This is a long blog post. Can you summarise it in a line?

I can. England is not a free country.

When quoting Winston Churchill or the Bible verbatim on a street corner is enough to get you arrested and charged with a crime, the cause of freedom isn’t merely losing. It has lost.

And if the UK can slide quite as far as it has, much of it taking place in the last 15 years, so can any other English-speaking country. This includes the United States.

Below, I set out many political rights Americans have that folks in the UK do not in a handy tabular format, by reference to England and Wales, one of the UK’s three constituent jurisdictions (the other two being Scotland and Northern Ireland). I do this to demonstrate just what happens when the political left wins the battle to restrict civil liberties, and in particular free speech, as they have in the United Kingdom and indeed all across the European Union.

What’s the problem?

In America, you can do all kinds of fun stuff and hold all kinds of opinions. In the UK, doing the same stuff or holding the same opinions will land you in jail.

I grew up in America. I then moved to the UK for 15 years. Now I’m back in America, because living in the UK sort of sucks.

I don’t get it. The UK is a democracy/free country, right?

Not to an American. The UK elects its rulers, but once elected, it imposes very little in terms of limits on their rule.

Endowed with nearly unlimited power, long has the institution of Parliament been tasked with limiting the political freedoms of the British people.

The pace of change has been slow enough that the average Briton, who knows nothing else, fails to notice that much of anything has changed in his daily life. But when one approaches this from an American baseline, the changes are stark. One observes a consistent and escalating trend of increasingly aggressive government infringement on basic political freedoms (such as freedom of association or free speech) that began with enactments that entered into force under the Labour government of Tony Blair, starting with the country’s ban on handguns in 1997, and has continued unchecked ever since.

How about a worked example?

Sure thing. Let’s take what could be a fun Saturday night in America, and, putting Scotland and Northern Ireland to one side for now as these are separate jurisdictions, see how many English crimes we can commit by doing what, for a wholesome, well-adjusted, baseball-and-apple-pie American, would be completely normal, healthy, and legal activities:

4:00PM: heckle Ron Paul supporters outside a political rally. (See: case of : heckle Ron Paul supporters outside a political rally. (See: case of Bethan Tichborne (below), Public Order Act 1986, s. 4A)

4:30 PM: Holding a megaphone, I ss. 34-42 of the Anti-social Behaviour, Crime and Policing Act 2014; Part 3, : Holding a megaphone, I quote Winston Churchill on the steps of a public building. An officer says a member of the public is offended by the language, and orders me to leave. I stay put. (Part 3, Public Order Act 1986 ; Article 10(2) of the Human Rights Act)

4:50PM: While I’m there I have a banner that says “Libertarians are, in my reasoned opinion, a bunch of slack-jawed troglodytes.” An officer suspects someone could find the banner offensive. It is seized… much as the police threatened to seize anti-monarchy banners and arrest anyone carrying them during the Royal Wedding. (ss. 4A(4), 5(4), Public Order Act 1986 Article 10(2) of the Human Rights Act )

5:00 PM: Disappointed, I leave. I have a multi-tool with a locking blade in my front right pocket. Because, y’know, it’s useful, in case I need to set up a campsite, fix something, open a can, tighten a screw, peel an orange, whatever. …Uh-oh! The Crown treats its subjects like Americans treat four-year-olds (no handling of sharp objects) meaning that my chosen penknife is : Disappointed, I leave. I have a multi-tool with a locking blade in my front right pocket. Because, y’know, it’s useful, in case I need to set up a campsite, fix something, open a can, tighten a screw, peel an orange, whatever. …The Crown treats its subjects like Americans treat four-year-olds (no handling of sharp objects) meaning that my chosen penknife is illegal to carry – and one of the few areas of British criminal law where the government wants to impose mandatory minimum sentencing , too. (Prevention of Crime Act 1953, Offensive Weapons Acts, Knives Acts)

