Public Order Act 1986: Section 5

Question

Asked by

To ask His Majesty’s Government whether they plan to review the operation of section 5 of the Public Order Act 1986 to ensure that it respects freedom of religion and belief in the United Kingdom.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and outline my interests as declared in the register.

The Government have no plans to review Section 5 of the Public Order Act 1986 but remain committed to ensuring that all public order legislation protects both public safety and, importantly, individual freedoms.

I thank the Minister for that Answer. Your Lordships’ House will be aware that freedom of religion or belief in the UK was hard won over many centuries. Citizens need to be able to peacefully criticise the tenets of someone’s faith or beliefs and institutions. Regrettably, recently the Crown Prosecution Service purported to charge an offence under the Public Order Act of

“intent to cause against religious institution of Islam, harassment alarm or distress”.

That is entirely wrong in law, as well as poor grammar. It raised emotions on an already delicate situation and had, of course, to be amended. While respecting the independence of the Crown Prosecution Service from both Parliament and government, will the Minister outline what review is being undertaken to ensure that the Crown Prosecution Service has adequate legal and religious knowledge and that senior leaders approve charges in cases such as this—I am assuming they did not approve that charge—to ensure that that does not happen again?

The Government are absolutely committed to free speech and to ensuring that we are an open, diverse country where freedom of speech is valued and freedom of religion is maintained. If the noble Baroness is referring to a particular case that I am aware of in relation to the burning of the Koran recently, I take the view that the law should apply no matter what the religion or faith that is potentially impinged upon. The offence there was not because burning the Koran was illegal. The actions of the individual were seen by the Crown Prosecution Service, following police investigation, to be harassment and abusive action. In that case, the police investigated and collected evidence and put it to the CPS. The CPS looked at that evidence and the case was put before a court, where the individual was found guilty. The individual concerned is now appealing. I cannot say any more about that case. However, whatever we do, it is important that the law is applied equally, fairly and across all religions.

My Lords, if such a review were to take place, would the Minister and the Government reaffirm that exercising the freedom to stand silently praying in a public place is not an act of hostility and should therefore not be considered a criminal office within the United Kingdom?

The act of standing and making a protest is a fair and open act. It will not be covered by Section 5 of the Public Order Act. If the noble Lord is referring, as he may be—and if he is not, I apologise—to the question of abortion clinics and abortion legislation, the Government have passed legislation on this matter. Silent protest is allowed, but not within a limit set by law. That is fair and appropriate for people who wish to protest, as well as for people who wish to access a service that this House and the House of Commons have passed as being legal.

Given reports that recent protests have been largely peaceful, how will the Government ensure that the new powers to restrict protests near places of worship are not used to criminalise lawful dissent or acts deemed to be merely offensive? What guidance will be provided to police so they avoid subjective or arbitrary enforcement and to ensure that these powers are applied proportionately and transparently, to maintain public trust?

The noble Baroness again raises measures that will come before this House in very short order in the Crime and Policing Bill. We are planning to introduce a new measure that gives protection to synagogues, mosques, churches and other places of worship from—and this is the key point—

“intimidating levels of disruption caused by protest activity”.

That is across the board, whatever the religion, whatever the faith. If somebody is undertaking intimidating levels of disruption, and that protest is an intimidatory, harassing protest, action will be taken. This House will have an opportunity to debate where that line is drawn when the Bill comes before the House. It is certainly a measure that I hope Members of the House recognise as being important; it is important that we protect religious organisations from disruption and harassment while, at the same time, ensuring that everybody has the right to protest.

My Lords, I am grateful to my noble friend the Minister, as always, for putting equal treatment at the heart of human rights. However, regardless of individual cases that we get hot under the collar about—we pick and choose which ones to get upset about—is it not time to have another look at not just the operation of Section 5 of the 1986 Act but its framing? I suggest that most noble Lords would agree that threatening and harassing conduct should be criminal, but broader, lower-level conduct “likely” to cause “alarm or distress”? Some people are a little bit too easily alarmed and distressed. It is not about just religious freedom; it is about freedom of expression as well.

I am grateful to my noble friend. The Government keep all legislation under review at all times. The very fact that this discussion is taking place on this question means that we have looked at the legislation today and looked at the applicability of certain matters. There is a balance to be made. Section 5 of the Public Order Act 1986 has stood the test of 39 years to date, through a range of protests, a range of measures and a range of Governments. It has stood the test of time.

We keep it under review, but the important principle behind it is that Section 5 of the Public Order Act gives a clear definition of harassment and intimidation. Protest crosses the criminal threshold where it goes into harassment and intimidation. That is why the prosecution was taken in the case to which I believe the noble Baroness referred, and why, in other cases, prosecutions have not been taken.

My Lords, it is vital, of course, that, despite social trends, the law remains consistent and is applied in a way that is fair and even. Concerns about political correctness and what is socially acceptable should not determine how a statute such as Section 5 is applied. Recent protests have seen the law applied unevenly in the opinion of some, and clearly threatening antisemitic slogans have been permitted without question. I therefore ask the Minister what discussions he has had with police forces about the thresholds for using Section 5 of the Public Order Act. Can he guarantee that, following these discussions, the police will be under no doubt as to what is and is not permissible under this threshold?

What I can give the noble Lord is an assurance that the police will treat all members of the community on an equal basis before the law. Where actions have been taken by any protester—be they antisemitic, anti-Islamic, anti-Christian or anti any faith—if they cross the threshold of potential investigation/prosecution/conviction, that will be taken forward on an equal basis by the police. We keep these matters under discussion all the time. There is in my view no such thing as two-tier policing. The police do a job effectively and they will take action when matters are brought to their attention.

My Lords, as the general secretary of the Free Speech Union, I declare my interest. Together with the National Secular Society, we paid for the defence of the individual referred to and we will jointly be paying for his appeal. At 2 am on Saturday, the individual in question was woken by police officers at his safe house to inform him that the Metropolitan Police were investigating a plot to kill him. Will the Minister join me in urging the police to do their utmost to protect the individual in question? We do not want a repeat of what happened in Sweden last January, when an Iraqi refugee who had repeatedly burned copies of the Koran was murdered.

I am grateful to the noble Lord. Let me put it this way. If a potential offence—which threats to kill are—is made, the police have a duty to investigate and, if the offence proves to have validity, to take action, to prepare a case, to go to the CPS and to take potential conviction action where the court will determine whether the allegation the noble Lord has made is correct. The individual concerned is appealing. I cannot comment on the appeal; Members of this House would not expect me to comment on either the conviction to date or the potential appeal. I say to the noble Lord that, if offences are potentially being committed, it is the duty of the police to investigate and take action. I will leave it—if he will let me, in a freedom of speech way—at that.

What is the view of the Government about incidents logged by the police which do not in fact create crimes?

We are in discussion with the police, the College of Policing and the Chief Constables’ Council on the very issue the noble and learned Baroness raises. That has come out of a number of cases since the general election which have been brought to our attention, where we believe the police should be taking action to investigate crimes. But they should also be proportionate in what they do in relation to the way in which that crime is brought to their attention and make a decision on that. I have been clear at this Dispatch Box on several occasions that the police need to examine the approach to those non-crime hate incidents very clearly. I believe the police will be doing so and issuing guidance in due course.