New Clause 11 — Guidance on offences that involve hatred on grounds of sexual orientation

Pension Credit and Personal Expense Allowance (Duty of Consultation and Review) – in the House of Commons at 4:32 pm on 24th March 2009.

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'(1) The Director of Public Prosecutions, in consultation with the Attorney General, must issue guidance to prosecutors explaining the operation of the offences under Part 3A of the Public Order Act 1986 (c. 64) that involve hatred on the grounds of sexual orientation.

(2) Chief constables must ensure that the contents of the guidance to prosecutors issued under subsection (1) are made known, in an appropriate form, to officers in their force.

(3) When considering whether to consent to a prosecution for an offence falling within subsection (1), the Attorney General must have particular regard to—

(a) guidance issued under subsection (1), and

(b) the importance of the rights to freedom of expression, freedom of thought, conscience and religion, respect for private and family life and freedom of assembly and association provided by the European Convention on Human Rights.'.— (David Howarth.)

Brought up, and read the First time.

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Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

With this it will be convenient to discuss the following:

New clause 37— Incitement to hatred on grounds of sexual orientation: association with child sex offences

'(1) The Public Order Act 1986 is amended as follows.

(2) After subsection 29B (1) insert—

"(1A) "Threatening" in subsection (1) extends to words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003 (c. 42)."'.

Amendment 1, in page 34, line 5, leave out Clause 58.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

We now come to a short debate about the aspects of the Bill involving homophobic hatred. The offence of using threatening words or behaviour with intent to stir up hatred on grounds of sexual orientation was created by the Criminal Justice and Immigration Act 2008. Anyone who knows anything about the lives of gay people in this country knows why the provision was necessary and important.

Homophobic bullying and intimidation are distressingly common occurrences. Recent research shows that one in eight lesbian or gay people have experienced hate crime in the past three years. The problem is not only distressingly common but can have lasting deleterious effects on the lives and well-being of the victims. I hope that no one in this debate will question the need for the provision; if they do, I hope that they will be honest enough to say so openly.

This debate focuses on a particular aspect of the 2008 Act. Some religious groups have said they are afraid that the new law will catch them because their religion strongly disapproves of homosexuality, and their representatives or preachers want to continue to say so publicly. It is important, however, to stress what the 2008 Act says and what the new crime is. The Act says:

"A person who uses threatening words or behaviour, or displays written material which is threatening, is guilty of an offence if he intends thereby to stir up hatred on the grounds of sexual orientation."

That means that the words have to be both threatening and intended to stir up hatred. It is not enough for the words to be insulting or offensive; they have to threaten. Nor is it enough that the words may have the effect of stirring up hatred; they have to be specifically intended to do so.

The crime is difficult to prove at the best of times. If a charge was brought against a saintly religious leader whose intention was to save souls, I cannot see how anyone might think that that offence had been committed.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

This is a very short debate. Usually I give way freely but, if hon. Members will forgive me, I will not be able to do so with the same freedom in this debate.

The problem is not what the law says, but the fact that some rather odd investigations have been started—not under the provisions that I have mentioned, which are not yet in force, but under different ones. That has given rise to a great deal of anxiety and I am sure that we will hear about the cases in the course of the debate. However, it is important to realise that those cases are brought under entirely different provisions. It is right to say that people should not have to suffer unreasonable and unfounded investigation.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General, Shadow Secretary of State

Cases in which people have been exposed to this sort of intrusive investigation, even though no prosecutions have been brought, have been those where the existing laws have been stretched even further to warrant the police coming and knocking on their doors. Should not the hon. Gentleman bear that in mind when considering whether this legislation, which is very specific, may be a mistaken encouragement to others in authority to do likewise?

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice 4:45 pm, 24th March 2009

That is why it is very important that we have specific legislation to give guidance to the authorities about how they implement the new laws. The offence that is usually referred to, as in the cases of Miguel Hayworth and Stephen Green, concerns section 5 of the Public Order Act 1986, whereby it is a crime to use threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. In my view, that provision is in itself a violation of freedom of speech. It seems to allow prosecution merely for insults, and for insults that are merely likely to cause distress but have not necessarily done so.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

And without intention, as my hon. Friend says. That is why yesterday I would have supported his amendment, which we never reached, to remove the word "insulting" from that provision. That answers the point made by Mr. Grieve.

The provisions regarding hatred on the grounds of sexual orientation are not the same—insult is not enough; likelihood of distress is not enough—but some people are anxious about the possibility that the police and the Crown Prosecution Service will not recognise the difference. I accept that that anxiety exists and that we should do something about it—the question is what. There are two proposals on the table.

