Last year, the government was outvoted in parliament. Against minister's wishes, MPs repealed the section of the Public Order Act 1986 that outlawed "insults"; deeming it to be too sweeping and a threat to freedom of expression.
This year, in apparent revenge, the government has, in effect, reintroduced in the insult prohibition under another name. Clause 1 of the Antisocial Behaviour, Crime and Policing (ABCP) Bill penalises behaviour that is "capable" of causing "annoyance" or "nuisance."
Mere capability is enough to trigger legal sanctions in the form of Injunctions to Prevent Nuisance and Annoyance (IPNAs) - a new version of ASBOs (Anti-Social Behaviour Orders). Violators are liable to imprisonment for actions which are, in themselves, mostly otherwise not crimes.
The potential for abuse is the same as happened with the over-zealous arrest of people for causing mere insult, including Christian street preachers, anti-war protesters, critics of Scientology and gay rights campaigners.
This is why today, in the House of Lords, Lord Dear will table an amendment to strike out "annoyance" and "nuisance" and replace them with a higher threshold for legal action. Under his amendment, a person would only face an injunction if their behaviour caused, or was likely to cause, "harassment, alarm or distress."
The government is resisting. However, in response to the Reform Clause 1 campaign, it has introduced a new "reasonableness" test. Instead of injuncting behaviour "capable of causing" nuisance or annoyance, this amendment would limit injunctions to behaviour "that could reasonably be expected to cause" such nuisance or annoyance. This is a marginal improvement, at best.
The menace to liberty remains. Street buskers, kids playing football, charity collectors and protest marchers - all could potentially cause nuisance or annoyance to someone and be liable to being injuncted.
The aim of IPNAs is laudable: to protect the public from yobs and anti-social behaviour that causes distressing, harmful nuisance and annoyance, such as noisy gangs congregating in stairwells in blocks of flats.
But an unintended side effect of IPNAs will be a chilling effect on people's ability to campaign and make a fuss about issues that are important to them. IPNAs are so sweeping that they are open to abuse in ways that could inhibit freedom of expression. People expressing controversial or dissenting views, participants in a protest march that causes traffic delays or speakers using a megaphone at a rally in a public square - any or all of them could be liable to the sanction of an IPNA on the grounds that they have caused annoyance or nuisance to others.
To impose an IPNA the court must only be satisfied that, "on the balance of probabilities, the respondent has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person". Any person! Even just one person! It is enough that they threaten to do things capable of causing the offending conduct - even if they never actually do it and even if it never causes any actual nuisance or annoyance. Wow!
Very alarmingly, the Bill fails to define what is meant by annoyance and nuisance. It open to a very wide, subjective interpretation.
The law rightly protects us against discrimination, harassment, threats and violence. However, it has no legitimate role to protect us from feeling annoyed. That's a step too far.
Disappointingly, the Government has, so far, dismissed on-going concerns about the legislation, saying the courts would not use IPNAs frivolously. However, the stress and cost of going to court is likely to deter many people from engaging in hitherto lawful activity on the grounds that it might fall within the scope of an IPNA.
Moreover, as we have often seen with other legislation, the law may be later applied in ways different from the original intention.
This was the case with the 1986 Public Order Act. At the time of its enactment, we were told it was to combat football hooliganism and violent street disorder. Yet since then it has been often used to suppress otherwise peaceful, lawful protests.
Concerns about IPNAs are widely shared. They have bought together a new cross-party campaign called: 'Reform Clause 1 - Feel Free to Annoy Me.'
It is backing Lord Dear's amendment today and brings together senior backbenchers Sir Edward Leigh MP and David Davis MP, Baroness Mallalieu QC, ex-DPP Lord MacDonald and former Chief Constable, Lord Dear - plus organisations like The Christian Institute, National Secular Society, Big Brother Watch and the Peter Tatchell Foundation.
In the words of Lord MacDonald:
"It is easily foreseeable that these powers may be invoked by the police in situations where their use impacts bluntly upon the exercise of rights to free expression and free assembly, as well as other core rights. In these circumstances, it is a matter of great concern that the Bill is drafted in such broad terms and includes so few safeguards to limit the potential effect of its
provisions upon those rights."
Wise, cautionary words indeed. Time for a rethink Mr Cameron and Mr Clegg.
For more information about Peter Tatchell's human rights campaigns and to make a donation, go to the Peter Tatchell Foundation website
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