Graham Linehan's arrest and why Keir Starmer can't afford to be blissfully unaware

OPINION

A few years ago, five armed police officers turning up to execute an arrest shortly after a flight touchdown might have signified a successful drug sting operation or foiled terrorist plot. Graham Linehan’s supposed crime? Speaking his mind and peacefully voicing his views on gender online. Just a couple of weeks after Lucy Connolly’s release, this is yet another dark day for the once-enduring British tradition of free expression. We will all have our views on what Mr Linehan said – I thought it was fair cop. But that isn’t the point. You can’t claim we live in a country of free speech if you don’t support the right to hear speech you don’t like.

When the Prime Minister sat down with the American President earlier this year, he assured him that "we've had free speech for a very long time, it will last a long time, and we are very proud of that". He said pretty much the same thing in his response to my PMQ this week. Simply reciting the line doesn’t make it true, especially when we have seen repeated evidence to the contrary.

Even A-level politics students know that free speech is not protected by any law. Up till now our constitution, our conventions and our common sense has safeguarded this. That’s until the ECHR and the Human Rights Act came into play, supposedly writing protection of “freedom of expression” but as we found out with the Bell Hotel, some rights are more important than others.

Starmer seems blissfully unaware of just how far we’ve moved away from a principle was that once considered central to British democracy – and the extent it is now absent in the daily decisions of police officers across the country. In fact, every day, 30 arrests are made for ‘offensive’ online messages.

In response to the Linehan arrest, Met Commissioner Mark Rowley has said the police need more clarity from the law; and genuine legislative zeal is needed to stop this alarmingly upward trend of speech and thought patrols. It’s clear there is consensus – the government should just be getting on with this.

When Thatcher’s Government drafted the Malicious Communications Act in 1988, they could never have foreseen it would be used to arrest a comedian for a tweet. Words like “offensive”, “distressing” and “hateful” have morphed out of all proportion and are often defined by the whim of an individual rather than any societal standard.

These new interpretations have a habit of becoming rife and commonplace. It’s not the fault of the individual officers, who from then on will use this precedent as legitimacy for their actions – regardless of how far they have strayed from the original intent of the legislation.

What exactly constitutes “offensive” or “hateful” as defined in legislation like this is naturally open to wide interpretation by enforcers of the law and judges alike – which is why, as I made clear to the Prime Minister yesterday – we need a review to tighten up our speech laws. You can literally find examples of the same piece of legislation, interpreted differently, leading to two opposite outcomes 20 years apart. This has to end.

While we allow this to continue, this “trickle-down” effect of interpretation of law by police officers (and judges) will keep spiralling, making the scope of interpretation wider and wider. The law must be simple, clear and known in advance to both law enforcers and law abiders.

Direct incitement of violence meets these criteria – it is the only thing that should be a crime in this aspect of law. I’ve met some brilliant policemen and women since becoming an MP and I have every faith that they know the difference between a ‘punchy’ tweet and something that could genuinely result in real world harm. Yet until meaningful change happens, officers will keep being hammered for policing social media posts rather than cracking down on real crimes like shoplifting and antisocial behaviour.

The fact is that much of this culpable legislation is now outdated and needs to be reconsidered. As a Conservative I love our history, and I have pride in many of our institutions. But as Burke recognised, when these aren’t working you have to be prepared to revise or even rip them up and replace them with something better, using real world examples. In America and the First Amendment we have a great blueprint for what free speech protections can look like.

The first step would be to strip out all the ‘feeling’ words from existing acts leaving only protections against genuine incitements of violence. Then pass our own Free Speech Act created in our sovereign legislature, rather than relying on a European import. Most of this has already been prepped by those in think-tank world and political will is the only thing standing in the way.

Yesterday, when that man from Reform was in Washington posturing for the media, I was in Parliament pushing for real change. We are not a ‘communist North Korea’, but the balance is off. Starmer can’t afford to write this off as a culture war issue.