***

Tolerance does not come naturally to mankind. For most of human history, what people have believed about morality, about government and about the natural world was laid down by authority, usually by people claiming to speak in the name of God. It is salutary to be reminded that freedom of expression, as an idea, has a short history. It is essentially the legacy of the European scientific revolution of the 17th century and the European enlightenment of the 18th century. These movements rejected the way that men had thought for centuries. They rejected mere authority as a source of truth, in favor of observation, reasoning and rational discourse. It took much longer for the same notions to penetrate people’s ideas about politics, government and law. The legal protection of free speech is barely two centuries old in Europe and North America. And it has only ever been accepted with reservations.

Recent criticisms of Europe by American politicians like JD Vance have reminded us that there is a profound gulf between American and European conceptions of free speech. The United States comes closer than any other country in the world to absolute free speech. The First Amendment to the US Constitution provides that “Congress shall make no law… abridging the freedom of speech”. No ifs, no buts. Since the early 20th century, this has been held to apply to state legislatures as well. The American courts were eventually persuaded to recognize exceptions for incitement to imminent violence, obscene and defamatory material, child pornography and fraud, but that is all. Even these exceptions have been very narrowly interpreted.

The European model has been very different. Freedom of expression is an important but not an absolute public interest in Europe. In principle, it may be overridden by a wide variety of other public interests if there is a sufficiently compelling case for doing so. Article 10 of the European Convention on Human Rights protects freedom of expression, but subject to a long list of potential exceptions: national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, the protection of confidences, or maintaining the authority and impartiality of the judiciary.

In Britain, the list of exceptions recognized by the law grows longer all the time: speech that discloses secret intelligence, speech that prejudices current legal proceedings, speech that supports proscribed terrorist groups, hate speech directed at racial, religious or sexual minorities, “grossly offensive” messages sent through the post or over electronic networks, and so on. Most of these exceptions are concerned in one way or another with public order and social harmony. In Britain we have not usually specified opinions that it is illegal to hold in public, but other countries have. In Germany, Austria and Belgium it is a criminal offense to deny, trivialize or approve of the Holocaust. Spain, France and Switzerland go even further. It is an offense in those countries to question the existence or gravity of anything which is regarded as a crime against humanity. In many countries it is illegal to display the swastika. In Latvia and Lithuania, that extends to the hammer and sickle and other symbols of Soviet communism.

There is an inevitable tendency for people to want to exclude from freedom of expression whatever ideas they personally cannot abide. Milton’s Areopagitica, published in 1644, is one of the most eloquent pleas for freedom of expression in the English language, but he excluded Catholics and atheists, whose views he regarded as beyond the pale. So did John Locke, although he at least offered reasons for their exclusion. He thought that Catholics were intolerable because they were not interested in truth, and atheists because having no fear of God, they could not be relied upon to honor any social obligations. The authors of the famous early 18th-century tracts known as Cato’s Letters argued the case for free political speech but made an exception for what they called “factious scribblers” and “turbulent babblers”.

The problem, as George Orwell pointed out, is that free speech is worthless unless it extends to things that people do not want to hear. We all have different lists of things that we do not want to hear. Suggested candidates for legally enforced censorship include a variety of allegedly extreme or unacceptable positions such as gender-criticism, climate denial, antisemitism, blasphemy against the Prophet Mohammed or the Koran, totalitarianism, eugenics, satanism and many others. Many of these demands reflect the sensitivities of particular ethnic, social or religious groups who say that their position is special. Censorship is often the child of collective grievances. People who feel that the world has been unjust to them are likely to claim that their position is special too. If some opinions are to be banned as beyond the pale, then why should my list of unacceptable beliefs be privileged over yours? The truth is that if we believe in freedom of expression, we have to tolerate things that we regard as intolerable. Otherwise the whole concept is meaningless.

Since we have to draw a line, where do we draw it? The starting point, I suggest, is to ask why we instinctively believe in freedom of expression in the first place. I think that there are three main reasons.

The first is that constraints on our ability to communicate facts or opinions invade our autonomy as moral agents and thinking creatures. When the constraints are imposed by the state, they imply a relationship between the individual and the state which is morally repellent. They reduce us to the status of mere instruments of other people’s power. Whether the suppression of free speech comes from governments or pressure groups or public opinion, it ushers in a narrow-minded, intolerant and authoritarian world in which the fear of giving offense or challenging existing shibboleths eliminates some of the most creative and original products of the human spirit.

The second reason for believing in freedom of speech is that we live in a democracy whose entire political order depends on the free exchange of ideas. It depends on our ability to freely receive information, on an acceptance of diversity of opinion and on a large measure of tolerance of intellectual and emotional differences. Our collective life depends on the resolution of issues between citizens by marshaling objectively verifiable facts. It depends on ordered debate about their implications under common rules that exclude coercion, and on a culture in which the outcome of our processes of collective decision-making is accepted even by those who disagree with it.

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A third reason why we believe in freedom of expression is perhaps the most fundamental. It is the one which received its most eloquent expression from Karl Popper’s classic work, The Open Society and its Enemies. No one person or group, however respectable or expert, has exclusive access to wisdom or truth. This is not just because of the limits on the capacity of the human mind. It is also because truth and wisdom are dynamic concepts. They are informed by a stock of experience which is constantly increasing. All statements of fact or opinion are provisional. They reflect the current state of knowledge and experience. But knowledge and experience are not closed or immutable categories. They are inherently liable to change in response to fresh discoveries or insights. Knowledge advances by testing conflicting arguments, not by suppressing them. Understanding increases by exposure to uncomfortable truths. In a world of free expression, some of what people say will certainly be wrong, hurtful or even objectively harmful. But the principle which we would have to accept in order to justify censoring these statements is more damaging than the statements themselves. We cannot have truth without accommodating the possibility of error, or wisdom without accommodating the possibility of folly. In the end we have to accept the implications of human inquisitiveness, creativity and imagination. The alternative is to entrust significant parts of our intellectual world to external authorities whose capacity for objectivity, truthfulness and wisdom is no greater than our own.

Ever since the 17th century, our civilization has been based on the notion that truth is independent of human will. It may be only partly knowable, and more or less difficult to identify, but it exists somewhere out there whether we like it or not. We have built our intellectual world on the footing that we get closest to the truth by objective study, logical reasoning and open debate, by what Mill called the “collision of adverse opinions”. I am not suggesting that this is guaranteed to produce truth or the wisest possible outcomes, but experience suggests that in the long term it is more likely to do so than any system of intellectual controls.

These reasons for believing in freedom of expression suggest a number of conclusions that we should bear in mind when we come to think about exceptions.

In the first place, freedom of expression is concerned with the transmission of information or opinion. Not everything that is spoken or written deserves protection. If I write you a letter or an email consisting of nothing but foul-mouthed abuse, I may be committing an offense under the Malicious Communications Act 1988 or the Communications Act 2003. Low level communications of this kind are devoid of intellectual, cultural or political value. In a sense I may be regarded as having communicated my opinion of you, but that hardly counts as an infringement of my right of freedom of expression.

The second conclusion to be drawn from our reasons for believing in free speech is that we should not suppress the expression of facts or opinions simply because they give offense, however understandable that offense may be. If we are not free to say things that other people regard as objectionable, we have no freedom of speech at all. In a famous statement of principle, Lord Justice Sedley observed in the High Court in a case about a Christian fundamentalist street preacher that “free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to promote violence. Freedom only to speak inoffensively is not worth having.”

Thirdly, it cannot be a good reason for suppressing some assertion or opinion that we think it is wrong or even that everybody thinks it is wrong. Few propositions are incontrovertibly false, in the sense that they are inherently incapable of being affirmed by hitherto unknown facts or fresh analysis. As a general rule, the best answer to misleading speech is counter-speech, i.e. reasoned refutation. Of course, counter-speech does not always work. The barrage of rubbish generated by the internet, generally mediated by algorithms which serve people up with material that confirms their existing prejudices, is a serious challenge. But counter-speech is more likely to work than suppression. Once upon a time, the authorized consensus was that the sun moved round the earth, because that view was supported by Biblical authority, then regarded as a source of incontrovertible truth. Galileo was condemned for denying it. The same point can be made about statements of opinion. Once upon a time the religious and social consensus justified slavery and the imprisonment of homosexuals, because this had been regarded as obvious for centuries. Once upon a time it was taken for granted in Britain that black people were inherently inferior. These views have almost entirely died out in advanced societies in the face of rational discourse.

In 2021 the Royal Society, Britain’s premier scientific society, called for legislation to ban the dissemination by anti-vaxxers of “false information” about vaccines, by which they meant information rejected by the scientific consensus. The case for vaccination is not inherently irrefutable. But in the current state of our knowledge, the debate has been won hands down by supporters of vaccination. That has only been possible because there has been a debate. Suppressing public opposition to vaccination will simply drive it underground where it will be more difficult to refute. Holocaust denial is another example. It is an absurd position which has been discredited not by legislation but exposure to the evidence. The great American jurist Oliver Wendell Holmes, who wrote some of the greatest judgments of the US Supreme Court in support of free speech, once observed that the guiding principle was that almost all certainty is an illusion. We might always be wrong, he said. All of us can all point to public statements which are untrue, mischievous or absurd, sometimes manifestly so. But manifestness is not a very useful criterion for censoring other peoples’ opinions. Nearly every received opinion which rational examination has discredited was once regarded as manifest by those who held it.

Finally, the concept of free speech assumes that adults are capable of distinguishing what is good from what is bad in the torrent of information to which we are all exposed. In a democratic society, it is necessary to proceed on that assumption, even though we know that it is not always true. In a society which treats every person as entitled to equal consideration and respect, we cannot distinguish between adults according to their degree of intelligence or discernment or their skill in ordering their lives. In a democracy, we have to assume that adults are capable of making discerning choices in their own interest, because the alternative is an authoritarian world in which their choices are taken away from them by the state.

All of this suggests that the threshold for banning the transmission of information or opinion should be exacting. Any exception must, I suggest, be based on some consistent principle, not just on people’s subjective likes and dislikes. The exception should also be consistent with the basic rationale for wanting freedom of expression in the first place. And it must be clearly defined, because if the boundaries of the exception are unclear, we will end up with a freedom that is at least partly discretionary. A freedom which depends on the discretion of the enforcers is no freedom at all.

I suggest that the only speech which we are justified in suppressing by law is speech which is coercive. By that I mean speech which deprives us of our choices because it is threatening, or directly incites violence or manipulates people in highly vulnerable categories, especially children.

The suppression or punishment of speech is a coercive act. The traditional principle of English law has been that it is only justified if the alternative is coercion of a different kind, the coercion which follows from a breakdown of public order. In his Commentaries on the Laws of England, the earliest systematic survey of the common law, published in the 1760s, Sir William Blackstone described a free press as “essential to the nature of a free state”. This was why the common law did not allow pre-publication censorship. Blackstone added that after publication, an author could be punished or mulcted in damages if his words were contrary to public order. This was because the state’s ability to maintain public order was also essential to the nature of a free state and to its role as the guardian of liberty. In Blackstone’s day, the courts were much more willing to take action against provocative speech, because the state had fewer means of maintaining public order. There was no general police force in Britain until the 1830s. In the first half of the 19th century, as Britain became a more orderly, better policed society, speech became less dangerous and the courts became more active in protecting it. However, direct incitement to violence is still the main exception sanctioned by English law to the principle of freedom of expression.

