Sir David Davis writes for the Times on the threat posed to freedom of expression by the Public Order Bill

As published in the Times Red Box

Following the shocking arrest and beating of the BBC cameraman Edward Lawrence we are quite rightly worried about the treatment of journalists in China.

However, we should be wary about undermining our own ability to take the moral high ground — something we are at risk of doing with legislation currently passing through Parliament.

Freedom of expression is the lifeblood of our democracy. One of its most fundamental components is the freedom of the press — which is why so many of us, including the prime minister, were dismayed to see journalists arrested simply for doing their jobs. This has not just happened overseas. It has also happened here in the UK at Just Stop Oil protests in recent weeks.

The direction we appear to be heading in when it comes to our civil liberties — from the freedom to protest to the freedom of the press — should worry us all. Just a few months ago, I wrote to the chief constable of Police Scotland expressing my concerns over the arrests of anti-monarchy protesters. While I am a strong and committed monarchist, I believed then, as I do now, that members of the public should remain free to share their opinions and protest in regards to issues about which they feel strongly. The press, in turn, plays a vital role in reporting on stories of public importance.

As we speak, a law is passing through Parliament which would stand to make these encroachments onto our freedoms more frequent. In particular, the creation of serious disruption prevention orders — incredibly broad powers which could ban people from protesting — in the Public Order Bill pose a significant threat to the right to freedom of expression.

Serious disruption prevention orders, or SDPOs, can be given to anyone who has on two previous occasions “carried out activities related to a protest” that “resulted in or were likely to result in serious disruption” — or even “caused or contributed to the carrying out by any other person” of such activities. This is drafted so broadly so as to potentially include sharing a post on social media or handing out a leaflet encouraging people to go to a protest — even if you did not go on to attend that protest. Those issued with an SDPO can face harsh restrictions on their liberty, including being subject to 24/7 GPS tracking and being banned from going on demonstrations, associating with certain people and going certain places, and even using the internet in certain ways.

SDPOs can also be renewed indefinitely — making them even more draconian than similar orders which are given to suspected terrorists. Crucially, one does not have to have been convicted of a crime to be given an SDPO — and yet it will be a criminal offence to breach any of its attached conditions and prohibitions, activities which otherwise would not be crimes.

The potential implications for press freedom are serious. In light of the Hertfordshire police and crime commissioner’s apparent instruction to the media to reconsider how they cover protests — it is not inconceivable that in the future, the police could consider a journalist’s reporting to come under the banner of “carrying out activities” related to a protest. It will be a dangerous overreach if we start to see journalists being handed SDPOs for just doing their jobs, leaving them facing sanctions for breaching the order if they continue to report on protests.

This may sound like an extreme scenario — and certainly this is not the intended purpose of the bill. But it is incumbent on us as lawmakers to not only consider the intention of a piece of legislation but to think carefully about what unintended consequences there may be. The incredibly vague terms of this bill leave it very much open to interpretation, and we cannot presume that individual interpretations will always match what we would wish it to be. Indeed, this is a key reason that I voted against the bill at its third reading in the House of Commons.

I am not alone in holding serious concerns about these measures — nor is it only protesters, liberals or those on the left who share my reservations. Former and serving police officers have shared their concerns about the bill, pointing out that it puts them in a politicised position and threatens to damage public trust even further. Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, the Home Office, and the police have also previously rejected measures akin to SDPOs because they would “neither be compatible with human rights legislation nor create an effective deterrent”.

As I warned during the passage of the Police, Crime, Sentencing and Courts Act earlier this year, every law we write must be written on the presumption that it will be a government very unlike ours who will be in charge at some point in the future. Some of my colleagues may be very happy for these kinds of provisions to be in place with our current government overseeing them. But, in 20 years’ time, if we have a government of the extreme left or right, would they feel as comfortable with that government having these broad and sweeping laws in place? Somehow, I doubt it.

Free speech is one of our fundamental rights — it is not a gift from the state to be withdrawn at the whim of a government, but the birth right of our citizens. I sympathise with the aims of this government to maintain law and order — but that must not be at the expense of our precious rights and freedoms, and it is my strong belief that some of the measures contained in this bill pose a serious risk to those rights. We should take the arrest of journalists last week as a canary in the coal mine for freedom of expression — the vague and ill-defined powers contained in the Public Order Bill should not be allowed to make their way onto the statute book.