The Watchmen Lost Their Way

There was once a relatively simple understanding of what a policeman was for. He stood between the citizen and the criminal. He guarded the streets, protected the householder, pursued the thief and restrained the violent. His authority was not supposed to depend upon whether he approved of a citizen's opinions, whether those opinions were fashionable, or whether they happened to offend a particular political constituency. The policeman was not employed to supervise the national conscience. He was there to enforce the law, and the citizen, whatever his political opinions or social position, was entitled to expect that the law would be applied to him in the same manner as it was applied to everyone else.

That simple understanding has become increasingly difficult to recognise.

The modern state has discovered that policing can extend far beyond the physical streets into the invisible territory of speech, opinion and political expression. The telephone and computer have become extensions of the public square and, consequently, extensions of the world which the authorities can observe and regulate. There are circumstances in which words quite properly constitute criminal conduct. A genuine threat, incitement to violence or criminal harassment cannot be transformed into harmless speech merely because it appears on a computer screen. But there remains an essential distinction between criminal speech and speech that is merely offensive, foolish, provocative or politically inconvenient. It is precisely in that distinction that a free society either preserves its liberty or begins to surrender it.

The difficulty is that modern political language has progressively weakened this distinction. Words such as “harm”, “hate”, “safety”, “extremism” and “community cohesion” have acquired increasingly elastic meanings, and elastic definitions are useful to institutions because they permit intervention without requiring the old-fashioned inconvenience of demonstrating that a conventional crime has actually occurred. Once harm ceases to mean something capable of being identified and measured, almost any form of disagreement can be presented as potentially harmful. The citizen is then no longer required simply to obey the law; he is encouraged to consider whether somebody else might regard his words, beliefs or associations as dangerous.

The consequence is a form of censorship that does not always need to be imposed directly. The citizen begins to censor himself. Before making a political argument, posting a joke or criticising an institution, he considers whether the statement might be reported, whether an employer might object to it, whether an organisation might interpret it in the worst possible manner, or whether some official might decide that the words indicate a more sinister attitude. The state does not need to silence every citizen if it can create an atmosphere in which citizens begin to silence themselves.

This is where the expression “two-tier policing” has acquired such political force, although the phrase itself requires careful definition. It should not be treated as proof that every apparent disparity in policing is the result of political discrimination. Different circumstances require different police responses, and a difference in treatment does not by itself demonstrate bias. Nor should every allegation made under the banner of two-tier policing be accepted without evidence. The legitimate question is a more serious one: whether citizens can reasonably identify instances in which political sensitivity, institutional priorities or the identity of the people involved has influenced the seriousness with which similar conduct is treated.

The importance of that question lies in the fact that policing does not occur independently of politics. Police forces operate within laws established by elected governments, depend upon public funding, respond to national strategies, work within ministerial and legislative frameworks and are subject to political expectations concerning the threats which should receive priority. Senior police officers are therefore not operating in a political vacuum. They are expected to respond to the priorities established by governments and to the wider political environment in which public institutions function.

This does not mean that a minister necessarily telephones a chief constable and instructs him to arrest one group while ignoring another. Political influence is usually much more subtle than that. It operates through legislation, funding, official guidance, performance measures, public statements, institutional priorities and the allocation of resources. If a government declares that a particular category of speech or political activity represents an urgent threat, the police will inevitably devote attention to it. If another government identifies a different threat as more important, policing priorities may change accordingly. The individual officer may simply believe that he is following policy, while the policy itself reflects decisions made at a political level.

This is why the argument over two-tier policing should not be reduced to a question of whether individual police officers are personally prejudiced. The deeper issue is who determines what the police are encouraged to regard as important. If governments continually expand the categories of behaviour requiring official attention, police resources will inevitably follow those priorities. If political leaders place increasing emphasis upon hate, extremism, online speech or ideological offences, institutions will develop procedures to address those concerns. If, at the same time, citizens perceive that conventional crimes such as burglary, theft, violence and antisocial behaviour receive less attention, they will naturally begin to ask whether the priorities of the state have become detached from their own experience of public safety.

That is the political heart of the two-tier argument.

The accusation does not necessarily require a conspiracy. Indeed, a conspiracy is unnecessary. Institutional behaviour can produce unequal outcomes through a collection of entirely ordinary decisions. A minister announces a priority. A department issues guidance. A police chief responds to the guidance. Officers are trained accordingly. Resources are redirected. New reporting mechanisms are established. Performance is measured according to the new priorities. Eventually the institution develops a culture in which some forms of behaviour are regarded as especially important and others as comparatively ordinary. No single person may have intended to create an unequal system, yet the cumulative result can nevertheless appear unequal to the citizen.

