Several events recently have caused me to reflect upon the nature of our free society and the way it is under threat from various quarters, including of course from our membership of the European Union. For example Lord Freud’s attempts to address the serious issue of finding work for the disabled, the assassinations at Charlie Hebdo, the phenomenon of internet trolling, the private members bill to make permanent a commitment to spend 0.7% of taxpayers’ money on overseas aid; and there is also Lord Leveson’s recommendations on privacy to consider.
The French have now suffered for over two centuries from Napoleonic Law, a highly proscriptive form of law which says in effect that you cannot do anything unless the law explicitly permits it. It is a form of law that has spread widely across the continent and which now forms the principle mind-set pervading the European Union. Different nationalities react to it in different ways, so for example the Germans meekly do whatever they are told, whereas the French invariably try to do the opposite.
Either way it is now being imposed on us through European Law. It’s effect is to treat adults like children which, as we all remember from the old adage, means that sooner or later they all start behaving like children. Even the most fleeting glance across the Channel will confirm what I mean, whether it be at the sight of farmers tipping lorry-loads of tomatoes on motorways, or the nature of the cartoons in Charlie Hebdo. I base the latter observation on Christopher Booker’s recent article in the Sunday Telegraph in which he reports that most cartoons the magazine publishes contain little or no satirical content whatsoever. Instead they use ‘freedom of speech’ to justify the publication of purely gratuitous provocation at any passing figure of authority, like teenagers pushing their boundaries to see what they can get away with.
English and Scottish law on the other hand approaches matters from the other end of the spectrum, saying that you are trusted to exercise adult moral responsibility except in regard to certain activities which must be proscribed in the interests of maintaining public order. As a result we have been brought up to exercise moral responsibility voluntarily using our own individual discretion, and because most of us do so it works.
European Law is toxic to our British concept of a free society. If we become infected with it our culture will perish and we will all end up behaving like the French. Once gone it will be almost impossible to revive, as it is was accumulated over generations. It is one of the most powerful reasons to leave the European Union.
I suggest that the core principle here is not ‘freedom of speech’ but the ‘pursuit of truth’. As a result we expect our cartoons to make a serious point, albeit at the expense of passing figures of authority. Of course freedom of speech is essential to enable us to pursue the truth, but unfortunately it doesn’t follow that the reverse is true. Freedom of speech does not necessarily require the pursuit of truth. Freedom of speech is therefore a means to an end rather that an end in itself. It lies very much in that part of the domain of morality which we in UKIP, as British libertarians, leave to the discretion of the individual.
To us ‘small government’ means not only a small fiscal public sector and consequent low taxation but also restricting the scope of the law to what is necessary to maintain public order and to provide essential public services. I would myself say that the law is there to protect us from harm or loss at the hands of third parties and in our dealings with second parties, but it is not there to protect us from our own choices in life, provided of course we do not cause harm or loss to others in the process, and nor is it there to coerce us into patterns of behaviour which are purely of convenience to the state.
The value judgements of the majority often conflict. If you ask everyone if they want lower taxes they will say yes. But if at the same time you ask whether more should be spent on public services they will again say yes! I call these value judgement conflicts ‘technical issues’, the technicality here being that you cannot vote for two and two to equal five. It is theoretically the role of representative government, our MPs in Parliament, to sort out these technicalities on our behalf, though it is a moot point whether many of them are up to the task. What it does do is make the case for a written constitution in which the scope of the law is limited, as well as support UKIP’s commitment to greater use of referenda.
Anyway, how do we deal with the subject of causing offence when cartoons, or remarks such as Lord Freud’s, do have a serious content? I suggest that in such cases the pursuit of truth should always prevail, since that is the core value upon which our entire civilisation is based. If anyone is offended in the process then tough. We all get offended at times. It is not fatal and we should just deal with it as and when it occurs.
We thus end up with three types of offence, the first being where it incites criminal behaviour, and should therefore itself be a criminal offence; the second being purely gratuitous provocation which although it does not in itself cause any harm or loss to others I unhesitatingly condemn as immoral; and the third the by-product of the pursuit of truth, which I defend.
