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Surrendering Our Liberty

It is time to abolish Section 5 and reassert the freedom to be offensive

Britain is steadily sacrificing its centuries-old commitment to freedom of speech simply to protect people from hearing views they do not like, a new book published by the independent think tank Civitas warns today.

In a careful examination of the history of free expression since the 17th century, journalist Philip Johnston describes how a raft of laws from recent decades are having “a significant and deeply chilling effect” on speech in public.

Public order legislation and the hate crimes introduced by the last Labour government are being abused by police and prosecutors to circumscribe the long-cherished freedom of UK citizens to speak their own minds without fear of arrest, he says.

In his book, Feel Free To Say It, Johnston charts how Section 5 of the Public Order Act, originally introduced to stop Oswald Mosley’s Blackshirts inciting violence against Jews in the 1930s, has come to be used as “an instrument of thought control”.

Civitas, the independent Westminster think tank, today calls for Section 5 to be abolished in its entirety.

Without the right to say things many find offensive, we have no freedom at all

While the law has always been used to proscribe language that is likely to lead to a breach of the peace, Johnston says, legislation is now being used to constrain opinions “because some people may not like them”.

Warning that the UK is in danger of “throwing away the freedom that makes all other liberties possible”, he calls for a wide-ranging review of the law – including the repeal of Section 5 of the Public Order Act – to reassert the importance of free speech.

Recent attempts to address these issues by the Home Secretary, Theresa May, and the Director of Public Prosecutions, Keir Starmer, have fallen well short of what is needed, he adds.

“In pursuit of a more open and tolerant society in which people of all ethnicities and religions can feel comfortable, we are in danger of throwing away the freedom that makes all other liberties possible,” Johnston writes.

“Free speech must include the right to say things that most people don’t like or find offensive, otherwise it is no freedom at all.”

Official figures show that the number of proceedings average 25,000 a year, with half ending in conviction.

“More people are being jailed or arrested in Britain today for what they think, believe and say than at any time since the eighteenth century,” Johnston writes.

He cites the examples of:

  • The Oxford University student who was arrested for calling a police horse “gay”
  • The Christian hotelier couple who were charged for telling a Muslim woman they found Islamic dress offensive
  • The teenager who was arrested for barking at two dogs
  • The woman found guilty of racially abusing her New Zealand-born neighbour by calling her a “stupid, fat, Australian bitch”
  • The Christian preacher arrested for saying that homosexuality is a sin

“Surely, legislation that permits the arrest of a Christian preacher in an English town for quoting from the Bible needs to be repealed,” Johnston writes.

Johnston also questions the use of section 5 by police to arrest individuals during exchanges with officers – a threat issued to the then government Chief Whip Andrew Mitchell during his now notorious exchange with officers at the gates of Downing Street.

The law is being used to constrain opinions simply because some people may not like them

While many public order cases do not result in a conviction, Johnston says, that is not the point.

“An arrest, even if the individual is released without charge within hours, is of itself an infringement of free speech, as well as being deeply traumatic,” he says.

“There have always been laws in the UK that proscribe free speech if its exercise is likely to lead to a breach of the peace. What we have seen introduced in the past 15 years are laws that constrain the expression of opinions because some people may not like them. They do not even need to be especially traumatised but merely feel aggrieved.

“If we are concerned primarily with the social policing of behaviour is that not better achieved through exhortation and general public disapproval than by sending people to jail?”

In a trenchant defence of freedom of expression, Johnston questions whether the criminal law should have any locus in what is essentially a matter of “decent behaviour and good manners”, pointing out that when it does “the police and the courts become arbiters of what is right thinking”.

Johnston also places the recent debate over press regulation in the context of the free speech debate and says even the contemplation of state licensing in the wake of the Leveson Inquiry represented “a step into the dark ages”.

‘Give me the liberty to know, to utter, and to argue freely’

Johnston charts the progress of thought and legislation around freedom of speech in England since state licensing was abolished in the seventeenth century. In 1644, John Milton wrote in Areopagitica: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

The Public Order Act introduced in 1936 – in response to Mosley’s Blackshirts – criminalised behaviour that was “threatening, abusive, insulting or disorderly” and intended or likely to cause a breach of the peace.

Margaret Thatcher’s government amended Section 5 of the Act half a century later, in 1986, in the wake of the Toxteth and Brixton riots and industrial actions like the miner’s strike and the Wapping dispute.

The then home secretary Douglas Hurd removed the required intention to cause a breach of the peace and instead abusive or insulting behaviour only had to be within hearing or sight of someone “likely to be caused harassment, alarm or distress”. This meant the intended victim did not even need to be offended – a bystander who took affront would suffice – and there would be no requirement to prove that actual harm, harassment or distress had been caused.

