Contribution
My Lords, I am grateful to noble Lords for this interesting debate. I am also grateful to my noble friend Lord Moynihan of Chelsea for moving Amendment 382F, which I support. Although it ranges across several statutes, it is in truth a coherent proposal with a clear constitutional purpose: to restore the proper limits of the criminal law so that freedom of speech is protected, while of course ensuring that genuinely threatening conduct remains criminal.
At the outset, I recognise the political sensitivity of this area. Any proposal to amend or repeal so-called hate speech provisions risks being misrepresented as indifference to racism, misogyny, homophobia or other forms of discrimination. Let me be absolutely clear: that is not the motivation behind this amendment. As my noble friend said, we on this side of the House oppose racism and discrimination in all their forms. The case for this amendment is not moral indifference but legal realism. The current framework has proved incoherent, ineffective and, in some respects, actively counterproductive.
As my noble friend Lord Moynihan of Chelsea most ably set out, the current legislative framework dealing with offensive language, hate speech and the like is a messy, tangled web of patchwork offences. We have the Malicious Communications Act 1988, Sections 4A and 5 and Parts III and 3A of the Public Order Act 1986, and Section 127 of the Communications Act 2003. These provisions criminalise speech not because it threatens direct harm but because it is deemed “abusive” or “insulting” or said to cause a person “needless anxiety”.
I am not ignorant to the fact that we have had laws in this country prohibiting the usage of threatening, abusive or insulting words or behaviour for almost a century. Section 5 of the Public Order Act 1936, now repealed, stated:
“Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence”.
But there are two crucial differences between that legislation and this. The 1936 Act was set against the background of rising fascist paramilitaries, first in Italy and then in Germany and, indeed, in Britain. Secondly, use of the language
“with intent to provoke a breach of the peace”
is very different from outlawing insulting language likely to cause a person “needless anxiety”. I think even a child could understand the difference between inciting a riot and causing a person mild offence.
Yet this is where we are. A person can claim to have been caused “annoyance” or even “inconvenience”, complain to the police and have another individual investigated and potentially arrested. That is not hyperbole; it is the truth. There is a litany of recent examples that we could trawl through, but many have been mentioned by noble Lords today so I will mention only a few, as briefly as I can.
As we have heard, the Malicious Communications Act 1988 was used to arrest Maxie Allen and Rosalind Levine, the two parents who have been referred to. The same Act was used to arrest a 17 year-old boy for comments he posted on Tom Daley’s Twitter account:
“You let your dad down i hope you know that”.
While this is obviously poor behaviour, to claim it should be a matter for the law and constitutes criminality is deeply concerning. Section 127 of the Communications Act 2003 was used to prosecute a person who posted a picture online with a phallus drawn on it; Jordan Barrack was ordered to pay £400 in compensation for a post that did not cause any harm to anyone. Again, how this case ended up as a matter for the authorities is beyond me.
Of fundamental importance is the fact that the terms we are dealing with here are not precise legal concepts. They are elastic, subjective and dependent on perception rather than consequence. The result is uncertainty for the public, inconsistency in enforcement and an unhealthy transfer of quasi-judicial discretion to individual police officers who have recently taken to very liberal and, indeed, unequal enforcement of these laws.