Written evidence from the Free Speech Union (FOE0081)

 

 

Does hate speech law need to be updated or clarified as shifting social attitudes lead some to consider commonly held views hateful?

Any extension of hate speech provisions should not be driven by changing perceptions of what is, or should be regarded as, hateful. In our view this is the wrong way round. With John Stuart Mill, we see the right to free speech as a right that needs to exist despite public opinion, and despite perceptions of some views as hateful. We do not see it as something that should in some way be subject to it.

The Law Commission of England and Wales is currently proposing to massively extend legal prohibitions on free speech and we have made an extended submission to it on a number of its proposals.

Does current police guidance and practice on hate speech law help promote freedom of expression? 

 

The College of Police’s operational guidance has recently been updated . Reservations nevertheless remain. First, we note that the guidance defines hate speech” more widely than it’s currently defined in law, in that (a) some groups not given “protected” status under our existing hate crime laws have been given “protected” status in the guidance without Parliament having had a say in the matter; and (b) an incident remains classifiable as a non-crime hate incident if the “victim” or even an eyewitness perceives it to be one, even if they are mistaken. (In the past five years, more than 120,000 such incidents have been recorded by the police in England and Wales.) In our view:

 

(a) The College of Policing should limit itself to advising the police on how to prohibit unlawful behaviour and not advise the police on how to prohibit or discourage lawful behaviour;

 

(b) If the police conclude a hate crime has not been committed, the incident in question should not be recorded as a non-crime hate incident on the Police National Database, as currently required by the College of Policing’s operational guidance, and under no circumstances should that be done without informing the person. That has a chilling effect on free speech for a variety of reasons, including the fact that the information may appear on a person’s record when prospective employers do an enhanced DBS check and the person in question may end up not getting a job because they’ve committed a non-crime.

 

(c) Recording a non-crime hate incident against someone’s name on the National Police Database and making that information accessible by prospective employers is likely to be a breach of GDPR, particularly if the recording is concealed from the person in question.

 

Is there a need to review the wording and application of Public Space Protection Order (PSPO) legislation?

 

The relevant PSPO legislation (ss.59-61 of the Anti-Social Behaviour, Crime and Policing Act 2014) should be amended to provide that such orders may not restrict or regulate the content of speech that is otherwise within the law.

 

 

What obligations does an employee have to their employer when expressing views on social media, and to what extent can, and should, employers respond to what their employees say on these platforms?

 

If the employer is a private body not subject to the Human Rights Act, this currently turns on the employment contract. We would welcome legal limits being placed on how far private employers can restrict what their employees are able lawfully to say outside the workplace.

 

If the employer is a public authority, then the employee has protections under Art.10 of the ECHR, but even these may be quite narrow (e.g. Page v NHS Trust Development Authority [2019] 6 WLUK 291). Some employees, such as academics, are better protected than others by Art.10, but it is not settled how far Art.10 allows these rights to be taken away by the contract of employment.

 

This is an area in which workers, whether in the private or public sector, are badly short-changed. The law needs to be altered.

 

In our view all workers need robust legal protection, which cannot be taken away by contract, in respect of all opinions expressed provided (a) they are expressed in a purely private capacity, (b) no reference is made to the employer or any other employee, or to the employment relationship, other than to say their views don’t reflect those of their employer, and (c) the employer cannot prove that what is said substantially impinges on the employee’s ability to do their job. (For instance, in respect of the expressed opinions of employees of religious charities, political parties, campaigning organisations or the BBC.) The employer’s personal or corporate values should not be of any legal relevance in this respect, and nor should the unreasonable objections of employees, e.g. a claim by an employee that their personal political views make them feel harassed or discriminated against by a colleague with whose views they disagree.

 

Such protection, which could take the form of a provision that dismissal for social media comments on a personal account or other private comments was automatically unfair unless an exception applied, would be in addition to any other protection contained in the contract of employment or implicit in the law of unfair dismissal, as laid down in cases such as Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch).

 

Further, in light of the Eton College debacle the provisions of the Equality Act should be amended so as to provide that notwithstanding s.26(1)(b) of that Act (harassment), conduct for the purposes of research or teaching could only constitute harassment if done with the express purpose referred to in subsection (1)(b) – i.e. it would not be enough to show that it merely had the effect of making someone feel harassed – and the burden of proof should rest with the employer to show intent. The ‘perception’ on the part of the alleged victim that they’ve been harassed – s.26(4)(a) – should be irrelevant.

 

We would add that in our view there also needs to be an analogous restriction on the power of professional organisations such as ACCA or the Law Society to restrict what members of their professions are permitted to say in a private capacity. This is at present a matter of some confusion, especially since the solicitors’ disciplinary decision in Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin).

 

We are aware in both cases that our proposals go considerably beyond the requirements of Art.10 of the ECHR. But we consider that Art.10 should form the floor of protection, not the ceiling.

 

Is greater clarity required to ensure the law is understood and fair?

 

Yes. 

 

How has the situation changed in universities in the two years since the Committee’s report on the issue?

 

Despite calls on universities to tighten up on freedom of speech (including one by this Committee 2½ years ago), things have got worse in the interim period. At the FSU we have on our files details of a number of cases involving students, academics and other staff who have been unfairly treated for expressing heterodox opinions (some of whom we have helped). We are prepared to make anonymised details of these available to the Committee on request.

 

We approve of the government’s apparent willingness to extend the duty currently placed on universities to safeguard free speech to student unions. But in our view more needs to be done to protect free speech from student activists on campus.

 

(1) Where a student union or university recognises societies or allows them to be affiliated, there should be a statutory duty not to refuse recognition or affiliation on account merely of the aims of the group or the opinions of its members, provided both are within the law.

(2) Where universities make rooms or facilities available to groups, they should be put under a statutory duty to do so at a reasonable cost and in a timely manner and without discrimination based on the aims of the group or the opinions of its members.

(3) A similar duty should be placed on student unions in respect of facilities controlled by them.

(4) It should be enacted in primary legislation (a) that any breach of s.43 of the Education (No 2) Act 1986 be actionable as a breach of statutory duty, and (b) that a student may be expelled for any deliberate act done with the intent of breaking up a lawful meeting on university premises.

 

Does everyone have equal protection of their right to freedom of expression?

 

In law (at least in theory), yes. In practice, no. It is more common, for example, for police to intervene to prevent expression of certain views about different religions or sex and gender issues than overtly political views – and political views are more likely to be investigated by the police if they are right-of-centre than left-of-centre. It is our view that the police should be encouraged by standing orders to allow the widest possible degree of expression, and to take steps to ensure that all opinions are equally protected without discrimination.

 

25/05/2021

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