The first is to do what the 1986 Act already says following the so-called Waddington amendment, which went through after extensive ping-pong between this House and the other place last year, when the Government eventually gave way. I thought they were wrong to do so, and divided the House right at the end of that process. They did it because they were up against a deadline on another provision in the Bill about industrial action in prisons. However, they made it clear that they were with me in spirit, if not in the Lobby.

The Waddington amendment is sometimes called the free speech amendment, but it completely fails to mention freedom of expression. It says:

"For the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred."

There are many problems with the Waddington amendment. First, it is not aimed at the problem that it is supposed to solve. The problem lies not in the content of the law—a point that it seems to admit itself by using the phrase,

"For the avoidance of doubt"—

but in a possible mistaken interpretation of the law by the police and the CPS. If the police pay no attention to the wording of the offence itself, why should we believe that they will pay attention to the wording of the Waddington amendment? Secondly—this is the most important criticism—it either achieves nothing at all or is attempting to do something that we should oppose. If it really is

"For the avoidance of doubt",

it adds nothing to the law at all, but if it is read in a different way, as a "deeming" provision, it is entirely unacceptable.

A "deeming" provision is a statutory section that tells courts to ignore reality but to treat one thing as another. Last year, we passed about 85 "deeming" provisions. In the Energy Act 2008, for example, we deemed a place where uranium was enriched to be premises owned or used for the purposes of the Crown, so that the Official Secrets Act would apply even when the place was owned by someone else. It is very common for us to do this. The difficulty with the Waddington amendment is that it can be read as deeming discussion of sexual conduct and so on not to be threatening or intended to stir up hatred even when the words actually were threatening and were intended to stir up hatred. That is particularly worrying in the case of urging persons to modify such conduct, which is what the amendment refers to. Such urging could certainly be done in a threatening way and with the necessary intent. There is a danger that the Waddington amendment could be read in a deeming manner so that a person doing such urging in a threatening way, with intent, would not count as having done so.

Proponents of the Waddington amendment put a lot of weight on the phrase "of itself", but that phrase has at least two possible meanings. It could mean—this is the hopeful interpretation—something like, "But if the way this was done indicates threats or intentions, the provision does not apply." "Taken of itself" might mean that, but it could mean something rather different, such as, "Ask only whether the acts complained of are within this provision, and ignore the context." That would mean that "of itself" was an excluding phrase, rather than an including one. The latter interpretation would fit closely with the interpretation of the Waddington amendment as a deeming provision, which is a grave danger. That is why the Government are absolutely right to propose removing the Waddington amendment from the legislation. It is either useless or dangerous. I do not, however, think that the Government are right to offer nothing in its place, which is where new clause 11 comes in.

New clause 11 would meet head-on the problem of mistaken interpretations that lead to fruitless and distressing investigations. It would do so by requiring the Director of Public Prosecutions to issue guidance to prosecutors on the meaning of the offence, and crucially, it would require chief constables to make the content—or for those Members who were here yesterday, the gist—of that guidance known to police officers. New clause 11 would also introduce a real free speech element by requiring the Attorney-General, whose consent is necessary for any prosecutions to go ahead, to have regard to all the relevant rights and freedoms in the Human Rights Act before giving that permission.

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Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

The hon. Gentleman is placing enormous reliance on guidance to be issued by the authorities—the Crown Prosecution Service or the police. I have an extract from the guidance on prosecuting cases of homophobic and transphobic crime, issued by the Crown Prosecution Service in November 2007. It describes homophobia and transphobia as

"terms used to describe a dislike of LGBT people or aspects of their perceived lifestyle. In other words, homophobia and transphobia are not restricted to a dislike of individuals; the dislike can be based on any sexual act or characteristic that the person associates with an LGBT person, whether or not any specific LGBT person does that act or has that characteristic. That dislike does not have to be as severe as hatred. It is enough that people do something or abstain from doing something because they do not like LGBT people."

Surely that is hugely wide-ranging. Parliament has no say in this matter, and we could be faced with a situation where such an interpretation means that anyone who expresses a dislike of this kind of behaviour would be caught by the CPS under its interpretation of the law.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

But that guidance has nothing to do with this aspect of the Bill because it has not yet been brought into force. I am proposing guidance specifically about that aspect; the word "homophobia" does not exist in the provisions we are talking about. Furthermore, the guidance would have to be issued after consultation with the Attorney-General. That means that there will be accountability to this House over what that guidance says, through the Attorney-General or the Solicitor-General.

