Shiner on The Right to Freedom of Thought in the United Kingdom @CambridgeUP @bethanyshiner14 @OxfordLawFac

Bethany Shiner, Middlesex University, London; University of Oxford, Faculty of Law (Students); is publishing The Right to Freedom of Thought in the United Kingdom in The Cambridge Handbook on the Right to Freedom of Thought (Patrick O’Callagan and Bethiny Shiner, Cambridge University Press, 20250.

There are significant historical markers in the English common law (England being the dominant (common law) nation within the UK) where the semblance of a right to freedom of thought can be traced as well as an underlying value. As will be discussed, influential constitutional theorists including Dicey recognised ‘the right to freedom of thought’ in terms of a liberty to think, express and read what one likes primarily in relation to political dissent and religious belief. Furthermore, English philosophers including Wollstonecraft and Mill have been instrumental in shaping theories of mind, liberalism, freedom, and democracy. The history of imperial ideology and monarchical rule presents a fascinating and critical lens through which to observe the development of this right. It is also an important lens when considering the various laws and practices that have punished thought, particularly the ‘mind crimes’ of treason and sedition. Conversely, the prohibition on torture protects freedom of thought in the sense that it absolutely prohibits cruel and inhumane treatment motivated by the aim to extract or punish the thoughts of a victim. This chapter will consider some of these factors as significant influences upon the UK’s development and protection of the right to freedom of thought which, in the absence of any guidance from the ECHR and in line with its legal traditions, is protected in law in a piecemeal fashion akin to an approach based on liberty and non-interference rather than the positive obligatory rights-based approach encouraged by the ECHR and HRA. Ultimately, the view presented in this chapter is that the creation of space (in law) for thought was a battle against monarchical and state power – frequently in the context of religion which must be understood as a having been a marker of either persecution or privilege. During this battle for individual liberty against the state, the common law (and constitution) developed mechanisms to limit arbitrary power and hold abuses of power to account. As such, freedom of thought, like freedom of speech, is the liberty to speak truth to power, to dissent, and to organise an alternative form of governance. Yet, looking at contemporary legislation, there is a clear acknowledgement of the forum internum – broadly understood as the inner realm of the mind – as a subject necessitating protection, albeit, not under the label of human rights. Although fragments of statute law protect the forum internum, the courts have yet to make a clear determination on this.

Download the essay from ssrn at the link.