Affinity’s response to the Joint Committee on Human Rights call for evidence

The UK Parliament’s Joint Committee on Human Rights is investigating the effects upon freedom of expression of hate speech law. A call for evidence was made and Affinity has submitted comment. Please pray for the Committee as it considers the responses, that the UK will not continue to lose these freedoms which have for so long been a cornerstone of our society.

Evidence from Affinity

Introduction

Affinity is a fellowship of Churches, evangelical Agencies and Christians. We are primarily a fellowship of churches working together in partnership but also bring together evangelical agencies and individual Christians to work together to advance the cause of the Gospel. We are open to, and exist to serve, all evangelical churches, regardless of any other distinctives.  We are concerned that traditional religious freedoms and the rights of Christians to express and discuss their views have been and are being eroded.

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

Yes.

The laws on hate speech need to be updated and clarified because they are being used to stifle and close down reasonable and legitimate discussion on differences of view on a wide range of subjects.  Aspects of the Christian message and its application in everyday life have always been ‘offensive’ to some.  However, increasingly in recent decades we see moves to close down discussion or expression of views on the basis that they are unacceptably offensive or hateful, or are judged unworthy of debate, when in fact people are just offended or simply disagree. 

We are all aware many people hold their views passionately, but passion should not be exercised through the constrain of hate laws in order to short-cut legitimate debate and discussion which informs, explains and persuades with the potential to change minds. Legislation should never be used to force our beliefs.

For example, there is increasing pressure to celebrate LGBT lifestyles in the workplace and larger society. These lifestyles are often not consistent with mainstream or historical beliefs on marriage and sex and they impact in particular on those with religious beliefs.  The inconsistencies are not aberrations of history to be dismissed by a new self-evident paradigm but are, for Christians, deeply rooted in Biblical truth, divine authority and demonstrable practical benefit which have been worked out across millennia and have served individuals and societies well for centuries.  

Differences need ordered, informed sensible debate if they are to be properly understood and the weaknesses and strengths of both sides identified and acted upon. Sometimes differences simply have to be accepted and lived with.  Informed discussion through personal contact can help that process; ‘hatred’ brewed in the cauldron of hate speech law from impassioned ignorance and wilful polarisation does not.    

A hate speech law which is so indiscriminate that it takes out both serious hate crime and insult and annoyance and which can be readily adapted to bypass serious debate needs review. It is natural for the limits of new law to be tested and that overreactions will occur.  It is important that the overreactions are identified and the law is recalibrated to exclude them.

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

No.

The guidance and definitions associated with hate speech is confused and allows for a low threshold of interpretation.  It undermines freedom of expression.

For example, College of Policing guidance says: “Hate crimes and incidents are taken to mean any crime or incident where the perpetrator’s hostility or prejudice against an identifiable group of people is a factor in determining who is victimised.”  Regarding hostility it says: “The CPS gives the following guidance to prosecutors: In the absence of a precise legal definition of hostility, consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment, and dislike.”  It also says: “The term ‘hate’ implies a high degree of animosity.” [ https://www.app.college.police.uk/app-content/major-investigation-and-public-protection/hate-crime/responding-to-hate/ ].

Ill-will, ill-feeling and unfriendliness, for example, are not consistent with a high degree of animosity.  ‘Unfriendliness’ sets a very low threshold for a hate incident. 

The CPS guidance clearly points to the difficulties when it says there is no precise legal definition for hostility. 

Guidance also says: Where a hate incident is reported, it must be flagged as a hate crime or non-crime hate incident if the victim or any other person perceives that the incident was motivated wholly or partially by hostility, even if it is referred to a partner to respond.”  And, “Interventions where no criminal offence has been committed must be carefully considered so that any impact on the right to freedom of expression is taken into account.” [ https://www.app.college.police.uk/app-content/major-investigation-and-public-protection/hate-crime/responding-to-non-crime-hate-incidents/ ]

Perceptions of, for example, unfriendliness where no criminal offence has been committed could lead an incident to be recorded as a hate incident. Such perceptions could be widely subjective. There appears to be little guidance on how the right to freedom of expression should be taken into account in these and similar situations. 

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

Yes.

