To win back free speech, Britain needs a new constitution, argues Preston Byrne.
The problem:
What is happening today, it seems, is that the entire population of the UK is in the midst of realizing that whether a controversial idea may be safely expressed depends, in large part, on the hearer, and not the speaker.
Current law fails the rule-of-law test:
the law hands police and magistrates wide discretionary powers to decide which viewpoints are acceptable, depending on the social or political mood at the time and on the ground.
Legislation can not seem to fix the problem:
Because every legislative fix proposed in recent years has failed to address the root problem: the doctrine of parliamentary sovereignty. This is the idea that the King-in-Parliament wields unlimited power with no guardrails, and has long been a foundational principle of British constitutional order. The British state does not concede the existence of any legal limits on its own authority. Individual rights have become casualties of rigid adherence to this ancient doctrine, which, plainly, no longer serves the interests of the society it governs.
Byrne goes on to argue that the application of speech laws has changed over time due to fashion. The only real solution to that is absolute free speech like that granted by the US First Amendment.
All entirely true.
Prospects for action-nil.
When you can’t speak freely, protecting speech is nigh-on impossible.
At one level (the public) the problem is the idea, increasingly prevalent, that one should be protected from discomfort-in particular, the discomfort of listening to something with which you disagree.
At a state level, it suits any elite to have levers to silence dissent.
It contrasts so badly with British tradition. I seem to recall that T H White describes (in The Age Of Scandal) a party, including Horace Walpole, taking a coach to parliament through demonstrators pelting them with bricks. I don’t believe any of them suggested forestalling the right to speech.
Yes indeed – both he post by Rob Fisher (citing Preston Byrne) and Clovis Sangrail’s comment.
This is a movement in law that goes back a long way – in legal philosophy way back to thinkers such as Thomas Hobbes and Jeremy Bentham (and David Hume – although pointing this out does offend some people) denying that humans are free-will-persons with rights AGAINST the state (and private persons) under natural justice – and in practical law since at least the Act of 1965.
A whole series of Acts of Parliament (concluding with the Equality Act of 2010) have “doubled down” on the doctrine that people must be forced to think a certain way, hold certain opinions, and may NOT express thoughts contrary to these doctrines – this state control, we have been told for 60 years, we lead to happy society – with what is now called “Diversity” and “Inclusion” – well we have got the state control, the indoctrination via the education system and the media, and the endless attacks on Freedom of Speech – but we have certainly not got he happy society these things were supposed to lead to.
The difficulty is that now only is the King-in-Parliament committed to the above (the present House of Commons is the most ANTI Freedom of Speech House we have had in centuries – as for his Majesty I make no comment, other than to refer people to the Monarch’s Christmas broadcast of 2024), but also the JUDGES, indeed the entire legal system, is committed to these doctrines of indoctrination and the crushing of Freedom of Speech and Freedom of Expression – when they are held to be against “Diversity” and “Inclusion” and might “give offense” to certain special groups of people with protected characteristics.
So there is no one to write a British “First Amendment” and no judges and legal profession who could be trusted to enforce it.
For example, the Mexican Constitution of 1917 (this is relevant – please bear with me) has clear statements supporting Freedom of Speech and and the Right to Keep and Bear Arms – yet neither exists, in practice, in Mexico.
People are “legally” punished for their words in Mexico, for example for words that are held to offend the “Trans”, and ordinary honest people (as opposed to vicious, and politically connected, gang members) certainly have no functioning right to keep and bear arms to defend themselves and other honest people.
Appointed judges have “interpreted” away Freedom of Speech and the Right to Keep and Bear Arms in Mexico – and the recent move to elected (rather than appointed) judges is unlikely to change this.
So who would write a pro liberty Constitution in the United Kingdom – it could not be Parliament or the legal profession, neither of which believes in these principles, and what judges would enforce it – rather than “interpret” it away?
Sadly, as Senator Cruz often points out (for example in a recent book) no fundamental right is safe against a United States Supreme Court decision – and we know what sort of (Blarite) Supreme Court we have in the United Kingdom.
Using ‘government’ to fix ‘government’ is to invite later interpretation by the courts, I’m afraid.
Perhaps a better way forward would be to oblige complainants to provide evidence of the ‘cost’ of their offence. The implication being that ‘hurt feelings’ are not enough to establish a case.
Perhaps, PERHAPS, a pro liberty CULTURE is needed for good Constitutional provisions to “stick”. Otherwise we get such cases as Illinois where the Constitutional requirement (in the Constitution of 1970 – so not some ancient document) to balance the budget is “interpreted” by the courts to mean “balanced by borrowing” (which is so perverse that it is hard to imagine a more corrupt “interpretation”), or California – where a basically good Constitution has been “interpreted” into a horrific nightmare by intellectually perverse judges – ruling on the basis of things that are NOT in the Constitution of California, and ignoring the things that ARE in the Constitution of California.
