On this day: A stunning victory for free speech
On 8 January 2014 the House of Lords voted overwhelmingly to protect free speech from unjustified state interference.
Peers voted 306 to 178 – a majority of 128 – in favour of Lord Dear’s amendment to reform Clause 1 of the Anti-social Behaviour, Crime and Policing Bill.
The amendment replaced the Government’s very low threshold of conduct “capable of causing nuisance or annoyance to any person”, with one of conduct causing or likely to cause “harassment, alarm or distress”.
This was the biggest anti-government vote on any legislation since the Government came to power in 2010 and forced the Government into a public U-turn. A Government compromise amendment accepting the thrust of the Lords’ changes was given formal approval in the Commons on Tuesday 4 February.
With a surge in so called ‘non-crime hate incidents‘ and concerns over the impending Online Safety Bill, it is a timely reminder of how important it still is to defend free speech.
ASBOs to IPNAs
The Bill sought to replace Anti-social Behaviour Orders (ASBOs), which had been defined in Section 1 of the Crime and Disorder Act 1998, with Injunctions to Prevent Nuisance and Annoyance (IPNAs).
They were widely criticised as being too vague, leading to fears that anyone from street preachers to buskers could be caught. Unlike ASBOs, IPNAs were intended to be civil injunctions, meaning any breach would be dealt with through contempt of court proceedings for which maximum penalties would be an unlimited fine, or two years in prison.
IPNAs used a wider definition of anti-social behaviour – conduct “capable of causing nuisance or annoyance to any person”, rather than causing or likely to cause “harassment, alarm or distress”. This extremely low threshold was borrowed from the specialist context of housing law and applied very widely, to anyone over the age of ten in any place.
There was no requirement for the IPNA to be ‘necessary’ to protect people from anti-social behaviour, rather the court could impose one if deemed ‘just and convenient’. And IPNAs would use the civil standard of proof – “on the balance of probabilities” – unlike the ASBO, which used the criminal standard.
Feel free to annoy me
To oppose Clause 1 of the Bill, The Christian Institute launched the ‘Reform Clause 1: Feel free to annoy me!’ campaign with the National Secular Society, Peter Tatchell, and others interested in defending free speech.
Lord Dear’s amendment replaced the “nuisance and annoyance” threshold with the higher test of causing “harassment, alarm or distress”. This would protect free speech while still allowing the courts to tackle anti-social behaviour.
The Government backed down. They brought forward their own compromise amendment, ditching IPNAs, which would mean that a higher threshold of “harassment, alarm or distress” would need to be met before an injunction is issued.
Fierce criticism
During the Lord’s debate the proposals faced fierce criticism from Peers on all sides of the chamber.
Lord Cormack, a Conservative peer, said: “It is crucial that this House, one of the bastions of freedom and civil liberties through the ages, should not weaken the right of our fellow citizens to be able to speak and to annoy.”
Former Attorney General Lord Morris of Aberavon criticised the Home Office for bringing forward “ill thought-out” proposals with “little regard for the consequences”.
Lord Phillips of Sudbury, a Lib Dem peer said the ‘anti annoyance’ orders would place a huge burden on police and local authorities.
Lady Mallalieu, a leading QC and Labour peer, said, “my main concern is the extent to which lowering the threshold to behaviour, ‘capable of causing nuisance or annoyance to any person’, has the potential to undermine our fundamental freedoms, and in particular the way in which the proposed law might be used to curb protest and freedom of expression”.
Instead of IPNAs, civil injunctions, along with Community Protection Notices (CPN) and Criminal Behaviour Orders replaced Anti-social Behaviour Orders (ASBOs) in England, Wales and Northern Ireland in 2015. ASBOs are still used in Scotland.
‘Non-crime hate incidents’
Just before the end of 2021, the Court of Appeal ruled that police guidance on recording ‘non-crime hate incidents’ unlawfully interferes with free speech.
Former police officer Harry Miller had challenged the College of Policing over guidance stating that when someone claims they have been a victim of hatred, officers must keep a record against the name of the accused person even where no crime was actually committed. No evidence of the claims is required, nor any investigation.
A total of 119,934 non-crime incidents were recorded by 34 police forces in England and Wales between 2014, when the guidance was introduced, and 2019. The Court said that recording perceived offences in a police database was likely to have had a serious “chilling effect” on public debate.
Online Safety Bill
Peers have warned that the Government’s Online Safety Bill could threaten free speech by giving major platforms the power to stifle “legitimate debate”.
In a detailed report, the Lords Communications and Digital Committee argued that the dominance of platforms such as Facebook and Google risks limiting freedom of expression under the proposed legislation.
The draft Bill – which has also been criticised for failing to protect children from online pornography – says that digital companies will be required to prevent their users accessing material that is ‘harmful but legal’.
But the Committee said that such companies are too often guided by “their commercial and political interests rather than the rights and wellbeing of their users”, risking their right to freedom of expression being curtailed.
Police guidance on ‘non-crime hate incidents’ is unlawful, Court of Appeal rules