Wednesday 19 February 2020 5:04 am

Free speech risks being sacrificed on the altar of offence culture

Alan Mendoza is executive director of the Henry Jackson Society.

Harry Miller never considered that he might be national news-worthy.

A former police officer turned businessman, during late 2018 he posted a series of tweets which questioned the biological sex of transgender individuals. 

One of his musings stated “I was assigned mammal at birth, but my orientation is fish. Don’t mis-species me.”

What should have been an eminently forgettable entry on a social media platform no stranger to far viler exchanges of views quickly took an unexpected turn. Miller’s tweets were reported to Humberside Police as “transphobic”. 

Rather than consigning the complaint to the same dustbin that police these days appear to reserve for all manner of real crimes apparently too trivial to take seriously, Humberside’s finest sprang into action. 

Miller was visited by the police at his workplace and informed that his social media use had been recorded as a “non-crime hate incident”. A police officer issued the chilling warning that “I am here to check your thinking.” 

The effect of this intervention was to leave Miller with a police record that will appear every time an enhanced check is performed on him.

It turns out that Miller’s experience is not uncommon. Police forces have recorded nearly 120,000 “non-crime” hate incidents, defined by the College of Policing Guidelines (in the transgender case) as “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender”. 

Unlike most victims, however, Miller went to court to prove that he had not broken any law. Last Friday, he secured an important partial victory. 

The police guidelines were deemed to have been acceptable practice, but Humberside Police were decried for their excessive approach to Miller. Scathing in his condemnation, Justice Julian Knowles pointed out: “In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”  

Miller will now continue his case against the guidelines themselves in the Supreme Court. For the rest of us, the case throws open some important considerations for the future of debate in this country.

Freedom of speech has always been a staple of our liberal and democratic society. We have, over the years, accepted some curbs on our right to say absolutely anything for the greater good. It is widely agreed, for example, that we are better off for having safeguards against the victimisation of individuals and the incitement of violence against them.

But we have always drawn a clear distinction between people and ideas. The former have a right to protection. The latter have no rights to an avoidance of criticism. 

Instead, we have accepted that even abhorrent ideas like Holocaust denial should not be criminalised. In so doing, we have acknowledged that there is no right to not be offended within our society. As long as the criticism is about ideas rather than people, we have agreed that one person’s expression of an idea may offend another who disputes it. 

But this red line has been thinning rapidly in recent years. 

How has this has been allowed to happen? The clue is in the police guidelines applied in Miller’s case. 

By placing the onus of what constitutes a “non-crime incident” on the perception of a “victim or any other person”, we have enshrined a right to not be offended into our legal lexicon. 

In the absence of a proper definition of what constitutes “hostility or prejudice”, we are engaging in a race to the bottom where the views of the most offended individual in any particular incident count the most — indeed, are the only views that appear to count at all.

This is an extremely dangerous situation to be in, because trans activists are not the only people attempting to shut down discussion of ideas in contemporary Britain. 

The All-Party Parliamentary Group on British Muslims has, for example, drawn up a definition of Islamophobia that would prevent the discussion of aspects of Islam’s texts and traditions, as well as historic episodes of the Islamic world. 

The grounds cited as relevant are “expressions of Muslimness or perceived Muslimness”. But as different Muslims will have different ideas of what “Muslimness” actually is, the impact of such a definition would be to take the maximalist position of offence, which would ultimately protect the most radical of Muslims from scrutiny of their religious views under the guise of racism.

From here, it is only a short hop to a world where political views end up being protected from scrutiny. Could anyone, for example, have been certain that a Corbynista government would not have tried to muzzle free discussion of Corbynista thinking?

This madness in allowing for amorphous “victim-led” definitions must cease. It is perfectly possible to codify hate incidents to protect individuals, without according similar protection to the ideas that may animate them. 

It must not be for the police to determine the limits of free speech, but our politicians, who now need to act. Their failure to do so thus far risks eroding the very basis of British society that the institution of parliament has always upheld. 

Main image credit: Getty

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