Britain Has Never Had Freedom of Expression: Parliamentary Sovereignty and the Permission Model
Britain often speaks as if freedom of expression once existed and is now gradually being eroded. Surveillance expanded. Sensitivities hardened. Regulation increased. The implication is that a genuine liberty was established and is now being lost.
The historical record suggests a different conclusion. Britain has never recognised freedom of expression as a constitutional right. What has existed instead is a system of permitted speech — tolerated when convenient, restricted when disruptive, and always subordinate to legislative authority.
There has never been a constitutional moment in which expression was placed beyond the reach of the state. The United Kingdom has no written constitution and no entrenched guarantee of expressive liberty. Parliamentary sovereignty means exactly what it says. As A.V. Dicey observed, Parliament “has the right to make or unmake any law whatever,” and no person or body is recognised as having authority to override its enactments. No category of expression is legally beyond political revision. Liberty exists only so long as Parliament chooses not to legislate against it.
Earlier British thinkers did argue for expressive freedom, but their arguments illustrate the absence of structural protection rather than its presence. In 1644, John Milton appealed to Parliament in Areopagitica: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” The appeal itself reflected the reality that such liberty depended on legislative tolerance rather than constitutional guarantee.
Magna Carta is often invoked to suggest otherwise, but this is historical symbolism rather than legal protection. Magna Carta did not address expressive liberty. It was a feudal settlement concerned primarily with taxation, property, and arbitrary detention of elites. Modern courts do not invalidate speech restrictions by reference to it, and Parliament legislates without regard to it. Its contemporary role is cultural rather than operational.
The absence of a constitutional guarantee produced a distinctive institutional structure. Expression in Britain is not treated as a right that the state must justify limiting. It is treated as conduct that remains lawful only so long as it does not conflict with evolving definitions of order, harm, or public confidence. The default position is administrative tolerance rather than legal protection.
The common law reflects the same principle. As Blackstone explained, the liberty of the press “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” Speech was tolerated until it conflicted with authority, religion, public order, or morality. When such conflicts arose, restriction followed. Blasphemy, sedition, criminal libel, obscenity, and contempt of court illustrate a consistent pattern: expressive liberty was conditional. When Parliament expanded speech offences, the courts did not resist. They applied the law.
As Lord Sumption has observed, freedom of expression protects not only what is accepted but what is “irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative.” The persistence of such reminders reflects a legal culture aware of expressive value but operating without structural protection.
Recent developments therefore represent continuity rather than rupture, but with a clearer operational form. Freedom of Information requests and reporting based on National Police Chiefs’ Council data indicate that roughly ten to twelve thousand people each year are detained or investigated for communications-related offences, including online posts and messages. Most cases do not result in prosecution. The operational function lies in the process itself.
Police intervention, questioning, record creation, device seizure, and associated reputational and psychological costs impose consequences independent of conviction. Compliance is secured administratively rather than judicially. The system does not need to prove wrongdoing in court; it needs only to make certain forms of expression sufficiently costly.
In some cases, the regulatory boundary extends further. Under legislation creating “safe access zones” around abortion facilities, individuals may be subject to enforcement for silent presence interpreted as expressive or influential conduct. Regulation therefore operates not only on words but on inferred expression.
At this point, the structure of the British model becomes clearer. Expression is managed as a matter of public-order administration rather than protected as a constitutional liberty.
Comparative systems illustrate the structural difference. In jurisdictions with written constitutional guarantees, courts assess state action against an explicit presumption of expressive freedom. In Britain, the sequence is reversed. Expression is balanced against competing interests before it is recognised as a liberty at all. Order, reputation, public safety, dignity, and social harmony are treated as co-equal considerations rather than interests that must overcome a presumption of freedom.
The reliance on the European Convention on Human Rights reflects this structural gap. Article 10 protects expression but permits restrictions deemed “necessary in a democratic society” for a wide range of public interests. The framework supplements domestic law without altering its underlying logic. Speech is treated as one interest among many rather than as a domain beyond ordinary legislative authority.
By comparison, the United States operates under a written constitutional guarantee that places expression within a different legal hierarchy. The First Amendment removes most content-based regulation from ordinary legislative authority and requires the state to justify any restriction under strict judicial scrutiny. Even within that framework, speech is still subject to balancing in certain contexts.
Oregon goes further. Its constitution provides that “no law shall be passed restraining the free expression of opinion… on any subject whatever,” a formulation that courts have interpreted as a jurisdictional boundary rather than a balancing standard. The question is not whether a restriction is justified, but whether the state has authority over expression at all. This structural difference illustrates the contrast with the British model, in which legislative authority over speech has never been displaced. (See Freedom Without Permission: Oregon’s Free Speech Guarantee.)
The resulting pattern is consistent. Speech is not presumptively free. It remains lawful only so long as it is considered proportionate, responsible, and compatible with public order. Permission operates as the governing principle even when the language of rights is used.
The common narrative suggests that something important has been lost. A more accurate description is that the underlying structure has become more visible. Britain has long produced influential writers, dissenters, and critics, but their freedom derived less from legal protection than from the state’s decision, at particular moments, not to intervene.
Understanding this distinction clarifies contemporary developments. Increased investigations, police visits, administrative warnings, and the regulation of expressive presence are not departures from constitutional tradition. They reflect the normal operation of a system in which expression exists by tolerance rather than by right.
A system built on permission cannot be restored to liberty by reducing restrictions. The structure itself would need to change.