In praise of Harry Miller’s fight for free speech

Almost three years ago, I spoke on the phone to a man called Harry Miller. A Lincolnshire businessman, he’d just been interviewed by the police because someone had complained about things he’d written, on Twitter, about sex and gender and transgenderism. He was angry, and rightly so.

After all, he’d broken no law, and even the police force involved confirmed that. Instead, he was contacted and a record was made of his conduct under rules around ‘non-crime hate incidents’ (NCHIs). These were introduced after the 1993 murder of Stephen Lawrence, with the intention of giving the police a means of tracking behaviour that, while not crossing the threshold of a crime, gave a fair indication that a person’s actions were likely to escalate to full-blown crime.

I wrote about Harry Miller because I thought it was important that the case and its implications were properly discussed by the people who make and implement our laws. I also wrote about the case because I thought it was a good story, the sort of thing that makes headlines. I may be semi-retired from journalism, but I still occasionally feel the old reporter’s urge to make a bit of a splash.

So I thought the Miller case would get some attention, ideally with a political and legal audience. Maybe an MP would ask a question in parliament. Maybe a minister somewhere would ask some officials to review policy and implementation around NCHIs. I did not expect what happened next, partly because I overestimated our politicians, and partly because I underestimated Harry Miller.

What happened next was a legal campaign lasting almost three years that has seen not just Humberside Police’s treatment of Miller ruled unlawful last year, but the whole NCHI regime called into question by the Court of Appeal.

That latter ruling came this week and would have been bigger news were it not for the Covid blight. In short, the Court accepted Miller’s argument that rules on the use of NCHIs set by the College of Policing for individual constabularies were too broad and blunt. The application of those rules cast the net for hate incidents too widely, and thus risks a ‘chilling effect… on the legitimate exercise of freedom of expression’.

The college is now revising those rules, hopefully returning the hate-incident regime to its original, narrow and valid purpose. Ministers may change the law too, via the Policing Bill now in the House of Lords. There is talk of tens of thousands of NHCIs being stricken from the record. Harry Miller v The College of Policing is therefore a big deal, important for the way we conduct ourselves as a society and the way we deal with difficult, contested ideas.

While important, that ruling wasn’t the greatest surprise. In November, Miller and NHCIs were debated in the House of Lords. In that debate, some of the country’s leading legal authorities — Lord Pannick, Lady Butler-Sloss and Lord Judge, among others — all raised grave doubts about the NCHI regime and its operation.

Listening to that debate at the time, I was reminded of the things I thought when I first heard Harry Miller’s story: this is mad, isn’t it? In a country grounded in the rule of law, the police can’t exercise power like this without due process or scrutiny — can they?

To re-read that Lords debate and to read the latest Miller ruling is to be left wondering. How did this stand for so long? All the facts were there in plain sight, after all. Miller wasn’t the first person to have an NHCI logged against their name without justification; in 2017, Home Secretary Amber Rudd had a party conference speech recorded as a hate incident.

Whatever criticism that might have been made of that speech, recording it as an NCHI was clearly an absurd over-application of the intent behind the policy: Rudd wasn’t exhibiting behaviour suggestive that she was likely to start committing crimes. She was just saying things someone didn’t like.

My point is that the failures of the NCHI regime were plain to see, especially to the politicians, lawyers and officials who are supposed to make sure that stupid policies get fixed, or at least, get made a bit less stupid. But it wasn’t those people who fixed the NCHI regime and its chilling effect on free speech. It was Harry Miller and his fellow campaigners from the Fair Cop group he founded: Sarah Phillimore, a barrister, and Rob Jessel, a writer.

The three of them, supported by anonymous supporters in the police and elsewhere, as well as many small financial backers, pushed ahead with the legal campaign that led to this week’s ruling. By doing so, they have done a very valuable service to this country. They have made its policies, its policing and its public debate better.

What makes this all the more laudable is that none of them really had to do this. They could have just chosen not to bother, to leave it to someone else. Miller, an owner of a successful business, could simply have endured his 15 minutes of online fame back in 2019 and then gone back to a comfortable, unchanged life. Phillimore and Jessel could have stuck to their day jobs and avoided the hassle and reputational risk of campaigning in a highly contentious area.

Looking back at the article I wrote after speaking to Harry Miller in January 2019, I am struck by one of the things he said to me then, when I asked him if he would back down in the face of police challenge:

“Free speech is a hill that we have to fight on. If we can’t express ourselves freely within the law, none of the other rights we have mean anything.

Harry Miller and his friends didn’t have to have that fight. But they did. They fought and they won. They corrected a wrong, and made public policy better. There isn’t much positive news these days, but that really is a good story.