Access, Politics & Society

What does the Protection of Freedoms bill mean for free speech?

The UK government’s Protection of Freedoms Bill is highly relevant for anyone interested in Article 10 rights. While the bill gives the impression of positive steps for the protection of civil liberties, critics are quick to warn of its limitations and the government’s piecemeal approach. The bill, now in between first and second reading stage in the House of Commons, looks at:

  • freedom of information – extending the freedom of information regime to cover companies wholly owned by two or more public authorities
  • right to data – creating an obligation on departments and other public authorities to proactively release datasets in a reusable format

SA Mathieson, news editor of Guardian Government Computing, is optimistic that this will give a “bit more freedom” to government data.

Photographers will be especially interested in the part on counter-terrorism:

  • This Part introduces safeguards against the misuse of counter-terrorist legislation by permanently reducing the maximum period of pre-charge detention for terrorist suspects to 14 days and replacing the powers to stop and search persons and vehicles without reasonable suspicion in section 44 of the Terrorism Act 2000 with a power that is exercisable in significantly more restricted circumstances.

In the bill’s consultation stage [PDF], civil liberty groups and the National Union of Journalists raised concerns about stop-and-search powers under section 44 of the Terrorism Act and that “police on the ground were not sufficiently aware of restrictions on how the law should be applied”. Cian Murphy writes on the Guardian Legal network:

Section 44 was a wholly illiberal provision which allowed police officers to stop and search individuals in designated areas without having to show reasonable suspicion. The subsequent sections elaborated on that power. The government has been committed to repealing the section since last summer – but only after the European court of human rights held that it was a violation of the European Convention on Human Rights (ECHR).

But don’t celebrate too soon. As Murphy reports:

Nonetheless, police powers abhor a vacuum, and as signalled in December, the section 44 power is replaced with new stop and search powers provided for by sections 59 to 62. The proposed new powers, at first glance, may be an improvement on section 44. But they have already been criticised and will require more considered scrutiny over the coming months – especially in light of possible amendments as the bill moves through Parliament.

The issues extend beyond the scope of this bill. Index on Censorship is currently in discussions about freedom of expression protection in the Public Order Act and Communications Act. We’re also interested in hearing your thoughts about the new bill, and its effect on free speech. Tweet us @indoncensorship, or leave a comment below.

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One Comment

  1. Posted 24Feb11 at 2:03 am | Permalink
    Ben Boult

    When I visited on February 10th to read the Protection of Freedoms Bill for the first time, I was terribly disappointed by the absence of any new and substantive protections for freedom of speech. I had searched for news on this legislation for months – hopeful that it might address the increasingly problematic application of the Public Order Act 1986 and its frighteningly broad provisions. This did not appear to be an unrealistic expectation – after all, the coalition agreement had promised to “restore the right to non-violent protest” and Page 93 of the Liberal Democrat Party Manifesto 2010 had promised to amend the Public Order Act 1986 to “…restore the right to non-violent protest, even if this offends”. In fact, with regards to the latter, this was my primary reason for voting Liberal Democrat. However, the Freedoms Bill has not removed the word “insulting” from Section 5 of the POA, even though a number of groups/indivuduals such Justice, Civitas, liberty, Care, The Christian Institute, Evan Harris, Dominic Grieve, Neil Addison (a barrister) and Parliament’s own Joint Committee of Human Rights have also called for this change. Surprisingly, the Public Order Act 1986 isn’t even mentioned once in this legislation. Considering that I have personally sent around 30 emails to Members of Parliament on this matter, coupled with a number of submissions to the Your Freedom web-consultation – all to no avail – I had become increasingly disheartened by the whole affair. However, I am very excited to learn that a reputable organisation such as Index on Censorship is now championing reforms in this area too. Could you please provide me with some addional information as to what it is you are actually lobbying for? As I see it, there are a variety of “problem areas” besides Section 5 which I would like you to consider making representations about. Below I have highlighted what I consider to be the biggest problems in this regard, along with what I consider to be a possible solution for each of them:

    1) Remove the word “alarm” from section 4a of the Public Order Act 1986, which provides arrest for “insulting words” with “intent to cause …alarm”? Many protests are inherently designed to cause ‘alarm’, so this free speech “loophole” seems especially troubling, particularly as many protests are also (and often legitimately so) “insulting”. Perhaps replacing the word “alarm” with “intimidation” would go some way to help, or maybe removing the word “alarm” altogether would be a better approach. Indeed, you could also adopt Liberty’s approach and remove the word “insulting” from Section 4a, leaving only “abusive and threatening words which intend to cause harrassment, alarm or distress, and which in fact cause distress”.

