My Lords, I begin by saying how grateful I am to my noble friend Lady Williams of Trafford for the time that she has given me, and others, since the debate in Committee on 1 November and for bringing forward these amendments. Having said that, I have some observations to make, in particular about freedom of expression.
Events since the debate in November have made the need for proper regulation even more pressing. Since that debate, as we have heard, the Court of Appeal in Miller has stressed the danger of the chilling effect of police intervention on individuals minded to speak on controversial public topics. The president of the Queen’s Bench Division, in her very powerful judgment, said that the revised guidance published by the College of Policing, which was then before the court, did not
“go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally.”
She emphasised that
“additional safeguards should be put in place so that the incursion into freedom of expression is no more than strictly necessary.”
Finally, she said:
“Guidance should truly reflect what the police are expected to do and should not mislead by omission either the police who have to use it or the public.”
At much the same time as that judgment was being written, a similar matter came before the court in Strasbourg—the case of Dr Pal. It was decided against the United Kingdom on 30 November 2021—just two months ago. Dr Pal, a journalist, was arrested, detained and charged with hate speech in respect of a person called AB. Only when it came to the magistrates’ court did the CPS abandon the prosecution. Dr Pal then brought proceedings for wrongful arrest, or false imprisonment. The Strasbourg court observed that the arresting officer’s decision to arrest
“appears to have been based on the subjective viewpoint of AB”—
that is, the complainant himself —
“without any acknowledgement of the fact that the right to freedom of expression extends to information or ideas that defend, shock or disturb.”
The court said that
“there is no evidence that the criteria … relevant to the balancing of the rights to freedom of expression and the right to respect for private life … were taken into account prior to the applicant’s
arrest. In particular, no consideration appears to have been given to the subject matter … and whether they could be said to have contributed to a debate of general interest.”
In short, there have been two important decisions from very senior courts which have stressed the vital importance of paying proper regard to freedom expression and to the need for those in authority to understand and reflect that the right to freedom of expression extends to ideas that may shock or disturb others. There must be fresh guidance, it must reflect those observations, it must be clear and decisive—and it must be soon.