Great Repeal Bill wish list 4: Public Order Act - section 5

Andy Stephenson and Kathryn Sloane feel fairly strongly about abortion. So strongly, that they decided to mount a (peaceful) public protest outside an abortion clinic in Brighton. Their method of making their case was to display a large (7ft by 5 ft) graphic banner which showed a picture of an aborted human embryo. Police were called by a member of staff concerned that patients entering the clinic felt traumatised and upset. The Police arrived and told Mr Stephenson and Miss Sloane to take down their banner. They did so, replacing it with another similar banner. The police then arrested the pair, and took them to the police station. And there they held them for 14 hours before finally releasing them at 3 o’clock in the morning.

Mr Stephenson and Miss Sloane were released on police bail, and are due to return to court tomorrow to hear if they will be prosecuted under section 5 of the Public Order Act 1986. (Thanks to Gary Benfold for bringing this story to my notice.)

The issue, of course, is freedom of speech. I was somewhat amused by the comments of Ann Furedi, the head of the British Pregnancy Advisory Service, who said she fully supported the right of pro-life activists to demonstrate against abortion clinics - but who then added: "There is a distinction between freedom of expression and actions that are designed to distress people who are accessing legal, medical services." Actually, there isn’t. And it’s not as if Mr Stephenson and Miss Sloane simply wanted to distress people for the fun of it. They were trying to make the point that what abortion does to an embryo is something very distressing.

Section 5 of the 1986 Public Order Act says:

A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Section 5 was also the legislation under which Dale McAlpine was arrested.

It seems to me that Section 5 is a piece of legislation in need of repealing. I’ve asked before, but I’ll ask again: “Why do we have a law on our statute book which means that someone can be guilty of a crime simply for using "insulting" words within the hearing or sight of a person likely to be caused "distress"?” The words “abusive or insulting” should go. In fact, the whole section should go - since the matter of threatening behaviour is covered by Section 4 of the Act.

Now, to be honest, I don’t like the pictures that Mr Stephenson and Miss Sloane displayed. They would put me right off my cocoa and buns. But that’s not the point, is it?

So let’s hope that Section 5 is included in Mr. Clegg’s Great Repeal Act.

Great Repeal Bill wish list 3: Section 44 Police Powers

In the last 13 years, parliament has passed a lot of acts dealing with the threat of terrorism. The first of these was the Terrorism Act 2000. Section 44 of of the said Act, which gave police powers to stop and search people who might be involved in terrorist activity, has proved to be the most controversial, because it gave them the power to randomly stop someone without reasonable suspicion, providing the area has been designated a likely target for an attack.

The uses that these police have found for these powers have been many and varied.

There was the detention of Walter Wolfgang. Mr Wolfgang was ejected from the 2005 Labour Party Conference for heckling, and when he attempted to re-enter the conference, he was detained and held by the police under Section 44 powers.

Then there was Phil Smith. Mr Smith was planning to take some pictures at the turning on of the Christmas lights in Ipswich. He was challenged by a police officer who asked if he had a licence for the camera. After explaining he didn't need one, he was taken down a side-street for a formal "stop and search", then asked to delete the photos and ordered not take any more.

And of course there are the train spotters. Last year Mr. Norman Baker, who is now Parliamentary Under Secretary for the Department for Transport, discovered that Section 44 powers had been used to stop 62,584 people at railway stations. At the time he commented “The anti-terror laws allow officers to stop people for taking photographs and I know this has led to innocent trainspotters being stopped. This is an abuse of anti-terrorism powers and a worrying sign that we are sliding towards a police state.”

I know of no evidence that Section 44 is actually necessary. The police would probably claim that it is, but I’m not sure why I should believe them. The evidence I see suggests that while the police like to have these powers, they are simply not able to use them properly - and are regularly using them improperly.

So Mr. Clegg, please repeal Sections 44 to 47 of the Terrorism Act 2000. They aren't necessary, and they are taking away our freedom.

Correction: Mr Phil Smith was not actually stopped under Section 44. He was stopped for "unauthorised photography." (I bet you didn't know that the police in this country can stop you from taking pictures of Christmas lights on the grounds that you are "unauthorised".) Other photographers, however, have been stopped under Section 44 powers.

Great Repeal Bill wish list 2: The Knife Ban

The Criminal Justice Act 1988 introduced, at Section 139, the new offence of having an article with a blade or point in public place. It makes interesting reading, but the gist of it is that any person who has an article with a blade or sharp point (other than a folding pocket knife with a blade less than 3 inches long) in a public place is guilty of an offence - unless a) the person is able to prove that a) he had good reason or lawful authority for having the article with him in a public place or b) he had the article with him for use at work or c) he had it with him for religious reasons or d) he had it with him as part of a national costume - any national costume would do.

