Neigh More Don’t Ask Don’t Tell

It is official.

Section 5 is changing.

It will soon no longer be a criminal offence to enquire as to the sexuality of a horse if that is deemed ‘insulting’ to a random third party.

But I want to ignore the funny cases, saying woof to dogs and ‘scientology is dodgy‘ to the public, and examine changes that will actually be made to legislation. Here the picture is depressing.

Theresa May has said in Hansard that the Government will remove the word “insulting” from Section 5 of the Public Order Act 1986:

the Government are not minded to challenge the amendment made in the other place. We will issue guidance to the police on the range of powers that remain available to them to deploy in the kind of situation I described, but the word “insulting” should be removed from section 5.

However, she also said that in fact the Government support the retention of the word, and that the change won’t actually make a blind bit of difference:

Looking at past cases, the Director of Public Prosecutions could not identify any where the behaviour leading to a conviction could not be described as “abusive” as well as “insulting”. He has stated that

“the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.”

You will be able to use:

“insulting words or behaviour”

insulting: “treat with gross insensitivity, insolence, or contemptuous rudeness, affront or demean”

but if you use:

“threatening or abusive words or behaviour”:

abusive: “characterized by insulting or coarse language”
threatening: “express a threat against; be a source of danger to; menace; announce the possibility of in a threat”

then you are committing a criminal offence.

No one is going to argue about “threatening”, but I can see little difference between “insulting” and “abusive”.

In practice, as demonstrated by the comments from the DPP, anyone using “insulting” words can probably be arrested as “abusive”.

Further, the test used for the arrest of individuals under these powers was more than a little convoluted. The man who was arrested in the “gay horse” case was detained because a hypothetical passer-by, who didn’t exist, might have been offended by the question being asked.

Add in that the tone of the comments of both Theresa May, and Yvette Cooper, the Shadow Home Secretary, were defensive:

Shadow Home Secretary Yvette Cooper pressed the government to produce an “assessment of the impact of Section 5 of the Public Order Act on different groups, particularly on minority groups”.

“Many people have said that the existing Section 5 has formed some sort of protection,” she told MPs.

“It is important to make sure we can protect freedom of speech but it is also very important to make sure we can protect vulnerable groups from unfair discrimination.”

and I think this hardly counts as progress.

To me that suggests that this is window dressing, that Theresa May has still caught petty-authoritarian disease from somewhere, and that Yvette Cooper is fully on board.

That’s not good enough; we have a teeny-tiny baby step, but that is all.

Back at you, Theresa May.

Please can we have some progress – which needs to be a little more than defensive tinkering with dotted-i’s and crossed-t’s in areas of law that shouldn’t exist at all.

You can read other people’s views on Section 5 at Big Brother Watch, and The UK Human Rights Blog.

Tagged as: authoritarians, gay police horse, insulting speech, offensive speech, public order act section 5, section 5, theresa may mp, yvette cooper mp

Matt Wardman blogs at The Wardman Wire, on media, politics and technology, in addition to writing at the Raccoon Arms. Follow me on Twitter.