5:45 PM: Now would be a good time to mention that, as a responsible citizen, duly licensed, I’ve been carrying my Glock pistol discreetly in a holster inside my waistband. You know, in case something bad happens and I don’t have the opportunity to unlock my phone, dial 999, explain what the problem is, then wait 15 minutes for the police to arrive. Nothing bad has happened today, so I decide to meet up with a couple of buddies to go target shooting at the local gun range. (This is a big no-no in England pursuant to the Firearms (Amendment) (No. 2) Act 1997, Offensive Weapons Acts, etc.. Weirdly, however, gun crime still seems to be a thing despite handguns having been made illegal, in roughly equivalent rates to several U.S. states e.g. New Hampshire and Maine.)

7:00 PM: go home and pick up my copy of Che Guevara’s Guerrilla Warfare on my bookshelf. I just ordered it from Amazon Prime. (see: cases of : go home and pick up my copy of Che Guevara’s Guerrilla Warfare on my bookshelf. I just ordered it from Amazon Prime. (see: cases of Rizwaan Sabir and Ryan Lavery , ss. 57/58 of the Terrorism Act 2000)

7:15 PM: The purchase is deemed suspicious; police are alerted. Without needing to obtain a judicial warrant, they access my internet connection and phone records – as they do, without judicial warrants, 500,000 times each and every year. (See: Section 61, : The purchase is deemed suspicious; police are alerted. Without needing to obtain a judicial warrant, they access my internet connection and phone records – as they do, without judicial warrants, 500,000 times each and every year. (See: Section 61, Investigatory Powers Act 2016 ).

10:00 PM: I give aforesaid copy of Guerrilla Warfare to that friend for his reading enjoyment (s. 2(4) of the Terrorism Act 2006 – can be committed recklessly).

11:30 PM: I buy a drink for that friend when we’re both a bit drunk (yep, getting drunk in a bar is illegal – see : I buy a drink for that friend when we’re both a bit drunk (yep, getting drunk in a bar is illegal – see Section 142 , Licensing Act 2003) as we debate potentially illegal ideas we read in our potentially illegal book (continuing violations of the Terrorism Acts 2000 and 2006).

2:15 AM: I think better of being offensive on Twitter, knowing how the Crown Prosecution Service has given over-broad effect to the Public Order Act 1986 and the Malicious Communications Act 1988 in recent years. Instead, I figure cations Act 1988) : I think better of being offensive on Twitter, knowing how the Crown Prosecution Service has given over-broad effect to the Public Order Act 1986 and the Malicious Communications Act 1988 in recent years. Instead, I figure I should write something on my Facebook wall which is, in general terms, mildly offensive but not directed at a particular person. And it’s among “friends,” so no harm done, right? (Nope! Wrong again – Section 127, Communications Act 2003; ss. 1(a)(1), 1(b), Malicious Communi

6:30 AM: A loud knock on my door. Two constables are there. They hiss at me: “ A loud knock on my door. Two constables are there. They hiss at me: “ You are under arrest.

Any of the speech or conduct on this list is easily enough to get you arrested in England.

None of it should ever get you arrested in the United States.

So what does an unfree country look like?

“There’s freedom of speech to a degree, but not to that degree.” “You are under arrest.”

Wow. That sucks.

Yes, it does.

What does a free country look like?

“This is what I call dedication to the cause, out here in the rain!” “I’m out to catch bad guys, not people exercising their Constitutional rights.” “Right on. Well guys, be safe, watch out for traffic… Stay dry if you can, all right?”

Freedom is only ever a generation away from extinction.

We should do what we can to keep America free.

In the UK, my friends who have an awareness of these infringements of their political rights view them through the same sort of lens they might use to justify staying with an abusive partner, or a job they hate. With resignation.

It doesn’t have to be that way – but it will take twenty or thirty years of concerted effort to win back what they’ve lost. If you’re English, get informed so you can speak intelligently about how god-awful your civil rights situation actually is.