The most interesting analyses of this question come from the American case law. The Americans have a related doctrine known as the “fighting words” exception. Their case law denies that this amounts to censorship, because they distinguish between the content of the message and its consequences. Restrictions on free speech are unacceptable if they are directed to the content of the message. They have to be addressed exclusively to the circumstances in which the words were uttered and to their likely consequences. A rather similar line has been taken in some decisions of the European Court of Human Rights in Strasbourg. A good example is the case of Faber v. Hungary, decided in 1992. Faber was a Right-wing activist who had been convicted in Hungary of standing at a site in Budapest where Jews had been massacred in the Second World War and holding up a banner with a fascist symbol. His conviction was held by the Strasbourg court to violate the Human Rights Convention because the mere act of holding up the banner was incapable of disturbing public order or inciting violence. The fact that it was offensive and liable to outrage those who saw it was not enough. That was an objection to the content of Faber’s statement, not to its likely consequences. I think that that is also the approach of English law, even though English judges have been less articulate in saying so. Calling for violence in a university debating society is objectionable but not illegal, whereas calling for violence in front of a howling mob in a city center is likely to be both.

In September of last year, Lucy Connolly was sentenced to 31 months imprisonment for an inflammatory tweet. The case aroused much controversy. Her unsuccessful appeal against the sentence was supported by the Free Speech Union, and the sentence was roundly denounced in The Daily Telegraph and on GB News. This seemed to me to be strange. Her tweet said: “Mass deportation now. Set fire to all the fucking hotels full of the bastards for all I care.” If she had expressed this opinion at a meeting of the Women’s Institute, there would have been no problem. The actual circumstances were that the murder of three children in Southport had been attributed (in fact wrongly) to an asylum seeker, at a time when there was rising tension against immigrants in much of the Midlands. If a rabble-rouser stood on a soap-box in front of an angry mob and urged them to head for the nearest immigration hostel and burn it down, the vice of words like these would have been obvious. Doing it on social media is worse because the reach of the internet is so much greater. Its algorithms thrust words like Connolly’s under the noses of people who are already likely to agree. The internet is not a private conversation. It can whip up a violent mob in minutes. Connolly soon regretted her post and deleted it three and a half hours later, but in the short time that it was up, it was viewed 310,000 times and reposted 940 times. It was one of a number of wild statements on the internet following the Southport murders which provoked serious riots across England later that day and violent attacks on mosques and immigration hostels. Connolly was not a free speech martyr. Her conviction was in line with a perfectly rational principle reflecting a centuries-old limitation on free speech.

Incitement to violence is not the only restriction that our law places on free speech. Some of the other restrictions are principled exceptions which are perfectly consistent with the underlying principle of free speech. Others are unprincipled exceptions which should have no place in a rational system of law.

Let’s start with the legal restrictions which I suggest we should accept. The Online Safety Act, which was passed in 2023, is a complex and in some ways clumsily drafted piece of legislation, which hits many targets that were not intended. However, its principal purpose is to require providers of online content to have age verification checks so as to control access by children to manipulative or corrupting material such as pornography or material advocating suicide or self-harm. I have pointed out that the concept of freedom of expression involves treating adults as capable of discernment and of intelligently ordering their lives. The same assumptions cannot apply to children, who are by definition in a state of developing but incomplete maturity, and who do not have the full range of liberties available to adults. It is fair to regard the manipulation of children’s sensibilities as closely analogous to the coercion from which we seek to protect adults.

Next, there are laws which regulate the way in which our right of free speech is exercised, rather than the content of our speech. These too are, in principle, acceptable. For example, you cannot picket abortion clinics within 150 meters of their doors or buy advertising time for political causes on television. The law restricts the picketing of abortion clinics because it harasses women at an emotionally difficult time of their lives, but you can still protest against abortion in ways that do not amount to harassment: you can stand with your placards 160 meters away, demonstrate in Trafalgar Square, write articles in the press, publish podcasts on YouTube, distribute leaflets, and so on. The law forbids political advertising on television in order to provide some limit on the power of big money to buy influence over political debate in a democracy. However, you can still do party political broadcasts, put up posters on billboards, take advertising space in newspapers, or hold political rallies. These restrictions are not directed against the content of any spoken or written statement. There is no infringement of the right to freedom of expression simply because there are some places where you cannot speak. A notice saying “Silence” in a courtroom, church or library is not an infringement of free speech.

My final example is more controversial. It is about the laws relating to defamation and privacy. The law of libel and slander allows people to claim damages from those who have told lies about them. The law of privacy allows those whose privacy has been invaded without any justification in the public interest to claim damages from the intruder. There are legitimate concerns about the granting of injunctions, especially in privacy cases, but I see no reason why the law should not, after proper investigation, correct the financial consequences of lies and intrusions into our private lives by awarding compensation for the damage which these things can cause. I do not regard that as censorship. It simply adjusts as between private individuals the financial consequences of free speech.

If these are legitimate restrictions on freedom of speech, there are others which have been imposed over the last half-century and which ought to cause us real concern. They are designed to protect people not from coercion or manipulation but simply from being offended.

A good example, which is currently topical, is the provision of the Terrorism Act 2000, which forbids public expressions of support for proscribed terrorist organizations. The Act forbids any conduct which involves assisting or participating in the work of a proscribed terrorist organization, which is fair enough. However, it then goes on to forbid expressions of support even where they do not assist the work of the organization but merely amount to the peaceful expression of a favorable opinion about it. Unlike the restrictions which I have just been discussing, this is a direct attack on the content of certain statements. There are people who think that terrorism in the service of a good cause is fine. I think that this is foolish, but should not be criminal. Arresting hundreds of people in Parliament Square for holding up placards saying that they support Palestine Action is an unprincipled interference with freedom of expression.

The main restrictions of this kind come under the broad heading of hate crimes, which is probably the most intrusive and least justifiable interference with freedom of expression in Britain. Hate crimes are based on the Public Order Act of 1986. Their scope has been expanded by successive amendments since the original Act was passed. The position can be summarized as follows: it is an offense to use language which stirs up racial hatred, religious hatred or hatred based on sexual orientation. In the case of religious hatred and hatred based on sexual orientation, the language used has to be threatening. This probably means words which threaten imminent violence, which broadly accords with the law’s traditional approach to breaches of the peace. However, in the case of stirring up racial hatred, the offense is much wider. The language used need not be threatening. It is enough that it should be abusive or offensive. In the case of religious hatred, there is a broadly drawn exception which allows people to discuss or criticize, or express antipathy, dislike, ridicule, insult or abuse of any religious belief or practice. This may be described as a proviso for the benefit of Richard Dawkins, the late Christopher Hitchens, and the late Bertrand Russell, all of whom have had harsh things to say about religious beliefs. Yet there is no such exception in the case of race or sexual orientation. In 2024, 140,561 hate crimes were recorded by the 43 police forces in England and Wales. The breadth of the offense can be seen from the facts that the police have arrested Christian preachers for their street sermons, parents engaged in a dispute with their daughter’s school, and the Irish comedian Graham Linehan for tweeting that women confronted by trans men in women-only spaces should “make a scene, call the cops and if all else fails, punch him in the balls”.

In addition to hate crimes properly so-called, there is an anomalous category known as “non-crime hate incidents”. The police have a common law power to record incidents. Non-crime hate incidents are not criminal offenses, but are simply incidents which the police are administratively directed to record. They have real consequences and will usually entail intimidating visits and warnings from the police. They will show up on enhanced criminal record checks and may stop people getting jobs. The police defend the practice on the ground that such incidents may lead to real crimes if repeated. This seems rather far-fetched. The job of the police is to enforce the criminal law, not to regulate behavior which is perfectly lawful but may be loutish, offensive, politically incorrect or contrary to received opinion. Different police forces have recorded as non-crime hate incidents gender-critical tweets, tweets critical of the police, accidental damage done by schoolchildren to a copy of the Koran, and even speeches by ministers proposing restrictions on immigration. Harry Miller, who was visited by Humberside police at his workplace and questioned about his gender-critical tweets, took them to court. The conduct of the police, said the judge, offended against a “cardinal democratic principle”. “In this country,” he said, “we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.” Yet last year, more than 13,000 non-crime hate incidents were recorded by police forces in England and Wales.

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“Hatred”, “threatening” and “abusive” are vague terms which cry out for precise definition, but there is no definition of these words in the Public Order Act. “Offensive” is an even vaguer term, which is likewise undefined. On the face of it, the word extends to anything that causes offense. As for non-crime hate incidents, they have no statutory basis at all and therefore no definition either. The looseness of these concepts means that in reality action depends on the discretion of individual police officers. This is not a proper function for a statutory public service or a satisfactory basis for penalizing speech. A police state can fairly be defined as a state in which the police have discretion as to what constitutes an offense. The prosecuting authorities have tried to resolve this problem in a highly unsatisfactory way. The Crown Prosecution Service and the police have agreed to define a hate crime as anything which is perceived by the victim or anyone else to be motivated by hostility or prejudice. In other words, the definition which they use is subjective. If the complainant thinks it is a hate crime, then it is a hate crime. One would think that hatred implied a very high degree of animosity, but the Crown Prosecution Service has suggested that it can include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment, and dislike. Yet all of these, humanity being what it is, are hazards which most of us must expect to live with. Remarkably, until 2021 the College of Policing, which sets standards for the police, after explaining that a hate crime depended on the perception of the victim, added the following observation:

“The victim does not have to justify or provide evidence of their belief, and police officers and staff should not directly challenge this perception. Evidence of hostility is not required for an incident or crime to be recorded as a hate crime or hate incident.”

Carried to its logical conclusion, this approach gives racial minorities a right of veto; an entitlement to silence opinions to which they object.

In 2021, the guidance was changed in response to criticism by the Court of Appeal in Miller’s case. The Court of Appeal did not object to the subjective character of the definition, but it held that the guidance was unlawful because it was far too wide. It interfered with Miller’s right of freedom of expression and was likely to have a chilling effect on the discussion of controversial issues like gender. However, the changes to the guidance were minimal. The guidance now says that at the point of receiving the complaint, no justification or evidence is required, leaving open the possibility of seeking such evidence later. The effect is that the investigation of a hate-crime is still dependent on the personal sensitivities of the complainant and the discretion of the police.

All of this originated with the Macpherson Report on the murder of Stephen Lawrence, which was published in 1999. Macpherson made two recommendations which are relevant for present purposes. First, he recommended that the police should systematically record “racist incidents”, a category which he defined as “any incident which is perceived to be racist by the victim or any other person”. That is the origin of the subjective definitions currently used by the police and the Crown Prosecution Service. Secondly, he recommended that racist incidents should include both crimes and non-crimes. That is the origin of the category of non-crime hate incidents. Experience has shown the Macpherson recommendations have proved to be extremely damaging. Speaking in the House of Lords last November, Lord Hogan-Howe, a former Metropolitan Police Commissioner, observed that the recording of hate crime was a well-intended change which had gone wrong. “The definition of a crime is objective and the definition of hate crime is subjective,” he said, “during the time this has been in place, online crime and online hate crime have grown massively, and the application of the hate crime definition has been inconsistent.” Recently, Britain’s largest police force, the Metropolitan Police, announced that it would stop dealing with non-crime hate incidents. The current commissioner, it was announced, “has been clear he doesn’t believe officers should be policing toxic culture war debates, with current laws and rules on inciting violence online leaving them in an impossible position”. So far the Met’s example has not been followed by other police forces.

The most famous test for determining what can and what cannot properly be suppressed is the “harm principle” proposed by John Stuart Mill, the great Victorian apostle of free speech, in his 1859 treatise On Liberty. Mill taught that the only purpose for which power might properly be exercised against individuals against their will was to prevent harm to others. Hate crime and non-crime hate incidents are symptoms of a modern tendency to redefine harm so that it extends to the discomfort caused by having to endure rudeness, contradiction or dissent. When interest groups object to someone’s opinion of them, they commonly call for a subjective approach to its impact. Harm is whatever the relevant target group perceives as harm. It depends on their “lived experience”, as the phrase goes. This way of looking at the harm done by free speech is particularly common when the offended group is a racial, religious or sexual minority. The argument is that words may undermine the dignity of the groups against whom they are directed. Words wound, it is said, especially when they relate to another person’s identity or status. Words are therefore viewed as a form of violence comparable to physical assault. But there are obvious problems with this approach. One is that concepts such as undermining human dignity are too uncertain and subjective to serve as part of the definition of a criminal offense. Another is that there is an important difference between violence and words. Violence is coercive. Words, even if offensive, are not coercive except in those cases where they are calculated to provoke violence.

