The Weekly Round-up: Free Speech: Chilling Effects or Phantom Threats?

22 February 2021 by Hugo Murphy

A number of legal developments put free speech under the spotlight this week.

First, media commentators disputed the significance of the Duchess of Sussex’s successful privacy claim against Associated Newspaper Limited, covered in last week’s round-up. A leader in The Times issued the grave warning that ‘Mr Justice Warby’s judgment creates a precedent that will have a chilling effect on the media,’ not least ‘given that what was at stake…were issues that affect society as whole’. Some media lawyers took a dim view of such alarm, suggesting there was little to be surprised at in Warby J’s carefully reasoned conclusion that no legitimate public interest was to be found in publishing the intimate contents of a daughter’s letter to her father. 

Then came Education Secretary Gavin Williamson’s announcement of a proposed free speech law targeting universities, designed to reverse ‘the chilling effect on campuses of unacceptable silencing and censoring’. Its reception was mixed to say the least. The scheme would impose a statutory free speech duty on universities and student unions, enabling ‘no-platformed’ academics, students and visiting speakers to sue for compensation. Potential infringements would be investigated by a mandated ‘free speech champion’, empowered to recommend various forms of redress. While many academics welcomed the basic principles behind the proposal, others complained that it fomented “phantom fears” of a “cancel culture” crisis. 

This blog notes that the proposed legislation was introduced by the very same Gavin Williamson who, as one of last month’s round-ups explained, recently threatened sanctions against any university that refused to adopt an authorised definition of antisemitism. One wonders if, under the Education Secretary’s combined proposals, universities could find themselves in an unenviable bind when deciding whether to discipline certain vocal academics: fined if they do, fined if they don’t.

In other news:

• On Tuesday, 17 human rights NGOs and community groups – including Amnesty International, Liberty and ARTICLE 19 – published a joint letter condemning the government’s appointment of William Shawcross to review its anti-radicalisation programme, Prevent. Having criticised the programme for fostering discrimination, stifling expression and spreading fear, the organisations now warn that the appointment of Shawcross, who has come under fire for remarks made about Islam in the past, indicates ‘that the UK government has no interest in conducting an objective and impartial review of the strategy, nor in engaging meaningfully with communities affected by it. Instead, it is apparent that the government intends to use this review to whitewash the strategy and give it a clean bill of health, without interrogating, in good faith, its impacts on human rights and fundamental freedoms.’
• Meanwhile, the charity Privacy International published a report criticising excessive surveillance measures used by the Department for Work and Pensions against suspected benefits fraudsters. After gaining access to a 995-page guidance document given to staff, the NGO discovered that the Department uses its powers under the Regulation of Investigatory Powers Act to tail suspects and monitor their social media activity. It also found that an algorithm is used to flag those warranting investigation for fraud – the functioning of which the DWP refused to explain when asked. In response, a DWP spokesperson said that the report ‘grossly mischaracterises the use, and extent, of DWP powers, which are subject to independent scrutiny.’
• Later in the week, an asylum seeker launched judicial review proceedings against the Home Secretary on grounds of false imprisonment, having allegedly been subject to a 23-hour a day curfew in a London hotel. According to the challenge, the claimant has been warned that any absence from his accommodation for longer than an hour may damage his asylum claim, despite the fact that current lockdown rules place no restrictions on the amount of daily time people can spend out of their homes for exercise or essential shopping. The claimant’s solicitors claim that similar constraints are imposed across a number of Home Office designated facilities, all in breach of occupants’ Article 5 rights.

In the courts:

• Good Law Project Ltd & Ors, R. ( On Application of) v Secretary of State for Health And Social Care [2021] EWHC 346 (Admin) (18 February 2021): The Good Law Project won its judicial review challenge to the Secretary of State’s failure to comply with procurement law and policy regarding COVID-19-related contracts. The Court held that ‘in a substantial number of cases, the Secretary of State breached his legal obligation to publish Contract Award Notices within 30 days of the award of contracts’, thereby infringing regulation 50 of the Public Contracts Regulations 2015 and the principles set out in central government transparency policy guidance. Chamberlain J was unimpressed by the Defendant’s argument that a more lenient view must be taken of procurement processes in so chaotic a period, maintaining in his judgment that accountability concerns do not simply evaporate in the face of a crisis. ‘The Secretary of State spent vast quantities of public money on pandemic-related procurements during 2020,’ he noted, ‘and the public were entitled to see who this money was going to, what it was being spent on and how the relevant contracts were awarded.’ 

• Project for the Registration of Children as British Citizens & Anor, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2021] EWCA Civ 193 (18 February 2021): The Court of Appeal upheld the High Court’s ruling that the £1,012 the Home Office charges children to register for British citizenship under the British Nationality Act 1981 is unlawful. A third of the fee is used to cover the administrative costs of an application, while the remaining £640 profit is redirected to subsidise other parts of the immigration system. It was held that in fixing such a fee, which is in some cases prohibitively expensive, the Home Secretary had failed to comply with her statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom when discharging any functions in relation to immigration, asylum or nationality. The Home Office is now required to reconsider the fee, ensuring that children’s best interests are taken fully into account in doing so.

On the UKHRB:

• On Law Pod UK, 1COR’s Emma-Louise Fenelon, Rachel Marcus and Jim Duffy discuss the past year’s many significant judicial developments concerning inquest law.