Protection of Freedoms Bill

Lord Dear Excerpts

Tuesday 8th November 2011 Lords Chamber

[Lord Dear]

My Lords, I, too, join the growing chorus of support for the Bill. I support its broad thrust. I welcome it and think it is timely. I will go through the list very quickly because noble Lords have already made the points. So far as the regulation of CCTV is concerned, of course I applaud that. As to the destruction, retention and use of fingerprints and DNA samples and so on, the existing position is totally untenable and the proposals in the Bill will bring us into line with what is already happening in Scotland and will broadly support the judgment put forward by the European Court of Human Rights in the case of S and Marper v United Kingdom in 2008.

So far as local authorities are concerned and the way in which some of them have used the Regulation of Investigatory Powers Act to deal with some of their problems, if ever there was a case of sledgehammers being deployed against walnuts, I have not seen a better one. That has to be curbed. The Bill seeks to do so and I applaud it. I also support, as other Members of your Lordships’ House have, Chapter 4 of Part 5, which seeks to disregard some convictions for some homosexual acts in the past.

The issue of terrorism is closer to my own heart for professional reasons. I agree that Section 44 of the Terrorism Act 2000, providing for stop and search without reasonable suspicion, is also untenable—a word which I have used already. The move towards using Section 43 instead, where reasonable suspicion is required, is to be applauded. In particular I very firmly support the proposed reduction from 28 days to 14 days in cases of pre-charge detention of suspected terrorists. I was the noble Lord who successfully proposed the amendment to stay at 28 days in the face of a determined attempt a couple of years ago to extend the period to 42 days, so I am speaking with a particular interest at heart. I note, of course, the saving provision for 28 days in emergency circumstances. I think that that is a very sensible move.

I want to draw attention to one freedom that is not covered in the Bill: the freedom of speech, one of the most fundamental of all the freedoms that we cherish in this country, and have cherished for a very long time. I say immediately that I have no intention whatever of seeking to amend the Bill to bring something in to cover freedom of speech, but I ask noble Lords to bear with me for a very short time while I introduce the subject very briefly and give the reasons why.

In common with many other Members of your Lordships’ House and a significant number of Members of the other place, I support the removal of the word insulting from Section 5 of the Public Order Act 1986. The term,

“threatening, abusive or insulting words or behaviour”,

has been included in legislation from as far back as the Public Order Act 1936, an Act which has been steadily amended as society has become more complex. Under Section 5 of the current Act, “insulting” stands at the very bottom rung of the ladder of descending seriousness. The ladder begins at the top with Section 4 of the 1986 Act, which criminalises intentional harassment and other criminal acts, going down through Section 4A into Section 5, where no intent is required for the offence to have been committed.

I have of course oversimplified that, but it gives you a picture of descending a ladder of criminality until one reaches the very bottom rung, which is insulting behaviour. “Insulting” is obviously the least serious of the range of behaviour encompassed by the current legislation. It is now also the subject of a good deal of debate, not least because on a significant number of occasions the enforcement of the legislation, so far as it applies to insulting, is seen by many to be an impediment to the proper exercise of free speech, whether or not one supports the views expressed by some of the defendants in some of the more contentious cases that have focused attention on this issue.

In normal circumstances, I would table an amendment in Committee to seek to strike out the word insulting from Section 5 of the current Act. However, on 13 October the Government announced a consultation exercise to examine police powers for public order under three heads, one of which is to examine this very issue—the possible removal of the word insulting from Section 5. That consultation period will run until 13 January 2012. For obvious reasons it would not be sensible or proper to press for an amendment while the consultation procedure is in place. I simply ask the Minister at this stage—a stage when we are examining and discussing many other fundamental freedoms, issues such as privacy, due process, freedom from arbitrary arrest and many others—to note my remarks, to recognise the fundamental importance of freedom of speech in this country, and perhaps to endorse my remarks in welcoming the conclusion of the consultation procedure in January next year, when we might have an early opportunity to return to this issue and to debate it fully, a debate which otherwise should and, I believe, would have been featured in this Bill today. As I said, however, the Bill as it stands has my broad support and I welcome it.