Today, racial, religious or sexual minorities are said to need protection from hurtful words. The desire to accommodate groups who feel themselves oppressed is understandable. It assists social inclusion. Racial, religious and sexual differences are highly sensitive matters, but they are also major issues in our society, as well as in other countries of Western Europe and North America. They need to be openly discussed without fear of criminal liability. Discussion certainly cannot be suppressed without inviting serious suppressed anger which will ultimately be destabilizing and very bad for community relations. Historically, minorities have been the main victims of censorship and other forms of intellectual and social intolerance and the chief beneficiaries of freedom of speech. As I have pointed out, people once believed in the persecution of sexual minorities, the inferiority racial minorities and the exclusion of religious minorities. These notions were supported by the social consensus of the age, but died out in the face of rational discourse. In general, rational counter-argument is a better way of addressing hate speech than the attempt to suppress it through criminal law.

The suppression or punishment of speech tends to start from the best of motives. Its progress is gradual and frequently unperceived. But the ultimate result is objectionable. Recent legislation and police practice has, I fear, moved away from the distinction between coercion and liberty, which represented the only rational basis for curtailing freedom of expression. The result has been to reduce large parts of the law in this area to incoherence.

Once you start proscribing speech on the sole ground that it offends or distresses people, you open the door to the censorship of any words that people do not like. Without a coherent principle governing the permissible limits of free speech, there is effectively no free speech on some issues, except for those who confine themselves to the inoffensive and the anodyne. I think that that would be a retreat into an unpleasant world.

***

 This article was adapted from the Shrieval Lecture, given at Hereford Town Hall on 12 November 2025.

Recent criticisms of Europe by American politicians like JD Vance have reminded us that there is a profound gulf between American and European conceptions of free speech. The United States comes closer than any other country in the world to absolute free speech. The First Amendment to the US Constitution provides that “Congress shall make no law… abridging the freedom of speech”. No ifs, no buts. Since the early 20th century, this has been held to apply to state legislatures as well. The American courts were eventually persuaded to recognize exceptions for incitement to imminent violence, obscene and defamatory material, child pornography and fraud, but that is all. Even these exceptions have been very narrowly interpreted.

The European model has been very different. Freedom of expression is an important but not an absolute public interest in Europe. In principle, it may be overridden by a wide variety of other public interests if there is a sufficiently compelling case for doing so. Article 10 of the European Convention on Human Rights protects freedom of expression, but subject to a long list of potential exceptions: national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, the protection of confidences, or maintaining the authority and impartiality of the judiciary.

In Britain, the list of exceptions recognized by the law grows longer all the time: speech that discloses secret intelligence, speech that prejudices current legal proceedings, speech that supports proscribed terrorist groups, hate speech directed at racial, religious or sexual minorities, “grossly offensive” messages sent through the post or over electronic networks, and so on. Most of these exceptions are concerned in one way or another with public order and social harmony. In Britain we have not usually specified opinions that it is illegal to hold in public, but other countries have. In Germany, Austria and Belgium it is a criminal offense to deny, trivialize or approve of the Holocaust. Spain, France and Switzerland go even further. It is an offense in those countries to question the existence or gravity of anything which is regarded as a crime against humanity. In many countries it is illegal to display the swastika. In Latvia and Lithuania, that extends to the hammer and sickle and other symbols of Soviet communism.

There is an inevitable tendency for people to want to exclude from freedom of expression whatever ideas they personally cannot abide. Milton’s Areopagitica, published in 1644, is one of the most eloquent pleas for freedom of expression in the English language, but he excluded Catholics and atheists, whose views he regarded as beyond the pale. So did John Locke, although he at least offered reasons for their exclusion. He thought that Catholics were intolerable because they were not interested in truth, and atheists because having no fear of God, they could not be relied upon to honor any social obligations. The authors of the famous early 18th-century tracts known as Cato’s Letters argued the case for free political speech but made an exception for what they called “factious scribblers” and “turbulent babblers”.

The problem, as George Orwell pointed out, is that free speech is worthless unless it extends to things that people do not want to hear. We all have different lists of things that we do not want to hear. Suggested candidates for legally enforced censorship include a variety of allegedly extreme or unacceptable positions such as gender-criticism, climate denial, antisemitism, blasphemy against the Prophet Mohammed or the Koran, totalitarianism, eugenics, satanism and many others. Many of these demands reflect the sensitivities of particular ethnic, social or religious groups who say that their position is special. Censorship is often the child of collective grievances. People who feel that the world has been unjust to them are likely to claim that their position is special too. If some opinions are to be banned as beyond the pale, then why should my list of unacceptable beliefs be privileged over yours? The truth is that if we believe in freedom of expression, we have to tolerate things that we regard as intolerable. Otherwise the whole concept is meaningless.

Since we have to draw a line, where do we draw it? The starting point, I suggest, is to ask why we instinctively believe in freedom of expression in the first place. I think that there are three main reasons.

The first is that constraints on our ability to communicate facts or opinions invade our autonomy as moral agents and thinking creatures. When the constraints are imposed by the state, they imply a relationship between the individual and the state which is morally repellent. They reduce us to the status of mere instruments of other people’s power. Whether the suppression of free speech comes from governments or pressure groups or public opinion, it ushers in a narrow-minded, intolerant and authoritarian world in which the fear of giving offense or challenging existing shibboleths eliminates some of the most creative and original products of the human spirit.

The second reason for believing in freedom of speech is that we live in a democracy whose entire political order depends on the free exchange of ideas. It depends on our ability to freely receive information, on an acceptance of diversity of opinion and on a large measure of tolerance of intellectual and emotional differences. Our collective life depends on the resolution of issues between citizens by marshaling objectively verifiable facts. It depends on ordered debate about their implications under common rules that exclude coercion, and on a culture in which the outcome of our processes of collective decision-making is accepted even by those who disagree with it.

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A third reason why we believe in freedom of expression is perhaps the most fundamental. It is the one which received its most eloquent expression from Karl Popper’s classic work, The Open Society and its Enemies. No one person or group, however respectable or expert, has exclusive access to wisdom or truth. This is not just because of the limits on the capacity of the human mind. It is also because truth and wisdom are dynamic concepts. They are informed by a stock of experience which is constantly increasing. All statements of fact or opinion are provisional. They reflect the current state of knowledge and experience. But knowledge and experience are not closed or immutable categories. They are inherently liable to change in response to fresh discoveries or insights. Knowledge advances by testing conflicting arguments, not by suppressing them. Understanding increases by exposure to uncomfortable truths. In a world of free expression, some of what people say will certainly be wrong, hurtful or even objectively harmful. But the principle which we would have to accept in order to justify censoring these statements is more damaging than the statements themselves. We cannot have truth without accommodating the possibility of error, or wisdom without accommodating the possibility of folly. In the end we have to accept the implications of human inquisitiveness, creativity and imagination. The alternative is to entrust significant parts of our intellectual world to external authorities whose capacity for objectivity, truthfulness and wisdom is no greater than our own.

Ever since the 17th century, our civilization has been based on the notion that truth is independent of human will. It may be only partly knowable, and more or less difficult to identify, but it exists somewhere out there whether we like it or not. We have built our intellectual world on the footing that we get closest to the truth by objective study, logical reasoning and open debate, by what Mill called the “collision of adverse opinions”. I am not suggesting that this is guaranteed to produce truth or the wisest possible outcomes, but experience suggests that in the long term it is more likely to do so than any system of intellectual controls.

These reasons for believing in freedom of expression suggest a number of conclusions that we should bear in mind when we come to think about exceptions.

In the first place, freedom of expression is concerned with the transmission of information or opinion. Not everything that is spoken or written deserves protection. If I write you a letter or an email consisting of nothing but foul-mouthed abuse, I may be committing an offense under the Malicious Communications Act 1988 or the Communications Act 2003. Low level communications of this kind are devoid of intellectual, cultural or political value. In a sense I may be regarded as having communicated my opinion of you, but that hardly counts as an infringement of my right of freedom of expression.

The second conclusion to be drawn from our reasons for believing in free speech is that we should not suppress the expression of facts or opinions simply because they give offense, however understandable that offense may be. If we are not free to say things that other people regard as objectionable, we have no freedom of speech at all. In a famous statement of principle, Lord Justice Sedley observed in the High Court in a case about a Christian fundamentalist street preacher that “free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to promote violence. Freedom only to speak inoffensively is not worth having.”

Thirdly, it cannot be a good reason for suppressing some assertion or opinion that we think it is wrong or even that everybody thinks it is wrong. Few propositions are incontrovertibly false, in the sense that they are inherently incapable of being affirmed by hitherto unknown facts or fresh analysis. As a general rule, the best answer to misleading speech is counter-speech, i.e. reasoned refutation. Of course, counter-speech does not always work. The barrage of rubbish generated by the internet, generally mediated by algorithms which serve people up with material that confirms their existing prejudices, is a serious challenge. But counter-speech is more likely to work than suppression. Once upon a time, the authorized consensus was that the sun moved round the earth, because that view was supported by Biblical authority, then regarded as a source of incontrovertible truth. Galileo was condemned for denying it. The same point can be made about statements of opinion. Once upon a time the religious and social consensus justified slavery and the imprisonment of homosexuals, because this had been regarded as obvious for centuries. Once upon a time it was taken for granted in Britain that black people were inherently inferior. These views have almost entirely died out in advanced societies in the face of rational discourse.

In 2021 the Royal Society, Britain’s premier scientific society, called for legislation to ban the dissemination by anti-vaxxers of “false information” about vaccines, by which they meant information rejected by the scientific consensus. The case for vaccination is not inherently irrefutable. But in the current state of our knowledge, the debate has been won hands down by supporters of vaccination. That has only been possible because there has been a debate. Suppressing public opposition to vaccination will simply drive it underground where it will be more difficult to refute. Holocaust denial is another example. It is an absurd position which has been discredited not by legislation but exposure to the evidence. The great American jurist Oliver Wendell Holmes, who wrote some of the greatest judgments of the US Supreme Court in support of free speech, once observed that the guiding principle was that almost all certainty is an illusion. We might always be wrong, he said. All of us can all point to public statements which are untrue, mischievous or absurd, sometimes manifestly so. But manifestness is not a very useful criterion for censoring other peoples’ opinions. Nearly every received opinion which rational examination has discredited was once regarded as manifest by those who held it.

Finally, the concept of free speech assumes that adults are capable of distinguishing what is good from what is bad in the torrent of information to which we are all exposed. In a democratic society, it is necessary to proceed on that assumption, even though we know that it is not always true. In a society which treats every person as entitled to equal consideration and respect, we cannot distinguish between adults according to their degree of intelligence or discernment or their skill in ordering their lives. In a democracy, we have to assume that adults are capable of making discerning choices in their own interest, because the alternative is an authoritarian world in which their choices are taken away from them by the state.

All of this suggests that the threshold for banning the transmission of information or opinion should be exacting. Any exception must, I suggest, be based on some consistent principle, not just on people’s subjective likes and dislikes. The exception should also be consistent with the basic rationale for wanting freedom of expression in the first place. And it must be clearly defined, because if the boundaries of the exception are unclear, we will end up with a freedom that is at least partly discretionary. A freedom which depends on the discretion of the enforcers is no freedom at all.

