The return of thoughtcrime

LONDON — In December 1939, police raided the home of George Orwell, seizing his copy of D.H. Lawrence’s “Lady Chatterley’s Lover”. In a letter to his publisher after the raid, Orwell wondered whether “ordinary people in countries like England grasp the difference between democracy and despotism well enough to want to defend their liberties”.

Nearly a century later, the United Kingdom’s draconian Public Order Bill, passed by the UK House of Commons last year and now being considered in the House of Lords, vindicates Orwell’s doubt. The bill seeks to restrict the right to protest by extending the scope of criminality, reversing the presumption of innocence in criminal trials, and weakening the “reasonableness” test for coercive action. In other words, it widens the government’s scope for discretionary action while limiting the courts’ ability to restrain it.

When the police seized Orwell’s copy of Lady Chatterley’s Lover, the novel was banned under the Obscene Publications Act of 1857, which prohibited the publication of any material that might “deprave and corrupt” readers. In 1959, the nineteenth-century law was replaced by a more liberal measure that enabled publishers to defend against obscenity charges by showing that the material had artistic merit and that publishing it was in the public interest. Penguin Books succeeded with this defense when it was prosecuted for publishing Lady Chatterley’s Lover in 1960; by the 1980s, the book was taught in public schools.

But while Western democracies have stopped trying to protect adults from “depravity”, they are constantly creating new crimes to protect their “security”. The Public Order Bill creates three new criminal offenses: attaching oneself to objects or buildings (“locking on” or “going equipped to lock on”), obstructing major transport works, and interfering with critical national infrastructure projects. All three provisions target forms of peaceful protest, such as climate activists blocking roads or gluing themselves to famous works of art, that the government considers disruptive. Disrupting critical infrastructure could certainly be construed as a genuine threat to national security. But this bill, which follows a raft of other recently enacted or proposed laws intended to deal with “the full range of modern-day state threats”, should be seen as part of a broader government crackdown on peaceful protest.

By transferring the burden of proof from the police to alleged offenders, the Public Order Bill effectively gives police officers the authority to arrest a person for, say, “attaching themselves to another person”. Rather than requiring the police to show reasonable cause for the arrest, the person charged must “prove that they had a reasonable excuse” for locking arms with a friend.

The presumption of innocence is not just a legal principle; it is a key political principle of democracy. All law-enforcement agencies consider citizens potential lawbreakers, which is why placing the burden of proof on the police is an essential safeguard for civil liberties. The Public Order Bill’s presumption of guilt would reduce the extent to which the police are answerable to the courts, aligning the UK legal system with those of authoritarian countries like Russia and China, where acquittals are rare.

The bill also weakens the “reasonableness” requirement for detention and banning orders, allowing officers to stop and search any person or vehicle without any grounds for suspicion if they “reasonably believe” that a protest-related crime may be committed. Resistance to any such search or seizure would be a criminal offense. And magistrates could ban a person or organisation from participating in a protest in a specified area for up to five years if their presence was deemed likely to cause “serious disruption”. And since being “present” at the crime scene includes electronic communications, the ban could involve digital monitoring.

The question of what should be considered reasonable grounds for coercive action was raised in the landmark 1942 case of Liversidge v. Anderson. Robert Liversidge claimed that he had been unlawfully detained on the order of then-Home Secretary John Anderson, who refused to disclose the grounds for the arrest. Anderson argued that he had “reasonable cause to believe” that Liversidge was a national-security threat, and that he had acted in accordance with wartime defence regulations that suspended habeas corpus. The House of Lords ultimately deferred to Anderson’s view, with the exception of Lord Atkin, who in his dissent accused his peers of being “more executive-minded than the executive”.

Even in wartime, Atkin claimed, individuals should not be arbitrarily detained or deprived of their property. If the state is not required to provide reasons that could stand up in court, the courts cannot restrain the government. The UK’s current wave of national security and counter-terrorism bills directly challenges this view, making Atkin’s dissent even more pertinent today than it was during the war.

Law enforcement’s growing use of big data and artificial intelligence makes the UK government’s efforts to curtail the right to protest even more worrisome. While preventive policing is not new, the appearance of scientific impartiality could give it unlimited scope. Instead of relying on informers, police departments can now use predictive analytics to determine the likelihood of future crimes. To be sure, some might argue that, because authorities have so much more data at their disposal, predictive policing is more feasible today than it was in the 1980s, when the British sociologist Jean Floud advocated “protective sentences” for offenders deemed a grave threat to public safety. American University law professor Andrew Guthrie Ferguson, for example, has argued that “big data will illuminate the darkness of suspicion”.

But when considering such measures, we should keep in mind that the state can sometimes be far more dangerous than terrorists, and certainly more than glued-down protesters. We must be as vigilant against the lawmaker as we are against the lawbreaker. After all, we do not need an algorithm, or Orwell, to tell us that handing the government extraordinary powers could go horribly wrong.

Robert Skidelsky, a member of the British House of Lords, is professor emeritus of Political Economy at Warwick University. Copyright: Project Syndicate, 2023. 

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