Section 74 of the Criminal Justice and Immigration Act 2008 comes into force tomorrow. It amends the Public Order Act 1986, creating offences of intentionally stirring up hatred on the grounds of sexual orientation.
I point to the words of Rowan Atkinson who, when advocating a free speech clause for the Bill, said:
Do I think that I would risk prosecution because of jokes or drama about sexual orientation with which I might be involved if we don’t have the free speech clause?
Not really – but I dread something almost as bad – a culture of censoriousness, a questioning, negative and leaden attitude that is encouraged by legislation of this nature but is considerably and meaningfully alleviated by the free speech clause.
Analysis of this subject also benefits from reflecting on the arguments Atkinson mounted against the religious hatred laws:
The prime motivating energy for the Bill seemed to come not from communities seeking protection from bullying by the British National Party but from individuals with a more aggressive, fundamentalist agenda. Those who have sought, from the very day of the publication in 1989 of Salman Rushdie’s book The Satanic Verses, to immunise religions against criticism and ridicule – or at least to promote legislation that is so sinister and intimidating, it can provide that immunity without even the need to prosecute anyone. In other words, to impose self-censorship...
The freedom to criticise or ridicule ideas – even if they are sincerely held beliefs – is a fundamental freedom and a law which says that you can ridicule ideas as long as they are not religious ideas, is a very odd law indeed. It promotes the idea that there should be a right not to be offended, when I think that the right to offend is far more important than a right not to be offended...
The Government says you will continue to be able to criticise or ridicule religion. Where in the Bill does it say that? Where is the clause that even implies that kind of freedom of expression? How can such bland reassurances carry any authority when there is no wording in the bill to support them and the chief promoters and supporters of this legislation, in consultation with whom the thing was drafted, have always taken the opposite view. They don’t think that religions should be ridiculed. They don’t think that religions should be criticised or insulted. That is why they have lobbied for this legislation for so many years and unlike the government are not blind to its potential to achieve those aims.
I note that exactly the same point applies with the sexual orientation legislation. The guidance is full of "don't worry, we're sensible" arguments. The legislation itself is not. Here's the most telling bit from the guidance:
The offences are not intended to cover, for example, teenagers who call each other names in the playground where this is not threatening and there is no intention of stirring up hatred against a group.
In the longer term, I fear that that is precisely the sort of thing for which these laws will be used. The recent history of legislation in our country shows us that when such powers exist, they are invariably used to the fullest possible extent.
If you don't think that this is a freedom of speech issue, I point to the fact that the legislation specifically creates offences which cover not only the use of words or behaviour and the display, publishing or distribution of written material, but also the public performance of a play, distributing, showing or playing a recording, broadcasting a programme and the possession of inflammatory material.
The chilling effect on free speech - whereby people self-censor, fearing prosecution - is bound to be felt, across our culture, literature, performance, our comedy, our national dialogue.
At Big Brother Watch we think that the benefit of the doubt should always be on the side of free speech - when issues are difficult, upsetting or challenging, that's when we need full and frank discourse most, not least.
I've just reproduced parts of Atkinson's speech here - I do urge you to read the whole thing.
