A British First Amendment wouldn’t save free speech

Does the United Kingdom need a First Amendment? That’s a question I’ve been thinking about a lot recently, given the government’s unrelenting assault on free speech. If Britons enjoyed the same constitutional protections as Americans, it would have been more difficult to prosecute anyone over the summer for social media posts ‘intending to stir up racial hatred’, the crime for which Lucy Connolly, the wife of a Conservative councillor, received two-and-a-half years last week.

The solution is not to pass a new law, but to repeal those laws that limit our freedom of expression

But I remain sceptical. For one thing, there’s no mechanism in our constitution for creating a law that couldn’t be repealed by the next parliament. True, certain laws passed in the Blair and Brown years have proved hard to reverse, such as the Human Rights Act 1998, the Constitutional Reform Act 2005 and the Equality Act 2010, but that’s because they enjoy cross-party support, as well as the overwhelming support of the professional managerial class. I’m not sure a British version of the First Amendment would command such enthusiasm. There might at some future point be a referendum on replacing the Human Rights Act with a British Bill of Rights, one clause of which could resemble the First Amendment, and if the ‘Yes’ side won, it would be difficult for a future government to overturn it. But would it offer more robust speech protections than Article 10 of the European Convention on Human Rights?

Here we get to the heart of the matter, which is whether the Supreme Court of the United Kingdom could be trusted to prioritise freedom of expression over other countervailing rights, such as the right to privacy or – God forbid – a right not to be offended. Free speech will always have to be weighed in the balance against other considerations, which means we would be at the mercy of the Justices on the Supreme Court, which to a great extent we already are.