DEBATE: As the government cracks down on pro-life speech, does the UK need a First Amendment?

Sam Collins and Harrison Griffiths

December 21, 2022

Institute of Economic Affairs Communications Officer Harrison Griffiths argues YES

It is difficult to look at the state of free speech in Britain and continue to argue that the right is safe in Parliament’s hands.

Just yesterday, reports emerged that a woman in Birmingham was arrested and charged for silently praying outside of an abortion clinic – removing any doubt that freedom of expression in Britain is under serious threat.

Part of the problem lies in the insistence that basic rights sit within the purview of democratic debate. It underscores why the principle of Parliamentary Sovereignty is an affront to individual liberty and dignity.

Parliamentarians have repeatedly demonstrated a disregard for free speech, deciding instead that protecting emotional sensitivities are of greater importance. This view should not go unchallenged, but it is of secondary importance. Fundamentally, the extent of our right to speak should never have been MPs’ decision to make.

While I would welcome a codified Bill of Rights, which protects our fundamental political rights (like free speech and due process) from Parliamentary infringement, I accept the risk that it could end up resembling Gordon Brown’s welfare wish list more than James Maddison’s muscular declaration of individual liberties.

But there is a mechanism which could better entrench freedom of speech without upending Britain’s constitutional structure.

The Parliament Acts 1911 and 1949 leave the House of Lords with the power to meaningfully vote down legislation extending the life of a Parliament. As such we could amend the act to extend veto power to legislation related speech restrictions.

When the British public and political class is ready to roll back the state’s censorship laws, we should do everything we can to ensure that the inalienable right to free speech is never again infringed to the extent that it is today. Amending the Parliament Acts to empower the House of Lords to veto legislation related to speech restrictions would not be a perfect solution, but it would establish a vital check on the power of 650 MPs to decide what you can and cannot do with your own mind and your own voice.

Institute of Economic Affairs Senior Policy Advisor, Sam Collins argues NO

This question appears easy. Why would anyone of a classically liberal bent oppose greater legal protections for what is, alongside freedom of conscience and freedom of association, the bedrock of liberalism? The answer is that it is not just whether freedom of speech should be protected, but how this protection would fit into Britain’s constitutional structure.

To make one thing clear, if Britain had a similar constitutional system to the United States (meaning a list of rights fully codified and enforceable by the courts) and did not have an equivalent protection for freedom of speech, I would absolutely support creating one. However, this question is based on creating one within Britain’s existing constitutional structure.

One option is to attempt to use parliamentary procedure such as entrenchment or, as my colleague imaginatively suggests, using the residual powers of the House of Lords (and adding to them) as an additional check on legislation harming freedom of speech. Such a path is fraught with procedural and definitional problems. While some legislation – such as bans on protesting outside abortion clinics – obviously directly impact speech, would the Online Safety Bill – where the impact on speech is likely to be more a chilling effect on private companies and their private censorship – be certain to fall within these confines?

Alas, the only option appears to be a new constitutional settlement. A written constitution with an enshrined separation of powers (necessary for enumerated rights to be protected) is anathema to the British political system, in which all power comes from the King in Parliament. The role of the judiciary is to interpret laws passed by Parliament and enforced by the Crown, not to judge whether Parliament has the right to legislate on an issue. Altering this would require us to write a whole new constitution, with many other “rights” likely to be added. Indeed, if the latest Labour Party ruminations on constitutional reforms are anything to go by, a future British written constitution seems more likely to enshrine the right to healthcare free at the point of use than any protection for free speech.


Written by Sam Collins and Harrison Griffiths

Sam is Senior Policy Advisor to the Director General and Harrison is Communications Officer, both at the Institute of Economic Affairs

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