The effect of the second part of the new clause would be that the Attorney-General would also have to have regard to all rights of freedom of expression before a prosecution was brought. That would feed back through the system and create at least some hope of a judicial review of a decision to go ahead with a prosecution, which there would not normally be. New clause 11 is far more focused on the real problem than the Government's provisions and would help in a much less dangerous way, but it is capable of meeting genuine anxieties that have arisen in religious communities. It is necessary to do something of this nature rather than, as the Government suggest, do nothing at all.

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Photo of Evan Harris Evan Harris Shadow Science Minister

May I bring my hon. Friend back to the fact that there are complaints, which I recognise as genuine, about misguided police investigations and the questioning of individuals who express an honest view? Although I disagree with that view, I absolutely accept their right to express it. Would not a combination of the production of guidance and reform of section 5 of the Public Order Act 1986 to remove the word "insulting" not only deal with worries about clause 58 but solve those problems?

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I am very glad that my hon. Friend has brought me back to his proposal to remove the word "insulting" from section 5 of the 1986 Act, because that would be a very important reform and I hope that the Government will take it up at some point.

Finally, I wish to speak to new clause 37, which is in my name and that of my hon. Friend. It is an attempt to ensure that a particularly despicable form of homophobic intimidation comes within the meaning of "threatening" in the Act. That is the disgusting technique employed by certain political groups including the British National party, alleging that gay people have a propensity to be paedophiles and commit offences against children. That particular form of intimidation is not just unpleasant but literally life-threatening. I therefore hope that the Government will accept new clause 37 as well as new clause 11.

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Photo of David Taylor David Taylor Labour, North West Leicestershire

I hope later formally to press amendment 1 and to have the opportunity to vote on it. It has been signed by 14 other hon. Members of all parties.

We have heard from David Howarth about new clause 11, and it is gratifying that Liberal Democrat Front Benchers recognise that there is a need for some reassurance about free speech on the statute book. Sadly, I do not feel that the new clause would work, and I shall say why later if I have time. Having heard the hon. Gentleman's explanation, I still do not understand why they oppose so vehemently the inclusion of a simple free speech clause, which is much more likely to be read and followed by police and prosecutors than page after page of guidance. Either the Liberal Democrats are serious about protecting free speech or they are not, and I cannot understand why they played such an important role in securing a free speech clause in the case of the religious hatred offence, but oppose a much narrower free speech clause in the case of the homophobic offence.

The so-called Waddington free speech clause has now been law for 10 months, although by a quirk of how this place works the incitement law itself has not yet come into effect. If the offence had been in operation, and there was evidence that the free speech clause was being abused in the unacceptable way that the Government and the Liberal Democrats claim it could be, their case would be significantly stronger. However, I do not think that anybody really believes that such abuses are possible.

The wording of the free speech clause simply does not lend itself to the drastic and repugnant misuse that is alleged. Even Stonewall, which the Liberal Democrats often cite in evidence, does not appear to think that it does. Its briefing note, which came to all of us, stated that clause 58

"could mean that a very small number of people of extreme views attempt to avoid prosecution".

I am sure that a very small number of people could do that using all sorts of methods, including the Human Rights Act 1998, evidence laws and other provisions that we consider essential to protect civil liberties and that we would never dream of repealing. Stonewall does not say that the freedom of speech provision would prevent convictions, thereby contradicting the Justice Secretary. It does not say that it will prevent prosecutions, but only that a small number of extremists will attempt to use it to get out of a prosecution. I do not think that they would succeed and I suspect that Stonewall does not think that, either. Stonewall has been candid. Its members know that a free speech clause does not seriously undermine their intention for the new offence.

Whenever the House legislates, we engage in a balancing act. In the case that we are considering, on one side of the scales, we have freedom of speech, freedom of religion and the pressing need for reassurance about the prevention of potentially widespread abuses of civil liberties. On the other side, according to Stonewall, we have a tiny number of extremists who might point to the free speech clause when they are charged, but almost certainly without success. The organisation does not, therefore, make a strong argument against a free speech clause.

Indeed, Stonewall's director, Ben Summerskill, said in evidence to the Public Bill Committee that considered the Criminal Justice and Immigration Act 2008:

"We would have no difficulties if the provisions as drafted indicated the mindfulness of those who created them for the importance of free speech." ——[ Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 80, Q179.]

A free speech clause simply indicates Parliament's mindfulness of the importance of free speech.

What does the free speech new clause say? Let us have it again—it is worth hearing. It says that

"for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself"—

whether that has two meanings may emerge in debate—

to be threatening or intended to stir up hatred."

It simply makes it clear that discussion or criticism of sexual conduct is not caught by the homophobia law.

