Julian Huppert MP writes… The Public Order Act: More than a little insulting

What do Peter Tatchell and the Christian Institute have in common? Before you answer, this isn’t some deeply unfunny jibe from a Coalition colleague, but one of many unexpected alliances which have formed to oppose Section 5 of the Public Order Act 1986.

This rather insidious Section criminalises all those who use “threatening, abusive or insulting words or behaviour, or disorderly behaviour” within the hearing or sight of a person “likely to be caused harassment, alarm or distress”. It also applies to those who display “any writing, sign or other visible representation which is threatening, abusive or insulting”.

A rather wordy piece of legislation but, in sum, the offence does not depend on harassment, alarm or distress actually having been caused. A recent legal textbook stated that, when this law was first passed, it extended the criminal law into areas of “annoyance, disturbance, and inconvenience”.

This raises all sorts of very difficult issues – if I say something offensive, and someone hears it, would I have committed an offence if I neither intended them to hear it, nor intended to cause offence? In my view, this represents yet another piece of bad legislation, resulting in our fundamental rights being decided by unaccountable guidelines.

But the difficulties with the Public Order Act run much deeper than this; they run to the very heart of how we perceive freedom and rights in this country. The criminalisation of merely ‘insulting’ behaviour in Section 5 means that, theoretically, the use of any words or opinions with which the majority do not agree is an offence.

The right to free speech is one of our most basic freedoms. The tension between Section 5 and the Human Rights Act is already evident: in 2009 the cross-party Joint Committee on Human Rights said that the reference to ‘insulting’ should be deleted “so that it cannot be used inappropriately to suppress the right to free speech”.

This might come as a bit of a shock to many readers – after all, the Act was passed in 1986 and most of us would still say that UK citizens enjoys freedom of speech. But the effect of the Act has already been seen.

In a 2008 case City of London police charged a teenager under Section 5 for demonstrating outside the London Headquarters of the Church of Scientology with the word “cult” on a placard. The charges were dropped days later.

The Christian Institute cites a case of hotel owners charged following a religious discussion with a Muslim guest, while gay rights campaigners have themselves been prosecuted for criticising homophobic religious campaigns.

Few cases like these lead to successful prosecutions, but if the police can arrest you while you’re out protesting, merely for expressing your own opinions, then we are entering very dangerous territory.

That is why myself and fellow Lib Dems garnered cross-party support for an amendment to the Protection of Freedoms Bill to remove the use of the word ‘insulting’. After sustained pressure, the Government has launched a consultation to “assess the benefits of removing ‘insulting’ from section 5 of the Public Order Act 1986”.

The current law encroaches on the fundamental right to free speech, it is being used to prosecute those whom it was designed to protect and it is fundamentally illiberal. It is shameful that the previous Government took no steps to remedy this. We will not make the same mistake: the law should be changed as quickly as possible.

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  • I hope you do change the wording to make it more liberal. Labour obviously wouldn’t want to do that as they’re social democrats and illiberal.

    The Lib Dems are right wing and sometimes liberal. Now if only there was a social democratic AND liberal party, then I could actually vote.

  • Andrew Suffield 24th Oct '11 - 6:48pm

    This might come as a bit of a shock to many readers – after all, the Act was passed in 1986 and most of us would still say that UK citizens enjoys freedom of speech.

    Some years ago, it was pointed out to me that there is no general right to free speech in the UK, just a general presumption that it will not be excessively restricted. People tend to assume we have one, but we don’t really. (Even the HRA is pretty flimsy on the subject, allowing almost anything to be used as an exception)

    This is something that could use changing.

  • Stuart Mitchell 24th Oct '11 - 9:36pm

    “threatening, abusive or insulting words or behaviour, or disorderly behaviour”

    I’m not sure that removing the word “insulting” from this would make much difference, since it could be argued that any “insulting” words could also be described as abusive.

    To your list of outrageous abuses of section 5 I think you should add the Crawley Town FC supporter who received a suspended sentence earlier this year for making aeroplane gestures in a pop video. Not pleasant, but deserving of a criminal record??

    “It is shameful that the previous Government took no steps to remedy this. We will not make the same mistake.”

    Note for younger readers: The Public Order Act 1986 was enacted by a *Conservative* government. I think you should wait and see whether the present government manages to get beyond the consultation stage before you start using this as an excuse for Labour-bashing (since Labour also consulted on this issue, but nothing came of it).

  • Graham Martin-Royle 25th Oct '11 - 10:21am

    What is really required is a written constitution that explicitly outlaws any restrictions on free speech.

  • Angela Kingdom 26th Oct '11 - 12:55pm

    The basic principle of free speech is that we have exposure to ideas or opinions we find disagreeable. However, there is a line between free speech and speech made specifically to incite hate or violence. For example, religious fundamentalists who say I’ll burn in their hell because I’m an atheist should be allowed to say this; in fact they are already protected because of our supine Government’s subservience to religion. However, people such as me who openly criticise religion are always in fear of prosecution. There was recently a libel case brought against a scientist who criticised the quackery of homoeopathy.
    I agree with Graham Martin-Royle [above]

  • Richard Fife 27th Oct '11 - 12:04pm

    I have worked with the Public Order Act 1986 nearly all the 20+ years it’s been in force, and I find very little problem in practice. Case decisions have always been reasonable, and you can’t criticize a criminal law over cases which were dropped or prosecutions that fail: that was the prosecuting authorities getting it wrong, but the law getting it right. As for prosecuting authorities, though, here is one instance illustrating a bad trend. Two blokes walking along a street in central Nottingham, and one using the word “fuck” in conversation, being pounced on and given a Fixed Penalty (£80 for the rich, £120 for the poor) for an alleged offence under said s.5. Such a charge would have been thrown out by any court, but the victim, who could afford £80, did not want any risk of a criminal conviction and would have lost more than £80-worth of time, while the PCSO who imposed the penalty was on a target and bonuses to give them out. This is part of the FP system devised by Tony Blair and Jack Straw to take powers of conviction and punishment away from courts and give them to the police and state agencies. There’s a term for such a system.

  • Stuart Mitchell 27th Oct '11 - 7:37pm

    “Two blokes walking along a street in central Nottingham, and one using the word “fuck” in conversation, being pounced on and given a Fixed Penalty”

    Shame there isn’t a PCSO like that on all the buses my kids have to travel on…..

  • Stuart Parsons 8th Oct '12 - 1:52am

    The freedom to only say that which does not offend is not worth having. The 2006 Racial and Religious Hatred Act, Paragraph 29J permits one to challenge a religious belief. express antipathy, criticise, ridicule and even insult a religion. However, anyone who tries to avail themselves of this right to challenge a religious belief, especially Islam, will find the Police and Crown Prosecution Service ever ready to deny them this freedom by charging them under Section 5 The Public Order Act……. as I have been. In the view of the Police and CPS a person’s right to be protected from a perceive religious insult, outweighs the Commons and Lords sanctioned freedom of speech right to challenge a religious belief.

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