Top cop: free speech clause in ‘gay hate’ law is essential

Fri, 23 Oct 2009

Removing free speech protection from a ‘homophobic incitement’ law will put the police in a “virtual straitjacket”, says a former chief constable.

Lord Dear, who is also a former HM Inspector of Constabulary, said the free speech protection is “essential” if police officers are to enforce the Government’s ‘homophobic hatred’ law with “good judgment and a light touch”.

He made his comments in this week’s edition of The House Magazine, a weekly publication for people working in Parliament.

The article emphasises his concern about Government plans to remove a ‘free speech clause’ inserted into the law by Parliament last year.

The House of Commons is due to revisit the matter soon. Government ministers have insisted the protection is “unnecessary”.

Lord Dear drew on his knowledge of policing to challenge their arguments, insisting that the Waddington amendment is “crucial”.

“Without it, the hands of the police are tied”, he said

“The police need to be free to make a judgment in the moment, not harnessed by a one-size-fits-all policy dictated from above”, he added.

In conclusion he wrote: “I fervently believe in freedom of speech and expression, and I hope the government will drop its bid to remove the Waddington amendment and allow our police officers to apply common sense in these matters.”

The full text of Lord Dear’s article is below:

The government will soon decide whether to ask MPs to vote for the removal of Lord Waddington’s free-speech amendment from the new law against inciting homophobic hatred. The House of Lords voted by a majority of 53 to retain the amendment on July 9.

Ministers say the Waddington amendment, which makes clear that expressions of disagreement or criticism will not be caught by the new offence, is not necessary. But if we want police officers on the ground to enforce the law with good judgment and a light touch, it is essential.

If an officer on the beat is approached by someone who says he has been offended by remarks he has heard on the subject of sexual orientation, he might be expected to make an assessment of the situation before acting. Did the speaker’s comments fall foul of the law? Or has the complainant simply been affronted by opinions with which he disagrees?

But Home Office hate crimes guidance leaves officers little room to ask such questions. An officer is bound to record and fully investigate the incident, even if he is pretty sure it will never lead to a conviction. Such is the wooden, automatic response demanded of our police officers, who are already dogged by targets and discouraged from thinking for themselves.

Last year this virtual straitjacket was loosened when Lord Waddington’s amendment was added to the new incitement offence. It equips officers to assess whether a comment really has the potential to stir up hatred, or if it is simply the legitimate expression of an opinion. It allows the officer to think.

In 1999 Lord Justice Sedley made some striking remarks about free speech in his judgment on a particular case. The case of Redmond-Bate involved a woman who had been arrested for breach of the peace after she and two other women attracted a hostile crowd whilst preaching from the steps of Wakefield Cathedral. Although her appeal at the Crown Court was dismissed, at the Queen’s Bench division, Lord Justice Sedley and his fellow judge held that the women, described as fundamentalist Christians, had not acted unlawfully

Sedley ruled that: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

Yet there have been a number of instances since, in which the police have intervened over incidents constituting nothing more than the expression of the kind of sentiments described by Lord Justice Sedley in his judgment. Even without an incitement offence, individuals are being questioned and investigated over legitimate comments they have made on controversial matters relating to sexual orientation.

Most of these individuals are ultimately acquitted. However, if the police continue to respond in this robotic way to complaints from people who confuse criticism with crime, we will soon find debate on these issues chilled. The mere threat of investigation will be enough to put many people off saying what they think. Those intent on silencing their critics can play on this fear by making vexatious complaints.

Lord Justice Sedley’s judgment epitomises the old adage that the police exist both to protect the majority from the minority and, very importantly, vice versa. Where there are oddballs, those who hold controversial or quirky views, officers should safeguard their right to express them, rather than joining the angry mob.

It is for this reason that the Waddington amendment is so crucial. Without it, the hands of the police are tied. I am aware that many officers on the ground are grateful for the means to dismiss troublemakers and trivialities. The police need to be free to make a judgment in the moment, not harnessed by a one-size-fits-all policy dictated from above.

I do not hold or advance anti-homosexual views; I abhor homophobia. However, I fervently believe in freedom of speech and expression, and I hope the government will drop its bid to remove the Waddington amendment and allow our police officers to apply common sense in these matters.

Free speech videos

Three short personal stories of Christians investigated by police because someone made a complaint of ‘homophobia’.

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