Free speech, justice and the perils of state overreach
In a free society, the police ought to have neither the powers nor the priorities to pursue people over "non-crime hate incidents". The bar to criminal offences relating to speech must be high indeed.
Preamble — policing in Wycombe
In my many years as MP for Wycombe, I always regarded the duty of any MP to be by default on the side of the police, the emergency services, the armed forces and the intelligence and security services.
That faith was continuously justified by excellent local policing at all levels. The police in Wycombe were and are well-led. Officers deliver policing by consent, overwhelmingly in line with public priorities. If anything, the police have been failed by too little action to take from them the burden of being the final safety net for issues of mental health and other serious problems not primarily of offending.
That is not fair on the often young and demoralised police men and women who want above all to fight crime. The police officers of my acquaintance have my admiration, respect and thanks.
So it is with regret that I now lay into broader issues of police partiality and improper prioritisation, and powers they ought not to have: these are the fault of politicians and police leaders, not rank and file officers who face impossible odds every single shift.
Nothing in what follows reflects on blameless officers doing their duty.
The roots of conformity and intolerance
It is obviously undesirable for people to be rude, offensive or provocative for its own sake. Most of us prefer harmony to confrontation and quite right too. Most of us want to see law-abiding people accorded moral, legal and political equality, equal dignity and respect and equal opportunity to make the most of their lives. There is nothing admirable about saying things which are wrong, offensive or hateful.
Alas, people not only disagree but, as I have increasingly discovered during my work with Professor Paul Dolan:
The human condition is wired for agreement and conformity. We all have a deep-seated desire to fit in – even those, and sometimes especially those, who profess how much they seek to stand out.
We care about what other group members think about us. A lot.
This makes groupthink a natural consequence of group decision-making. The quest for harmony in a group impedes its cognitive processes and culminates in suboptimal decision-making. Better choices are ruled out too quickly because of the urge to reach agreement.
As a consequence, people form groups sharing common beliefs and are often intolerant of the opinions of the “out group”, the others. That intolerance is a desire by some means or another to suppress other views, often through taboos which hold back progress.
Hostility is a real problem.
This is what Paul calls “beliefism”. It raises the problem of how to handle disagreement in any social forum – including companies, on which issue The Provocation People focus – and therefore it is a relevant issue for legislation: society must decide and keep updated the rules which apply to disagreement on penalty of fines, imprisonment and any other formal consequences.
Free speech and human progress
Human progress depends on the freedom of individuals to challenge taboos and propose better ways of living which enhance individual rights, freedoms, social relations, wellbeing and prosperity.
John Stuart Mill argued in On Liberty that the ability to question prevailing norms and express dissent is essential for the discovery of truth. Even ideas that seem wrong or offensive serve a purpose, forcing society to reexamine and strengthen its convictions or correct its errors. Friedrich Hayek similarly recognized that free expression is vital to avoid stagnation and promote innovation. In The Constitution of Liberty, Hayek highlighted the danger of suppressing ideas, warning that progress often comes from the unexpected or the unpopular.
Free speech is therefore not just a personal right but a social necessity. It enables us to critique what is flawed, advocate for change and ensure that policies and practices evolve better to promote the freedoms, wellbeing and prosperity of all. Without this foundation, democracy itself is imperiled, as we lose the means to question and improve the systems that govern us.
It is in that context that the case of Telegraph journalist Allison Pearson should be considered. It initially appeared she was under investigation for a so-called “non-crime hate incident” over a year-old tweet. Pearson told us police visited her home on — of all days! — Remembrance Sunday and, in the spirit of Kafka, could not tell her what she was alleged to have done wrong.
It is now reported she is under investigation for inciting racial hatred. The Guardian reproduces the now-deleted tweet:
Pearson allegedly wrote a tweet condemning the Metropolitan police: “How dare they. Invited to pose for a photo with lovely peaceful British Friends of Israel on Saturday police refused. Look at this lot smiling with the Jew haters.”
To avoid prejudicing a trial, I would not normally comment at all when there is a continuing police inquiry into a criminal matter, but worrying about that in the prevailing circumstances would be ludicrous: at this point, I would think just about everyone remotely interested in public policy in the UK has a view.
