Neigh More Don’t Ask Don’t Tell

by Matt Wardman
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.


5 responses to “Neigh More Don’t Ask Don’t Tell

  1. It is indeed sad that the p-r-i-n-c-i-p-l-e of freedom of free speech is not accepted by the authorities in this country.

    They change this or that – but they refuse to accept that freedom of speech is a principle.

    It is “freedom of speech – as long as it is not racist”, or “freedom of speech – as long as it is not homophobic”. And on and on.

    Which is basically – “freedom of speech – as long as we do not dislike what you say”.

    That is not to say that there are no such things as “fighting words” – i;e. insuts that if replied to by a punch on the nose should not be taken into account in court.

    However, this is not really about someone getting so upset about some vile insult about their mother that they bop someone on the nose.

    This is about the state deciding what OPINIONS may be expressed – and punishing the expression of opinions it does not like.

    The lack of principle here reminds me of smoking – a favourate topic of this site.

    The common sense point of view that this is a matter of private property is rejected by the state (both here – and in some parts of the United States).

    Partly because a late Roman view of private property is taken – with property that is used for commercial purposes being consided NOT really private.

    Thus we get such things as “public accomidations” (meaning private hotels and guesthouses), “common carriers” (meaning privately owned trains and busses) and on and on.

    This view that, increasingly holds that the state is “all in all” – and that private property does not (really) exist.

    This will not stop at commercial property.

    As the anti smoking movement has shown – it will intrude into private cars, and into the home.

    And it will not stop with “public space” in relation to free speech either.

    Already words spoken in a privately hired (or owned) hall may be treated as “criminal” by the state.

    It is only a matter of time before words uttered IN THE HOME are also treated as criminal by the state.

    The only way to prevent such developments is to return to seeing freedom of speech (and property rights generally) as a matter of principle.

    But, sadly, I see no good prospect of such a return to principled thinking.

  2. Julie near Chicago

    Are they seriously talking about the legal acceptability of asking whether a horse is a mare or a stallion (or, heaven forfend, a gelding)???

    Ye gods. I think I’m moving to Wyoming.

  3. Alas! Wyoming is not free of Federal regulations – and the Federal government is influenced by the same “P.C.” (Frankfurt School) ideology that most other Western governments are influenced by.

    Sadly it is not just the United Kingdom.

  4. Julie near Chicago

    Unfortunately very true. But I think that in Wyoming, you can still talk about horses without needing to go under the Cone of Silence first. *g*

  5. Yes Julie. And there is the question of how well the Feds can enforce their regulations – in Britain everywhere is a few hours from London, and also near some other major urban centre (this densely populated island would NOT be the place to be if ever international free trade and large economies of scale broke down). Out in the Dakotas (or Kansas or…..) the land goes on for ever – and in Wyoming (and Montana and…..) one can go for hundreds of miles without seeing anyone. How practical Fed control of these areas can really be is an interesting question.

    It is like the Roman Empire – in theory in the late Empire the state controlled everything, and everyone was equal in their (unarmed) slavery to the Emperor and his army.

    However out in some distant place, such as what is now North Wales, I doubt Roman control of people was, in practice, anything like what it was supposed to be in theory.