If Gavin Williamson is serious about protecting free speech, he needs to look well beyond Universities



Last weekend, The Sun newspaper ran a leader in defense of free speech. It called it ‘the foundation stone of our democracy’ and said the push-back to protect it ‘must come from the adults running colleges, schools, public bodies and companies’. The Sun questioned whether they would have the courage to act. ‘If an 80-strong Tory majority and the ballot box destruction of the hard-Left last December 12 doesn’t give them the strength, what will?’ Sadly, The Sun understates our difficulties. We need more than individual adults taking courage and ‘growing a spine’ to protect free speech.

The man to help us may be the Secretary of State for Education, Gavin Williamson. Last week he announced that if Universities don’t take action to protect free speech then the government will. He reminded us that the government committed itself to strengthening free speech in its recent manifesto. He said ‘I believe we have a responsibility to do whatever necessary to defend this right’. 

I am pleased that Williamson recognises the need to do ‘whatever necessary’ to defend free speech. Because he needs to start by looking well beyond our Universities. If he wants to get to the heart of current threats to our freedom of speech he needs to start by looking at the practices and policies of the Crown Prosecution Service (CPS) and The College of Policing. Specifically, he need to look at the phenomenon of ‘hate incidents’. 

A powerful example comes with the recent prosecution of a young autistic man, who, upon seeing a trangender police officer on patrol shouted ‘is it a boy or is it a girl’?.

You might think a police officer could take a yob in their stride. But for his audacity, Declan Armstrong, aged 19, who has been diagnosed with Aspergers and suffers from anxiety and depression, has been put under a nightime curfew lasting 12 weeks and requiring him to stay home between 9pm and 7am. He was ordered to pay £590 – including £200 compensation to the police officer. The disability rights group, Action for Asperger’s, has condemned his prosecution. The National Autistic Society’s Guide for Police says that people on an autistic-spectrum may ‘speak honestly to the point of bluntness or rudeness’. 

Nevertheless, Edward Marsh of the CPS says ‘Comments deliberately targeting a person in this way have no place in modern society’.The District Judge, Robert Lowe, confirmed that his sentence had been uplifted from a low level to a medium-level community order because of its ‘transphobic nature’. 

Armstrong’s prosecution arises from the Crown Prosecution Service’s guidance on ‘hate incidents’. It has repeated this guidance most recently in a document prepared for schools to combat ‘LGBT+ bullying and hate crime’.  

The CPS says that a transphobic incident is ‘Any incident which is perceived to be … transphobic by the victim or by any other person’.  The CPS tells us that gender identity is ‘a person’s sense of themselves as being a boy/man, girl/woman, both or neither. It doesn’t provide any science behind this claim. Nevertheless if any of us challenge it publicly, we may find ourselves accused of a ‘hate incident’. See more detail on the CPS’s guidance here

Harry Miller is someone else who has been accused of hate incidents. His tweets were deemed to be such by the Humberside Constabulary when he questioned whether a transgender woman could really be a woman. Miller now has an official police record stating he has committed ‘non-crime’ transphobic hate offences.

As a result of his treatment, Miller has, heroically, ‘grown a spine’ and, last autumn, sought a judicial review hearing in the High Court. He challenged the ‘Hate Crime Operational Guidance’ issued by the College Of Policing. This states that a comment reported as ‘hateful’ by a ‘victim’ must be recorded ‘irrespective of whether there is any evidence to identify the hate element’. The guidelines say police should also pursue ‘any non-crime incident which is perceived, by the victim or any other person, to be motivated by hostility or prejudice against a person who is transgender or perceived to be transgender’.( The same rules apply to matters of race, religion, sexual orientation, and disability.)  

The result of Miller’s judicial review is expected any day now. But after ten years of Conservative-led Government, free speech in this country is in danger. When an incident can be judged to be a hate incident based purely on the perception of ‘the victim or any other person’, we are relying only on the good will and common sense of the British public to hold back an avalanche. Scotland Yard, alone, already has a staggering 900 hate crime officers. What a job.

Whichever way Miller’s case goes, there will be much work to do to roll back the architecture of the ‘hate incident’ industry which threatens our freedom to speak, sometimes awkwardly, sometimes offensively, sometimes in a way that shines new light. Perhaps Gavin Williamson will be the heroic individual who will grow a spine and take on this task. But to succeed, his remit needs to be far wider than Universities. 

Caroline Ffiske is a Conservative commentator and columnist at The Conservative Woman. Follow her on twitter: @carolinefff