Learn what the legal restrictions are on your freedom. Call for the repeal of them all.

If you’re American, look to England as a cautionary example. Make the censors fight for every inch of ground.

Give them nothing. Because as the English example shows, if you give them an inch, they’ll take everything. Including your ability to complain or fight back.

I will keep these tables updated (and will add to them over time). Hit me up on Twitter at @prestonjbyrne if you have any suggestions for additions/cases/new categories.

1) Freedom of speech and expression

2) Freedom of Association and Assembly

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? SOURCE OF INFRINGEMENT EXAMPLES Freedom of Association 1st Amendment, NAACP v Alabama No. Article 11(2), European Convention and corresponding provision of the UK Human Rights Act 1998 Section 12, Terrorism Act 2000 Part II, Terrorism Act 2000 Proscribed Organisations (Applications for Deproscription etc) Regulations 2006 (SI 2006/2299). The Government has the power to ban, and ban membership in, organisations. An organisation may appeal this designation but this process is not judicial in nature. Freedom of Assembly 1st Amendment No. Article 11(2), European Convention and corresponding provision of the UK Human Rights Act 1998 Part II, Public Order Act 1986 Part II, Terrorism Act 2000 ss. 34-42 of the Anti-social Behaviour, Crime and Policing Act 2014 Meetings of “terrorist” organisations are banned unless “ genuinely benign ,” i.e. “a meeting at which the terrorist activities of the group are not promoted or encouraged, for example, a meeting designed to encourage a designated group to engage in a peace process or facilitate delivery of humanitarian aid where this does not involve knowingly transferring assets to a designated organisation.” Basically this is a movie night where they all get together and watch Bridget Jones’ Diary.

3) Press freedom

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES Freedom of expression (whistleblowing/national security) 1st Amendment No Terrorism Act 2000, Schedule 7 (detention) Terrorism Act 2000, Section 58 (possession of material likely to be useful to terrorists) Provisions of RIPA 2000 and draft Investigatory Powers Bill enabling government to either (a) decrypt on demand (see Key Disclosure Law, below) or (b) see privileged communications (s.189 of draft IPBill) between journalists and sources Section 5, Official Secrets Act 1989 All provisions listed above restricting political speech which would allow a journalist to take a position favourable to an armed combatant in any conflict disfavoured by the British government (particularly glorification/support for terrorism under s. 12 Terrorism Act 2000 and ss. 1-2 Terrorism Act 2006) Detention of David Miranda Unspecified threat of legal action relating to possession of leaked NSA data and destruction of hard drives held by the Guardian newspaper under the supervision of GCHQ Freedom of expression (super-injunctions) 1st Amendment No Common law rules allowing gag orders which prohibit mention of their own existence by a person, even if the information is publicly known The Guardian’s reporting on Trafigura Freedom of expression (reporting true statements of fact about private persons) 1st Amendment No Article 10(2) ECHR as incorporated by the Human Rights Act 1998 combined with Article 8 ECHR has trumped free speech rights A v B plc Campbell v Mirror Group Newspapers 2004 UKHL 22 PJS v News Group Newspapers The European formulation allows the courts to interfere with private parties’ speech rights to protect private parties’ privacy rights. The US formulation generally follows the principle that privacy rights exist to protect people from the state. The American right to privacy cannot be used to silence others’ First Amendment rights although private remedies for e.g. breach of privacy are available (see: Hulk Hogan/Bollea v Gawker).

