Over the weekend, it emerged that Scotland Yard has submitted a series of proposals to the Attorney General, Lord Goldsmith, including the suggestion that the burning of the Union flag be rendered a criminal offence. The plans have, apparently, been drawn up by the assistant Commissioner of the Metropolitan Police, Tarique Ghaffur.
The background to the proposals is this:
The catalyst appears to have been a demonstration outside Westminster Cathedral last month during which activists from the al-Ghuraba group pestered churchgoers as they sought to enter the building. Demonstration organiser Anjem Choudary called for the Pope to face “capital punishment.
Officers were reluctant to intervene because they did not want to be accused of interfering with a Muslim protest during a time of great sensitivity. They have now been told that the rules must apply to everyone. “We would not dream of letting the BNP that close to a mosque,” said a source close to the discussions yesterday. “So why were these people allowed to menace the cathedral in this way? We are not going to let people go around talking about killing Muslims, but neither are we going to have Muslims going around talking about killing anyone else.” Concern was also prompted by demonstrations in February against the publication in Danish newspapers of images of the prophet Muhammad. Flags were burned and protesters carried inflammatory placards, one saying, “Behead those who insult Islam”.
Mr Ghaffur, however, said some new strategies may be necessary. “There appears to be a growing public perception that policing of demonstrations is unduly lenient. The reason this is a great country is the tolerance of people. If they start to see images of people who seem to be ‘getting away with it’, that starts to erode.”
He said proposals would be backed by the Muslim community if they clearly targeted the extremist minority.
His approach was backed by Labour MP Shahid Malik. “The burning of flags at demonstrations or pickets is quite clearly an act which has the power to incite violence,” he said. “These appear to be sensible proposals which I believe all sensible people, irrespective of religion or race, will support.””
Anti-flag burning proposals are only one part of those recommendations: but it is the one that has caught the imagination of the press. It has the scent of kite-flying to it. My guess is that this such a specific law will neither be proposed by this, or any British Government, still less passed.
Internationally, specific laws against flag burning are uncommon. Wikipedia discloses that Finland criminalises the desecration of the flag, as does Hong Kong. The United States House of Representatives has repeatedly attempted, but failed – narrowly – to start the process by which the US Constitution could be amended to outlaw the combustion of Old Glory. In Denmark, by contrast, it is illegal to desecrate the flags or national symbols of foreign nations only; the burning of the Danish flag falls outside that law. Perhaps the thinking is that Danes are sensible enough people not to be driven into paroxysms of fury by the sight of the Dannebrog in flames.
There are already laws aplenty on the United Kingdom’s statute books which may be deployed against flag burners. Crucially, they do not target the act itself: but rather its potential or actual consequences. Those whose conduct provokes or incites disorder may be prosecuted. Likewise, burning somebody else’s flag without their consent constitutes one of a number of arson offences under the Criminal Damage Act 1971. A person who burnt their own flag in the middle of a crowd, reckless as to the danger such an act might present to somebody else’s life might also be charged with arson.
Should a person be charged with a separate offence if the thing they burn happens to be somewhat flag-like? Evidently not. The statute books are full of pointless and superfluous criminal laws, which say more about the moral panics of a particular historical era, than the good sense of the legislators.
If we say that the reason that we want to outlaw flag burning is somehow separate from the desire to prevent public disorder, or the protection of other citizens, then we implicitly accept that flag burning is an expressive act, which in a liberal society ought to be a protected form of expression. That is the basis upon which successive US Supreme Courts have resisted the criminalisation of the act. As Billy Bragg puts it in his new book, The Progressive Patriot:
“US courts have passed down judgements which recognise that the flag is only a symbol of the freedom guaranteed to all Americans, and that to change the constitution to protect the flag would be to compromise the very values which it represents.”
In any event, what does flag burning symbolise? It is an act which can be committed, and read, in a variety of ways. You might put a match to the corner of a flag as a demonstration against the actions of a certain country. You might burn the flag of a particular nation because you repudiate the right of those citizens whose flag it is to self-determination, or even because you advocate genocide against the nationals of a state. Equally, you might do it, simply as an act of protest against a specific law, perhaps because you no longer identified with a country which despoils its own constitutional values: for example, by outlawing in all circumstances a particular form of harmless protest. Or, alternatively, you might simply be disposing of rubbish. The fact is this. Once the flag catches fire, you are no longer in control of the message. In and of itself, the meaning of flag burning is not fixed. The law would be punishing an expressive act of indeterminate symbolism.
Free expression is a value which we share with the United States Constitutional tradition. A few pages earlier, Billy Bragg recalls a Telegraph poll, in which “British people’s right to say what they think” topped respondent’s definitions of what it means to be British. We’re a nation which cherishes plain speaking.
That is one of the reasons I’d fly the Union flag with pride. It is also the reason I’d oppose the criminalising of flag burning. This is a country, I’d like to think, which prioritises fundamental liberal values over symbols.
It has also been recommended, incidentally, that the wearing of masks on demonstrations also be criminalised. I’m ambivalent about that suggestion. Every demonstration I’ve been on which has turned nasty has involved the throwing of missiles by soi-disant “anarchists”. No doubt, a desire to facilitate the identification by the police of rioters is an important part of the rationale behind the recommendation of criminalisation.
There are, however, perfectly innocuous reasons that somebody might want to cover their face. There may well, as we have seen, be those who cover their faces for religious reasons. There are also others do not propose to break the law, but who cover their faces because they are concerned that others will identify them as the supporters of an unpopular cause.
A decent test of the value of a law is whether it creates more harm than it remedies. A law which penalises many people who are otherwhise wholly innocent is not a sensible law.