I suggest that the only speech which we are justified in suppressing by law is speech which is coercive. By that I mean speech which deprives us of our choices because it is threatening, or directly incites violence or manipulates people in highly vulnerable categories, especially children.

The suppression or punishment of speech is a coercive act. The traditional principle of English law has been that it is only justified if the alternative is coercion of a different kind, the coercion which follows from a breakdown of public order. In his Commentaries on the Laws of England, the earliest systematic survey of the common law, published in the 1760s, Sir William Blackstone described a free press as “essential to the nature of a free state”. This was why the common law did not allow pre-publication censorship. Blackstone added that after publication, an author could be punished or mulcted in damages if his words were contrary to public order. This was because the state’s ability to maintain public order was also essential to the nature of a free state and to its role as the guardian of liberty. In Blackstone’s day, the courts were much more willing to take action against provocative speech, because the state had fewer means of maintaining public order. There was no general police force in Britain until the 1830s. In the first half of the 19th century, as Britain became a more orderly, better policed society, speech became less dangerous and the courts became more active in protecting it. However, direct incitement to violence is still the main exception sanctioned by English law to the principle of freedom of expression.

The most interesting analyses of this question come from the American case law. The Americans have a related doctrine known as the “fighting words” exception. Their case law denies that this amounts to censorship, because they distinguish between the content of the message and its consequences. Restrictions on free speech are unacceptable if they are directed to the content of the message. They have to be addressed exclusively to the circumstances in which the words were uttered and to their likely consequences. A rather similar line has been taken in some decisions of the European Court of Human Rights in Strasbourg. A good example is the case of Faber v. Hungary, decided in 1992. Faber was a Right-wing activist who had been convicted in Hungary of standing at a site in Budapest where Jews had been massacred in the Second World War and holding up a banner with a fascist symbol. His conviction was held by the Strasbourg court to violate the Human Rights Convention because the mere act of holding up the banner was incapable of disturbing public order or inciting violence. The fact that it was offensive and liable to outrage those who saw it was not enough. That was an objection to the content of Faber’s statement, not to its likely consequences. I think that that is also the approach of English law, even though English judges have been less articulate in saying so. Calling for violence in a university debating society is objectionable but not illegal, whereas calling for violence in front of a howling mob in a city center is likely to be both.

In September of last year, Lucy Connolly was sentenced to 31 months imprisonment for an inflammatory tweet. The case aroused much controversy. Her unsuccessful appeal against the sentence was supported by the Free Speech Union, and the sentence was roundly denounced in The Daily Telegraph and on GB News. This seemed to me to be strange. Her tweet said: “Mass deportation now. Set fire to all the fucking hotels full of the bastards for all I care.” If she had expressed this opinion at a meeting of the Women’s Institute, there would have been no problem. The actual circumstances were that the murder of three children in Southport had been attributed (in fact wrongly) to an asylum seeker, at a time when there was rising tension against immigrants in much of the Midlands. If a rabble-rouser stood on a soap-box in front of an angry mob and urged them to head for the nearest immigration hostel and burn it down, the vice of words like these would have been obvious. Doing it on social media is worse because the reach of the internet is so much greater. Its algorithms thrust words like Connolly’s under the noses of people who are already likely to agree. The internet is not a private conversation. It can whip up a violent mob in minutes. Connolly soon regretted her post and deleted it three and a half hours later, but in the short time that it was up, it was viewed 310,000 times and reposted 940 times. It was one of a number of wild statements on the internet following the Southport murders which provoked serious riots across England later that day and violent attacks on mosques and immigration hostels. Connolly was not a free speech martyr. Her conviction was in line with a perfectly rational principle reflecting a centuries-old limitation on free speech.

Incitement to violence is not the only restriction that our law places on free speech. Some of the other restrictions are principled exceptions which are perfectly consistent with the underlying principle of free speech. Others are unprincipled exceptions which should have no place in a rational system of law.

Let’s start with the legal restrictions which I suggest we should accept. The Online Safety Act, which was passed in 2023, is a complex and in some ways clumsily drafted piece of legislation, which hits many targets that were not intended. However, its principal purpose is to require providers of online content to have age verification checks so as to control access by children to manipulative or corrupting material such as pornography or material advocating suicide or self-harm. I have pointed out that the concept of freedom of expression involves treating adults as capable of discernment and of intelligently ordering their lives. The same assumptions cannot apply to children, who are by definition in a state of developing but incomplete maturity, and who do not have the full range of liberties available to adults. It is fair to regard the manipulation of children’s sensibilities as closely analogous to the coercion from which we seek to protect adults.

Next, there are laws which regulate the way in which our right of free speech is exercised, rather than the content of our speech. These too are, in principle, acceptable. For example, you cannot picket abortion clinics within 150 meters of their doors or buy advertising time for political causes on television. The law restricts the picketing of abortion clinics because it harasses women at an emotionally difficult time of their lives, but you can still protest against abortion in ways that do not amount to harassment: you can stand with your placards 160 meters away, demonstrate in Trafalgar Square, write articles in the press, publish podcasts on YouTube, distribute leaflets, and so on. The law forbids political advertising on television in order to provide some limit on the power of big money to buy influence over political debate in a democracy. However, you can still do party political broadcasts, put up posters on billboards, take advertising space in newspapers, or hold political rallies. These restrictions are not directed against the content of any spoken or written statement. There is no infringement of the right to freedom of expression simply because there are some places where you cannot speak. A notice saying “Silence” in a courtroom, church or library is not an infringement of free speech.

My final example is more controversial. It is about the laws relating to defamation and privacy. The law of libel and slander allows people to claim damages from those who have told lies about them. The law of privacy allows those whose privacy has been invaded without any justification in the public interest to claim damages from the intruder. There are legitimate concerns about the granting of injunctions, especially in privacy cases, but I see no reason why the law should not, after proper investigation, correct the financial consequences of lies and intrusions into our private lives by awarding compensation for the damage which these things can cause. I do not regard that as censorship. It simply adjusts as between private individuals the financial consequences of free speech.

If these are legitimate restrictions on freedom of speech, there are others which have been imposed over the last half-century and which ought to cause us real concern. They are designed to protect people not from coercion or manipulation but simply from being offended.

A good example, which is currently topical, is the provision of the Terrorism Act 2000, which forbids public expressions of support for proscribed terrorist organizations. The Act forbids any conduct which involves assisting or participating in the work of a proscribed terrorist organization, which is fair enough. However, it then goes on to forbid expressions of support even where they do not assist the work of the organization but merely amount to the peaceful expression of a favorable opinion about it. Unlike the restrictions which I have just been discussing, this is a direct attack on the content of certain statements. There are people who think that terrorism in the service of a good cause is fine. I think that this is foolish, but should not be criminal. Arresting hundreds of people in Parliament Square for holding up placards saying that they support Palestine Action is an unprincipled interference with freedom of expression.

The main restrictions of this kind come under the broad heading of hate crimes, which is probably the most intrusive and least justifiable interference with freedom of expression in Britain. Hate crimes are based on the Public Order Act of 1986. Their scope has been expanded by successive amendments since the original Act was passed. The position can be summarized as follows: it is an offense to use language which stirs up racial hatred, religious hatred or hatred based on sexual orientation. In the case of religious hatred and hatred based on sexual orientation, the language used has to be threatening. This probably means words which threaten imminent violence, which broadly accords with the law’s traditional approach to breaches of the peace. However, in the case of stirring up racial hatred, the offense is much wider. The language used need not be threatening. It is enough that it should be abusive or offensive. In the case of religious hatred, there is a broadly drawn exception which allows people to discuss or criticize, or express antipathy, dislike, ridicule, insult or abuse of any religious belief or practice. This may be described as a proviso for the benefit of Richard Dawkins, the late Christopher Hitchens, and the late Bertrand Russell, all of whom have had harsh things to say about religious beliefs. Yet there is no such exception in the case of race or sexual orientation. In 2024, 140,561 hate crimes were recorded by the 43 police forces in England and Wales. The breadth of the offense can be seen from the facts that the police have arrested Christian preachers for their street sermons, parents engaged in a dispute with their daughter’s school, and the Irish comedian Graham Linehan for tweeting that women confronted by trans men in women-only spaces should “make a scene, call the cops and if all else fails, punch him in the balls”.

In addition to hate crimes properly so-called, there is an anomalous category known as “non-crime hate incidents”. The police have a common law power to record incidents. Non-crime hate incidents are not criminal offenses, but are simply incidents which the police are administratively directed to record. They have real consequences and will usually entail intimidating visits and warnings from the police. They will show up on enhanced criminal record checks and may stop people getting jobs. The police defend the practice on the ground that such incidents may lead to real crimes if repeated. This seems rather far-fetched. The job of the police is to enforce the criminal law, not to regulate behavior which is perfectly lawful but may be loutish, offensive, politically incorrect or contrary to received opinion. Different police forces have recorded as non-crime hate incidents gender-critical tweets, tweets critical of the police, accidental damage done by schoolchildren to a copy of the Koran, and even speeches by ministers proposing restrictions on immigration. Harry Miller, who was visited by Humberside police at his workplace and questioned about his gender-critical tweets, took them to court. The conduct of the police, said the judge, offended against a “cardinal democratic principle”. “In this country,” he said, “we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.” Yet last year, more than 13,000 non-crime hate incidents were recorded by police forces in England and Wales.

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“Hatred”, “threatening” and “abusive” are vague terms which cry out for precise definition, but there is no definition of these words in the Public Order Act. “Offensive” is an even vaguer term, which is likewise undefined. On the face of it, the word extends to anything that causes offense. As for non-crime hate incidents, they have no statutory basis at all and therefore no definition either. The looseness of these concepts means that in reality action depends on the discretion of individual police officers. This is not a proper function for a statutory public service or a satisfactory basis for penalizing speech. A police state can fairly be defined as a state in which the police have discretion as to what constitutes an offense. The prosecuting authorities have tried to resolve this problem in a highly unsatisfactory way. The Crown Prosecution Service and the police have agreed to define a hate crime as anything which is perceived by the victim or anyone else to be motivated by hostility or prejudice. In other words, the definition which they use is subjective. If the complainant thinks it is a hate crime, then it is a hate crime. One would think that hatred implied a very high degree of animosity, but the Crown Prosecution Service has suggested that it can include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment, and dislike. Yet all of these, humanity being what it is, are hazards which most of us must expect to live with. Remarkably, until 2021 the College of Policing, which sets standards for the police, after explaining that a hate crime depended on the perception of the victim, added the following observation:

“The victim does not have to justify or provide evidence of their belief, and police officers and staff should not directly challenge this perception. Evidence of hostility is not required for an incident or crime to be recorded as a hate crime or hate incident.”

Carried to its logical conclusion, this approach gives racial minorities a right of veto; an entitlement to silence opinions to which they object.

In 2021, the guidance was changed in response to criticism by the Court of Appeal in Miller’s case. The Court of Appeal did not object to the subjective character of the definition, but it held that the guidance was unlawful because it was far too wide. It interfered with Miller’s right of freedom of expression and was likely to have a chilling effect on the discussion of controversial issues like gender. However, the changes to the guidance were minimal. The guidance now says that at the point of receiving the complaint, no justification or evidence is required, leaving open the possibility of seeking such evidence later. The effect is that the investigation of a hate-crime is still dependent on the personal sensitivities of the complainant and the discretion of the police.

