Why repealing the law against ‘insulting’ language would be a victory for free speech and common sense
The Daily Mail
Wednesday 16 May 2012
In the final year of the Major government, during a debate about Europe, a backbench Labour MP shouted ‘two-faced Tories’ at the government frontbench.
As a Foreign Office Minister at the time, I responded that the ‘two-faced’ allegation was true neither of my party nor of then Shadow Foreign Secretary and Livingston MP Robin Cook, who was speaking for Labour.
Indeed, I added, ‘looking at the right honourable member for Livingston, if he had two faces, he wouldn’t use that one’.
With Robin, you always knew he would give as good as he got. He later referred to a rather Eurosceptic government publication as ‘written by the Minister of State [me] on a moonless night’.
But under different circumstances making what someone deems to be an insulting comment could get you arrested, thanks to a law which undermines our freedom of speech.
The Public Order Act rightly makes it a criminal offence to behave in a manner which is threatening, disorderly, abusive, or which constitutes harassment. However, section 5 of the Act also makes it an offence to use words which anyone within earshot might find ‘insulting’.
This is a step too far, and it has had troubling consequences.
When an Oxford University student out celebrating the end of his exams asked a policeman ‘Excuse me, do you realise your horse is gay?’ it should have been ignored as a daft comment. Instead police first tried to fine the student £80, then locked him up overnight and took him to court after he refused to pay. Eventually prosecutors dropped the case, having wasted plenty of taxpayers’ money in the process.
After a 16-year-old from Newcastle said ‘woof’ to a labrador within earshot of police officers, he was hauled in front of magistrates and fined £200, a decision later overturned by a jury.
City of London police charged a teenager under section 5 for demonstrating with a placard bearing the word ‘cult’ outside the Church of Scientology’s UK headquarters.
A street preacher armed with a placard proclaiming the Bible’s condemnation of homosexuality was fined £700, a move condemned by world-renowned gay rights campaigner Peter Tatchell as ‘an outrageous assault on civil liberties’.
These are just a few of the growing list of examples where the law against using ‘insulting’ language has led to heavy-handed action by police and prosecutors. It is not only distressing for the individuals concerned, it constitutes a threat to Britain’s tradition of free speech.
Of course nobody likes to be insulted, particularly in public, but nor does anyone have a right not to be insulted. Freedom of speech includes the right to criticise, to ridicule and to offend.
After all, police did not swoop on the 2010 Scottish Labour Party conference when former Equalities Minister Harriet Harman dubbed Danny Alexander, Chief Secretary to the Treasury, a ‘ginger rodent’. Nor did they raid BBC studios after Jeremy Clarkson said striking public sector workers should be shot.
So why can we not simply ask police officers to distinguish between unacceptable behaviour on the one hand, and a legitimate expression of opinion or protest on the other?
That is what the last government tried to do, without success. They issued guidance to police officers, but this has not prevented the inappropriate use of section 5. I doubt many police officers believe anyone should be arrested for saying ‘woof’ to a dog, but police have a duty to enforce and act in accordance with the law whatever they may think of it.
As things stand, the Public Order Act imposes on police a duty to act if ‘insulting’ language in breach of section 5 is reported to them. It also requires police to take action not just if they think that an individual has used insulting language, but if they think someone within earshot is likely to have been upset by the comment, even if nobody has been.
That is why Parliament’s Joint Committee on Human Rights agreed that language or behaviour which is merely ‘insulting’ should never be criminalised in this way, and did not believe that merely improving police guidance would be sufficient to solve the current problems with the law.
So what should we do about it?
The solution is simple; the law needs to change. The word ‘insulting’ should be removed from section 5 of the Public Order Act. This would provide proportionate protection to individuals’ right to free speech, whilst continuing to protect people from threatening or abusive speech.
Support for amending section 5 comes from a large number of MPs and peers, along with groups as diverse as the Christian Institute and National Secular Society, and human rights organisations Liberty, Justice and The Peter Tatchell Foundation. MPs from all parties recently called for the Freedom Act (passed two weeks ago) to be amended to this effect, only to be thwarted when the amendment was not called.
And today (Wednesday), supporters of this change, including myself and Peter Tatchell, will launch the Reform Section 5 campaign at a meeting in the House of Commons.
Some have expressed concern that vulnerable people will receive less protection if the law is changed in this way. They need not worry. Even with the word ‘insulting’ removed, section 5 would continue to protect all of us from harassment and threatening, abusive or disorderly behaviour.
By including the word ‘insulting’ in the legislation we have effectively created a new right to not be offended and risked silencing legitimate campaigners, protestors and activists but done nothing extra to protect people from unacceptable behaviour.
Last October the Government launched a consultation on the Public Order Act, including whether the word ‘insulting’ in section 5 strikes a good balance between freedom of expression and the right not to be harassed, alarmed or distressed. The consultation closed four months ago, but the Government has yet to set out its views.
The best way forward is clear. It is not the job of the police and the courts to prevent us from having our feelings hurt. By simply removing the word ‘insulting’ from section 5, the Government can at a stroke end the confusion and controversy over this law, retain legal protection for individuals from genuinely abusive and threatening behaviour, and stand up for free speech and common sense.
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