The distinction between political direction and political control is therefore important. In a democracy, elected governments are entitled to establish laws and broad priorities for policing. They cannot reasonably be expected to have no influence whatsoever over law enforcement. But there is a critical difference between determining legitimate priorities and expecting the police to enforce a political worldview. The former is an unavoidable feature of democratic government; the latter is a danger to the independence and credibility of policing.

The danger becomes particularly acute when political leaders begin treating speech itself as a primary object of law enforcement. It is tempting because speech is easier to identify than many of the deeper causes of disorder. A social-media post can be screenshotted, recorded, categorised and placed in a database. A burglary requires investigation. A violent offender must be found. An organised criminal network requires intelligence, surveillance and painstaking work. An offensive comment, by contrast, can be converted into a statistic almost immediately. It allows an institution to demonstrate activity and allows a politician to announce that something is being done.

But the appearance of activity is not the same as the protection of the public.

There is something deeply unsettling about a society in which the machinery of the state can appear remarkably energetic when confronted with an offensive statement while the ordinary citizen continues to wonder whether sufficient attention is being given to theft, burglary, violence and antisocial behaviour. This does not mean that offensive or threatening speech should never be investigated. Genuine criminality must be investigated wherever it occurs. The problem arises when the definition of harm becomes so broad that lawful political expression begins to attract a level of official attention which citizens would once have associated with actual criminal conduct.

At that point the distinction between policing and social management begins to disappear.

The policeman is gradually encouraged to ask not simply what offence has been committed but what harm might have occurred, what attitude might lie behind the statement, which community might have been affected, or whether the expression could contribute to some broader social problem. The first question has a legal boundary. The second can become almost limitless. Once potential harm becomes sufficient justification for intervention, almost anything can become the subject of official concern.

This is where the Orwellian character of the process becomes apparent. Orwell understood that political control depends not only upon controlling institutions but upon controlling the language through which reality is described. If words are sufficiently vague, the citizen can be made to accept almost any policy because he no longer possesses a precise vocabulary with which to challenge it. A restriction can be described as protection, surveillance as safeguarding, censorship as responsibility, political conformity as social cohesion and dissent as extremism. The language sounds benevolent, but the effect may be coercive.

The genius of such language is that it makes opposition appear immoral before the argument has even begun. Who, after all, wishes to be accused of opposing safety? Who wants to be described as indifferent to harm? Who wants to defend hate? The trick lies in allowing the definition of these words to expand until disagreement itself can be placed inside them. Once that happens, the citizen is forced to defend not merely his opinion but his moral character for having expressed it.

The process does not require an authoritarian government in the traditional sense. A society can retain elections, courts, newspapers and political parties while gradually creating an atmosphere in which citizens become cautious about what they say. The outward forms of democracy can remain intact while the psychological space available to dissent becomes progressively smaller. Freedom may continue to exist in law while becoming increasingly expensive to exercise in practice.

This is the point at which political masters must be watched as carefully as the institutions they direct.

Governments naturally want to shape the society they govern. They establish priorities, respond to campaigns, react to public pressure and attempt to demonstrate that they are protecting particular groups from particular dangers. There is nothing inherently improper about that. The problem begins when political priorities become so deeply embedded within policing that the distinction between enforcing the law and enforcing political expectations becomes uncertain.

A government has the legitimate authority to decide what Parliament should make unlawful. It does not follow that every political concern should become a policing concern. A minister may condemn an opinion; that does not automatically make the opinion a crime. A political movement may demand action against its opponents; that does not give the police a mandate to become its instrument. A pressure group may insist that a particular form of expression causes social harm; that does not by itself establish that the speaker has committed an offence.

The police must remain capable of saying no. That is not insubordination. It is the essence of lawful policing.

The officer's duty is to enforce the law as Parliament has enacted it, not to anticipate what political activists would like the law to become. The distinction matters because political fashions change. The government that establishes an intrusive power in order to suppress one group may discover that the same power can later be used against another. The definition of extremism created to silence one political movement may eventually be applied to a movement which the original architects regarded as entirely respectable. The machinery of censorship does not possess political loyalty. It obeys whoever controls it.

This is one of the oldest lessons of political power, and one of the easiest to forget.

The institutions created to protect society from dangerous ideas can eventually acquire the authority to decide which ideas are dangerous. Once that authority exists, the temptation to expand it is considerable. Every new category of prohibited thought creates an argument for another. Every new reporting mechanism produces another source of information. Every new administrative power generates a reason for retaining it. The machinery grows because institutions rarely volunteer to surrender powers once those powers have become embedded in their procedures.