All of this originated with the Macpherson Report on the murder of Stephen Lawrence, which was published in 1999. Macpherson made two recommendations which are relevant for present purposes. First, he recommended that the police should systematically record “racist incidents”, a category which he defined as “any incident which is perceived to be racist by the victim or any other person”. That is the origin of the subjective definitions currently used by the police and the Crown Prosecution Service. Secondly, he recommended that racist incidents should include both crimes and non-crimes. That is the origin of the category of non-crime hate incidents. Experience has shown the Macpherson recommendations have proved to be extremely damaging. Speaking in the House of Lords last November, Lord Hogan-Howe, a former Metropolitan Police Commissioner, observed that the recording of hate crime was a well-intended change which had gone wrong. “The definition of a crime is objective and the definition of hate crime is subjective,” he said, “during the time this has been in place, online crime and online hate crime have grown massively, and the application of the hate crime definition has been inconsistent.” Recently, Britain’s largest police force, the Metropolitan Police, announced that it would stop dealing with non-crime hate incidents. The current commissioner, it was announced, “has been clear he doesn’t believe officers should be policing toxic culture war debates, with current laws and rules on inciting violence online leaving them in an impossible position”. So far the Met’s example has not been followed by other police forces.

The most famous test for determining what can and what cannot properly be suppressed is the “harm principle” proposed by John Stuart Mill, the great Victorian apostle of free speech, in his 1859 treatise On Liberty. Mill taught that the only purpose for which power might properly be exercised against individuals against their will was to prevent harm to others. Hate crime and non-crime hate incidents are symptoms of a modern tendency to redefine harm so that it extends to the discomfort caused by having to endure rudeness, contradiction or dissent. When interest groups object to someone’s opinion of them, they commonly call for a subjective approach to its impact. Harm is whatever the relevant target group perceives as harm. It depends on their “lived experience”, as the phrase goes. This way of looking at the harm done by free speech is particularly common when the offended group is a racial, religious or sexual minority. The argument is that words may undermine the dignity of the groups against whom they are directed. Words wound, it is said, especially when they relate to another person’s identity or status. Words are therefore viewed as a form of violence comparable to physical assault. But there are obvious problems with this approach. One is that concepts such as undermining human dignity are too uncertain and subjective to serve as part of the definition of a criminal offense. Another is that there is an important difference between violence and words. Violence is coercive. Words, even if offensive, are not coercive except in those cases where they are calculated to provoke violence.

Today, racial, religious or sexual minorities are said to need protection from hurtful words. The desire to accommodate groups who feel themselves oppressed is understandable. It assists social inclusion. Racial, religious and sexual differences are highly sensitive matters, but they are also major issues in our society, as well as in other countries of Western Europe and North America. They need to be openly discussed without fear of criminal liability. Discussion certainly cannot be suppressed without inviting serious suppressed anger which will ultimately be destabilizing and very bad for community relations. Historically, minorities have been the main victims of censorship and other forms of intellectual and social intolerance and the chief beneficiaries of freedom of speech. As I have pointed out, people once believed in the persecution of sexual minorities, the inferiority racial minorities and the exclusion of religious minorities. These notions were supported by the social consensus of the age, but died out in the face of rational discourse. In general, rational counter-argument is a better way of addressing hate speech than the attempt to suppress it through criminal law.

The suppression or punishment of speech tends to start from the best of motives. Its progress is gradual and frequently unperceived. But the ultimate result is objectionable. Recent legislation and police practice has, I fear, moved away from the distinction between coercion and liberty, which represented the only rational basis for curtailing freedom of expression. The result has been to reduce large parts of the law in this area to incoherence.

Once you start proscribing speech on the sole ground that it offends or distresses people, you open the door to the censorship of any words that people do not like. Without a coherent principle governing the permissible limits of free speech, there is effectively no free speech on some issues, except for those who confine themselves to the inoffensive and the anodyne. I think that that would be a retreat into an unpleasant world.

***

This essay is adapted from the Shrieval Lecture, given at Hereford Town Hall on 12 November 2025

As a country on the front line of migratory waves from Western Asia and North Africa, popular opposition to mass migration in Greece is a given — I once had my camera thrown into the sea by angry locals who presumed I was working for an NGO — but the issue has been largely neutralized by the hard approach to extra-European migration displayed by the Right-wing government. The adoption of national-conservative stances has brought none of the liberal opprobrium which targets countries like Hungary; certainly, none of the affluent British tourists crowding the local beaches and tavernas, who would view Farage as a threat to their nation’s deepest values, appears to view Greece as a benighted pariah state.

What passes beyond Greek understanding, then, is the pose of assumed helplessness displayed by British governments: it is generally assumed that in a democracy, for a government to survive, it must do what its voters wish. Nigel Farage’s unveiling this week of Reform’s policy of detention and deportation of illegal migrants represents Britain lurching towards this European mainstream status quo, and not the one which parochial British pro-Europeans would wish it to be. For everything that Farage announced is already being implemented in Greece, under the stern eye of the country’s new Minister for Migration, Thanos Plevris, a convert to Greece’s governing and notionally center-right National Democracy party from the national-populist LAOS party, far to the right of Reform.

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The Greek coastguard has managed to stem the flow of migrant boats from Erdogan’s Turkey, which openly uses migration as a weapon against Greece, by the simple expedient of pushing them back, illegally and often forcefully. It deals with European and NGO criticism by blankly denying it is doing so. Facing a new migration wave from eastern Libya, which overwhelmed the southern island of Crete this summer, the Greek government suspended the right to claim asylum for any migrants arriving from North Africa. In what the Washington Post, with the solipsism of American journalism, describes as the country’s “Trumpian turn”, migrants are now detained on arrival, and held in prison-like internment camps until they can be deported. Those who accept deportation will be sent on their way with a €2,000 stipend: those who refuse face prison terms of between two and five years. In Greece, it is now a criminal offense for NGOs or anyone else to help migrants reach the country’s shores. Such hardline measures balance “the rights of third-country citizens to seek asylum and the right of Greeks, who cannot see boats coming and a government not reacting”, Plevris has declared: “Greek citizens should know that under no circumstances are we going to become a country of open borders or a country where those who come will be welcomed with flowers.”

Like Poland, whose new liberal government suspended asylum claims from its eastern, and now heavily militarized, border in February, Greece’s suspension of the asylum process is taking place within the ECHR which Farage has vowed to leave — in both cases citing the provision for overriding the right to asylum in the event of “in time of war or other public emergency threatening the life of the nation”. Poland’s confrontation with Belarus, and behind it Russia, eases the process within the context of Europe’s embroilment in the Ukraine war. For Greece and Plevris likewise, the migrant wave from North Africa is an “invasion” and a threat to both Greek and European security. The European Commission’s migration spokesman has merely stated that “We are in close contact with the Greek authorities to obtain necessary information on these measures”, citing Greece’s “exceptional” situation. Indeed, as Greek officials declared to Politico, “neither EU ministers nor the Commission raised any objections regarding the suspension”, but instead “the new Greek legislation has aroused particular interest among [European] ministers, as it is seen as the strictest ever submitted at EU level”.

Returning to Britain’s more parochial debate, it must first be noted that the detention and deportation of irregular migrants is now the stated policy of both conservative opposition parties as well as, credibly or not, the Labour government. The same Farage who a less than a year ago declared he would not be “dragged down the route of mass deportations”, because “it’s a political impossibility to deport hundreds of thousands of people”, is now promising the mass deportation of 600,000 irregular migrants in his first term. The Conservative Party is accusing Reform of “copying its homework”, declaring its ownership of mass deportation as a policy, while the Prime Minister vows: “If you come to this country illegally, you will face detention and return.” The entire framework of Britain’s heated and decades-long migration debate has been changed, perhaps irrevocably. Contrary to the fantasies of the migration extremists who have brought us to this point, Britain’s political parties have not weaved a dark spell of extremism over a pliable electorate, sadly unenlightened by their Bluesky threads. Instead Britain’s politicians have been dragged here, against their will, by a popular anger now uneasily straddling the line with open civil disobedience. As in the old coarse joke, now that the principle has been firmly established, all that remains is to haggle over the details.

And it is the details we may rightly quibble with in Farage’s dramatic announcement. As Poland and Greece have shown, while Reform’s stated policies are provably achievable, it is not necessary to leave the ECHR to do so. Indeed, attempting to do so will likely mire Britain in a second coming of the interminable Brexit crisis, with low-information liberals declaring that the ECHR is all that stands between the ordinary voter and the return of slavery, torture and summary execution that apparently typified British life before 1998. Given the convention’s political importance to Irish Republicans distrustful of unencumbered Westminster rule, leaving its purview would likely return Northern Ireland from its current position of an irrelevant anomaly to its traditional role as a baffling and unresolvable irritant to mainland British governance. As with so much of Britain’s tangled and unhappy relationship with continental legislation, the issue at hand is not so much the ECHR itself, but rather the problem of factions within the Westminster state, in its courts and civil service, using it as an excuse to pursue their own ideological ends against the will of the British people, for decades expressed democratically to no effect, and now in the streets with sudden, startling success.

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As the venerable American observer Christopher Caldwell recently observed of Britain’s increasingly unhappy and volatile state, while “Blair enshrined the European Convention of Human Rights in British law and empowered a Supreme Court to vet parliamentary decisions”, the “democratic prerogatives of the British Parliament are almost absolute”, such that “Britain’s proudly (or notoriously) sovereign parliament could abolish these Blairite guardrails in an afternoon”. Both simpler and more transformative than leaving the ECHR, the obvious course open to the now probable incoming Reform government, preparing for a landslide victory, represents something closer to the transition between political regimes than winning an election. It is indeed the reversal of Blair’s own constitutional revolution, now sanctified as an ancient pillar of the state by the apparatchiks it empowered. When even New Labour grandees such as Jack Straw and David Blunkett propose sacrificing the ECHR, we must view it as we would a general’s ceding of an already untenable border fort to preserve his deeper lines of defense.

To preserve the British state, Farage must strike deeper, and return its institutions to democratic control. The alternative to total political reform, as the not-especially excitable historian Robert Tombs observes, is not an endless continuation of Blairite high summer but the gathering stormy clouds of an “English Revolution”, whose ramifications for the British state and the various peoples it claims to represent are impossible to predict. Just as Tombs declares, a period of political transformation “as momentous as the 1832 Reform Act”.

In his Oxfordshire aircraft hangar, unveiling his mocked-up departure board, Farage presents the country, and is himself presented, with the choice between a controlled descent from a disastrous course or an uncontrolled crash landing. The nation’s stability increasingly rests on his unproven ability to take back control, returning Britain from its parochial isolation to the European mainstream. If those who brought us here fear Farage’s course correction to the Britain of the 1990s, the prospect of his failure should frighten them more: if the British state cannot reverse its mistakes, the logic of events will cast them on a far more hostile shore.

For years, critics of the ECHR have argued that the Convention and its handmaiden, the European Court of Human Rights, represent an unacceptable infringement on national sovereignty. Supporters of the ECHR, on the other hand, claim that it has been an important driver of social progress, helping to redress blind spots within the UK’s legal system.

In a way, both sides are correct. Consider the ECHR’s most important UK-related rulings — ranging from homosexual equality to journalistic freedom — and few would disagree that it has played an important role in strengthening the protection of citizens’ rights in Britain. Yet it is also true that the ECHR raises important issues over sovereignty and democratic legitimacy. Should a supranational court have the right to decide whether a certain bill, approved by an elected parliament, passes the ethical and moral litmus test?

It is, though, a mistake to treat the ECHR in isolation, as its critics do. For the same question could be asked of any national court, including the Supreme Court itself. The influence of the ECHR is only one part of a much bigger story: the wider judicialisation of our political and democratic systems.

Over the past few decades, an unprecedented amount of power has been transferred from representative institutions to judiciaries, transforming national and supranational courts into full-blooded political and decision-making bodies — and giving rise to a new type of political regime altogether: what some have called juristocracy. As legal scholar Ran Hirschl wrote as far back as 2004, from matters of national security to macroeconomics, “courts have become crucial for dealing with the most fundamental questions a democratic polity can contemplate”. The view that “nothing falls beyond the purview of judicial review”, as Aharon Barak, the former Chief Justice of the Supreme Court of Israel, said, has become widely accepted.