The nature of the remark
Pearson’s tweet—criticizing the Metropolitan Police for their alleged preferential treatment of a Muslim group in a photograph—was casual, ill-advised and will have rightly been found offensive by British Muslims. The issue of police impartiality is a serious public concern today but what Pearson said perpetuated a misunderstanding of the situation, stoked division and lacked the rigour and charity which is wise in public discourse. Her comments remain thoroughly deserving of strident criticism.
In this case, Pearson has turned a legitimate and much needed critique of police partiality into a debate over whether and how seriously she was offensive or even incited racial hatred. Thankfully, ill-advised police action has turned attention back on policing, redirecting the debate to police powers and priorities, which are certainly ripe for reform.
I do not believe this was Pearson’s original intention - how can it have been over such a period? - but rather her slapdash action has succeeded in highlighting how badly law on speech and policing appears to have gone wrong on multiple fronts.
While her words were plainly offensive, a free society must allow room for error, including offensive errors, without formal repercussions from the state. To sacrifice this principle is to undermine the foundations of freedom: if offensive errors are not allowed, how is anyone to challenge a taboo?
Pearson’s remark was also unwise and ignorant of context. It took a photograph — a fleeting moment — and ascribed to it a narrative of bias and favoritism without evidence. The offence caused was real and understandable, particularly to those maligned by the insinuation. Such speech deserves criticism and condemnation: this does not mean that it warrants police intervention.
To distinguish between the quality of Pearson’s remark and the legal permissibility of making it is essential. In a free society, it is precisely this distinction which preserves freedom while encouraging responsibility. Judging whether Pearson is a good and responsible journalist is for everyone who reads her words, especially the paying public and her editors, but it is not a proper task for the police or any other organ of the state to consider “non crime hate incidents”.
Incitement to violence is another matter. You can find the Crown Prosecution Service guidance here. I note that in relation to offences of inciting hatred based on race, religion or sexual orientation, “Proceedings for any of these offences may only be instituted with the consent of the Attorney General.” That sounds a high bar: one can see why the College of Policing has issued its own guidance. There is guidance on “Recording non-crime incidents perceived by the reporting person to be motivated by hostility”, including as intelligence.
In the meantime, the simplest solution might have been for Pearson to acknowledge she had mistaken the flag, apologise for her incorrect inference to those who were inadvertently offended and then for all of us to move on…
The consequences for social progress
Make no mistake, under the system of vetting we have in this country, for the police to record and admit to a record of a non-crime hate incident will be capable of disadvantaging a person and most likely would.
When the state reveals investigations in public and consequently indirectly punishes individuals for lawful but offensive speech, it sends a chilling message: that lawful opinions may carry disproportionate consequences without due legal process. That is injustice. It is injustice which stifles debate and risks social progress, which depends on a free contest of ideas. Progress does not emerge from enforced conformity but from the friction of opposing views: when we disagree, we learn from one another.
Allowing offensive remarks to be freely aired and countered is crucial for exposing falsehoods and affirming truths. Pearson’s tweet could, for example, have been addressed through public discourse, with her critics providing context and counterarguments to dismantle her claim without resorting to policing. While defending her rights in public, Pearson’s editor might reasonably have insisted privately that these are not standards consistent with employment at a newspaper as substantial as the Telegraph.
Instead, the involvement of the police frames the issue as one of state enforcement over civic dialogue. This risks a society where fear of sanction replaces the courage to speak and where progress consequently stagnates under the weight of self-censorship.
Justice and long-term consequences
The principle of justice demands proportionality and fairness. That a tweet such as Pearson’s could have lasting consequences through official vetting processes, even if it is found to involve no crime, is a breach of these principles. A “non-crime hate incident,” as defined in current police policy, is recorded and retained even when no law has been broken. This creates a shadow of suspicion that may haunt individuals indefinitely, affecting their employment and reputation.
This practice undermines a core tenet of justice: that punishment — or any formal consequence — should only follow the clear breach of a law. To record and retain non-crime hate incidents as if they were akin to criminal acts is to blur the boundary between the moral and the legal, between private error and public wrong. It creates a system where individuals may suffer enduring harm for opinions, however wrongheaded, that remain within the bounds of lawful expression.
Such a system is not just and it is not compatible with the values of a free society.
The need for legal reform
The law surrounding non-crime hate incidents must be reformed to restore justice, clarity and proportionality.