Councils have the power to make Public Spaces Protection Orders (PSPOs) to ban any activities they consider to have a detrimental effect on the lives of others.  They were introduced so that councils could address anti-social behaviour in their local areas.  Their purpose is to focus on identified problem behaviour in a specific location covering “activities that have taken place [and] have had a detrimental effect on the quality of life of those in the locality, or it is likely that activities will take place and that they will have a detrimental effect; the effect or likely effect of these activities is, or is likely to be, persistent or continuing in nature…”

[ https://www.local.gov.uk/sites/default/files/documents/10.21%20PSPO%20guidance_06_1.pdf ]

Anti-social behaviour is traditionally understood.  However, Liberty reports “Hundreds of PSPOs have been created. Some have been relatively mundane: for example, many PSPOs simply transfer and incorporate alcohol restrictions, which were already in force under the now-defunct designated public place order regime. …Hillingdon Borough Council has also attracted attention for introducing eight separate PSPOs, which all prohibited gathering in groups of two or more people. North East Derbyshire District Council made it an offence to be in possession of golf equipment within the area of its PSPO.” [ https://www.lag.org.uk/article/205493/challenging-public-spaces-protection-orders ]

The Manifesto Club observes that “Since 2014, there have been 89 PSPOs restricting free expression or association, in 67 councils. This means that nearly 20% of all councils in England and Wales have introduced an order restricting free expression or association in the past five years, including 14 restrictions upon charity collection, 16 restrictions upon standing in groups, and 4 bans on handing out leaflets.” [ http://manifestoclub.info/the-silencing-of-public-space/ ]

Councils are using these orders outside of their intended use of addressing commonly understood anti-social behaviour.  There is, therefore, a need to review their use and ensure that, if used at all, it is strictly for their original intended purpose.  They should not be used to limit freedom of expression or give licence to councils to pursue their choice of moral or political causes.    

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?

It is established practice for employers to have policies and procedures for employees covering company reputation, ethos, information and the expression of views relating to company matters. These naturally vary depending on the employer and the nature and business of the organisation. These have been accepted and understood and have worked well over decades.

There is a growing evidence, however, that employees can be disciplined or lose their jobs for expressing private views on social media which are simply unfashionable or for taking a view in a work context which calls into question the validity of some aspects of identify politics. This is perilous trend.

[ https://www.bbc.co.uk/news/entertainment-arts-49881027 ; https://www.bbc.co.uk/news/uk-england-gloucestershire-47946755; https://www.foxnews.com/faith-values/christian-doctor-fired-gender-pronoun; https://christianconcern.com/cccases/barry-trayhorn/ ]

The ideas and application of identify politics are new and still being worked out, but already they are being treated as orthodox and obvious and established truth, when they are not. The purpose of freedom of expression is in part to allow these and other new views to be discussed, to explore their validity, to compare and contrast them with established orthodoxy and to allow people over time to assimilate or reject them. 

The employment arena is not the arena in which these debates should find their practical expression ahead of clarity and understanding of the issues and the substance or otherwise of the claims being made.  Employers should not be forcing, directly or indirectly, adherence to new orthodoxies by punitive means; this simply short-cuts and stifles thought, the reasonable exchange of ideas and the introduction of measured, practical and fair protections.

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

Yes.

Firstly there needs to be clarity of purpose. The law exists to allow the open expression, exchange and examination of different ideas and viewpoints. This exchange should take place in such a way as to allow others to freely change their opinions without force, threat or coercion. 

People need to better know and understand their rights to freedom of expression but they also need to be helped to understand how best those rights can be exercised to meet their intended purpose – by “…talking and listening.”

[ https://dfemedia.blog.gov.uk/2020/12/11/freedom-of-speech-is-one-of-those-fundamentals-that-universities-are-looked-towards-to-uphold-and-protect-the-education-secretary-on-the-importance-of-free-speech/ ]

This and other attempts to clarify, support and promote freedom of expression in our universities are encouraging and serve as good examples for wider application.    

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

It is difficult to tell quantitatively.