The citizen may not notice the change at first. He simply becomes more careful. He removes a sentence from a post. He decides not to attend a demonstration. He avoids an argument in public. He chooses a safer word. He notices that certain opinions can be expressed only with elaborate qualifications, while other opinions can be expressed without fear of consequence. Eventually he may cease asking whether he has the legal right to speak and begin asking whether it is safe to speak.

That is the moment when censorship has achieved its most efficient form.

There is no censor standing over his shoulder because the censor has been internalised.

The irony is that the genuine criminal remains largely indifferent to this transformation. The burglar does not spend his evenings worrying about whether his political opinions might be interpreted as extremist. The violent offender does not concern himself with whether his behaviour complies with the latest institutional framework. The organised criminal does not become less dangerous because another policy document has been issued concerning online harm. Criminals remain interested in the opportunities created by weakness, inadequate enforcement and public disorder.

The ordinary citizen, however, is expected to navigate an increasingly complex moral and administrative landscape in which the boundaries of unacceptable conduct are sometimes unclear.

That inversion should concern everyone, regardless of political affiliation.

A conservative should be concerned if a government creates powers that could later be used against conservatives. A socialist should be concerned for exactly the same reason. A liberal, a nationalist, a libertarian, a religious believer, an atheist and an apolitical citizen should all understand, that political power cannot safely be entrusted with an unlimited definition of harmful opinion. Whoever controls the machinery today will not necessarily control it tomorrow.

The argument for impartial policing is therefore not an argument belonging to one political faction. It is an argument for self-preservation within a democracy.

The same principle applies to demonstrations. A peaceful demonstration should not receive different treatment simply because the cause is fashionable or unfashionable. Police should intervene when conduct crosses the legal boundary, not because officers or political leaders approve or disapprove of the political message being expressed. If two groups engage in comparable conduct, the law should treat them according to the conduct itself rather than according to the political sympathies surrounding them.

That is the standard by which allegations of two-tier policing should ultimately be judged: not by political slogans, party allegiance, or whether the accusation happens to embarrass a government, but by the evidence. The essential question is a simple one, though not always an easy one to answer: whether comparable behaviour has been treated comparably, regardless of the political identity, opinions or affiliations of those involved..

If there is no disparity, the allegation should be rejected. If there is evidence of disparity, it should be investigated without fear or favour. And if political priorities have contributed to that disparity, the political decisions behind those priorities must be examined as carefully as the operational decisions of the police.

The responsibility therefore does not rest entirely with the constable. The police officer is the visible end of a much longer chain of authority. Behind him stand his senior officers, his force's policies, national policing strategies, legislation, government departments, ministers and ultimately the political culture of the country. To blame the individual officer for every consequence of that system is to misunderstand how power operates.

The political masters establish the environment in which the watchman performs his duty.

They must therefore be held accountable for the direction in which the watchman is sent.

If the police are sent repeatedly towards the policing of language while conventional crime receives insufficient attention, politicians must explain why. If one form of protest is treated more sympathetically than another, the criteria must be transparent. If certain citizens appear to receive a more severe response than others for comparable conduct, the evidence must be examined. If the boundaries of criminal speech are expanding, Parliament must say precisely where those boundaries lie.

Above all, the citizen must be able to understand the rules.

A free society cannot function if its citizens are expected to guess what the law might mean.

The watchman himself needs clear rules. Without them, discretion becomes enormous, and enormous discretion inevitably produces inconsistency. Once inconsistency becomes visible, political accusations follow. Once political accusations become entrenched, public confidence deteriorates. And once public confidence disappears, even legitimate police action becomes harder because citizens cease to believe that the institution acting against them is neutral.

This is why the principle of equality before the law is more than a legal abstraction. It is the foundation of public order.

The policeman should be the person whom the burglar fears, the violent offender fears and the predator fears. The ordinary citizen, even one who despises the government of the day, should be able to regard the policeman as an officer of the law rather than an agent of political authority.

That requires the police to defend not only the citizen whom they like but the citizen whose opinions they dislike. Indeed, the latter is the more important test. It is easy to defend popular speech. It is much harder to defend unpopular speech without secretly believing that the speaker deserves whatever happens to him.

A free society is judged by how it treats its dissenters.

That does not mean that every dissenter is right, admirable or harmless. It means that the state must distinguish between being wrong and being criminal. It must distinguish between being offensive and being threatening. It must distinguish between political opposition and extremism. And it must resist the temptation to allow the word “harm” to become a universal justification for intervention.

