Why Andrew Mitchell should have been arrested

Posted on September 26, 2012

Arresting people for swearing is ridiculous. And yet, under Section 5 of the Public Order Act, it regularly happens.

Section 5 is a badly written, catch-all law which – as one former officer put it to me recently – “lets us take people off the streets if they haven’t committed a specific offence but we don’t really want them there”.

The precise wording outlaws anyone who:

(a)     uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b)     displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Given the total lack of any definition of what constitutes “threatening, abusive or insulting words or behaviour”, and the overzealous nature of some (though far from all) bobbies on the beat, it is hardly surprising that the clause has been abused over the years. It has been applied to stop people making perfectly valid criticisms of Scientology, protesting against the murder and oppression of gay people in the Middle East, and saying religions are “fairy tales”, among many others.

Given that it is on the statute book, and that it is regularly used to arrest ordinary members of the public for far less serious behaviour than that displayed at Downing Street last week, Section 5 should surely have been used to arrest Andrew Mitchell, the Chief Whip.

Instead, he was allowed to swear repeatedly at a police officer, despite the police log’s report that bystanders looked “visibly shocked” – which seems to my lay perspective to qualify as using “insulting words…within the hearing or sight of a person likely to be caused harassment, alarm or distress”.

How many plebeians would be allowed to get away with that with only a verbal warning, rather than a trip to the cells?

Giving greater privileges and more freedom under the law to members of the Government than is given to the people at large prevents Westminster from understanding how bad the criminal law of this country has become. Leading the Chief Whip away in cuffs would have been an absurd scene when his sacking or resignation should be the sensible outcome, but it would have woken our representatives up to the excessive powers of Section 5.

Until that happens, what hope is there that they will realise the urgent need to reform the Public Order Act?

Gay marriage? Straight marriage? Just de-regulate marriage

Posted on January 18, 2012

The gay marriage debate is back.

The Coalition plans to lift the ban, changing the law to allow same-sex marriage. The Independent reports that David Burrowes MP is (somewhat implausibly) claiming there will be a triple-figure rebellion of Tory backbenchers to defeat the plans.

The Evangelical Alliance  claim the proposals signal “the end of conservatism” (despite Evangelical Christianity being a new radicalism, rather than a conservative movement). Ben Summerskill of Stonewall has accused backbench Tories of “old-fashioned homophobia” (on the evidence of only one MP’s comments).

On one side, supposedly the very concept of the family is threatened if the Government changes its regulations. On the other side, unless the Government extends its regulations then a whole tranche of the population are given second class status under the law.

The mud flies, the rhetorical stakes are raised again and again. Questions fly, and few useful answers are delivered.

But what is the libertarian response? The answer must surely be that the State should not regulate marriage at all.

Two people agree to make a private contract between each other.  They make it for love, or for family logistics, or for religious belief. They make their vows before God, or before their friends and family or simply before each other. That is down to them.

Marriage is an unusual kind of contract, but it is one nonetheless – each party makes pledges, receiving promises and takes on responsibilities in return.

Where is the Government’s place at the wedding breakfast table? Why should the grey-suited regulator get a save-the-date and a dainty invite?

The best way to banish the acrimony and the legislative to and fro over same sex marriage is to abolish the regulation of all marriage entirely. It is the vowing to each other, the exchanging of rings and the sealing kiss, not the signing of the State’s register, that is the focal point of a couple’s day.