Britain has a pro liberty culture when, for example, Sir John Holt was Chief Justice (1689 to 1710), but it does not now.
Although light years from perfect, perhaps (PERHAPS) Texas is the largest (in population) example of a place that, to-some-extent, has a pro liberty culture.
Note than I wrote Texas – not the United States of America, which is a much more complicated matter.
Constitutions reflect the people who create them. They don’t create the ‘people ‘ governed under said constitution.
When John Adams said the US constitution that ‘our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other’, I think he understood this.
The constitution wasn’t going to make the people moral and religious. It was created because the creators emerged from an overall moral and religious culture.
With free speech you can have a constitution claiming it is a constitutional right but if the wider culture and even more importantly the elites don’t believe in it, such constitutional ‘protections’ will be quickly circumvented.
If course, in the Britain of 2025, the idea the elites of Britain would organically to create a new constitution modelled on that of the late 18th century American one is for the birds.
It’s not an ancient doctrine, it’s from 1688, and was hard fought for, killing and exiling kings to get to that point.
Any written constitution would just embed the Left even more deeply than the ECHR and the Human Rights Act already do. So the answer has to be a very firm “No way!”
Aetius
As a Brit, I don’t believe that the mishmash of ‘guaranteed by law’ freedoms are worth the paper they are written on. There is no freedom of speech (see Lucy Connolly). Freedom of movement or right to assembly can be summarily cancelled (see COVID). There is currently no freedom of religion (see Hamit Coskun) or right to equality before the law (see the sentences handed out in the wake of the Southport riots).
Much as I think a US style constitution would be a good thing for Britain, I can’t help thinking that that ship has sailed. The resulting word salad that we’d no doubt end up with if we asked our current King and Parliament to bash out a constitution would be, as was the EU constitution, an overly complex document that, far from guaranteeing freedoms and liberties, would ultimately further entangle the citizen in a Gordian knot of petty rules and regulations.
Nothing short of a national trauma will change the mindset needed for us to embrace the freedoms and liberties of yesteryear.
Or, wot Aetius said, innit!
I can see a British constitution written by the Blob guaranteeing “rights” to health care, housing, education etc, in other words entrenching the Big State and all its social programmes as “constitutional rights”, provided by big government to little people. Any protections from the overreach of government will not be there, because the writers of this constitution will not be able to conceive of any such need.
Because every legislative fix proposed in recent years has failed to address the root problem: the doctrine of parliamentary sovereignty.
I do not agree. The root problem is that the British people want hate speech laws. They have been convinced, by fair means or foul, that unadulterated free speech is not a good thing, that some speech is violence, that some things are so terrible that the speaker should be in jail.
Laws and constitutions are mechanisms, in theory at least, for expressing the will of the people. For sure laws are manipulated to advance the will of the state irrespective of the will of the people, but if, at the base level, the British people are not in favor of free speech, all the mechanisms in the world won’t fix the problem. Unadulterated free speech seems to be outside the Overton window in Britain right now.
Even here on this place the idea of “I might hate what you say but will defended to the death your right to say it” has been described as the idea of an “imbicile” by one commentator. When you can’t even convince the advocates of liberty of the need for absolute free speech, your cause is largely lost.
@Windypants the problem with the idea of a British constitution is the same as the one I have just stated. Which is to say that you would not get to write it. I’m sure you’d do a great job if they’d let you. But they wouldn’t. It would be written by the people currently in charge. I don’t think we’d like the result.
In my porch right now is a 21″ 4:3 CRT Trinitron monitor. I bought it years back secondhand for a song. When that was new… Wowsers – several hundred quid – thick end of a grand maybe? I’m putting it up for sale. It should fetch maybe 300 quid.
Odd isn’t it? Why? Retro-gaming is back in fashion! Lots of things are because that is how fashion works. And fashion isn’t just clothes or music but, as I’ve got older, and seen things not just come and go but come back again I’ve begun to think fashion is the most powerful force in the Universe with respect every aspect of the human experience. What can make this sometime difficult to discern is that it never quite repeats the same way exactly.
I have a “feory” that this applies to free speech and tolerance and such like as much as to hem-lines or people wanting to play Doom on an old screen. There is a common tendancy to think we have become a generally more tolerant society over the years where it’s OK to be gay and stuff. They call it “Progess”. I’m not sure. What I think is that there is always somethings that society won’t tolerate and that perhaps that level of taboo is a constant but what changes is the nature of what is and isn’t accepted. Societies define themselve by what is beyond the Pale and whilst the issues vary there is always a Pale.
