Crime and Policing Bill

Debate between Lord Strasburger and Lord Young of Acton

Committee stage
Thursday 15th January 2026 Lords Chamber

[Lord Young of Acton (Con)]

My Lords, I support the amendment tabled by my noble friend Lord Moynihan of Chelsea and the noble Baroness, Lady Fox of Buckley. I declare my interest as the director of the Free Speech Union.

The strongest argument for repealing the Malicious Communications Act and Section 127 of the Communications Act is that these laws were made during an analogue era and are clearly not fit for purpose during our current digital era. That is one reason why the Law Commission of England and Wales, in its 2021 report on which communications laws should be reformed, recommended that both the Malicious Communications Act and Section 127 of the Communications Act be repealed.

That has not happened, but a good illustration of just how unfit these two laws are was alluded to by the noble Baroness, Lady Fox. The Times submitted FOI requests to all 43 police forces in England and Wales, asking them how many arrests were made in England and Wales in 2023 and in previous years for online offences under the Malicious Communications Act and Section 127 of the Communications Act. Of the 43 police forces, 37 responded to the FOI request. In just those 37 police forces, in 2023 12,183 people were arrested on suspicion of having committed just one of these two offences through something they had said online. That is a huge increase on the number of people arrested in 2018—just 5,502—on suspicion of committing these two offences for things they posted online. The figure more than quadrupled in a five-year period. That boils down to 33 people being arrested every day in 2023 on suspicion of having committed just one of these two offences under the Malicious Communications Act and Section 127 of the Communications Act.

That happened because of the explosion of speech which is supposedly offensive, annoying, distressing, alarming or indecent, et cetera, online on social media. This is something the framers of these laws could not possibly have anticipated, and it is causing the police to waste a colossal amount of time. In addition, the number of people who were charged—bear in mind that 12,183 people were arrested—was 1,119. The police are clearly being overzealous in responding to complaints about supposed offences under these two laws relating to things people have said online.

Another index of just how much time is being wasted is that many of the people who are not charged end up having the episode recorded as a non-crime hate incident. The Free Speech Union has estimated that, as best we can tell, something like a quarter of a million non-crime hate incidents have been recorded since the concept was introduced by the College of Policing in 2014—and that is in England and Wales alone. That is an average of around 65 a day.

One reason so many NCHIs are being recorded is that, when the police arrest someone under suspicion of having committed an offence under the Malicious Communications Act or Section 127 of the Communications Act and conclude that in fact no offence has been committed, the incident is recorded as an NCHI. As I have said before in this House, one of the penalties for having an NCHI recorded against your name is that it can show up in enhanced criminal record checks when you apply for a job as a teacher or a carer or try to volunteer for a charity such as the Samaritans. According to Policy Exchange, in a report published last year, police in the UK as a whole are spending 6,000 hours a year investigating episodes and incidents that turn out to be NCHIs and are recorded as such. That is a strong argument for repealing the Malicious Communications Act and Section 127 of the Communications Act.

I will give two examples, from the FSU’s case files, of just how absurd the police’s overzealous policing of social media has become. We went to bat for one of our members, Julian Foulkes, a former special constable in Kent. He said in a spat online with a pro-Palestinian activist that some of the pro-Palestinian marchers were once step away from heading to Heathrow and stopping people disembarking from flights from Israel. That person complained, as I understand it, and six police officers—six—turned up at Julian Foulkes’s home, arrested him, took him down to the station and would not release him until he had agreed to accept a caution. With our help, he got that caution expunged and went on to sue the police for wrongful arrest. He was given £20,000 in compensation and got an apology from the chief constable of the police force concerned. That is a good example of the kind of time-wasting that the police are being led into because of the difficulty of enforcing these analogue laws in a digital era.

The second example is Maxie Allen and Rosalind Levine, the parents of two daughters, who were arrested, again by six police officers, in front of their youngest daughter because of things they had said in a WhatsApp group that parents at their daughter’s school were members of and something they had said in an email to the head teacher of their daughter’s school. It is incredible that the police thought that six police officers were needed to take these parents into custody. Julian Foulkes was under suspicion of having committed an offence under the Malicious Communications Act. In their case, they were under suspicion of having committed an offence under Section 127 of the Communications Act. Again, in due course, no further action was taken. We helped them sue the police for wrongful arrest and they too were given compensation of £20,000.

Be in no doubt that the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Moynihan are correct when they say that the process is the punishment. Even though no action was taken and no prosecutions were made in those two cases, Julian Foulkes and those parents were caused huge anxiety and distress by what they went through before the police decided to take no further action. That is a strong case for following the Law Commission of England and Wales’s advice and repealing the Malicious Communications Act and Section 127 of the Communications Act.

Briefly, I absolutely agree with the proposal in the amendment to remove the word “insulting” from the sections of the Public Order Act in which it remains. Noble Lords will not need reminding that the word “insulting” was removed from some sections of the Public Order Act, specifically Section 5 and related provisions, by the Crime and Courts Act 2013, following a campaign by Rowan Atkinson and others which pointed out how absurd it was to criminalise insulting. In one case, a young man was arrested for insulting a police officer’s horse, as noble Lords may recall. It was an effective campaign and it resulted in the word “insulting” being removed from Section 5, but it remains in many other parts of the Public Order Act. To my mind, the same arguments forcefully made by Rowan Atkinson and others at the time for removing the word “insulting” from Section 5 equally apply to the other sections of the Public Order Act where it remains. Just as we do not have a right not to be offended, we do not have a right not to be insulted.

I close with a quote from JS Mill, which I believe is from On Liberty. Mill warned that the criminal proscription of uncivil language is intrinsically likely to protect the holders of received opinion at the expense of dissidents. He wrote:

“With regard to what is commonly meant by intemperate discussion, namely invective, sarcasm, personality, and the like”—


we could add the word “insulting” to that list—

“the denunciation of these weapons would deserve more sympathy if it were ever proposed to interdict them equally to both sides; but it is only desired to restrain the employment of them against the prevailing opinion: against the unprevailing they may not only be used without general disapproval, but will be likely to obtain for him who uses them the praise of honest zeal and righteous indignation”.

[Lord Strasburger (LD)]

My Lords, I congratulate the noble Lord, Lord Moynihan, on his courage in raising these issues. I am going to say little more than that, other than that I was instrumental in getting a sentence added to the code of conduct for members of the Liberal Democrats, which says that no one has the right to not be offended.