How is New Home Office Legislation Affecting the Rights of Journalists and the Wider Public in the UK?

(Photo: The Times)

By Max BedfordContributor

The right to freedom of speech in the UK comes from Article 10 of the 1998 Human Rights Act – which declares that “everyone has the right to freedom of expression… without interference by public authority and regardless of frontiers.”, with the provision of  “duties and responsibilities [that], may be subject to such formalities, conditions, restrictions or restrictions as are prescribed by law”.  Recently the Boris Johnson Government has been accused of undermining Article 10 through their recent wave of home office legislation, and the actions of officers at the Sarah Everard vigil. The legislation attracted the most criticism being: the Online Safety Bill, the Police, Crime, Sentencing and Courts Bill; as well as planned  reforms to the 1989 Official Secrets Act. 

The Online Safety Bill

     The Government claims that this bill will make Britain “the safest place in the world to be online”, pushing a pre-emptive duty of care onto online service providers to assure that illicit activities do not take place on their platforms. Central to this is forcing companies to predict “reasonable grounds” for “material risk” of “a significant adverse physical or psychological impact on an adult of ordinary sensibilities”. The failure to do so potentially carries a fine of up to 10% of the companies annual turnover. To this extent Ofcom would begin regulating social media companies on their regulation of their users. This has attracted criticism from various groups as fears emerge that it would encourage companies to be overzealous in their censorship of contentious issues due to fears of large fines.

     This is particularly worrying as the Bill has been accused of undermining regulators independence; potentially making internet regulation and regulators such as Ofcom a political issue. Heather Burns, the policy manager at the Open Rights Group, suggests that this bill delivers “unilateral power to alter the legal boundaries of free speech based on political whims”. The Carnegie Trust has echoed these concerns alongside a number of watch groups and academics, fearing that in the future the extent of an individual’s freedom of expression online is determined by the “political whims” rather than the law. 

The Police, Crime, Sentencing and Courts Bills (The Policing Bill)

     The new policing Bill plans to reform policing standards in the UK, installing a “preventative-style” of policing, greatly increasing ‘stop and search’ powers with the aim of curtailing knife crime within large cities. The Bill also proposes amendments to the rights of protesters, now allowing police to restrict or stop  demonstrations that “may cause” surrounding people “to suffer serious unease, alarm or distress”. The ambiguity of what is “serious unease” has attracted myriad criticism as fears arise that the law will be used to prevent public protests against the Government.

     In the House of Commons the Home Secretary, Priti Patel, claimed that “I have worked closely with the Police Federation in developing this bill”, going on to suggest that the Bill is largely a reflection of recommendations by the federation and presents a pragmatic approach to policing based on experience. However, a freedom of Information request shows that Patel had lied to the house, in the request the Federation stated: “We did not provide a written submission nor were we consulted on issues of protest related legislation.”. Consequently, it appears that the Police Federation was not consulted over legislation that would determine their ability to restrict freedom of speech, and that the Home Secretary knowingly misled the house about how the bill was developed.

     Wide-scale opposition to the bill where seen in the ‘Kill the Bill’ protests, calls from over 700 academics to halt the progression of the bill, and a statement by over 245 rights organisation that called the bill an “attack” on fundamental rights. A poll by the Liberty Group showed that over ⅔ of the UK population oppose the bill, supported by the Parliamentary Joint Committee on Human Rights, which found the bill to be “oppressive and wrong”. Accompanying this criticism has seen a call from three UN Special Rapporteurs, and European Human Rights officials for the Government to change course on the direction of policing reforms. 

Sarah Everard Vigil 

     Fear of extensive police powers has grown after officers broke up a London vigil for Sarah Everard, who was kidnapped, raped and murdered by police officer, Wayne Couzens. The vigil quickly became violent as officers attempted to disperse sitting/kneeling figures, proceeding to handcuff numerous individuals despite no apparent escalation from those attending the vigil. After footage emerged of the vigil, Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services quickly cleared all officers present of wrongdoing; resulting in a  parliamentary inquiry which found police had breached “fundamental rights” of those attending the vigil. On reflection, Geraint Davies MP, Chair of the All Party Parliamentary Group on Democracy and the Constitution, stated that “the police must not become the enforcement agency of the state against those who choose to publicly and collectively call for change –  political, economic, social or environmental.”.