As a former minister in the Northern Ireland Office, of course I recognise the police must keep records of intelligence on individuals and organisations which may indicate the possibility of later crime. However, it is precisely because the release of such intelligence apart from a trial and conviction (or acquittal) would create injustice that such intelligence must be kept secret: it is quite wrong to record intelligence and then release it on request, other than in the most exceptional circumstances, such as the protection of children and other vulnerable people. Even then, there should be stringent safeguards and rights of appeal to prevent false allegations having unjust and harmful effects
The current approach, set out in police guidance not statute, allows for the recording of incidents based on subjective perceptions of offence. This is both legally unsound and philosophically indefensible. The recording of such incidents should be confined to cases where credible threats of violence or serious harm are evident and then those records should be treated as any other intelligence on a suspect and kept secret unless and until released during a trial.
More broadly, ministers and legislators must reaffirm the principle that the role of the law is to protect citizens from harm, not to police their thoughts or expressions, concerned for remote possibilities of where they may lead.
The state has no legitimate interest in regulating lawful speech, however offensive it may be. To do so is to invert the relationship between the individual and the state, treating citizens as subjects to be managed not free agents capable of reason and responsibility.
The role of Police and Crime Commissioners
Police and Crime Commissioners (PCCs) have an important role to play in addressing this issue. They are uniquely positioned to ensure that policing prioritises genuine crimes and public safety, never straying into the regulation of lawful speech. That is what they were instituted as elected officials to do: set police priorities.
A PCC ought to respond to cases like Pearson’s by reviewing force policies on non-crime hate incidents, giving clear instructions to prioritize resources effectively to reflect public preferences and advocating for legislative reform where necessary. A PCC should never accept police operational independence as an argument against such instructions: the purpose of operational independence is to prevent politicians from unjustly persecuting their opponents, not to exempt the police from meeting public expectations.
While non-crime hate incident recording endures, PCCs should promote transparency and public accountability in how they are handled. Citizens have a right to know when and how such cases are recorded, what consequences they carry and how decisions are made.
PCCs were instituted precisely to align police priorities to public priorities: if that is not happening, either individual PCCs need replacing by the electorate or the system scrapping. If the reason it is not happening is the national alignment of policy by police chiefs, then that must be stopped: it may have instituted just the kind of tyranny the fear of which prevented Peel from establishing a nationwide police force. This matters.
Free speech and civic responsibility
Defending Pearson’s right to make offensive remarks is not to absolve her of responsibility for them. Far from it: as a significant national journalist at a major newspaper, she should meet the very highest standards – as of course should former MPs and ministers.
Free speech is not a license to speak without consequence; it is a framework within which individuals are held accountable in all directions by society rather than the state. Pearson’s tweet deserves robust criticism and she must face the social repercussions of her words – whether that be by public rebuke, loss of credibility, reputational damage or in more extreme circumstances, unemployment as a journalist. These consequences are a natural part of a free and responsible society’s self-regulation.
However, social consequences in free debate must remain distinct from formal sanctions. When the state intervenes in matters of lawful expression, it shifts the burden of accountability from free and responsible individuals to the apparatus of power, with categorically different incentives on everyone: it is a profoundly dangerous phenomenon.
Conclusion: the cost of liberty and social progress
I condemn what Allison Pearson said, but I would fight with all my might to defend her right to say it and be damned.
Freedom of expression is not merely a legal right; it is the moral and cultural foundation upon which a free society rests. To defend this freedom is not to defend every use of it, nor to condone the errors and offence it may produce. It is to affirm that liberty is worth the cost of tolerating error, offence and ignorance because the alternative – a society whose progress is governed by fear of sanction – is far worse.
Allison Pearson’s tweet was wrong and I condemn it without rancour or much surprise. But my criticism is offered in the spirit of free debate, not as a call for state intervention. In defending her right to speak, we defend the right of all citizens to think, to err and to learn. That is the essence of a free society and it is a principle that must be upheld with vigilance and courage, even in the face of provocation.
“Freedom is a condition of the soul and loss of freedom is loss of the self,” as contemporary Conservative philosopher Roger Scruton told us. We ought to guard that freedom fiercely, for ourselves and for those with whom we most fervently disagree.
Postscript
“But why didn’t you do something about it as an MP?”
This I am often asked. I will answer more substantively another time.
For now, I will just say this: I have always sought to do an infinite amount of perfect work in zero time, but I have found it necessary to make compromises.
And by the way, where were you?
Hear, hear. The best antiseptic for offensive views is sunlight.
There is no incitement to racial hatred in the tweet (post). Merely an entirely reasonable observation about two tier policing imo.