Crime and Courts Bill [HL]

Lord Mawhinney Excerpts

Wednesday 4th July 2012 Lords Chamber

Moved by

[Lord Mawhinney]

155: After Clause 27, insert the following new Clause—
“Public orderPublic order offences
(1) Section 5 of the Public Order Act 1986 is amended as follows.
(2) In subsection (1), for “abusive or insulting” in the two places where it occurs there is substituted “or abusive”.”

[Lord Mawhinney]

My Lords, I have been sitting here contemplating that it falls to me to move the last amendment, at the end of a long day, at the end of six days of Committee. I wondered whether it was more appropriate to say “better late than never” or “last but not least”.

At least this amendment has the virtue of simplicity. We have had some fairly heavy and complicated amendments to deal with today. This one is dead easy. It is about freedom of expression. All of us would say that we are supporters of freedom of expression. I stake my latest colours to the mast: I had the privilege of chairing the Joint Committee on the Draft Defamation Bill and one of our very first recommendations said:

“We recommend that the Government has particular regard to the importance of freedom of expression when bringing forward this Bill”.

I think the best definition of freedom of expression falls to a learned opinion given by the noble Lord, Lord Macdonald of River Glaven, who was a distinguished DPP and is a cosignatory to this amendment. He is overseas tonight and not able to take part in this debate. He wrote, in an opinion that I do not think has been seriously challenged legally, about removing the word “insulting” from Section 5 of the Public Order Act 1986:

“Freedom of expression constitutes one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to Article 10 (2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.

Those last words are very important.

This is the second time in just over a year that Parliament has been invited to remove the word “insulting” from Section 5. Edward Leigh MP tabled such an amendment in the other place in May 2011. The Government, in the form of James Brokenshire MP, promised a public consultation, which indeed was launched on 13 October last year and closed on 13 January this year. That, plus the handling of the Bill in the Commons, meant that the other place never got around to pursuing an amendment to Section 5.

As your Lordships will know, the guidance is that the Government should respond within three months to a public consultation. We are now heading towards six months and, as of two days ago, the Government still had not responded. The Minister then promised conclusions “as quickly as possible”. It is probably worth taking a minute to ask ourselves: what is the problem that is constituted by the inclusion of the word “insulting” in Section 5?

Four very brief examples will illustrate the problem. An Oxford student said to a police constable, “Excuse me, do you realise your horse is gay?”. He was arrested and the police tried to fine him £80. A man growled and said, “Woof!” to two Labrador dogs and he was detained by the police and fined by magistrates. A 16 year-old boy held a placard saying, “Scientology is not a religion, it is a dangerous cult”, and he was arrested. An elderly street preacher displayed a sign that said, “Stop immorality. Stop homosexuality. Stop lesbianism. Jesus is Lord”. He was arrested, convicted and wound up being £600 out of pocket. All those stem from the inclusion of the word “insulting” in Section 5 of the Public Order Act 1986.

Is this a quirk of those of us who actually believe that Jesus is Lord, or does the opposition here have a somewhat broader base? I say particularly to the noble Baroness, Lady Smith, that this is not a party-political issue. Concern about this stretches across the Benches in both Houses, and the fact that I quote one Conservative MP does not mean that I am trying to make it party political; I just think that David Davis MP summed up the issue better than most speeches I have heard from Labour, Conservative and Lib Dem MPs. He said:

“Section 5, amongst other things, makes it illegal to insult somebody. This … law makes other things illegal which should be: incitement to violence is illegal; abusive behaviour is illegal. But an insult? Who should decide who’s insulted? … What this does is actually make the courts, the police, sit in judgment on whether somebody feels insulted or not, which actually has a terrible chilling effect on democracy”.

--- Later in debate ---

[Lord Henley]

My Lords, I hope that I can be relatively brief in responding to the speech of my noble friend in moving the amendment, and the remarks that other noble Lords have made. My noble friend need not apologise for the fact that he was a member of the Government and was a signatory to the Public Order Act 1986, which included the word “insulting”. As the noble Lord, Lord Dear, has reminded us, “insulting” goes back to the Public Order Act 1936, introduced by the then National Liberal Home Secretary, Sir John Simon. That was very much borne out of the fascist marches of the 1930s. Section 5 of that Act referred to any,

“person who, in a public place or at a public meeting, uses threatening, abusive or insulting words”.

That is much the same as the 1986 Act which my noble friend now feels embarrassed about having signed up to.