For example, Civitas published a report in December 2020 entitled “Academic Freedom in Our Universities: the Best and the Worst”.  Their review covered 137 registered UK universities over the period 2017 to 2020. This followed “a new and unique approach, methodology and data to measure restrictions on free speech.”  Headline findings include:

Most Friendly. 19 of the universities (14%) have allowed some restrictions to free speech in its actions and regular policies but not at the level which might warrant external intervention.

Moderately Restrictive. 70 of the universities (51%) are not performing as well as they should and the Office for Students (OfS) should tell the university how it could improve.

Most Restrictive. 48 of the universities (35%) – including the three highest ranked UK universities – are performing badly on free speech and the government should take some action to resolve the issues by a change of policy and legislation.

The universities were measured against fourteen criteria which included:  Free speech curbed by a perceived transphobic episode; No. universities in which curbs to free speech are due to social media activism; Average number of restrictions imposed on free speech in Free Speech Policy; Universities listing 30+ restrictions in their student and staff Codes of Conduct; Universities without an External Speaker policy imposing restrictions.

Other significant findings include:

89% of universities have a policy on bullying and harassment in which speech can be curbed, for example, by claims to personal offence, unwanted conduct, or conduct which is reported as ‘insulting’, even in cases where it would ‘undermine’ an individual or create an ’offensive environment’.

93% of universities host IT Regulations or social media policy in which written text is limited. A common example is a restriction on sending content which is deemed offensive in reference to someone’s gender reassignment, sexual orientation, political beliefs, national origin or maternity.

81% of universities have an ‘Equal Opportunities policy’ which is restrictive of speech deemed offensive.

93% of universities list in their student and staff Code of Conduct a series of unacceptable speech acts. Overall, 83 of 137 universities (64%) had Codes of Conduct placing over 30 levels of practical restrictions on free speech. [ https://www.civitas.org.uk/publications/academic-freedom-in-our-universities/ ]

The Spiked report of December 2018 found:

54% [62] of institutions were ranked Red (c.f. Civitas –  Most Restrictive), meaning they actively censor speech by banning certain views from being expressed on campus and / or ban specific texts, speakers and groups from campus on the basis of their content / views.

40% [46] were ranked Amber (c.f. Civitas – Moderately Restrictive), meaning they chill speech through unnecessary regulation, burdensome speaker-vetting procedures or guidance warning students against engaging in vague categories of expression – for example, ‘offensive’ or ‘provocative’ speech.

6% [7] were ranked Green (c.f. Civitas – Most Friendly), meaning they place no significant restrictions on speech, as far as we are aware.

[ https://media.spiked-online.com/website/images/2019/02/21153835/FSUR-PACK-2018.pdf  ]

Differences in approach, definitions, etc., have to be taken into account but the two reports don’t suggest improvement.  In addition, it is suspected that significant numbers of examples go unreported.  Widely reported national cases and notable local cases will have a chilling effect which is likely to inhibit free expression and which is difficult to measure.

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

No.

It seems clear that at the heart this issue is a clash of ideologies.  For some, freedom of expression does not exist; it is simply the manifestation of a power play.  Talking, listening, understanding and persuading are just the outdated power tools of an outmoded elite.  Force and coercion combined with a weaponised vocabulary are believed to be the only legitimate and effective implements of negotiation. This is being worked most obviously in the latest brand of identify politics.  

For example, those who seek to argue against same-sex relationships or question or examine transgender systems of thought are labelled homophobic or transphobic to cast them as bad and unworthy of further consideration.  Traditional beliefs argued over and established over centuries are quickly dismissed because they do not fit well with the new ideologies.  Those who cling on to the ‘old’ views must be punished. 

The scale of the problem is indicated by statistics from the Christian Legal Centre.  Last year they received 895 enquiries from Christians a significant number of which came from those who were facing or had faced disciplinary action in relation to homosexuality and gender identity. [https://committees.parliament.uk/writtenevidence/15642/pdf/]

The debate across these boundaries is often played as a zero sum, gain or loss game; if there are winners then there must to be losers.  As a consequence, Christians who seek to take care not to offend find themselves openly and freely condemned for their traditional beliefs because they must be the losers.

Affinity, January 2021

(Image: “UK Parliament (Palace of Westminster)” by michael_d_beckwith is marked with CC0 1.0)