- Committee (7th Day) (Continued)
- 8:40 pm
- Amendments 349 to 351 not moved.
- Amendment 352
- 352: After Clause 109, insert the following new Clause— “Offences of causing harassment, alarm or distress: amendments(1) The Public Order Act 1986 is amended as follows.(2) In section 4A (intentional harassment, alarm or distress) omit “, alarm” in each place where it occurs (including the heading) and omit “, alarmed” in subsection (2).(3) In section 5 (harassment, alarm or distress) omit “, alarm” in each place where it occurs (including the heading).”
- My Lords, it is a pleasure to have the opportunity to contribute to Committee proceedings. My Amendment 352 is quite straightforward. It would omit the word “alarm” from the appropriate legislation, by way of a new clause. In the landmark 1976 case, Handyside v United Kingdom, the European Court of Human Rights established that freedom of expression under Article 10 extends to ideas that “offend, shock or disturb” the state or any sector of the population. The court emphasised that tolerance and pluralism are essential for a democratic society, and that this protection applies to both popular and unpopular expression.The cut and thrust of debate, whether political, religious or philosophical, means being able to challenge long-standing and sometimes deeply cherished assumptions. It can be shocking and disturbing—even alarming—to have the pillars of one’s world view challenged. It can be deeply uncomfortable, but it should not be a matter for the criminal law. That is why I have tabled this amendment to the Public Order Act 1986.My amendment would remove “alarm” from Sections 4A and 5 of the 1986 Act. Section 4A currently criminalises “words or behaviour” that are intended to cause“another person harassment, alarm or distress”.Section 5 criminalises“words or behaviour … within the hearing or sight of a person likely to be caused harassment, alarm or distress”,even where that impact is not intended or, indeed, actually caused.It seems to me that there should be no place in the criminal law of England and Wales for criminalising a citizen on the basis that his words or behaviour cause or are deemed likely to cause alarm. Of course, the law should seek to protect the citizen from harassment and distress: these are impacts that can have untold negative effects on people. In a democratic society, freedom of speech should always be balanced with civility and kindness. But, unlike harassment or distress, being alarmed is not inherently a negative impact. Indeed, it may be positive.
- 8:45 pm
- It is therefore curious that our Public Order Act 1986 seeks to criminalise behaviour where words or behaviour lead merely to alarm being caused or being likely to be caused. Everyone remembers the infamous case of the gay horse. In 2005, a drunk Oxford student stopped a mounted police officer and said, “Excuse me, do you realise your horse is gay?” For this, he was charged under Section 5 of the Public Order Act, on the basis that his words were deemed likely to cause harassment, alarm or distress. There were no members of the public around, so the question is, who was likely to be harassed or caused alarm or distress? The horse? Clearly, there is something wrong with that threshold if it can be used in such a ridiculous way. I have to say that this was not Thames Valley Police’s finest moment.
- I know that it will be suggested in response to my amendment that the underlying behaviour giving rise to alarm in Sections 4A and 5 must be threatening, abusive or insulting for the threshold of the crime to be established. Of course, I agree that threatening or abusive words or behaviour can never be justified, but the reference to insulting in Section 4A is a lower threshold. It potentially catches speech by which some might be offended. It was Lord Justice Sedley who in a famous judgement in 1999 said:
- “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not seek to provoke violence. Freedom only to speak inoffensively is not worth having”.
- While I am not suggesting that anyone should seek to be offensive, we all know that offence can nevertheless be caused when cherished beliefs or assumptions are challenged. To be told you are wrong can feel offensive and certainly insulting, but it is a necessary price to pay for freedom of speech.
- That said, I am not seeking to amend Section 4A to remove the word “insulting” in the way that this House voted to do in respect of Section 5 back in 2013. I have no difficulty with criminalising insulting words or behaviour where there is an intent to cause harassment and distress, but I do have a problem with criminalising words that are neither threatening nor abusive, but are taken to be insulting where there may be merely an intention to alarm someone, for example, to shake them out of perceived folly or complacency. As I have said, this House voted for the removal of the word “insulting” from Section 5 of the Public Order Act back in 2012. That change was rightly implemented in the Crime and Courts Act 2013.
- Why am I therefore suggesting we also remove the word “alarm” from Section 5 as well as Section 4A? The reason is simple: it is too easy for police and prosecutors to focus on the perceived impact of words spoken rather than the nature of the words spoken or the intent behind them. If a member of the public, perhaps even an activist for a cause, complains to police about the message preached by a Christian street preacher, it is too easy for the fact that the member of the public is alarmed by what they have heard to trigger or prejudge an investigation. This could have an untold chilling effect on freedom of speech.
- Even in cases where the words spoken have not been threatening or abusive or indeed been intended to be so, the fact that a complainant is alarmed has been sufficient for a law-abiding street preacher to be warned or stopped from continuing lawful activity. It should be remembered that the provisions of the Public Order Act that I am seeking to amend apply as much within a public space such as a church or other public meeting as they do on the streets or in a marketplace.
- I do not believe that my amendments would remove anything essential from either Section 4A or Section 5, because if words or conduct are genuinely threatening or abusive, they will cause, for the purpose of Section 4A, or are likely to cause, for the purpose of Section 5, harassment or distress. The additional inclusion of the word “alarm” is otiose, but its real-life impact erodes our freedoms in a nation that has long valued freedom of expression.
- My proposed amendment, if enacted, would send a clear signal to police and prosecutors that speech that offends, shocks or disturbs is indeed lawful. At the same time, it would do nothing to remove real protection from victims who have suffered. I beg to move.
- Is the noble Lord saying that, when I was on the Bench here and he hissed at me that I should shut up because I was rude, that was okay because it did not alarm me? Does he remember doing that? We almost came to blows outside.
- I recollect that we have always had a robust exchange of views. I did not in any sense seek to alarm the noble Baroness, but, from memory, she arrived late for a group of amendments, pontificated for a few minutes on issues that she had not heard and then—
- My Lords, I am going to call a halt at this point. This is remembrance of things past. We have an important amendment to discuss today, and we should focus on the amendments.