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As a result, it has become standard practice for core political decisions relating to the very essence of public life — such as immigration policy — to be taken by courts and judges. Questions that ought to be resolved through public deliberation in the political sphere are increasingly being settled behind closed doors by a self-selecting judiciary elite. Power has been delegated away from elected bodies and towards technocratic institutions — not just courts but also quasi-autonomous administrative bodies within the state, as well as supranational political-economic institutions such as the European Union. This process of judicialisation has disrupted the equilibrium between the various branches of government, and the fundamental principle of the separation of powers, transforming judiciaries into de facto legislators, at the expense of democratic deliberation.

In this sense, critics of the ECHR are right to claim it usurps the functions of democratic institutions, just as the EU does. As the former Supreme Court judge Jonathan Sumption recently made clear: “The [European Court of Human Rights] is now much more than a judicial body. It is a great factory for making law, which has become a legislative and political authority for the whole of Europe… It is political because many of the issues which it decides are matters of political judgement on which states can legitimately differ.”

But the Convention is only one facet of a much bigger problem: the juristocratic regime. And this is more than just a scholarly issue — it is a matter of class and power.

The birth of today’s juristocracy dates back to the late 19th century, when the gradual establishment of universal suffrage led to growing anxiety among ruling proprietarian elites, including most liberals including Mill, about the entry of the lower classes into government. The fear was that the extension of the franchise would disrupt social stability and constitutional principles — and, more precisely, that the working classes would use their new-found political rights to challenge the dominant economic order.

Most governments responded to this threat by effectively restraining popular participation through a mixture of parliamentary sovereignty, rule of law and formal or informal constitutional conventions. In England, this came to be known as the Westminster system, a regime premised on the idea that Parliament was the only body with the authority to make laws, thus implying the subordination of the judiciary to the legislative.

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This form of political system became increasingly prevalent in Europe in the years after the First World War — and, in most cases, the power of the court to influence the legislative and political process was fairly limited. Indeed, as of 1942, only Norway had a constitutional court with the power to throw out laws adopted by the national legislature. Throughout the Forties and Fifties, however, several countries — including Germany, Italy, France and Austria — adopted constitutions that instituted courts with the power of judicial review: the power to examine, and eventually overturn, the decisions of the legislative and executive arms of government, if deemed in breach of the constitution.

This gave rise to the model of “constrained democracy” that was later emulated across most of Europe: one which possessed all the formal elements of democracy but where the ability of the masses to influence policy-making was subject to new sets of constraints. Though these constitutional courts were officially created as “guardians of the constitution”, they were in fact just as much guardians of the emerging US-led international order. Indeed, the early post-war years also saw the emergence of courts that were international or supranational in their own right, in Europe in particular, most notably the European Court of Justice and the European Court of Human Rights.

Westminster-style polities, such as the UK, were largely immune to this trend. But in the Seventies, the push towards judicialisation underwent a massive acceleration, including in the Anglosphere. Faced with growing pressure from an increasingly militant and politicised body politic, political elites resorted to various forms of depoliticisation — the removal of political decisions from the realm of popular-democratic contestation — in order to escape such pressures.

Judicialisation was one of the key tools — by either relying on the courts to challenge existing aspects of the social order that would have been hard to change through the normal channels of democracy, as Thatcher did, or by outright transferring power from majoritarian decision-making bodies, such as parliaments, to courts at the domestic and supranational level.

As Hirschl explained, even though this transfer of power might appear to run counter to the interests of political elites, in fact it served their interests very well. It allowed them to “scapegoat” the courts for policies they themselves wanted, safe in the knowledge that high judges tend to reflect the elite consensus on major cultural and political issues. “Deference to the judiciary, in other words, is derivative of political, not judicial, factors,” he wrote.

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Jonathan Sumption on Gaza, lockdown and the ECHR

By Freddie Sayers

For the UK, this journey largely accelerated with its entry into the EU in 1972, which over time transformed EU law into something akin to a higher law. The second big push towards judicialisation came in the late Nineties and early 2000s under New Labour, with the creation of the Human Rights Act and then the Constitutional Reform Act of 2005, which paved the way to the creation of the Supreme Court in 2009.

Yet for Britain’s political elites, judicialisation still carried a risk — namely, that the courts would start producing judgments that no longer reflected the ideological preferences of those who handed authority over to the judiciary in the first place. Hence, the Conservative Party finds itself unable to enforce its Rwanda policy.

So, when leading Conservatives claim that the ECHR represents an infringement on democracy and parliamentary sovereignty, and that leaving the ECHR is necessary to complete the “Brexit project”, they are not wrong. The problem, rather, is that these arguments ring hollow.

After their victory in the EU referendum, many hoped that Britain’s democratic rejuvenation was just beginning; instead, the Conservatives have gone out of their way to avoid democratic scrutiny. They have a Prime Minister who rules without a democratic mandate, and a party machine which seems more interested in internal squabbles than fulfilling its electoral promises.

Should we be surprised, then, that a majority of people, according to a recent poll, don’t want to leave the ECHR? Perhaps they realise that, for withdrawal to make sense, it needs to be part of a radical project of re-democratisation. But that would require the existence of a political class that believes in democracy. Even if the Tories somehow manage to conjure up a way to bypass the Rwanda ruling, that uninspiring reality is unlikely to change.

This week, he joined me at the UnHerd Club to discuss everything from our evolving attitudes to war and Joan of Arc, to Covid, the ECHR and Roe v. Wade. Below is an edited transcript.

Freddie Sayers: Lord Sumption, you’ve kindly agreed that we are on “ask me anything” rules. Our ambition is to move between your recently completed history of the Hundred Years War and contemporary controversies that a historical perspective might shed light on. Let’s see how that goes! 

To begin with, it’s remarkable how much the historical period you’ve devoted 43 years of your life to is defined by war.

JS: War is crucial. Until the beginning of the 20th century, the two principal collective activities of mankind were religion and war. The purpose of the state was to serve the second of those things, but usually the first as well. War is at the heart of the experience of societies. It is what created the state, in that war made it necessary for the state to find a way of organising the resources of a country. It’s something that, during the Hundred Years War, the English government initially did very much better than the French, which is why, although they were a smaller, less populated, less rich country, they won their battles initially. The tables were reversed later. But war is absolutely critical to an understanding of the creation of the state and of human societies. That doesn’t just apply to this country. It applies to pretty well every country.

Medieval societies had a completely different attitude towards conflict. We regard war today as an unwanted catastrophe that periodically breaks in on us against our wishes. They regarded war as the norm, the normal way of settling international disputes, and quite a few internal disputes. And so, people didn’t say: “This is terribly wasteful, we could be spending the money on new universities or the National Health Service.” It was not felt that the duty of the state extended to relieving poverty or to promoting human happiness. Therefore, there was nothing wrong with war, it was a perfectly reasonable thing to spend what money you had on. It’s an attitude that, today, it’s quite hard to work your way into.

FS: Although given the news of the past fortnight, it is clear that primal war over territory, between peoples that don’t have any hope of seeing eye to eye, is still a feature of today.

JS: It is as old as the hills. In the 14th century, the English adopted what I can only describe as terrorist tactics to try and batter the French government into submitting to their demands. They conducted huge raids in which they indiscriminately killed large numbers of people and burned whole villages. This is what we would call terrorism. It really wasn’t until the 18th century that war became a battle between organised armed forces. We’re now reverting to an earlier pattern in which at least one side in any war is a disorganised group of people. Hamas is a good example. They’re semi-organised, and their object is indiscriminate violence because they do not have the resources to confront whoever their enemy is with the same sort of weapons. If you are a semi-state, and the underdog, this is how you wage war. England was 100% of a state in the 14th century, and they still waged war that way.

FS: So you think what we saw on 7 October in Israel — the killing of infants, the kidnapping of elderly people: there would be no qualms about that in the 1400s?

JS: None at all. There were theoretical qualms about killing priests and pilgrims. But that was it. Everyone else was fair game. We have an image of the late Middle Ages as an age of chivalry. Actually, chivalry was a purely decorative concept, a form of aristocratic showing off. It had almost no implications for the conduct of war, except that it governed the rules about taking prisoners and ransoming them — taking prisoners was very profitable because you could sell them. So apart from that, chivalry was a decorative illusion. It was actually a very grubby and violent period. On the whole, I don’t believe that humanity changes very much. The technological possibilities which enabled them to achieve their objectives have changed quite radically, obviously. But their ambitions and moral sensibilities have not changed at all and we can see that all around us.

FS: Do you think we are regressing back to a more medieval mode of warfare?

JS: Organised wars, conflicts between disciplined armies — I’m certainly not suggesting we won’t see more of those. That would be tempting fate. But all the wars since the Second World War — possibly the Korean War is an exception — have involved loose associations of guerrillas and terrorists either facing other similar groups or facing organised armies like the Western armies in Iraq and Afghanistan.

FS: Much of your history is concerned with the formation of England and France as nations. Do you think that nations are receding from the prominence they have historically enjoyed?

JS: On the contrary, I think nations, after a period in which they were thought to be rather old hat, are coming back. I think that national self-interest is reasserting itself in quite a big way.

FS: Since we touched on the current conflict, it would be remiss not to ask what you think the legal situation should be here in the UK regarding Israel-Palestine protests. There has been a lot of discussion of whether slogans like “Palestine shall be free, from the river to the sea” should be deemed illegal as they are supporting a terrorist organisation or advocating the destruction of Israel. Where do you think the line should be?

JS: There’s been an awful lot of nonsense talked about this, some of it coming from surprising authorities like the Home Secretary. Hamas is a proscribed organisation. It’s illegal to support them. I don’t think that it’s illegal to support — lawfully, without violence — the cause which they support violently. I do not think it’s illegal to say that Palestine should be a distinct state. I don’t think it’s illegal to say that Palestinians have a legitimate grievance. (These are not necessarily my views, but they are views, which it’s perfectly legal to express.) The mere fact that most Palestinians live in an area, Gaza, which is controlled by Hamas, does not mean to say that everything that you say in favour of the Palestinians is necessarily to be treated as equivalent to supporting Hamas. So a great many of the slogans, the demonstrations, and the flags that we’ve seen in the streets are not illegal at all, at least not on that ground.

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FS: Are you worried that normal freedom of expression is being imperilled?

JS: I don’t think so far it’s been imperilled. I think what we’ve seen so far is some rather silly and ill-considered statements from people who should know better. We’ve got to see how the situation develops. My impression, for what it’s worth, is that we are tending slightly to recede from the initial feeling that all good men and true must necessarily support Israel. I think that a realisation of the humanitarian consequences of the Israeli invasion of Gaza has caused quite a lot of people — not everybody, but a lot of people — to pause. And on the face of it, it looks as if an invasion of Gaza would have some of the indiscriminate qualities that people quite rightly objected to when practised by Hamas.

FS: I’m going to take us back to the late Middle Ages now. Joan of Arc is perhaps the standout character of your last volume. And it’s just the most extraordinary story and oddly quite a contemporary one.

JS: She is the most interesting phenomenon, I agree. The Middle Ages basically believed that women were unfit for any responsible job other than heads of state. You could be a queen, but you couldn’t be anything else. Joan of Arc clearly and spectacularly broke that convention. She was a 17-year-old peasant who reversed the course of the war in the space of a year. That was a very remarkable thing. She challenges objective history. No serious historian can really believe in miracles, however religious he may be (and I don’t). On the other hand, some of the things that she did are difficult to explain short of divine intervention.