    2) Section 3 of the Public Order Act outlaws “insulting words or behaviour likely to stir up racial hatred”, and has been used to prosecute Qu’ran burnings. While Qu’ran burnings (and inciting racial hatred) are despicable acts which arguably should be prosecuted given their tendency to provoke violence – I believe that “racial motivation” should be required to fall foul of Section 3 however, because otherwise, even legitimate criticism of religion could be punished should the police feel that “insulting” verbal criticisms might also indirectly stir up racial hatred. Section 4 (language and behaviour which is likely to leave people fearing violence) could be used to stop Qu’ran burnings instead, should you choose to adopt my proposal. We cannot allow “insulting” yet more legitimate criticisms of religion to go punished via the backdoor like this, such criticisms are vital in a free society. Only when such criticisms “intend to cause distress” or “intend to stir up religious hatred” should they be punished, and there are already statutes (Racial and Religious Hatred Act 2006 and Section 4a of the Public Order Act 1986 designed deal with such conduct). My reform would not change this, it would simply protest those individuals who did not intend to stir up ‘racial’ hatred by their ‘religious’ criticisms or intend to cause distress. This seems to me entirely reasonable.

    3) In light of the fact that Tony Wright was arrested under Section 5 of the Public Order Act for selling T-Shirts emblazoned with the words “Bollocks to Blair”, and David Hoffman was threatened with arrest under Section 5 of the Public Order Act 1986 unless he removed a poster from his window which read “David Cameron is a Wanker” – we should make it clear in statute that “political speech” should receive almost absolute protection. This should be the case irrespective of the manner of its expression.

    4) Section 3 of the Public Order Act prescribes arrest for “insulting words likely to stir up racial hatred”. As a result, ordinary members of the public who wish to emulate Jack Straw’s offensive (yet arguably truthful) criticisms regarding the cultural practices of some within a particular community could easily face arrest. Therefore, remove the word “insulting” from the objective component of Section 3, to ensure that only those who “intend to stir up racial hatred” via their “insulting words” face arrest. The BNP would not be assisted by such a change, only those with honourable (albeit offensive) intentions. A “truth” defence might also help in this regard.

    There are also two other Acts which thanks to Labour have an overly wide remit.

    5) Section 127 of the Communications Act of 2003 criminalises the communication of electronic messages which you are aware may be “grossly offensive” – even if these are not overheard by anyone who might take offense. Foreign broadcasts can also be prevented if these “offend the public feeling”. Remove all such provisions – the Malicious Communications Act 1988 struck a much better compromise.

    6) An amendment could also be made to the “Protection from Harrassment Act 1997″, an act which was originally designed to prevent stalking, yet which has affected legitimate protest because of its overbroad wording:

    “(1)A person must not pursue a course of conduct—

    (a)which amounts to harassment of another, and

    (b)which he knows or ought to know amounts to harassment of the other.”

    (Section 7) (2)References to harassing a person include alarming the person or causing the person distress.

    As George Monbiot from the Guardian has pointed out (, this provision can be used (and has been used) to stifle peaceful protest as well as “stalking”, and because of the broad nature of the word “alarm”, it is therefore potentially quite dangerous to free speech.

    Similar to my earlier suggestion vis-à-vis Section 4a of the Public Order Act 1986, the word “alarm” could possibly be replaced in the Protection from Harassment Act 1997 with the word “intimidation” (or removed altogether). Furthermore, I would make it clear that “harassment” in terms of speech should only apply when the person feeling harassed “cannot reasonably be expected to avoid this”, an amendment which I would also like to see added to Section 4a and 5 of the Public Order Act 1986. This change would have the effect of stopping passers from being able to ring the police and shut down an offensive protest, when they could very well just walk on by. At the same time, it would continue to allow the police to prevent protests from taking place outside places of work/homes where workers/residents could obviously not reasonably be expected to avoid such conduct.

    Freedom of speech is an an essential part of any healthy pluralistic society. I hope that your commendable focus on Libel Reform does not distract you from addressing the equally serious problems that I have outlined above.

    As I said, I would be terrible grateful if you would provide additional information on the campaigning you have undertaken in this area. Also, if I can ever be of help, please do not hesitate to contact me!

    Regards, and all the best to the Index on Censorship team!

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