Bloody Tories: the shrinking realm of public discourse

The conviction of Bethan Tichborne begs the question: has Britain outlawed the truth?

Has Britain finally outlawed the truth? I struggle to find a case where any of the of thousands of members of the Stop the War Coalition fell foul of criminal law for accusing Tony Blair of having "blood on his hands", yet four months ago Bethan Tichborne was arrested and last week tried, convicted and fined, for saying the same of David Cameron, with an Oxford district judge finding that her words constituted "threatening, abusive or insulting words or behaviour" proscribed by the Public Order Act 1986. It could "hardly be more insulting to anyone, whether a politician or not," said the judge, to suggest that the Prime Minister "had blood on his hands."

Polemically, of course, the two are very different cases: where the former were clearly protesting against machinery of death, Tichborne's argument is more nuanced, suggesting that the Government, by cutting the welfare entitlement of the disabled, is responsible for the deaths of those who, out of "fear of destitution, the exhaustion of constant WCA and ESA assessments and endless forms," take their own lives. While it is possible to employ various efficiency arguments to maintain that cuts in social welfare are worthwhile or not, there is considerable scope for disagreement. Though expressed in extreme terms, Tichborne's argument is not without basis in fact: not in that David Cameron actually has human blood on his hands, but in that there is an entire academic discipline dedicated to the study of the trade-off.

Tichborne's case is drawn in still sharper relief when one considers the involvement of the Public Order Act, Section 5 of which proscribes engaging in "threatening, abusive or insulting words or behaviour... within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby." Recall that, in January, a prominent national campaign backed by Stephen Fry and Rowan Atkinson among others secured the future removal of the word "insulting" from Section 5. This campaign notwithstanding, the word "insulting" continues in Section 4A (relating to intentionally causing harassment, alarm and distress) and, in the case of Section 5, while "'insulting' is gone, 'abusive' remains." This should not give politically active citizens much, if any, comfort, as "the courts are very willing to conflate the two" concepts in cases where language is sufficiently inflammatory (see paragraph 29 of Abdul v DPP), and in such instances - of which I should think Bethan Tichborne's is one - it is no defence that particular words are "not abusive and insulting because they were (believed to be) true."

Language permits myriad ways to call a man a scoundrel and, fortunately, the mere suggestion that a politician has "blood on his hands" is not, prima facie, illegal - at least, not yet. But it is not prima facie permissible, either. When one man's apt metaphor is another man's insult, where do we draw the line? The English courts have difficulty resolving the question, admitting that the existing legislation makes it impossible to define in advance which kinds of political speech are permissible, and which are not (at paragraph 57). So what appears at first to be a public order question becomes a civil liberties one.

Even if one disagrees fundamentally with Tichborne's politics, it would be difficult to maintain that she doesn't have an objectively valid point - one which she is now less free to express. For Tichborne, the subtler nature of her argument - the wider range of possible disagreement her claim invites, and little else - places her on the wrong side of a law which is not endowed with any "cognizance of unintentional offences." The combination of overbroad legislation and overzealous local policing leads, in her case, to a violation of what most of us would consider to be the "certain minimum area of personal freedom which must on no account be violated" because, as put by Isaiah Berlin (pdf), "if it is overstepped, the individual will find himself in an area too narrow for even that minimum development of his natural faculties which alone makes it possible to pursue, and even to conceive, the various ends which men hold good or right or sacred." 

The statutory framework regulating speech in the United Kingdom is not remotely appropriate for a free state. I hope Tichborne appeals. I hope she wins. For if Bethan Tichborne is a criminal, so are we all.

 

 

A protestor dressed as Tony Blair shows his "bloody" hands. Photograph: Getty Images

Preston Byrne is a fellow at the Adam Smith Institute.

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How tribunal fees silenced low-paid workers: “it was more than I earned in a month”

The government was forced to scrap them after losing a Supreme Court case.

How much of a barrier were employment tribunal fees to low-paid workers? Ask Elaine Janes. “Bringing up six children, I didn’t have £20 spare. Every penny was spent on my children – £250 to me would have been a lot of money. My priorities would have been keeping a roof over my head.”

That fee – £250 – is what the government has been charging a woman who wants to challenge their employer, as Janes did, to pay them the same as men of a similar skills category. As for the £950 to pay for the actual hearing? “That’s probably more than I earned a month.”

Janes did go to a tribunal, but only because she was supported by Unison, her trade union. She has won her claim, although the final compensation is still being worked out. But it’s not just about the money. “It’s about justice, really,” she says. “I think everybody should be paid equally. I don’t see why a man who is doing the equivalent job to what I was doing should earn two to three times more than I was.” She believes that by setting a fee of £950, the government “wouldn’t have even begun to understand” how much it disempowered low-paid workers.

She has a point. The Taylor Review on working practices noted the sharp decline in tribunal cases after fees were introduced in 2013, and that the claimant could pay £1,200 upfront in fees, only to have their case dismissed on a technical point of their employment status. “We believe that this is unfair,” the report said. It added: "There can be no doubt that the introduction of fees has resulted in a significant reduction in the number of cases brought."

Now, the government has been forced to concede. On Wednesday, the Supreme Court ruled in favour of Unison’s argument that the government acted unlawfully in introducing the fees. The judges said fees were set so high, they had “a deterrent effect upon discrimination claims” and put off more genuine cases than the flimsy claims the government was trying to deter.

Shortly after the judgement, the Ministry of Justice said it would stop charging employment tribunal fees immediately and refund those who had paid. This bill could amount to £27m, according to Unison estimates. 

As for Janes, she hopes low-paid workers will feel more confident to challenge unfair work practices. “For people in the future it is good news,” she says. “It gives everybody the chance to make that claim.” 

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.