My Lords, I understand the interest that has been shown in this debate. I thank the noble Baroness, Lady Smith, for at least demonstrating that the issues that the House has to consider are perhaps a little more complicated than some of the speeches have implied. It is important to stress that there was a further sentence to the letter of which the noble Lord, Lord Dear, kindly sent me a copy. After the comments about the ability to prosecute, the letter continued:
“However, I appreciate there are other policy considerations involved”.
He is right that the Government have to consider the full implications of this amendment.
Let us make it clear: the Government are not seeking to change the law. It is this debate and this amendment that are seeking to change the law. The law has existed and has protected free speech, and incidents have been demonstrated. But we need to be properly considerate before we change the law in this area.
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As the noble Lord, Lord Dear, has explained, the amendment would repeal as an offence the use of insulting words or behaviour that are likely to cause “harassment, alarm or distress”. As has been mentioned, the House will recall that a similar amendment was put forward by my noble friend Lord Mawhinney in Committee. At that point, he agreed to withdraw his amendment to allow the time for the Government to fully consider their response. After all, they had a public consultation, as the noble Baroness has mentioned, on possible reform of the whole of Section 5. I am grateful to my noble friend, who I do not think is in his place.
The Government have completed their consideration of the consultation responses. The consultation produced a polarisation of views—I do not think that that will surprise noble Lords—between those seeking removal of the word “insulting” and those wishing to retain it. The number of responses—there were more than 2,900—the strength of feeling and the complex issues raised by respondents, on both sides of the debate, make this a far from straightforward decision. If it were easy, I certainly would try to make it easy.
The task falling to Government on this issue is to carefully balance the right of people in a democratic society to express themselves freely with the Government’s responsibilities to protect the rights of others to go about their lawful business without being caused harassment, alarm or distress. Therefore, it is important that the debate on this issue is properly informed.
Section 5 does not make it an offence for one person simply to insult, abuse or even threaten another. That is the law. For the offence to be committed the words or behaviour used, or the insulting writing or picture displayed, must be within the sight or hearing of a person likely to be caused harassment, alarm or distress. It is perfectly possible for a person lawfully to express views in public, which are considered by others to be insulting, abusive or threatening without being likely to cause harassment, alarm or distress, and therefore not to contravene Section 5.
The courts have held, in the case of Percy v the Director of Public Prosecutions, that Section 5 is proportionate and satisfies the necessary balance between the right of freedom of expression and the rights of others to go about their business without being subject to behaviour likely to cause harassment, alarm or distress.
However, the Government recognise the strong arguments on both sides of this issue. Some feel that the “insulting” limb of Section 5 has a chilling effect on freedom of expression—we have heard speeches to that effect—and a disproportionate impact in relation to religious groups who practise their religion by preaching in public. It has further been argued that insults should not be a criminal matter and it is not for the police and the courts to decide what constitutes an insult.
Some believe that removing the word “insulting” from Section 5 would affect only very low-level disorder and would have no material effect on our ability to prosecute serious public order offences. They feel that offences such as poppy burning could be captured by the “abusive” limb of Section 5 or by other provisions such as Section 4A of the Public Order Act, which covers intentional harassment, alarm or distress.
The Government have also listened to the police and other criminal justice agencies, and the concerns they have about ensuring that the police have the powers they need to protect the public and to maintain public order. The police have said that Section 5 is a key early intervention tool that allows them to deal with a wide variety of public order and anti-social behaviour offences at the earliest opportunity. From that point of view, the “insulting” limb of the offence gives them the flexibility they need to respond to hate crime and to defuse tension quickly in public order situations.
Some argue that reform of Section 5 could reinforce perceptions that it is acceptable to disrespect or even swear at police officers. While swearing is not itself an offence, it can be covered by Section 5, which applies not only to members of the public but to public officials, including police officers who are sworn at in the course of their duties. It is also argued that removing the “insulting” limb of the offence could impact on the ability to prosecute successfully cases such as the burning of poppies on Remembrance Day and the desecration of monuments or symbols of national significance, such as flags and war memorials.
The Government have carefully considered the legitimate concerns and strongly held views of respondents to the consultation. There are good arguments on both sides. However, I must inform the House that the Government strongly holds the view that the word “insulting” should be retained in Section 5 of the Public Order Act.
The Government have a responsibility to protect the public so that communities and law-abiding citizens can live in peace and security. The police must have the powers they need to meet this responsibility. We have considered this matter—