This, says Johnston, marked “a significant retreat from free speech and one for which no justification was offered”. The “hate” laws introduced by the last Labour government, making offences of stirring up religious hatred and hatred on the grounds of sexual orientation, have been used to further curtail free speech.

“The two major pieces of public order legislation, 1936 and 1986, together with new laws of recent origin seeking to constrain hatred against others on the grounds of their religious belief or sexuality, have had a significant and deeply chilling effect on freedom of expression,” Johnston says.

He argues that the problem with constraining free speech for “apparently benign” purposes is that it makes it easier to restrict expression to “close down debate or cut off dissent”.

“The arguments in favour of doing so are deceptively attractive to right-thinking people who want to see minorities treated decently and are appalled by the abuse they have to endure,” he says.

Campaigners’ recent celebrations have been misplaced

Section 5 was altered recently when the Home Secretary accepted a Lords amendment by Lord Dear which removed the word “insulting”. However, he acknowledged that most cases would still be covered by the remaining word “abusive” and Theresa May accepted the amendment on the grounds that the Director of Public Prosecutions felt “the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions”.

Johnston points out: “In other words, it did not matter that the word insulting was being removed from the Public Order Act because the statute’s other provisions would still allow the police to arrest people on the same basis as before – for expressing views that might be considered offensive but which in a free country they should have the right to express … the celebrations of campaigners were almost certainly misplaced.”

The Director of Public Prosecutions recently introduced new guidelines on when to bring charges over offensive comments on social media like Twitter and Facebook, which has raised new questions about freedom of speech in the 21st century. Accountant Paul Chambers was convicted under the Communications Act 2003 for sending a “menacing” tweet in which he joked that he would blow an airport “sky high”. He was later acquitted by the High Court.

In December, Keir Starmer sought to distinguish between cases in which there was a credible threat of violence, stalking and harassment and those in which views are merely unpopular or offensive. Johnston questions why that is only the case for social media, however. “This approach could leave us in the ludicrous position where saying something in public will fall foul of the law yet tweeting an identical comment will be allowed.”

“What we need now are not more guidelines that will confuse matters further but a wholesale review to bring some consistency to all these laws while highlighting the freedom of speech protections that parliament has passed,” he concludes.

“For centuries we have sought to establish the appropriate boundary between the legitimate expectation of people not to suffer offensive insults and the right to freedom of expression. We have not got it right yet.”

The undertow of the Leveson Inquiry was about control

Johnston also raises concern about the direction of the recent debate over press regulation arising from the phone hacking scandal and the Leveson Inquiry into media ethics.

While Lord Justice Leveson and all politicians have averred their passionate enthusiasm for free speech, he writes, it is “astonishing that they should even need to deny this ambition”.

“The very idea that a state licence should be required before voicing an opinion is so inimical to any concept of a free society that even contemplating the idea to reject it represents a step into the dark ages,” he writes.

“For all the protestations of belief in the rights of a free media voiced at the inquiry the undertow of debate was about control and how it could be exercised, not by licensing but by the methods of redress for those who felt unjustly harmed.”

He adds that Leveson has given rise to “a growing sense of unease that the concept most of us would associate with what it means to be a free country is under threat once more”.

Speech laws mark a return to our primitive past

Civitas, which is publishing Feel Free To Say It, today joins calls for Section 5 of the Public Order Act to be scrapped.

David Green, director of Civitas, said: “The freedom to speak our minds without fear or favour is an important part of the live-and-let-live ethos that has typified this country for centuries.

“Throughout most of human history the suppression of unwelcome opinions has been normal and open societies in which we try to conduct arguments without violence have been a great human achievement. Speech laws are an attempt to return to the primitive ways we have left behind.”

Section 4 of the 1986 Public Order Act outlaws threatening, abusive or insulting words or behaviour with intent to cause a person to believe that immediate unlawful violence will be used against them.

Section 4A was added by the 1994 Criminal Justice and Public Order Act, which came into effect in 1995. A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.

In other words, section 4A applies when an individual intends to cause harassment, alarm or distress and, in fact, does cause it. Section 5, however, involves behaviour ‘likely to cause’ harassment, alarm or distress. It involves using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displays of writing and signs that are threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Parliament has recently removed the word “insulting” from section 5, but it only did so because it was considered not to make any difference to police powers.

In his letter to Lord Dear, Keir Starmer said: “Having now considered the case law in greater depth, we are unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as “abusive” as well as ‘insulting’.

He continued: “I therefore agree the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.” This surely means that all the cases brought so far could have been brought if the word ‘insulting’ had not been in the Act.

The reform of Section 5 puts hardly any limit on police power. It would be better to abolish the whole clause.


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