Official Secrets Act (OSA) Reform

     Planned reforms by the Home Office to the 1989 Official Secrets Act suggest that journalists should be treated the same as those who commit espionage offences or leak sensitive information. This could see journalists being sent to prison for 14  years if their reporting is deemed to threaten the Government, it would also see the removal of the Public Interest Defence in court; a defence that would previously allow individuals to argue that their reporting of any sensitive information was in the public interest and outweighed any potential damages.  The Home Office argues that the defence acts as a “barrier to potential prosecutions” and that journalists will “remain free to hold the Government to account”. Criticism persists, with Alex Bailen QC stating, “Responsible, conscientious people must not be criminalised for exposing wrongdoing.”.  

     The reforms also see a reduction in journalistic protections under the 1984 Police and Criminal evidence Act, of particular concern after a raid by the information commissioner to find the source of the Hancock-Coladangelo scandal; as well as police raids of Belfastian journalists Barry McCaffey and Trevor Birney’s homes and offices. A judge later found the warrant for these raids was  “woefully short of the standard required”. This has resulted in the general secretary of the National Union of Journalists, Michelle Stanistreet, stating that the union is increasing its presence  “to defend journalists and journalism that operates in the public interest”. Maurice Franklin, director of the Freedom of Information campaign, argues that these changes will have “enormous consequences” that are “disproportionate and oppressive”. This diminishing of protections for journalists has been defended by the Home Secretary, arguing that Journalism that exposes sensitive information can benefit foreign states and actors that wish to harm the UK.

      In addition to this, the reforms also include proposals for ‘Civil Orders’, which would create “ a power of last resort that would enable [the Government] to impose a range of restrictions on particular individuals”. This would include “measures to prevent an individual associating with certain people or from visiting specified sensitive locations”. These new powers would be controlled by the executive rather than the courts, removing the needs for warrants and giving the executive great power to remove freedom of speech and freedom of association with little scrutiny for other branches of government.

     Proposals to reform the OSA are inline with current Home Office legislation, diminishing speech rights within the UK, and using ambiguous terms that allows the Government power to determine what they deem to be in breach of the law. It is expected that reforms will go forward unaltered despite mounting criticism, following the precedent being set by the Online Safety Act and Policing Bill.

Summary

       As Covid-era legislation has been seen to be rushed through Parliament, it is expected that the Online Safety Bill, Policing Bill and OSA reforms will pass with little scrutiny and limited amendments. Critics claim that these bills aim to give the government excessive powers over individuals rights as well the power to determine what is legal based on a changing interpretation of ambiguous terms in the law. It is expected that protections for journalists and freedom of speech will continue to be diminished, as Johnson-Patel era policy places a greater focus on the security of Government over individual rights of citizens.  While watch groups, the NUJ and academics continue to push back against Government plans, they have failed to halt the proposed legislation and are unlikely to impact it as it passes through both houses. While the Government claims it will use its’ new powers responsibly, fears emerge that the executive is gathering Patriot Act-esc powers that it can exercise with little scrutiny from other branches of government, the media or the wider public.

Note in post: After writing this article, the Police Federation held a vote of no confidence in the Home Secretary due to a continued pay freeze for officers. Criticism has suggested that this is reflective of the troubled relationship between the current Home Secretary and her Police Force.

References

Human Rights Act 1998 (legislation.gov.uk)

Universities to comply with free speech duties or face sanctions – GOV.UK (www.gov.uk)

New UK internet law raises free speech concerns, say civil liberties campaigners – POLITICO

Campus free speech law in England ‘likely to have opposite effect’ | Higher education | The Guardian

How the UK government is launching an attack on freedom of speech (newstatesman.com)

The Online Safety Bill – Impact Assessment (publishing.service.gov.uk)

Index-on-Censorship-The-Problems-With-The-Duty-of-Care.pdf (indexoncensorship.org)

Policing bill: A step towards authoritarianism – Politics.co.uk

POLL: TWO THIRDS OPPOSE GOVERNMENT’S PROTEST PLANS – Liberty (libertyhumanrights.org.uk)

Priti Patel ‘misled’ MPs over plans for protest crackdown | Priti Patel | The Guardian

Police handling of Sarah Everard vigil breached ‘fundamental rights’ | Evening Standard

Official Secrets Act reform could see journalists treated like spies (pressgazette.co.uk)

How a proposed secrecy law would recast journalism as spying | Duncan Campbell and Duncan Campbell | The Guardian

Info chief under fire for raid to find Sun Matt Hancock scoop whistleblower – Press Gazette

Police Federation of England and Wales no longer has confidence in Home Secretary Priti Patel, calling pay freeze ‘final straw’ | UK News | Sky News

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