Otherwise, the police cease to be guardians of the law and become arbiters of permissible thought.

That is a transformation more dangerous than any individual controversial arrest because it changes the relationship between the citizen and the state. The citizen no longer asks, “What does the law prohibit?” He asks, “What does the state permit?” Those are entirely different questions. The first assumes that the citizen is free except where the law expressly restrains him. The second assumes that the citizen requires permission.

That is the difference between liberty and administration.

The watchman was given authority because citizens needed protection from those who would harm them. He was not given authority to determine which citizens possessed the correct opinions. His political masters may determine the laws under which he operates, but they should never be permitted to turn him into an instrument for enforcing political conformity.

Once that happens, the old relationship between citizen and state begins to reverse itself. The criminal learns that the system is distracted, while the citizen learns that the system is watching him. The citizen becomes cautious, then silent, while the institutions congratulate themselves upon the apparent reduction in troublesome speech. The streets may not become safer, but the public conversation becomes quieter, and the authorities may mistake that quietness for social harmony.

It is not harmony. It is compliance.

The darkest possibility is not that a democratic government suddenly becomes a dictatorship. It is that democratic institutions gradually acquire habits which would make authoritarian government easier if one ever arrived. The machinery is constructed in the name of safety, fairness and protection. The language remains benevolent. The officials remain respectable. The citizens continue to vote. Yet the boundaries of acceptable expression narrow sufficiently that people begin to police themselves before the state has to intervene.

By then, the most important change has already occurred. The policeman no longer needs to stand inside the citizen's house because the citizen has begun carrying the policeman inside his own head.

That is the final danger of a system which confuses policing with political management. It does not merely punish those who cross the line. It teaches everyone to fear the possibility of crossing it.

The watchman must therefore remember what he was appointed to do. His duty is to protect the innocent, restrain the violent, pursue the criminal and apply the law without regard to political fashion. He should investigate genuine threats wherever they come from, protect vulnerable people wherever they are found and treat comparable criminal conduct with comparable seriousness. He should neither protect governments from embarrassment nor punish citizens because their opinions are unfashionable.

The political masters, for their part, must recognise that the police are not an instrument for manufacturing the society they would like to see. They can establish laws and legitimate priorities, but they must not demand that officers enforce political conformity where Parliament has not created a criminal offence. If they do so, they will gradually destroy the very neutrality upon which public confidence in policing depends.

The question is therefore not whether society should have police. It plainly should. Nor is it whether the police should investigate genuine threats and criminal conduct expressed through words. They plainly should. The question is whether we are prepared to maintain the distinction between law and political opinion, between crime and offence, between genuine danger and ideological disagreement, and between the legitimate direction of policing by elected government and the political capture of the police themselves.

That distinction is becoming increasingly important because once it disappears it will not be easily restored.

The burglar does not need to be persuaded that crime is wrong. He already understands the risk and calculates accordingly. The citizen is different. The citizen must believe that the law is legitimate, predictable and impartial. He must believe that he can criticise his government without becoming its enemy, that he can mock an institution without becoming a criminal, and that he can hold an unpopular opinion without first seeking permission to possess it.

If that confidence disappears, the state may still possess enormous power, but the legitimacy of that power will begin to weaken.

The watchman will still be standing at the gate, but the citizen will no longer know whether he is there to protect him or to watch him.

And that is how the watchman loses his way: not necessarily through corruption, not necessarily through malice, and not necessarily through a deliberate conspiracy, but through the gradual substitution of political priorities for the impartial enforcement of law.

A society should therefore be wary whenever its police are praised less for catching criminals than for managing citizens; whenever vague concepts of harm begin to replace precise legal boundaries; whenever political masters expect institutions to pursue fashionable causes; and whenever citizens begin to suspect that the law is more severe towards one political tribe than another.

The answer is not to replace one form of political policing with another. It is to restore the principle that should have governed policing from the beginning: the law must be applied equally, political power must have limits, and the policeman must remain a servant of the law rather than a servant of whichever political faction happens to occupy power.

Otherwise, the state may eventually achieve something which no free government should desire. It may create a population so accustomed to being watched, assessed and categorised that people begin to censor themselves without being ordered to do so.

At that point the bars of the prison need not be visible.

The citizen carries them with him.

By John Shenton

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A companion Book to this article is: The Long March Through the Institutions: Socialism, Historical Memory and the Making of the Managed West

by John Shenton

Available on Amazon in Paperback or Ebook format.  https://a.co/d/0fBDC3KS