It is very difficult not to laugh. This one is utterly, utterly ridiculous, and would have puzzled most of our ancestors thoroughly. I find it very odd to think that if I were to pick up one of Mrs. Bird’s bread knives in the kitchen, walk out the door, up the path, and out the garden gate, and on to Windsor Gardens, without a good reason, I would become guilty of a criminal offence. However, thanks to the wisdom of our politicians, that is exactly what would happen.

Actually, I don’t tend to do this, so I don’t think that this one affects me personally. But then I imagine that Rodney Knowles and Brian Seaton thought that it didn’t affect them, either. And even if one is not charged, one could well end up (like Dale McAlpine) spending a few hours in the cells if a police constable doesn’t think that your reason for carrying a knife is good enough.

Now I know that some people are going to say “Aaaargh! We’ll all be murdered in our beds if the knife ban is repealed!” I must confess to grave scepticism. I certainly don’t remember feeling any safer in on the streets in 1989 than I was in 1987. And Austria, where the knife laws are considerably less restrictive than those of the UK, is not known for particularly dangerous streets. (In fact, Vienna is reputed to have a pretty good quality of life.) I know of no evidence to suggest that the 1988 knife ban has done anything to reduce violent crime in Britain. (See discussion here and here.)

I’ll say it again: Every adult should be free to use their legitimately acquired property in whatever manner they choose, so long as in doing so, they do not harm or infringe upon the freedom of others. Carrying a knife hurts no one. So it should not be a criminal offence. And banning the carrying of knives does not stop malicious people carrying knives. So what is the point?

In the grand scale of things, repealing Section 139 of the Criminal Justice Act 1988 is not that important. But it would be a sign that the government is moving away from knee-jerk responses to problems and from the obsessive desire that politicians seem to have for banning things.

(Yes, I know, I know. “If retaining this legislation saves the life of just one young person in Britain . . . .” Sigh.)

Great Repeal Bill wish list 1: The Smoking Ban

I am not a smoker. I never have been. I hate the smell of cigarette smoke. In fact, I can smell cigarette smoke out of doors 10 or 20 yards away. We bears have sensitive noses. When airlines brought in complete bans on smoking, I rejoiced. (“No-smoking seats” were not much use when someone was puffing away three rows behind you.) And I never had much time for FOREST.

But when the Smoking, Health and Social Care (Scotland) Act 2005 and the Health Act 2006, even I thought that this legislation was excessively draconian.

The words used in the Health Act 2006 are “Premises are smoke-free if they are open to the public.” The problem is that most places open to the public are private property. And people should have a right to do as they wish with their own property. The libertarian principle is that every adult should be free to use their legitimately acquired property in whatever manner they choose, so long as in doing so, they do not harm or infringe upon the freedom of others.

Let me use an example. Over 20 years ago, friends of mine put a “No Smoking” notice on their front door. I commented on it, and they told me how strongly they felt about smoking. They also told me that the reason they put it up was that some visitors felt that they had a basic right to smoke in their house. But the visitors didn’t - because the house belonged to my friends, and it was private property, so my friends had a right to use their property in the manner they chose. If visitors wished to smoke, they were free to leave the property.

So it is with the smoking ban. Just as no-one has a basic right to smoke on someone else’s property, no-one has a right to demand smoke-free air on someone else’s property. If I go into a shop or pub or restaurant and think that it is unpleasantly smoky, I am free to leave.

The great British smoking ban is not something that inconveniences me in the slightest. In fact, it makes my life rather more pleasant. But it also strikes at the freedom of others. And since I value my freedom, I am obliged to value theirs as well. It’s the old “do to others what you would have them do to you” principle. If it would be intrusive for the state to demand that I allowed others the right to smoke on my property, it is also intrusive for the state to demand that I forbid others from smoking on my property.

Nick Clegg said “We will repeal all of the intrusive and unnecessary laws that inhibit your freedom.” Well, this is intrusive. It inhibits freedom. And since we have had smoking in Britain for several centuries, and managed to survive without the great smoking ban, I submit, Mr. Clegg, that it is clearly unnecessary. I hereby request that you repeal sections 1 to 12 of the Health Act 2006.

Nick Clegg, Freedom, the State, and the Great Repeal Act (1)

Nick Clegg, it seems, gets all the best lines.

At least he did last week, when he gave his speech on political reform. There were absolutely amazing lines in it - things like “This government is going to transform our politics so the state has far less control over you,” and “we will radically redistribute power away from the centre, into your communities, your homes, your hands,” and “This will be a government that is proud when British citizens stand up against illegitimate advances of the state. ”

He promised “sweeping legislation to restore the hard won liberties that have been taken, one by one, from the British people.”