4) Searches, seizures, and surveillance

“Only in a police state is the job of a policeman easy.” -Orson Welles

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? SOURCE OF INFRINGEMENT EXAMPLES Reasonable expectation of privacy + warrant requirement inside the home (generally) 4th Amendment No . The United States generally requires either (a) a judicial warrant issued upon probable cause or (b) one of a number of very well-defined common law warrant exceptions. These protections strengthen in relation to, e.g., a person’s computer or mobile phone, or inside the home. Violations of these rights are punished in the US by the exclusion of any evidence obtained as a result of the breach, a judicial rule known as the “exclusionary rule.” The UK has no such corresponding protection (see below) and therefore no corresponding right. Police and Criminal Evidence Act 1984 , s. 1(2) Article 8(2) of the European Convention, as set out in the Human Rights Act 1998. RIPA 2000 (all over the place. This Act is a travesty.) Part 7, Draft Investigatory Powers Bill (PDF) (Bulk Personal Dataset Warrants) (proposed) Part 7, Draft Investigatory Powers Bill (Bulk Interception Warrants) (proposed) Section 39, Investigatory Powers Bill (overseas requests for interception) (proposed) Section 189, Draft Investigatory Powers Bill (removal of electronic protection) (proposed) And more tbc Re: PACE 1984 s 1(2), the UK follows a “reasonable suspicion” and not “probable cause” standard before effecting a search. This is a much lower standard of proof which would not withstand 4th Amendment scrutiny. Note bulk collection is not really legally authorised in the UK but they’re doing it anyway. The Investigatory Powers Bill is designed to expressly set out and legalise this previously not set out (imv illegal, and if in America, definitely unconstitutional) conduct. Right against unreasonable searches without due process of law – outside the home (stop-and-search) 4th Amendment No. British policemen can search “in anticipation of violence” in some limited circumstances. In the US particularized and reasonable suspicion for a particular person is required before a person may be stopped. Generally the British power to stop is similar to the American power, but in some circumstances e.g. s. 60 (see right) this degree of suspicion is not required. Additionally, British police are not subject to an exclusionary rule which would operate to deter unlawful searches, as is the case in the U.S.. Section 60, Criminal Justice and Public Order Act 1994 ss. 44-47 Terrorism Act 2000 Section 60, in particular, is often used where there is no reasonable prospect of violence occurring. On order of a police officer, the area under a Section 60 order simply becomes a due-process-free-zone… for up to 24 hours. Right against unreasonable searches without due process of law (Digital surveillance and stored communications) 4th Amendment (Devices, internet connection records, etc.) Stored Communications Act, 18 U.S. Code Chapter 121 §§ 2701–2712 Undetermined re: key disclosure pending outcome of U.S. v John Doe No. Post- the Supreme Court’s ruling for Carpenter in Carpenter v United States in 2018 (reasonable expectation of privacy exists in relation to cell phone location data, requiring a warrant issued upon probable cause before police access permitted), the gap between the U.S. and Britain has grown even wider. Part I, Chapter 2; Part II; Schedule I RIPA 2000 Part 3, Investigatory Powers Bill (Authorisations for obtaining comms data) Part 4, Investigatory Powers Bill (Retention of comms data) (Proposed) Part III, RIPA 2000 (UK key disclosure law) Schedule 4, Part 1, Draft Investigatory Powers Bill (detailing authorities able to access communications data without warrant) (proposed) Section 189, Draft Investigatory Powers Bill (removal of electronic protection) (proposed) No warrant, subpoena, or indeed judicial supervision of any kind is required to obtain communications data under that Act. RIPA 2000 grants power to a wide range of agencies to access UK residents’ communications data. Requests made by police alone numbered in excess of 730,000 as of June 2015; other estimates clock the total number of requests in a given year as exceeding 500,000. While bulk collection has been going on for the longest time in both the UK and the United States, in the US it was ruled unconstitutional in Klayman v Obama in November 2015. Bulk collection as Britain does it would clearly be unconstitutional in the US.

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES Right to Privacy Fourth Amendment, Roe v Wade, Griswold v Connecticut Yes but in EU law only Article 8(2) Human Rights Act 1998 RIPA 2000 Investigatory Powers Bill (proposed) See above re: search and seizure. Also recent passage of Investigatory Powers Bill into law as the Investigatory Powers Act likely contravenes EU privacy law as well – see Digital Rights Ireland and Seitlinger and Others.

