Criminalising the rough and tumble of politics

Well, that is one Bristol City Council budget meeting Lib Dem Shirley Brown won’t forget in a hurry. Back in February 2009, there she was, listening to a proposal from Conservative councillor Jay Jethwa to cut funding for a local project for ‘black and minority ethnic’ groups. Jethwa’s idea for saving money was not to Brown’s liking. After all, Brown, the Lib Dem’s first black councillor, had supported the project – the Legacy Commission – since its establishment in 2008. In Brown’s eyes the project was important; it commemorated the abolition of slavery. But for Jethwa the Legacy Commission was a ‘futile’, ‘politically correct’ attempt to ‘right historic wrongs’. Plus it cost money.

Then something terrible happened. Brown, angry and upset, addressed Jethwa, an Asian woman, by saying: ‘In our culture we have a word for you, a word which many in our city would understand, and that’s “coconut”.’ That’s right, something terrible came in the form of that fruity noun, ‘coconut’, a word used in this context to imply that Jethwa is black on the outside but white on the inside – although her skin is dark, her thinking is very much that of the white status quo. With that single utterance, that single incantation – ‘coconut’ – Brown had sealed her fate. This week, after over a year’s worth of investigations, both internal and criminal, Brown was found guilty of ‘racial harassment’, given a 12-month conditional discharge, and ordered to pay £620 in costs.

This is a truly shocking judgement. For using a word, for speaking aggressively, Brown has been prosecuted and found guilty of a crime. She has been found guilty not of a criminal act, as such, but of criminal speech. As a decision, this is bad; as a precedent, it’s even worse. By making this ruling, Bristol magistrates are effectively saying that even in the heat of the moment, a moment in this instance in which local politicians had quite a bit at stake, one cannot use words with ‘the intent to cause a person harassment, alarm or distress’. Given that political conflict often gives rise to combative rhetoric and no small degree of enmity, the consequences of this outlook for public discourse are all too clear. Would calling a British National Party councillor ‘racist scum’ be too distressing for the no-black-in-the-union-jack brigade? Would describing a Lib Dem minister as a ‘slimy hypocrite’ be too nasty? Would referring to David Cameron as a ‘Tory’ overstep the line into outright offence?

Let’s be under no illusions. When Brown called Jethwa a ‘coconut’, she was being abusive. But this wasn’t just any old abuse. If Brown had just wanted to call her a name, there are plenty that are far ruder. No, Brown wanted to abuse her politically. She wanted to suggest that Jethwa, her political opponent, was, in effect, a minority mouthpiece for majority interests, a Tory Trojan horse for politically correct times. There was intent here, of course, but that’s the thing about arguments that matter – participants intend to hurt the other. They intend to win, not to agree.

So just because Jethwa took great offence – albeit in retrospect, given that she only heard what was said when footage was played back to her – why should that make Brown’s action criminal? How did someone taking offence become the index of what is appropriate? Offence or distress or alarm ought not to be legal markers of what can and cannot be said in public. They are unavoidable consequences of passionate, inflamed argument. Polite disagreement is not always possible if an argument is genuinely consequential. As Brown said in her defence last year, ‘The issue of equalities funding is one that I care passionately about and I was furious at the Conservative proposition to make massive cuts in this area.’

But it seems that Brown’s political passion, not to mention her carefully deployed political insult, was just too much for Jethwa. During her testimony in court, she went so far as to weep while relating the tale: ‘I heard her say there was a word in her community for people like me and that word is coconut. I was completely shocked and I was numb and had to rewind the footage to see if it was only me she had directed the comment to. I was very, very upset and distressed.’ In fact, the depth of Jethwa’s offence just makes Brown’s argument seem more forceful than perhaps it was. As John Stuart Mill once argued, ‘Offence is given whenever the attack is telling and powerful. Those who disagree, who argue powerfully and with strong feeling, will often appear “intemperate”.’ (1) While the colour of Jethwa’s skin ought to be irrelevant in the context of budget allocation, that it was made to appear quite so thin by her subsequent reaction, from the persistent outrage to the courtroom tears, gave Brown’s ‘coconut’ jibe a credence it does not deserve.

Still, whatever one thinks of the nature of the exchange, it certainly should never have been the subject of legal action. Before the court case which began this year, the comments had already been investigated by Bristol City Council’s standards committee. In June 2009 council official Shahzia Daya reported back: ‘This was an isolated incident that took place during a heated and fractious political debate. My conclusion is that although the term “coconut” undeniably has a racial element to it, its use in this particular context does not constitute racial abuse.’ Yes, the report concluded, Brown ‘treated a fellow councillor with a lack of respect’ and used a term that was insulting, but, well, that’s public life. ‘If I am asked to recommend a sanction’, Daya continued, ‘then I would say that no further action is required given that Councillor Brown apologised for her comments’. And although the standards committee did eventually deem her comments worthy of a one-month suspension, the Adjudication Panel for England Tribunal Service subsequently quashed it.

Yet despite the council’s own regulatory bodies feeling that Brown had been punished enough, the magistrates still pressed ahead with a prosecution under the Public Order Act. It seems that from their aloof perspective, politics – even of the local variety – is just too inflammatory to be left we plebs and those we choose to represent us. So now, an elected councillor has been branded a criminal for using heated language in the course of political debate. This is a serious attack on freedom and democracy by the state.

Tim Black is senior writer at spiked.

(1) p60, On Liberty and Other Essays, by John Stuart Mill, Oxford University Press, 1998