He said “you will get more control over ... the schools you send your children to”

He said “You know better than I do about how to run your life.”

He said “thousands of criminal offences were created under the previous government.... Obsessive lawmaking simply makes criminals out of ordinary people.”

He said “We will ask you which laws you think should go.”

He even said “So, we'll get rid of the unnecessary laws, and once they're gone, they won't come back.”

In fact, believe it or not, he said “we will repeal all of the intrusive and unnecessary laws that inhibit your freedom.” Yes, he used the word “all”.

My eyes opened wide as I listened to all this. And I wasn’t the only one. Apparently Charlotte Gore’s housemate said “This is real? We can really have this?” and Miss Gore felt the same. I’m afraid that I’m clearly in a cynical mood these days, because what I thought was “Frankly, I just don’t believe it.” Again.

So why don’t I believe it?

1. When he said “We will repeal all of the intrusive and unnecessary laws that inhibit your freedom,” the crucial word is not “all”, but “unnecessary”. Who is to say what laws are unnecessary? As Tim Carpenter says, in a helpful analysis of Mr. Clegg’s speech, “He will be the one to determine “unnecessary”. I suspect Labour thought all those rules “necessary” for their purposes.”

2. I am sure the government will indeed ask us which laws we think should go. But they will be the ones who make the final decisions. Mr. Clegg set out some of the government’s plans in his speech.

“So there will be no ID card scheme. No national identity register, a halt to second generation biometric passports. We won't hold your internet and email records when there is just no reason to do so. CCTV will be properly regulated, as will the DNA database, with restrictions on the storage of innocent people's DNA. There will be no ContactPoint children's database. Schools will not take children's fingerprints without even asking their parent's consent.”

That is good - but it only scratches the surface.

And, it seems to me, while it promises that, in at least some respects, there will be no advance in the power of the state in the future, it does nothing at all to give back the freedoms that have been taken from British citizens over the past 30 years. The rhetoric in the speech is brilliant - the detailed proposals are, frankly, disappointing.

3. Mr. Clegg states “My starting point is always optimism about people. The view that most people, most of the time, will make the right decisions for themselves and their families.” So, is he going to allow us to buy 100w incandescent light bulbs? I rather doubt it. I’m not actually sure that he thinks we should be allowed to buy them. But in any case, Westminster has no power to do so because power has been handed over to the EU, and Mr. Clegg does not want to see any change there. And is he going to allow us a choice about whether we wear seat-belts in cars? Again, I very much doubt it. Because while he may believe that most people, most of the time, will make the right decisions for themselves and their families, he believes there are some people that will not, so we have to make intrusive rules for everyone.

4. Mr. Clegg says “This will be a government that is proud when British citizens stand up against illegitimate advances of the state.” Again, a question is begged. Which advances of the state are illegitimate? Catholic adoption agencies felt that it was an illegitimate advance of the state when the state enacted the 2007 Equality Act banning adoption agencies from discriminating against homosexual prospective parents. Mr. Clegg and his party supported that legislation, and I don’t remember him appearing to be particularly proud when Catholic adoption agencies opposed it. Mr. Clegg spoke of “the repeal of illiberal laws” in his speech, but what does he mean by illiberal laws - does he mean laws that curtail freedom, or laws that he considers ‘unprogressive’?

5. And while we are on the subject of the advancing power of the state, there is plenty of evidence that Mr. Clegg wants the state to have even more power. In his speech last week said “you will get more control over ... the schools you send your children to.” So, does that mean that he wants the state to have less control over schools and what they teach? You might think so, but just a few months ago, in an interview with Attitude magazine, Mr. Clegg apparently said “Faith schools should be legally obliged to teach that homosexuality is "normal and harmless". That sounds like an increase in state power over schools to me.

6. Some of the things that Mr. Clegg promises in his speech actually seem to me to be contradictory. He speaks about the tyranny of vested interests, and then says that he is going to take tax-payers money and give it to one of the favourite vested interests of politicians: the major political parties. This is simply scandalous.

7. Mr. Clegg says “This government is going to break up concentrations of power and hand power back to people.” He also says “We know that devolution of power is meaningless without money.” He is quite right in this. Which means that if he wants to devolve power to the people from the state, money must be left in the hands of the people, not put into the hands of the state. That means massive cuts in tax and in public spending, and that has never been LibDem policy. In fact, it hasn’t been Conservative Party policy for a long time.

In short, I’m sure that the coalition will, in some respects, protect the freedoms that we have traditionally enjoyed in this country for generations. However, I’m not hopeful that there will be any great advances. And as for the state giving up power and handing it back to the people? Frankly, I don't believe it.