So what is one to do if the probability points to something that you can’t possibly believe in? I think the answer is that, in war, there are risks and there is bluff. And people who take risks, and try bluffing, often get somewhere. It’s usually luck. It’s not an act that can be sustained for that long, but it wasn’t sustained for very long. Joan of Arc’s military career lasted less than a year. Napoleon said that, in war, three quarters of it is morale, and the rest of it is manpower and all the rest. And I think a lot of experienced soldiers, certainly a lot of historians, would agree with that.

FS: So a 17-year-old girl — you describe her as anorexic in your book, illiterate, who dresses in men’s clothes, somehow manages to get herself to the court of the Dauphin and become the mascot of the French within months. So, she was a sort of influencer?

JS: Yes. She transformed the morale of the French, and completely destroyed that of the English. And that was something that not only the French thought, but the English agreed with. The Duke of Bedford, who ruled the English occupied parts of France, in his post mortem on what had happened, said: this woman was a miracle worker. He didn’t think that she was inspired by God — the miracles were the work of the Devil — but that she had supernatural powers, and that they destroyed the English morale was something that he regarded as self-evident. The records that we have of the interrogation of English prisoners of war taken by the French around that time bear out exactly the same story.

FS: Is it ridiculous to make the comparison to someone like Greta Thunberg?

JS: Well, Greta Thunberg has this much in common with Joan of Arc: Joan of Arc was widely regarded by the professional soldiers as a damn nuisance. They kept their councils of war in the middle of the night when she was in bed, or when she was somewhere else. And I think there’s a lot of feelings of the same sort, among people who are actually serious climate change authorities, about Greta Thunberg. But Greta Thunberg was a demonstrator; Joan of Arc was a fairly active doer.

FS: Although she didn’t actually fight. 

JS: No, she didn’t actually fight. She was in the middle of the melée, and she had a sword and axes and things, but she never killed anybody. She told her judges that, and all the evidence bears it out. She was there essentially as a morale booster.

On the coronation march to Reims to crown Charles VII, all the towns opened their gates because she simply appeared in front of them and said: “Open your gates, in the name of God.” They had heard slightly exaggerated stories of her miracle-working in the Loire Valley and they were terrified. And that worked a dream until she came to the walls of Paris. They didn’t open the gates. Paris was the great capital of the English and the Dukes of Burgundy, and the population was onside and they fought back. She announced her mission, demanded that they open the gates, and said they would be sent to Hell by the God of justice if they didn’t. And the response from a quite lowly crossbowmen was, “Shall we now, you brassy trollop,” whereupon he loosed his crossbow and caused her quite serious injuries, which prevented her from taking any further part.

FS: The beginning of the end for Joan of Arc.

JS: It rather damaged her credibility!

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FS: One other event that took place in this huge period between the 1300s and the mid-1400s was, of course, the Black Death, the huge plague that ravaged both England and France. Do you think this history and your sense of proportion were part of your background thinking when our own pandemic took place in 2020? 

JS: My sense of history told me that there had been an awful lot of epidemics, which were at least as serious, usually more serious than Covid. And it seemed to me, therefore, that to overreact, to treat this as an occasion for closing down all social life, was, frankly, absurd. It was a serious enough illness. But it was not unprecedented. And humanity has survived without inflicting these appalling tortures on itself perfectly satisfactorily through much worse epidemics. The Black Death was one example. But there are very many others.

There is one similarity, which is worth noting. In the Black Death and during other epidemics of bubonic plague in the Late Middle Ages, people used to believe that they had suffered a terrible infliction sent to them by God. It was due to their sinfulness. So they organised processions around the walls of the towns in which they lived in which they flagellated themselves. And during the Covid inquiry, we flagellated ourselves quite unnecessarily.

In my view, they were more sensible approaches than lockdowns. But what the two incidents had in common was a feeling that if you didn’t modify the flesh, if you didn’t inflict some misfortune on yourselves, you were going to be a sucker for this disease. People did it without any kind of religious motivation. So that’s an important difference. But the desire to inflict damage on yourself in order to ward off what you believe to be an impending catastrophe is a fundamental feature of human psychology at most historical times.

FS: If we look at other dissenting figures of authority, I think you could almost observe a trend, that people who had a broader learning, a broader interest than purely one particular branch of one particular science, tended to take a view more similar to yours. Sunetra Gupta for example, the scientist from Oxford, is also a novelist. Do you think there’s something in that?

JS: I think the more experience that you have of life — and history is essentially a source of vicarious experience — the more sceptical you are likely to be about any magic bullet solution. What was remarkable about Covid was that in deciding upon lockdowns the Government didn’t even look at perfectly modern examples of reasons why you shouldn’t do this. It is absolutely clear that they never considered, and discouraged other people from considering, the downsides — economic, financial, educational, social, mental health issues. This was a classic example of an extreme magic bullet mentality: “We are going to lock people down, we do not care what the collateral consequences might be, because we’re only interested in one thing, which is reducing deaths from Covid. We don’t mind if deaths from dementia go up, if deaths from untreated or undiagnosed cancer go up.” It is the most narrow minded conceivable approach to any major policy issue. You don’t need to go back to the 14th century in order to see why.

FS: When you look back at the Covid period, now three years on, do you think you can now say with confidence that you were right and that lockdowns were a mistake?

JS: I felt I could say that with confidence at the time actually! I think that the proportion of people who think lockdowns were a good idea has diminished, but a majority still think that. I also think that I converted very few people. What I did do I suspect was cheer up a lot of people who already agreed with me.

Now, lots of people come up to me and say: “Thank you for what you said, during the lockdown.” And I got a huge postbag of 200 letters a week and I would think 90% of them were supportive. I’m not suggesting for a moment that this is a statistically representative sample of the British population. But the sorts of people who take the trouble to write your letter are people who want to say: more power to your elbow. And that’s obviously cheering — you feel you’re doing something useful, even if it’s not persuading people on the other side of the argument.

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FS: Do you look at society differently — with greater trepidation — or feel like the institutions of our liberal society are more fragile than you had thought they were? Has it changed your world view?

JS: Yes. I was surprised by the readiness of people to submit to this. I have always been fascinated and appalled in roughly equal measure by the political writings of Thomas Hobbes. Ever since I was a teenager, when I first read Leviathan. Everybody should read Hobbes, because he is the most persuasive master of the English language and of advocacy that I know. If you follow his syllogisms, one after the other you agree with them all, and you suddenly end up in a place you didn’t want to be. And you say, “Blimey, how did I get here?”

But the serious point about Hobbes is that he believed life was horrible, and that fear of its horrible qualities was what made people accept despotism. Hobbes believed in absolute government and he quite correctly noted that fear was what drove people to support absolute governments. Now, we have actually managed, since Hobbes was writing in the middle of the 17th century, to live our public lives on quite different principles. We’ve managed, without fear and without the systematic application of coercion, to achieve a moderately civilised system of political discourse and decision making. And that’s very remarkable. But what struck me about the Covid epidemic, was that quite suddenly, you found yourself reverting to a pattern which I thought we had abandoned for nearly 300 years. That was a dismaying experience.

And it was one reason why I took a reasonably public and prominent role in criticising it. And I actually believe in the principle that former judges should, on the whole, not engage in politically controversial things unless they have a strictly constitutional or legal nature. But it seems to me that everybody has a threshold beyond which the issue is so serious that you have to stand up and be counted. And I felt that this was a change in the collective mentality of not just this nation, but European nations and North American nations generally, which had really sinister implications for the future of liberal methods of government. And it seemed to me this was far more important than any conventional limitations on what former judges ought to say.

FS: Do you think we’re going to get it back, that liberal mood, or do you think it is broken? 

JS: I’m both an optimist and a pessimist on this. It depends on what your timeframe is.

FS: How about the next 50 years?

JS: At the moment, we are in a mood which progressively jettisons basic liberal positions, like the observance of Rules of Procedure for government, which are more important than the outcome of any particular issue. And you’ve got to have a devotion to the rules, which transcends your attachments to particular issues, so that you do not regard it as an outrage when you lose on some, as you inevitably will. I also think that the classic liberal position on free speech is seriously undermined. I would expect these trends to continue for a while, certainly beyond my lifetime, and possibly beyond yours, I don’t know.

What will happen is that the current trend which is common to both Left and Right, to favour more authoritarian ways of doing things, to favour the idea that society should only have one view on something, and it is a political responsibility to determine what that view is going to be — all that is going to get worse. And I think that the ultimate result will be an authoritarian style of government across Europe and North America. North America may well be the first place that one sees it in its ultimate culmination. I think that at that point, people will say: “We don’t like this very much.” And at that stage, you will see a reversion to a more considerate model of social existence. I can’t say how long that’s going to take, but it might be decades.

FS: One example that you’ve been in the news talking about recently — which might seem to go against what you’re saying, in that it’s about leaving behind a set of rules — is the European Court of Human Rights. To some people, that court would be a nice example of a liberal institution respecting rules beyond individual tribes and nations. And yet, you want the UK to leave it?

JS: Yes. I don’t think this is likely to happen, but it would be a good thing if it did. I am not against a rule-based system and I am not against human rights. I simply think that we need to decide what human rights we want and to what degree we want them. At the moment, the problem is not the Convention itself, which is a collection of principles, not a single one of which I would question in any way. What I oppose is the legislative process by which the Strasbourg court, the European Court of Human Rights, has emancipated itself from the only thing that the states party to the Convention ever agreed, which was the text of the Convention. I do not think that it is the function of judges to revise the laws to bring them up to date — that is a function of representative institutions, certainly in a democracy.

So I would favour withdrawing from the European Convention and substituting it for an identical text, but simply interpreting it responsibly in accordance with what it’s intended to mean, and not in accordance with a wider political agenda — which I’m afraid is the animating spirit currently of the Strasbourg Court. I had hoped before that the Strasbourg Court would learn from the occasions when, particularly in this country, we have jibed at what they’ve done. I had hoped that things would improve as a result of the Brighton declaration, and its statement in favour of what was called, rather pompously, “subsidiarity”. I no longer believe that the Strasbourg Court is capable of independent reform.

FS: So you don’t mind the rules, but you think they’ve been politicised or they’re being incorrectly applied?

JS: I think the point about rules is that they’re designed to bring some kind of order to human affairs. If you have a rule which depends on whatever a legislator in Strasbourg thinks it ought to be, the essential predictability which rules are designed to achieve is gone. I have no problem about the notion of a foreign tribunal deciding whether our observance of human rights is adequate provided that the tribunal in question follows the rules. What I object to is a situation in which they require everyone else to follow rules of their own devising, but recognise no rules governing their own decisions.

FS: Do you think we should be renegotiating or reconsidering the Geneva Convention on refugees as well?

JS: I don’t know. I certainly think that the Geneva Convention was made for a different world: a world in which travel across national borders was a lot more difficult, and a lot more expensive. Originally, asylum rules were designed for very prominent national leaders of rebellious movements such as Lajos Kossuth, the great Hungarian nationalist of the 19th century. Then, in the wake of the catastrophe involving millions of displaced persons at the end of the Second World War, there was a strictly temporary Refugee Convention designed to enable these people to be resettled. In 1951, that was changed so that it became a permanent institution, and not limited to the persons displaced by the Second World War.

I think the people who agreed to that at the time did not appreciate that, with the disappearance of the European colonial empires, a lot of the world would come into chaos; that people suffering persecution would become very numerous — millions and millions in many countries of the world; and that, simultaneously, the improvements and the easing of the actual logistical difficulties of travel over long distances would enable lots of them to make their way towards the remaining ordered parts of the world.

FS: It sounds like you think the Geneva Convention is no longer fit for purpose?