So where do internet trolls fit into this picture? Of course if they cause actual harm or loss to those they bully, including self-harm or worse, then that is a crime in itself and the question of causing offence is superseded. But suppose the same abuse is directed at another and did not have those results, is that immoral but lying outside the scope of the law? I would suggest so. The disincentive lies in the fact that the troller cannot tell how his target will react. Repetitive abuse could be prosecuted as harassment. It follows that all trolls must be identifiable so that they can be held to account.
As an atheist I am free to base my moral values on the assessment of consequences, whereas all religions, so far as I know, take a predetermined approach, saying that it is always right to do this and always wrong to do that, which of course has the advantages of clarity and enforceability. In theory this should result in conflict, but strangely in practice it rarely does. This is probably because those who drew up the original religious codes did exactly the same thing, and were acting in an environment where the rule of law for the protection of the people was virtually unknown. Clarity and enforceability were central to success. The same situation prevails today in poorer parts of the world, which must be one of the main strengths of Islam.
In this country however our modern systems of justice take over the tasks of providing clarity and enforceability. This highlights the role of uncertainty in the pursuit of moral truth, just as Heisenberg’s Uncertainty Principle highlights the role of uncertainty in the pursuit of natural truth. The individual facing a moral decision will usually be in a far better position to assess the likely consequences of their action, which will depend as much on circumstance as on the nature of the act itself. The future is always inherently uncertain, and a generalised law cannot possible predict or take into account all the possible sets of circumstances that can arise.
In other words the law can ‘get it wrong’. The true value of our free society therefore lies in the opportunity it gives us as individuals to ‘get it right’ more often. Moreover, even when the results of our actions have become apparent, we will still never know what the results of any alternative courses of action open to us would have been. Think of the SAS in Gibraltar for example; whether to take out the IRA terrorists who might be about to set off a bomb in a crowded place, or definitely avoid causing the deaths of those terrorists. Both results are morally wrong, but it is impossible to know what they are at the time of decision, or indeed both of them ever. On the spot judgement is crucial to reducing the risks involved.
A further dimension arises in a multicultural society where many different moral codes are used. This situation likewise argues for the law to be kept to the lowest common denominator consistent with maintaining public order.
In examining the nature of the pursuit of truth, can we learn anything from the transition from ‘classical physics’ to ‘modern physics’. Modern physics does not replace classical physics; it merely says that when you go beyond a certain boundary of experience, such as matter moving close to the speed of light or the interaction of subatomic particles/waves, then the classical laws break down and you have to think again and find a deeper, more general theory. Might not we be facing a similar transition in morality where modern life throws up situations which lie well beyond the limits of classical experience?
This all argues for as much flexibility as possible; not a virtue of the European Union. I was delighted to see that Parliament has now approved the use of genetic modification to combat mitochondrial disease. Critics pointed to the risks involved, but you can never eliminate risk altogether. Life is about managing risk, not eliminating it, and clearly in this case the risks of not intervening greatly outweigh those of doing so.
The management of risk also affects the use of preventive law. Strictly speaking any intervention to prevent a crime is an act of prejudice and we therefore have to be very careful how we allow it. The principal role of the police is to bring to justice those who have committed crimes, not to prevent them in the first place. If you gave the police carte blanche to prevent crime you would end up with a police state, as well as intolerable pressure on and impossible expectations of the police themselves. We appear to have such a situation already with social workers and child adoption. It’s not fair on our public servants apart from anything else. What I do expect from the police is that they maintain a high degree of vigilance; that they intervene where they have clear evidence that a crime is imminent or in progress; and that they bring criminals to justice as efficiently as possible.
Does deterrence work? This is impossible to measure as you cannot count the number of crimes that have been deterred. Common sense and personal experience tells us that it does work for the vast majority of law abiding citizens, but may have less effect on those who have already crossed the Rubicon into criminality. What we do with criminal offenders is a whole new subject, but much depends on the wealth of the country. A poor society has little option but to administer capital or corporal punishment, whereas a richer one can afford more rehabilitation. It is necessary also to distinguish between the verdict and the sentence. Thus with drug use I would advise it remains a criminal offence (the verdict) but that sentencing should be directed at rehabilitation. The apparent confluence of verdict and sentence under Sharia Law is I am sure one of the chief sources of confusion between the communities.
