Orwell’s boot stamping on a human face — forever — might be apt for the later stages of authoritarianism, but it isn’t for the earlier stages, when Elliot’s not with a bang but a whimper fits better. If we put aside revolution and invasion, nations don’t convulse into authoritarianism, the authorities start with baby steps, which then get bolder as time goes by, until in time they become a march. It is Martin Niemöller’s first they came for the communists, then they came for the incurables. Unpopular groups are marginalised and criminalised. Enabling acts, acts which enable other laws to be made without parliamentary scrutiny, are used to ram through decrees even when, as is often the case, the party in government has a working majority. And then, before long, steps are taken to provide the means to silence those who oppose the government.
It is this step, Dr No now believes, which marks the crossing of the invisible Rubicon on the road to authoritarianism. The mainstream media and internet giants are already hard at it, with their shadowy fact checkers, misinformation fiats and blatant censorship. Debate, they have decided, shall not be tolerated. Others want to go further, and have reluctantly (so tragic that it should come to this) concluded that spreading disinformation must be criminalised. And now, their reluctant prayers have been answered. The Police, Crime, Sentencing and Courts Bill, which comfortably gained its crucial second reading in the Commons this week by a majority of almost one hundred, contains ample provision to allow the government to lock up anyone who says anything that it finds not to its liking. The Bill, and the ability to lock up dissenters, certainly arrived without a bang, and hardly even raised a whimper: only a handful of brave souls rose to oppose the Bill as it strolled through the Commons.
And so the invisible Rubicon was crossed. Having gained its second reading, the Bill now faces the committee stage, but given the strong majority in its favour, it is unlikely to suffer any serious tinkering, so the Bill as it now stands is likely to become law. It runs to over 300 pages, but the key bits with the potential to control free speech are in the first two subsections to Clause 59 in the Bill. They read:
59 Intentionally or recklessly causing public nuisance
(1) A person commits an offence if—
(a) the person—
(i) does an act, or
(ii) omits to do an act that they are required to do by any enactment
or rule of law,
(b) the person’s act or omission—
(i) causes serious harm to the public or a section of the public, or
(ii) obstructs the public or a section of the public in the exercise or
enjoyment of a right that may be exercised or enjoyed by the
public at large, and
(c) the person intends that their act or omission will have a consequence
mentioned in paragraph (b) or is reckless as to whether it will have such
(2) For the purposes of subsection (1) an act or omission causes serious harm to a
person if, as a result, the person—
(a) suffers death, personal injury or disease,
(b) suffers loss of, or damage to, property,
(c) suffers serious distress, serious annoyance, serious inconvenience or
serious loss of amenity, or
(d) is put at risk of suffering anything mentioned in paragraphs (a) to (c).
Those who support the Bill say Clause 59 is no more than an inoffensive bit of house-keeping, that merely puts the current woolly common law notions of public nuisance on the statute book in crisp type. It is, they say, no more than a formality, that will make life easier for everyone, by establishing in statute the nature of public nuisance. No more foraging around in dusty case law, trying to find out what past judgements have been made; instead, all is now crystal clear, and there for all to see. So far, so good. But what if the Bill adds to, or otherwise alters, the notion of public nuisance?
Traditionally, the essence of public nuisance is that it is a public nuisance. That is to say, it affects either the public at large, or a sizeable section of the public, in contrast to something that might be a nuisance to an individual, or a small number of people. Obstruction of a major public highway, or factories pumping noxious materials into their neighbourhood, are examples of public nuisances. Along with a need to affect substantial numbers of people, a public nuisance also needs to have what we might call substance: it must in some way interfere with the public’s ability to do, or enjoy, what they can rightfully expect to do, or enjoy. Using the two examples above, in the first the public are denied the ability to travel on a road, in the second they are unable to enjoy clean fresh air.
Now let us consider Clause 59, and subsection (2) in particular, which defines ‘serious harm’ that might arise from a ‘public nuisance’. Immediately, in the opening phrases, we can see a broadening of scope: the public, or a section of the public, has now become ‘a person’. Instead of ‘causes serious harm to the public, or a section of the public’, subsection (2) has ‘causes serious harm to a person’ (emphasis added). No doubt this is shoddy drafting, but the inevitable effect is to broaden the focus of a public nuisance to include a person suffering nuisance. The requirement for a public nuisance to affect the public at large has been removed. It is now sufficient that ‘a person’ suffers ‘serious harm’, and the crime of public nuisance has been committed.
Subsection (2) goes on to define what is meant by ‘serious harm’. Subsections (2)(a) and (b) are unremarkable, apart from being redundant, in that they are more than amply covered by other offences — more shoddy drafting — even if it is not unreasonable to suppose that some might consider killing and maiming other people is indeed a public nuisance. Subsections (2)(c) and (d) however are an entirely different matter. Instead of substantive harms, we have a woolly list of notional harms, some of which are entirely subjective. The stand out one is ‘annoyance’: the crime of public nuisance now includes any act (or omission) that leaves a person, or persons unknown, seriously annoyed. It is enough to leave Dr No feeling, well, seriously annoyed.
Global in its reach as the new definition of serious harm, and so public nuisance, is, the Bill extends it even further. Subsection (2)(d) adds the mere possibility that someone might feel seriously annoyed to the list of serious harms. That no harm has actually occurred, is neither here nor there; doing (or not doing) something that creates a risk that someone somewhere might feel seriously annoyed is now a criminal act. It is enough to leave Dr No feeling, well, seriously annoyed.
Last, and perhaps most alarmingly of all, though clause 59 is generally seen as a restriction on protests and demonstrations, Dr No can see no such limitation in the wording. It appears to apply to anyone, doing (or not doing) anything, that the authorities decide puts other persons at risk of suffering ‘serious annoyance’. If a blogger writes a contentious post that leaves, or might leave, a reader or readers unknown feeling seriously annoyed, then the blogger will have committed a criminal offence, and on conviction, will be liable to a prison sentence not exceeding ten years. It’s right there in clause 59: ‘A person [the blogger] commits an offence if he does an act [writes a post that] causes serious harm [because a person] suffers serious annoyance’.
Make no mistake, this Bill will give the police and the government the power to criminalise any free speech that, in their opinion, puts people at risk of feeling ‘seriously annoyed’. Check that: the authorities won’t even have to produce Mr Seriously Annoyed of 18 Acacia Gardens, the mere fact there might be a Mr Seriously Annoyed of 18 Acacia Gardens is sufficient to prove a criminal act has occurred. Truly, the invisible Rubicon has been crossed, not on the jack boots of soldiers, but on the dainty designer shoes of Priti Patel. Authoritarianism will have arrived, not with a bang, and hardly even a whimper. It is only further down the road that the dainty shoes turn into jack boots, stamping on a human face — forever.