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? OFFENDING LEGISLATION EXAMPLES Right against unreasonable seizures of property without due process of law (warrantless) Fourth Amendment (Arbitrary property seizure) Varies by state (civil asset forfeiture) No. ss 82-83, Terrorism Act 2000 s. 91, Terrorism Act 2000 (seizure of land and other property by order of Home Secretary) ss. 1-3, Anti-Crime, Terrorism and Security Act 2001 Section 60–60A, Criminal Justice and Public Order Act 1994 Note certain provisions relating to terrorism are civil asset forfeiture statutes, a practice the US has. On either side of the pond CAF is outrageous and should be abolished. Limitations on eminent domain (compulsory purchase) for economic development purposes No federal right under the Fifth Amendment’s Compensation Clause by SCOTUS in the 5-4 decision in Kelo, but enshrined in state law by the majority of the States after Kelo No Part 8, Planning and Compulsory Purchase Act 2004 Government can compel a sale of property to a private entity or individual for economic purposes under US federal law and under English compulsory purchase rules. Following the decision in Kelo vs New London 545 US 469 (2005), which found that “economic development” justifications for property seizure for private land transfers in the style of Compulsory Purchase were constitutionally permissible, these transfers were outlawed or severely restricted in 42 states.



5) Due Process

6) Revocation of Citizenship Rights

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? SOURCE OF INFRINGEMENT EXAMPLES Citizenship permanence rights: Natural-born citizen Section One, Article 2, U.S. Constitution No. A foreign-born (but natural-born) Briton who becomes a security threat can be stripped of citizenship and barred from re-entry if deprivation is “conducive to the public good.” Decision to be made by the Secretary of State on highly subjective criteria. Section 40, British Nationality Act 1981 (Amended) EXAMPLES: To follow. Citizenship permanence rights: Naturalised citizen United States Code Materially different. UK criteria are more subjective than American criteria and thus more amenable to the political winds from time to time. US generally requires either (a) a material misrepresentation of fact when naturalising or (b) either of (i) joining a totalitarian or terrorist organsiation or being a member of the Communist party within 5 years of naturalisation or (ii) an other than Honorable Discharge from the US Armed Services having acquired citizenship through service (a criminal offence). Membership of the Nazi Party an absolute bar to naturalisation and so citizenship can be stripped at any time. Section 40, British Nationality Act 1981 (Amended) EXAMPLES: To follow. Note US criteria are more objective in nature, which is traditionally regarded as more legally sound as it provides certainty and, therefore, a sounder basis for judicial process.

