Change the law to remove ambiguous wording. Add freedom of speech clauses to public law legislation where necessary.
Introduce new training and guidance for the police, prosecutors and courts to better balance freedom of speech rights with ensuring public order.
Letter to your Member of Parliament
Dear (MP Name),
I am currently a constituent of yours.
I am writing to you because I believe that some aspects of the Police, Crime, Sentencing and Courts (PCSC) Bill are likely to have a chilling effect on free speech. I believe that if passed, the amendments the Bill makes to the Public Order Act 1986 will compound existing problems inherent in that legislation. In particular, ambiguity over how to interpret and enforce Section 5 of the Act has led to many people being unnecessarily arrested for expressing political, philosophical or religious views. You can read about why I have such concerns in more detail at the bottom of this email.
In response to the above, I ask you to pledge your support to protect freedom of speech and assembly by signing (name) Early Day Motion. The motion resolves to ensure that public order legislation strikes a clear and appropriate balance between the legitimate aim of preventing serious disorder, alongside free speech protections and improved training for enforcement agencies.
In addition, I hope that amendments to the PCSC Bill in the House of Lords aimed at improving free speech protections will be successful and that you would consider voting for them when the Bill returns to the House of Commons.
Right to freedom of speech
Freedom of speech has been protected by the law in the UK for as long, if not longer than any other country in the world, through our common law. Freedom of speech has now acquired constitutional protection through our accession to the European Convention on Human Rights as incorporated in the Human Rights Act 1998.
The Courts have consistently held freedom of speech as a fundamental right in a democratic society. Free speech is the vehicle through which citizens can express dissent, and the government can be held to account for violations of all other rights.
However, these rights are not absolute; the government can restrict them where necessary and proportionate for various reasons, including the prevention of disorder or crime. In public spaces, restrictions on freedom of speech are most frequently imposed under the Public Order Act 1986.
Public Order Act 1986
The 1986 Act gives police officers powers to tackle behaviour that is threatening, abusive, and seriously disorderly.
The provision most routinely used to curtail speech in public spaces is section 5 of the Public Order Act, which criminalise words or behaviour deemed to be “threatening or abusive”. The provision was originally purposed to tackle the numerous instances of violent and intimidating behaviour of football hooligans in the 1980s. However, over time the application of section 5 expanded. Individuals were increasingly prosecuted in circumstances not envisaged by Parliament and which unduly restricted otherwise lawful speech. For example, section 5 has been interpreted to criminalise comedians, street preachers, and political activists for simply engaging in speech considered offensive by bystanders. Examples include an Oxford student asking a police officer, “Do you realise your horse is gay?” which the police force described as homophobic and “offensive to people passing by”, to a 16-year-old holding up a placard saying, “Scientology is a dangerous cult”. This year alone a number of street evangelists have been arrested due to their biblically-based views on marriage, sexuality and life.
2013 reforms and continued curtailment of free speech rights
In 2013, Parliament amended section 5 of the Act to address the improper criminalisation of merely ‘insulting’ words and behaviour. Parliament acknowledged that the fundamental right of freedom of speech necessarily included speech that was shocking, disturbing, and offensive. A failure to protect such speech would contravene the UK’s obligations under international law and the Parliament thus removed the word ‘insulting’ from section 5 of the Public Order Act in the hope that it would stay the unjust arrests of legitimate viewpoints, even if considered offensive by members of the public.
Unfortunately, evidence suggests that the intent and will of Parliament to protect free speech in public spaces continues to be frustrated. Members of the public are repeatedly arrested and prosecuted merely for expressing unpopular viewpoints. Speech that was formerly considered ‘insulting’ has now simply been reinterpreted as ‘abusive’. Prosecution guidance has not been updated to reflect the intent of Parliament to protect free speech.
Furthermore, in a remarkable departure from our legal tradition on free speech, local Councils have interpreted the law as permitting the introduction of blanket censorship zones, criminalising otherwise peaceful and lawful speech in specified public locations (see section 59 of the Anti-Social Behaviour Act 2014 section 59). Recent examples include expressions ranging from non-abusive swearing to a blanket ban on prayer (including silent prayer). Human rights experts have widely criticised the marginalisation of fundamental rights by local authorities, and the issue has largely gone under the radar.
Police, Crime, Sentencing and Courts (PCSC) Bill 2021
The continued suppression of lawful speech in public spaces signals a lack of clarity in the law. Whilst free speech remains a fundamental right under the Human Rights Act, the broad enforcement powers given to police officers and the vague provisions allowing for broad, subjective assessments means that the right to freedom of speech has, in practice, consistently been undermined, marginalised or ignored.
As the first major update to public order legislation in nearly 35 years, the Bill presents an opportunity for Parliament to effectively protect free speech in public spaces in a way which the law has hitherto been unable to do. Concerningly, the Bill in its current form makes no mention of protecting free speech. On the contrary, the Bill includes a number of vague terms and broad powers that will inevitably erode free speech rights to an extent unknown to post-war England and Wales.
Part 3 (clauses 55-61) – the free speech restricting provisions restrict
The provisions impacting freedom of speech can be found in Part 3 of the Bill (clauses 55-61), which ostensibly relate to protest but also have serious ramifications for freedom of speech in general. The government’s stated reason for introducing Part 3 is to empower police officers to take a more proactive approach in managing highly disruptive protests causing serious disruption to the public – such as the Extinction Rebellion protest of April 2019. However, in practice, the Bill will give police officers the discretion to arrest individuals based on the content of their speech if it merely risks causing, for example, serious ‘unease’ (clause 54) and ‘inconvenience’ (clause 60).
These far-reaching restrictions on speech are compounded by the government’s proposals to significantly increase sentences should an individual fall foul of the vague provisions above (Clause 60(4)); lower the threshold for pre-charge bail conditions – allowing officers to restrict freedoms even where there is insufficient evidence of a criminal offence (Clause 43), and award broad powers to the Secretary of State to define the ambit of criminality in the future without allowing meaningful parliamentary scrutiny (Clause 55(4)).
In practice, these provisions will not only lead to more confusion on the part of police officers (who have already remarked that they did not ask for the powers proposed and that the Bill is ‘harmful to democracy’) but will almost certainly lead to more unjust arrests, increased litigation in the courts and, ultimately, a chilling effect on freedom of speech in public spaces.