Keith Porteous Wood and Simon Calvert: The Lords will vote on Wednesday* on a vital issue of free speech

Keith Porteous Wood is Executive Director of the National Secular Society. Simon Calvert is Deputy Director for Public Affairs at The Christian Institute. Reform Section 5 is a joint campaign initiative of The National Secular Society and The Christian Institute.

Free speech is a fundamental value in a liberal democracy. Lord Dear’s proposed amendment to Section 5 of the Public Order Act 1986 - due to be voted on in the House of Lords on Wednesday - seeks to uphold, and defend, free speech in the United Kingdom.

Section 5 of the Public Order Act 1986 makes it illegal to use “threatening, abusive or insulting” words or behaviour if they are likely to cause “harassment, alarm or distress”.

The use of ‘threatening’ and ‘abusive’ language is wrong and their criminalisation justified. Both terms clearly denote a satisfactory degree of seriousness to be legislated against. The term ‘insulting’, however, is subjective, open to misinterpretation & abuse and undermines free speech.

An amendment to remove the term ‘insulting’ from Section 5 has been tabled by Crossbench Peer Lord Dear and co-sponsored by Baroness Kennedy of the Shaws (Labour), Lord MacDonald of River Glaven (LibDem) and Lord Mackay of Clashfern (Conservative). Indications are that backbench support for the amendment is overwhelming.

Arguments put forward against the proposed amendment are misguided. In 2009, the Home Office claimed, “if ‘insulting’ is removed from the offence, it is possible that people who mock and verbally torment disabled and other vulnerable people would, in the eyes of the law,  be committing no offence. This is simply wrong.

Tougher and more targeted legislation with the ability to address these offences already exists. Incitement to racial hatred and a range of other ‘aggravated’ offences that tackle hostility towards specific groups of people already exist. These laws, along with other more general pieces of legislation, such as public nuisance and breach of the peace, give law enforcement agencies all the necessary tools they need to protect minority groups and the wider public. Furthermore, the ‘abusive’ component of Section 5 covers most, if not all, genuine cases of public disorder. And any repeated harassment of an individual is accounted for under the Protection from Harassment Act 1996.

Furthermore, it has been argued that the "insult" component of Section 5 is necessary to prosecute those who disrupt Remembrance Day marches or burn Remembrance Day poppies. Again, this ignores the existence of other pieces of legislation such as Section 4(a) of the Public Order Act which outlaws intentional harassment, alarm or distress. 

Others speculate whether removing the term ‘insulting’ would legalise swearing at police officers. It would not. Swearing in this context would be outlawed under Section 5 even if "insulting" were to be removed. In the case of Southard v DPP (2006) the police officer concerned gave evidence of having felt "threatened" by the defendant’s swearing and the judge repeatedly used the word "abusive" to describe the expletives used.

Some libertarians may not like this state of affairs. Law and order fans, on the other hand, may feel that some things should be protected from gratuitous abuse. Either way, those are debates for another day. The excessively broad nature of Section 5, and its corrosive impact on civil liberties cannot be justified by such narrow, fact-specific cases which are already addressed by other legislation.

Lord Dear’s amendment is important to restoring free speech in this country and should be supported.

* With apologies, initial headline incorrectly suggested vote was today.