7) Right to keep and bear arms

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? SOURCE OF INFRINGEMENT EXAMPLES Carrying a tool (Screwdriver) Common law, 10th Amendment Depends on intent/whether a “good reason” can be established for carrying the article. Sections 57/58, Terrorism Act 2000. Section 1, Prevention of Crime Act 1953 “Offensive Weapon” means “any article made or adapted for use to causing injury to the person, or intended by the person having it with him for such use.” Meaning a screwdriver is the same as a knife or a firearm, depending on what you intend to do with it. Intent is something which can be constructed by an investigator – and so anything (broomstick, baseball bat, etc.) is potentially an illegal “offensive weapon.” Carrying a tool (plastic spoon, ham sandwich) Common law, 10th Amendment Depends per above. Sections 57/58, Terrorism Act 2000. Section 1, Prevention of Crime Act 1953. When I wrote this blog post in 2016, I included a reference to a spoon as a joke. In May 2019, a London police force tweeted an image of a spoon that it had seized as a “dangerous weapon.” Satire is dead. Carrying a knife (As a tool) Common law, 10th Amendment, subject to local ordinances and state statutes No, with qualifications Carrying knives without reasonable excuse (high threshold – “it’s handy” not enough) is an offence unless (a) a pocketknife with a non-locking folding blade less than 3” (a good way to cut yourself) and (b) carried without intent to use for self-defence. Arrests are made for even this form of legal possession at the discretion of the arresting officer, whether justified or not. See Samengo-Turner (at right) Section 1, Prevention of Crime Act 1953; others See Samengo-Turner (resulting in an acquittal). Am quite certain many cases on similar facts fall the other way and will include these in due course – the point being in Samengo that a trial should never have occurred in the first place in the U.S.. Right to carry (nonlethal and other non-firearm weapons) 2nd Amendment (significant variation by state) No. Carrying most knives of practical utility effectively banned. Swords banned save where antiquities. Carry of “defensive” offensive weapons (e.g. pepper spray) by civilians banned. Stun guns banned. Section 1, Prevention of Crime Act 1953. Penalties increased if no lawful authority or good excuse, or if the article has a pointed blade (see amendments made by sections 2, 3 respectively of Offensive Weapons Act 1996). Before we get to firearms, want to address the “Durr you need a militia, that law dates back to 1787” argument. This no longer holds. District of Columbia v Heller 554 U.S. 570 holds that 2A protects rights to keep & bear arms for use in event of confrontation. I will find the judgment that holds that these weapons may be of “contemporary military utility.” Right to keep arms (firearms) 2nd Amendment Limited variation between states; right to keep arms nearly universal after being guaranteed by District of Columbia v Heller. A few holdouts remain e.g. New York City, which restrict access through stringent, difficult-to-pass permitting schemes (limiting access to arms to the wealthy and well-connected, as is the case in England). SCOTUS granted cert to a challenge to New York City’s regulations in NYSRPA v City of New York which will be heard in late 2019 and ruled on in early 2020. Pistols: nearly total ban (except Northern Ireland and long-barrelled revolvers) Semi-automatic centrefire rifles (eg AR-15, Mini-14): banned. Shotguns, long-barrelled pistols and bolt-action rifles: NO, but contrary to popular belief it is possible to own. As a rule, firearms ownership is largely restricted to landowners and other members of the upper classes which are able to afford to participate in shooting sports or varmint control (and thus can evidence “good reasons” to possess these weapons). Certificates are issued on an extremely restrictive may-issue basis. Firearms (Amendment) Act 1997 , Section 1 (Pistols) ss. 5, 6, 19, 19A, 20, 30A-D, 47, Firearms Act 1968 An armed citizenry is one alternative to mass surveillance for domestic security, as proposed by the director of Interpol Right to carry (firearms) 2nd Amendment (significant variation by state). See here for a summary of the position, which is seeing a move to more permissive regimes country-wide. No. Section 1, Prevention of Crime Act 1953; Section 19, Firearms Act 1968 Intended as a safeguard against tyrannical rule, which the evidence shows was a wise decision. In the 240 years since 1776, we observe that totalitarian regimes do not respond well to polite requests to treat people nicely and more direct methods of persuasion are usually required. (See: Second World War, 20th-century war atrocities, genocides and political mass exterminations.) The American formulation, whatever its shortcomings may be, works extremely well to protect political rights – which, following the 1960s Civil Rights Movement, are now more robust than they were at the founding of the Republic nearly a quarter of a millennium ago. There’s still room to improve. There always will be.

8) States of Emergency

AMERICAN RIGHT PROTECTED BY CORRESPONDING ENGLISH RIGHT? SOURCE OF INFRINGEMENT EXAMPLES Protection from suspension of civil rights during time of emergency Express limitation in the Constitution of: -emergency power permitting felony charges to be brought without empaneling a Grand Jury -empowering Congress to call forth the Militia -suspension of habeas corpus in the event of rebellion or invasion only -authorising states to wage war without federal authorisation if invaded No. Part II , Civil Contingencies Act 2004 “Margin of Appreciation” re: European Convention and Human Rights Act 1998 (general) Unless specifically stated, the Constitution continues to apply in states of emergency falling short of those specifically enumerated (e.g. rebellion or invasion)