Take a currently burning issue… People like J K Rowling have been put beyond the Pale for stating the biologically obvious and accussed of “hate speech” by folks who think holding a placard saying, “Suck my trans dick you TERF cunt!” is channeling the second coming of MLK. I guess in this case it really is fashion. I mean gay and lesbian rights are sooo last century dahling! Where it’s at in the ’20s is of course the TQI++ not the LGB. When Oscar Wilde was convicted of sodomy people burnt his books in an orgy of self-righteousness. Their “intellectual” descendents are now asking online if it makes them a “bad person” to have read Harry Potter.
A hundred years ago calling Jesus a “twat” would get you side-lined from polite society. Nowadays it’s no longer even edgy. Calling Muhammed for what he was will get you into a World of Pain.
I agree entirely with those comments above that state that this is not just about legislature. It is much deeper. That is part of the reason I reference fashion. Did, for example, the punk look come from Vivienne Westwood, Malcolm McClaren and The Sex Pistols or were they taking it from the street? I suspect neither and both are true and it was a complex interaction. I like my idea that the thinking of our dear leaders and the most exalted jurists is, at a deep level, as well thought through as a teenage girl’s choice of which boyband to follow and which to abhore. Over the years the teenagers and the boybands change but the principle remains. It makes a lot of sense to me.
Just make me Lord Protector, I’ll sort it. As a compromise, myself and Paul Marks as Consuls/ Capitani Reggenti on the San Marino model but with more power, and we can sort it all out.
Plenty of denizens of this parish could serve in our place on our passing.
Just be mindful of Gandalf’s warnings against taking the One Ring and how it corrupts (as Lord Acton told us).
Yeah, I am that commentator, and I stand by what i said. Only an imbecile could advocate fighting to the death for free speech.
Take Perry, for instance: what if HE fought to the death for free speech? what would happen to Samizdata if he did?
Take Paul Marks. What if he had fought to the death for free speech, before we got into an argument about Hume? I would not have studied what Hume actually wrote, without the urge to make sure that Paul is wrong. (And i discovered that I was wrong, too, about what Hume actually wrote about Liberty and Necessity. Two people who disagree, can both be wrong.)
So, only an imbecile could think that fighting to the death is a sensible strategy to defend free speech. (And only an imbecile could say that it is w/o thinking it is, purely for rhetorical effect.)
For a constitution to have any heart, any guiding principle, it must be drafted and enacted following a bloody conflict, by the winners only.
It must represent entirely the winning side’s paradigm of justice.
Every other possibility has to involve negotiation and compromise between opposite philosophies, a process which cannot produce an internally consistent statement of a nation’s soul.
All that ever happens otherwise is you produce a statute book with supermajority protection.
@Snorri Godhi
Take Perry, for instance: what if HE fought to the death for free speech? what would happen to Samizdata if he did?
I imagine some brave soul would step up and take his place. What is it Churchill said? “An appeaser is one who feeds a crocodile, hoping it will eat him last.”
PS: I also note that Fraser despises people who have actually put their lives at risk to defend their freedom, and the freedom of their countrymen. Witness his opinion of Zelenskyy.
If Fraser disagrees, he is welcome to mention a few people whom he admires for defending freedom against fearful odds.
(I could mention a couple of dozens, including about half a dozen BC.)
— added in proof: Fraser, YOU are the appeaser.
You, and all American-style libertarians.
He who fights and runs away lives to fight another day?
But sometimes, charging that machine gun gives the optimal outcome measured in lives. (Good lives, I mean. On our side.)
So it’s all just situational.
@Snorri Godhi
PS: I also note that Fraser despises people who have actually put their lives at risk to defend their freedom, and the freedom of their countrymen. Witness his opinion of Zelenskyy.
If you think Zelenskyy is a defender of free speech I think you that you are mistaken.
@bobby b
He who fights and runs away lives to fight another day?
Sure, perhaps. It is indeed situational.
@Nick M – very interesting comment, thank you.
@Fraser Orr – Zelenksy is defending his nation’s freedom against an invader, which was the point SG was making, as I am sure you are well aware.
@Marius
@Fraser Orr – Zelenksy is defending his nation’s freedom against an invader
Maybe, but he sure as hell isn’t doing it by defending freedom of speech in his country.
The US Constitution was originally 4500 words long, with amendments it got to 7600 words. The 1980 constitution of Chile (under Pinochet) held about 25,000 words (it is in use still). The 2022 proposal (under Marxist president Boric) held 50,000 words. (It was rejected by the people in referendum).
Good luck with a new constitution for the UK, which would probably be 100,000 words long.
In general there is a tendency for producing endless streams of words today – which, like most things published, are mostly rubbish. (articles, essays, etc.). In the age of paper there was a physical constrain on the lengths of essays or articles – the paper itself (ex. bring me a 500 word essay). This constrain has been removed on computer screens. Now you can write as much as you desire. Consequently the quantity of rubbish has grown exponentially.
Here’s a thought experiment.
National religious book burning month. You can bring any religious book you want that you own and burn it. Nothing is to be said about which book it is yuou’ve bought- just get on with burning it. Am I inciting any hatred?