In some cases there is a clear statistical relationship between harm and preventive laws, such as with speed limits and drink driving regulations for example or with crowd control. So I can accept them in such circumstances. The situation becomes more confused though when you consider that there is a much wider range of possible causes for any crash, such as the inexperience, medical condition or emotional state of the driver, and that speeding and drink-driving are commonplace without incident. Harsher sentencing for actually causing harm or loss can be an alternative to regulation.
Likewise we must always remember that the law of diminishing returns applies. You can no more eliminate risk than achieve the speed of light. The cost or energy required to do so is infinite, so we must accept that a line must be drawn somewhere short of it. I feel much more comfortable with a line that respects the judgement of the individual, even though occasionally mistakes will be made. The same sort of thing happens with food sell-by dates. The level of waste resulting from over-tight labelling is mind-boggling across all income levels. At our house we hardly ever throw out food, making good use of the freezer both before and after meals. I wonder if any research has been done on the sensitivity of food poisoning to sell-by date?
As I write, reports are coming in (as yet unchecked) of a UKIP NEC decision to impose stunning in abattoirs, thereby contravening the religious beliefs certainly of the Jewish community and possibly of the Muslim community as well. This seems to me to contradict both our philosophy on the nature of a free society and UKIP’s own manifesto commitment to allow greater use of local referenda. Such referenda will only work if they add to existing law on a local bye-law basis, as clearly we cannot allow them to overturn the law of the land or we would end up with anarchy. So it follows that national law should remain restricted and silent on issues of social and religious conscience. Local referenda could then be used in those parts of the country that do wish to require stunning, without thereby creating any conflict with national law. There is no need for uniformity across the land on such matters. Surely the whole point of local government is that it allows different communities to be different. The NEC have got this one the wrong way round.
We have also approached the issue of overseas aid on this basis, so this new policy is inconsistent with that as well. By no stretch of the imagination could overseas aid be described as essential to the maintenance of public order within the UK! It is virtually a contradiction in terms; a ‘reductio ad absurdum’. A further reason to leave overseas aid to the charitable sector is that there is very little national interest in it; it is almost entirely a matter of social conscience. Thus UKIP’s objection to spending public money on overseas aid is based on principle as well as being a matter of sound public housekeeping. John Stuart Mill must be turning in his grave at the sight of the LibDems proposing a permanent commitment to 0.7% of GDP spent from public funds on overseas aid. Such a policy is neither Liberal nor is it Democratic!
Either way it now leaves UKIP as the only valid inheritor of the Whig political tradition in this country. We are certainly not ‘right-wing’. This term comes from the French Revolution to describe the Bourgeoisie, who sat on the right side of the new National Assembly and who believed that inequality was part of the natural order of things and should be left alone. UKIP on the other hand supports the minimum wage and the provision of decent public services and of a reliable welfare system based on the safety net principle. One could argue in fact that UKIP now lies to the left of both the Conservatives, on account of their failure to protect those in greatest need, and Labour, on account of its continued support of the European Union, and hence of immigration, thereby undermining both our living standards and employment prospects and pushing up our rents.
So the question of where you draw the line between the law and individual freedom, including freedom of speech, is a tricky one, but I do conclude that it is a matter of maintaining public order rather than one of free speech. After all other freedoms are restricted in the name of public order, so why not self-expression? The question must arise therefore “Should we re-introduce laws against blasphemy”, applied equally to all faiths of course, and perhaps extended to internet trolling, if a strong statistical correlation between blasphemy and public disorder can be established? A true libertarian would surely say “yes”, though the exact wording would be critical. The defining words ‘gratuitous’, ‘derogatory’ and ‘provocative’ spring to mind. However at present it would be difficult to show that there is sufficient frequency of blasphemy in the UK to establish the necessary strong statistical correlation here. Almost all the instances to date have been perpetrated on the continent, which perhaps only goes to show that our own responsibility-inducing free society so far is standing up well to the Napoleonic onslaught.
Finally, what about Leveson? Applying my principle that the pursuit of truth takes precedence over freedom of speech, surely the obvious thing is to ‘do the experiment’. In other words enact his recommendations on a temporary basis by including a provision that the Act will automatically dissolve after say fifteen years. At that point we can then take a much better informed decision on whether to extend them.