JS: It isn’t fit for purpose, but whether one should depart from it is a different question. I confess that I’ve not studied this as carefully as I have studied the problems associated with the European Convention on Human Rights. I think it’s obvious that the Refugee Convention was made for a world that no longer exists. I am much less certain about what we should do about that.

FS: We’re going to go back to the late Middle Ages one last time. The whole series of volumes is about Britain (or England) and France — and whether they were to become one country or not. There was a moment when it looked like the Lancaster kings would manage to unify the kingdoms. That obviously didn’t happen. We retreated and the Channel became our border. 

You have a house in France. You spend a lot of time there. You were against Brexit, even though you’re now in favour of leaving the Strasbourg Court. Do you feel like we are more separate from Europe than at any time since the Hundred Years’ War?

JS: Well, before the Hundred Years’ War, England was a European polity because it ruled a significant chunk of western France. It was never an island politically until the Hundred Years’ War: it became one as a result of the war. But Britain has always engaged with the Continent. William Pitt the Younger was one of a number of people who remarked that the frontier of England is actually on the Rhine. He wasn’t asserting a right to rule everything on the western side of the Rhine. He was saying: that is the boundary on which our security depends. It’s not the Channel. So there’s a mixture of insularity and pre-European integration with Europe. It’s part of the dualism around British foreign policy that has always existed.

One of the reasons why I think that Brexit was a mistake was that it is a repudiation of five centuries of intelligently conceived foreign policy in Britain. The main policy of successive governments in Britain, since the 16th century, has been to avoid a situation in which a single power dominated the whole of continental Europe. That is why we went to war with Louis XIV at the start of the 18th century, with Napoleon at the beginning of the 19th century, and with Germany twice in the course of the 20th century.

What we have done by withdrawing is, first of all, to remove from the European system the principal opponents of the federalisation of Europe. We were undoubtedly the leading objectors to this, and we had actually successfully resisted it for many years. In this way, we have contributed to what will over the next few years become the greater unification of Europe. And at the same time, we have abandoned any possible claim to influence what it does. So we have done something that, it seems to me, has negated decades, centuries of serious thoughts about the strategic position of the United Kingdom in Europe.

FS: Would you vote to rejoin?

The problem about rejoining is that we wouldn’t get the golden terms that were there when we left — and that is a really serious problem. What I think will probably happen is that we will, over the next generation or two, conclude a succession of agreements with the European Union that will bring us closer to it without actually being members. And I would applaud that personally. Eventually, we may well decide that we might as well join and recover our influence.

FS: This is the perfect time to take some questions

Question One: In your Reith lectures, you talk about how the judiciary has usurped the legislature throughout many Western countries — and you give the particular example of the United States, and the controversial Roe v. Wade Supreme Court ruling. If you could advise the six conservative Supreme Court justices, what would you advise them moving forward?

JS: I can’t imagine a situation in which I would end up advising them — or a situation in which they would pay attention to me if I did. But it would be quite difficult.

The rationale of Dobbs v. Jackson Women’s Health Organization — the case which overruled Roe v. Wade — was that there was no constitutional right to abortion, from which it necessarily follows that the right to legislate on this subject reverted to the individual states. That view has been in keeping with the conservative view on the Supreme Court for a long time — although it was until recently a minority view: that the federal government, and the federal legislature, have intruded too far on the autonomy of the states.

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FS: Do you think it’s a good thing that it’s gone back to the states?

JS: Yes, I do. I thought that Roe v. Wade was a bad decision because it took an intense moral issue on which a very large proportion of ordinary Americans had strong views of their own, and decided it in a way that marginalised and rendered irrelevant the views of the public. I think that was the main reason why in Europe, where regulated rights of abortion were introduced by legislation, the issue is pretty uncontroversial now. In every case, it was done by statutes. (The only country which doesn’t have a right of abortion tool now is Malta.) The result was that people, whatever their initial views, accepted it; they don’t in the United States because they were never consulted.

Although I think that Roe v. Wade was a very bad decision, I think that Dobbs was in a way an even worse one, because I actually believe that there ought to be a regulated right of abortion. But I do not believe that it is a fundamental right. I don’t believe that it is part of the United States Constitution or any other constitution that I know of. I think it’s a matter for legislative choice. And I think the sensible legislators will do what most European legislators have done.

I think the problem about Dobbs was that Roe v. Wade had survived for 50 years, and there was no respectable reason for departing from a judgement that had become part of the basic legal structure of life in the United States. The reasons given by the Dobbs court for overruling Roe v. Wade in spite of the precedence were to my mind wholly unconvincing. I do not agree with Justice Breyer’s justification of Roe v. Wade in principle, but I wholeheartedly agree with his view that — having decided Roe v. Wade the way that they did, and having in successive decisions of the Supreme Court reaffirmed it — they should not have disabled it.

Question Two: You said that the nation-state was coming back, and I wonder what your comment would be about the level of migration which we see in this country. The figure of net migration last year of about 600,000 was widely reported — do you think that will alter the legitimacy of the nation state?

JS: I don’t believe that the nation-state is inconsistent with very high levels of migration. I think there are other objections to very high levels of migration, but not that one. The classic example of the nation state in the modern world is the United States of America, which is entirely made up of ethnic and cultural minorities coming from elsewhere. It’s the great migration state.

An awful lot depends on the culture within the state, the ability of a society to absorb migrants, and to encourage them to adopt collective attitudes which are the same as those of the rest of the original population. I actually think that this country has been quite good at that — better, for example, than France, to name one obvious country, which has also suffered even higher levels of migration.

As to what can be done about it — the argument against high levels of migration is that it promotes insecurity, it strains resources, although migrants also create wealth as well as consuming it. But these are different arguments to the ones about the existence of the nation. What can one do about it, if one takes the view that migration is excessive? The answer is it’s a mixture of national and international measures. We have the misfortune to be an island. And it’s easier to get into an island than it is to a country with land borders. This sounds ironic, but the fact is, if you’ve got a land border, you can erect a physical barrier and keep people out who do not satisfy whichever test you choose to impose on new arrivals. If you are an island, you can’t erect a barrier in the middle of the sea. But actually, our own migration figures are not as large as those of Italy, France, Greece, Germany, or Sweden. So we are not we’re not in a unique position here.

FS: It’s notable also that the French are not being especially helpful in solving the boats situation in the Channel.

JS: One can understand that — they have a bigger migration problem than we do. And they are, no doubt, happy to see some of their migrants disappearing across the Channel.

Question Three: In the last 10 days or so we’ve heard a great deal about the law of armed conflict, and international humanitarian law, which seems to be a way of possibly stilling Israel’s hand. Both concepts grew out of the just war tradition, and I’m wondering, how recognised was that in the Hundred Years’ War and did it make any difference? And will international humanitarian law make any difference or is it really about the battle of the narrative?

JS: The notion of just war is a form of natural law. And it was much favoured by theologians and civil lawyers, the successors of the Roman law tradition. In the Middle Ages, it had virtually no practical impact on the way that wars were conducted. Current just war theories are very different because they’re essentially based on treaties, in particular the various Hague and Geneva Conventions, which control the way that we use force.

One of the rules, which has been in existence at least since 1908, is that you may not target civilians, and you may not conduct operations in a way that will inevitably produce casualties among civilians disproportionate to those among actual fighters. Now, these are quite difficult concepts to apply to a fighting force, which is not a disciplined army — of the sort that people had in mind in 1908 — but is a semi-organised group of, for want of a better word, thugs, like Hamas.

FS: Should we try, though?

JS: We should try. The difference is that more is expected of organised states like Israel, with disciplined armed forces recognising an orthodox hierarchy of command. So it seems to me to be perfectly clear that for the Israelis, to conduct the war on a basis that indiscriminately targets civilians is contrary to international law, and has been for quite a number of years. It’s also contrary to international law to forcibly displace people from their homes, to blockade them in the way that Israel has been doing certainly since 2007.

FS: So you believe Israel is breaking international law?

JS: I certainly believe that it has done and that what it threatens to do now would do.

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Question Four: You mentioned the destruction of civil liberties that took place during the pandemic and what struck me especially was the abolition of negative liberty, and in particular, bodily sovereignty. Given the Hobbesian view that the security of the people is the supreme law, and given that power-hungry despots must certainly share that outlook or be aware of that, what’s to stop supranational opportunists, who may want a Leviathan, from seeking or even creating continuous insecurity and crises in order to impose their supreme law? Will we have solutions in search of problems?

JS: Well, the notion that Salus Populi Suprema Lex is actually due to Cicero and it is, to my mind, complete rubbish. The authorship of Cicero lends to it spurious respectability. But it’s actually a recipe for tyranny at a time of crisis. So I’ve never been impressed by that as a maxim of government. As to whether foreign powers or supranational authorities might promote disorder for the purpose of taking advantage, I don’t know any example where that is actually happening.

FS: I suppose maybe she was thinking about the World Health Organization, organisations like that, which might try to get the right to dictate pandemic policy in the future.

JS: That’s not creating disorder. The problem about that kind of thing is that it assumes that one size fits all. It seems to me that a completely uniform, internationally-regimented approach to dealing with, for example, a pandemic, would deprive us of the possibility of experimenting with a different approach. I think that one of the principal lessons of the pandemic was the success of Sweden in achieving a lower death toll than this country and a death toll broadly in line with the European average, without a lockdown. And it seems to me, therefore, that had we been deprived of that possibility by some kind of international arrangements, we would be much poorer. I’m in favour of a situation in which different pressures, different political situations, different constitutional positions, can produce a variety of solutions, because they are much more likely to ensure that one of them is right.

Question Five: You said previously that you think that in the near-future we probably will see a major shift towards authoritarianism across the West, and that the US might well be the first country to exhibit it. What concrete aspects, practically speaking, might take America, both politically and judicially, in that direction?

JS: I wasn’t necessarily thinking of judicial interventions. The United States has a very rigid Constitution. It has a fair-weather constitution. And the United States has had remarkably and unusually fair weather throughout its history. There have basically been only two periods of American history in which there have been serious economic difficulties. One was in the immediate aftermath of the Civil War, and the other was in the Thirties. So, America has experienced an upward trajectory, both in absolute terms, and relative to the rest of the world, for the greater part of its history.

The Great Destroyer of civil society is the disappointment of entrenched expectations. That was why most of Europe turned totalitarian between the wars. The Depression of the Thirties disappointed expectations of continuous upward movement which had become entrenched for a long time and had only briefly been interrupted by the First World War. I think that the problem that the United States has is that its rigid constitution, and in particular its legislative immobility is very ill-adapted to deal with a situation of long-term decline. I don’t think that the United States will decline in absolute terms. But I think it’s pretty clear that it will decline in its relative position in the world.

And I think that the implications of that for jobs that aren’t at the cutting-edge of technology are really very serious. And I don’t think that the Americans are likely to be very good at managing it. A much more flexible political constitution such as ours has managed to accommodate a significant relative decline since the Second World War rather successfully. And I am concerned that Trump and Trump’s doings and followers are not simply an incident related to this particularly extraordinary individual, but a symptom of a much broader malaise in the United States associated with capricious patterns of inequality, with the decline of traditional skills, and with the exportation of jobs, which is the inevitable result of the decline of traditional skills.

I am not optimistic about the future of the United States because I think that its current political travails are essentially part of a pattern that is dictated by the general situation of the country and its history, and not an unfortunate accident of the arrival of this particularly monstrous individual.

FS: Does that mean that you’re more optimistic about the prospects of the UK? Will our flexible constitution mean that we weather future declines better? 

JS: Yes, I think it will. But that doesn’t mean to say that we will avoid future decline. I think that the political consequences of decline will be much more serious in the United States than they are here. But decline is an uncomfortable experience, whether you accommodate it politically or not.

Triumph and Illusion, Volume V of Jonathan Sumption’s history of the 100 Years War, is out now.