In Britain, we enjoy more rights and freedoms than almost anywhere in the world. It is easy to forget, but there is a reason why those who flee persecution are so often prepared to cross oceans to get here. We often take for granted the freedoms which most of the world aspire to. And when freedoms are taken for granted they are at risk of being watered down or manipulated. One such cornerstone of our society is the right to free speech, which is increasingly being challenged by someone else’s right to not be offended. You don’t have to be a student of law to know that we no more enjoy a right not to be offended than we enjoy a right to watch England win a penalty shootout.
One piece of well-intentioned legislation that is having, in the words of David Davis MP, “a truly chilling effect on freedom of speech” is Section 5 of the 1986 Public Order Act. Granted, this obscure provision was never going to attract the same outrage as proposals to detain terror suspects for 90 days without charge, and it probably won’t turn hundreds of thousands of people on to the streets in protest, but it does matter and it must be reformed.
Section 5 currently outlaws “insulting words or behaviour” but what exactly constitutes an insult is unclear and has resulted in some highly controversial arrests. One boy was arrested under Section 5 for holding a sign which read “Scientology is a cult” and another student found himself in breach of Section 5 when he told a mounted police officer that his horse was gay. On each occasion an arrest was made on the grounds that someone, somewhere, could have been insulted if they heard or saw the offending point of view. There are more troublesome cases, too. The veteran campaigner, Peter Tatchell, was arrested under Section 5 when campaigning against members of the extremist group Hizb ut-Tahrir – who called for the killing of gay people, Jews and unchaste women. He was arrested for displaying a placard that cited the murderous actions of Islamist fanatics. Is this what it has come to? Have we reached the point where we need the State to sanitise and vet every discussion?
The Home Office is currently considering its response to a consultation on whether to remove the word “insulting” from Section 5, leaving just the sensible restrictions on “threatening or abusive” behaviour. The main problem with the word “insulting” is that it actually encourages the police, and sometimes prosecutors, to go after people who are being no more than rude, or even controversial. We would all like to see a little less rudeness, but in a democracy an insensitive joke or a contentious point of view should not be a criminal offence.
Many of the more absurd cases which make the news do end in acquittal, often when a civil liberties group gets involved, and I have heard defenders of Section 5 claim that the high acquittal rate demonstrates that the law is working. This is palpable nonsense. A law should not be judged a success on the basis of the number of people proved innocent of having broken it. Such a law should not exist in the first place. It is also claimed that removing the word “insulting” would leave vulnerable people less protected. As former Director of Public Prosecutions, Lord Macdonald QC, has argued forcefully, this is simply not the case. A revised Section 5, along with a multitude of other offences and provisions, would still leave the police and the courts with more than enough tools to pursue effectively anyone who threatened, abused, assaulted or harassed anyone else. It just wouldn’t allow them to arrest the teller of a dodgy joke or the owner or a cheeky sign.
The House of Lords will debate this issue tonight, and I hope that Home Office civil servants will be watching. The campaign to reform Section 5 has attracted a most diverse and unlikely range of supporters from across the ideological spectrum: religious and secular, right wing and left wing. The press launch for the campaign was addressed by Peter Tatchell, Keith Porteous Wood of the National Secular Society, and me from The Christian Institute. Unlikely bedfellows indeed! Polling shows that the vast majority of MPs are in favour of reform with 62 per cent believing it should not be the business of government to outlaw “insults.” Only 17 per cent of the Commons believe that removing the contentious “insult” clause would undermine the ability of the police to protect the public.
The Government has a chance to send a very clear signal that this country is indeed the home of free speech, fair debate and common sense. Reforming Section 5 would unburden the police without limiting their ability to protect and would reassure campaigners without threatening the public. It is that rarest of things for a government, a win-win.