To take the history lessons back a bit further, I take my noble friend back to the Metropolitan Act of 1839. That was under a Whig Government—the forebears of the Liberal Democrats—who, again, introduced the word “insulting”, but which applied only in London and not in other parts of the country. I make this point to say that this has been going on for some time.

Similarly, I apologise to my noble friend for the fact that our consultation ended in January and we have not responded within the appropriate three months; however, it did cover a number of other issues. Obviously, it is now six months since that consultation ended. As has been made clear by a number of noble Lords who spoke, we had some 2,500 responses to that consultation and we want to consider them carefully. It is clear that there are a number of different and passionately held views on the subject. Given the complexity of the issues raised, we in the Home Office, as Ministers and officials, are still considering the balance of all those representations. So, I say to the Committee—and to the noble Lord, Lord Rosser—that I am not in a position today to set out the Government’s position on the amendment.

This is a timely debate, which will help to inform the Government’s further deliberations. I would have been grateful if it could have happened at a time when more noble Lords were here in Committee. Although I appreciate that the names on the amendment of those who support it come from different parts of the House and they all seemed to be on the same side, there are strong believers in other views. We have heard a number of cases indicating the weakness of having “insulting” in the provision. Different noble Lords have cited a number of different cases.

We also have to accept that freedom of expression is never an absolute right. It needs to be balanced with other competing rights. It was made quite clear in the case of Percy and the DPP that Section 5 is proportionate and contains that necessary balance between the right of freedom of expression and the right of others to go about their business without being harassed, alarmed or distressed.

I do not want to go into details at this stage because we are debating this at too late an hour with too empty a Chamber. All that I am saying is that we have had a consultation. That has ended and we have had 2,500 responses. Those need to be considered carefully and all of us need in time to take a view. I hope that all noble Lords will accept that there are arguments on both sides, as the noble Lord, Lord Rosser, put it. Those need to be considered very carefully. I am pretty sure that I can say to my noble friend Lord Mawhinney that we are likely to come back to this issue at a later stage in the Bill.

As I have said on other occasions, we have some considerable time before we get to Report. That might make it easier to come to that considered view. I hope at that point we will be able to put forward the Government’s considered view to the House. Therefore, I hope that my noble friend will, on this occasion, feel able to withdraw his amendment.

[Lord Mawhinney]

My Lords, I am grateful to the Minister for his response and to other colleagues who have spoken. None of us who spoke is responsible for the fact that the debate is on very late and the House has well below the number of noble Lords who might normally have considered the matter. That is not our fault. I hear what the Minister said about the lateness of the hour tonight. If we come back to this at Report, I am not sure that that argument will carry much water were it to be tried a second time around.

The Minister will have heard that those who have spoken have all spoken with one voice. I would like to pick up the point that the noble Lord, Lord Dear, made about the timing of this. Having been privileged to spend 26 years at the other end of this Corridor and a mere seven at this end, I understand why Governments and Parliament issue guidance. They issue guidance to constrain the power of the Executive to put stuff in the long grass and let it lie there. Guidance is designed to say to Ministers, “You can have reasonable time, but there comes a point when Parliament must be accorded the rights and privileges that go with the name Parliament”.

My noble friend pointed out that there were 2,500 replies, and six months later they are still studying them. Okay, but the guidance was that they should have replied in three months, so at the very least we should have had a message from the Executive two months ago saying, “This is really taking us longer than we thought. We hope Parliament won’t mind if we take a little longer”. Do you know what? I am guessing that Parliament would have said, “Okay, take a little longer”, but here we are after six months. I say to my noble friend, “Take a little longer”. However, I also say that the mood of the House and the mood of the other place would be that, well before Report stage, we would wish to be encouraged to believe that not only had the Government formed a view, which they were willing to share, but that they had done something politically quite sensible and aligned themselves with the vast majority of people who want to see “insulting” removed from Section 5.

As my noble friend goes away to sit at his desk over the summer pondering things, I offer him a reflection from former US President Harry Truman, who had only two frames on his desk. One frame held a picture of his wife, and in the other was a saying from Mark Twain. Every day, Harry Truman read these words:

“Always do right. This will gratify some people and astonish the rest”.

I offer that encouraging thought to the Minister as he contemplates those 2,500 responses and the content of this short debate. I beg leave to withdraw the amendment.

Amendment 155 withdrawn.