make up identities that need “protection”. Here is a perfect use for generative AI because it is incomparable for producing utter bollocks by the container-ship load.

    Now, we’ll be accussed of “just making things up”. Fine because so are they. Look at the origin of “2S”. It is claimed to be a sexuality recognized belonging to Native Americans… Look up the origins yourself for it is indeed a queer story.

    Bombard the powers that be! Email MPs, get petitions up*, apply for lottery funding. Go exponential. Why shouldn’t there actually be more gender identies than people? To say otherwise is to limit people’s possibilities. Builders… Lodge complaints that someone called your van a “Tranny” when whilst it may be a Ford it identifies as a FIAT Ducato. Play the buggers like Shatner’s Bassoon.

    Bobbie b is right. Flood the Zone! It could be fun if nothing else.

    *Look-up “Dihydrogen Monoxide”

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