The religious hatred free speech clause, for which the House voted in January 2006, goes much further. It protects

"expressions of antipathy, dislike, ridicule, insult or abuse"

against religion. I do not understand how anyone could support a clause, which allows expressions of antipathy, dislike, ridicule, insult or abuse against religion, but oppose a provision, which allows mere discussion or criticism of sexual conduct. That defeats logic. I do not understand why the Government would insist on repealing only the weaker of the two provisions, when they claim to oppose both.

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Photo of Evan Harris Evan Harris Shadow Science Minister 5:00 pm, 24th March 2009

Let me try to explain why there is a difference. The religious saver specifies that abuse and ridicule are not covered by the offence. It is tautological but they are not. The Waddington amendment does not exclude ridicule or abuse, because they are already excluded, but purports, according to one interpretation, to allow the exclusion of intentional threatening incitement as long as it refers only to practice. That is the difference, and the hon. Gentleman must explain whether he understood the comments of my hon. Friend David Howarth when he outlined the potential effect of new clause 11.

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Photo of David Taylor David Taylor Labour, North West Leicestershire

I shall deal with that at the end of my remarks.

The religious free speech clause deliberately narrows the definition of the offence whereas the homophobic free speech provision does not. It simply clarifies what is already outside the scope of the offence. It is not a defence but a signpost, so that those involved at the early stages of the criminal justice system—police and prosecutors— have it drawn to their attention clearly and simply that certain legitimate activities are outside the definition of the offence. That way, if vexatious complaints are made, the police and prosecutors can simply point to the free speech provision and dismiss the complaint, instead of spending time and taxpayers' money pursuing pointless complaints and trampling on the civil liberties of innocent people in the process.

It is also worth emphasising that the Waddington amendment refers to criticising not sexual orientation, but sexual conduct. I repeat: it does not create a defence. I welcome the support of Liberty—often paid-up members of the Liberal Democrat tendency—for amendment 1. It speculates that clause 58 might possibly remove a defence, but the explanatory notes have got it right. The Ministry of Justice officials who drafted the notes state in paragraph 372:

"The removal of the section will not affect the threshold required for the offence to be made out."

Clearly, if removal of the free speech clause will not affect the threshold of the offence, its inclusion will not affect the threshold, either. We are tinkering. If it is not necessary to change, it is necessary not to change—a favourite phrase of John Bercow. The explanatory notes are more accurate and fairer than the Justice Secretary was to those who tabled the free speech clause. On Second Reading, the Justice Secretary alleged that those tabling it intended to make a conviction difficult.

When Lord Waddington moved the amendment, he said that he wanted to make it plain

"that I did not in Committee, and do not now, seek to weaken the protection that the Government's proposal is designed to give gay people. I have never set out to narrow the scope of the provision. My intention has been absolutely clear: to make clear what both the Government and I agree is outside the scope of the provision."—[ Hansard, House of Lords, 21 April 2008; Vol. 700, c. 1365.]

I hope that the Secretary of State will accept that it is not our intention to provide help to those who use threatening language intentionally to stir up hatred against anyone. "For the avoidance of doubt" means just that. It does not change anything; it just makes clear what is already there. The Office of Public Sector Information's online statute law database lists 588 legislative uses of the phrase "for the avoidance of doubt"—from the Children Act 1975 to the Crossrail Act 2008—so there is hardly anything unusual about it.

We need free speech about sexual conduct to be put beyond doubt. Joe and Helen Roberts, the Bishop of Chester, Iqbal Sacranie, the Roman Catholic Archbishop of Glasgow, and Lynette Burrows—I could go on—are all names synonymous with vexatious complaints to the police and with heavy-handed police intervention against people whose actions were not inciting hatred against anyone.

Now that the free speech provision is on the statute book, I wonder whether we should not look at things the other way round. Will removing it send the signal that discussion or criticism of sexual conduct is caught by the new offence? The Church of England—my own Church—seems to fear that it might. Its briefing says:

"If it is argued that it is necessary for the effective operation of the law that the amendment should be removed, the implication would be that such discussion or criticism could in itself constitute an offence, and to this we would be strongly opposed."

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Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

Surely the retention of clause 58 would also indicate to the courts that this House does not believe that there is a need to protect freedom of expression in the way that the hon. Gentleman has articulated.

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Photo of David Taylor David Taylor Labour, North West Leicestershire

I am sure that that is right, and I strongly endorse what the hon. Gentleman says.

Someone else who has spoken out is the actor Rowan Atkinson, who just a few days ago addressed a Committee Room packed with Members of the House of Lords about the chilling effect of the law. He said that he did not think that he would be prosecuted because of jokes or drama about sexual orientation, but he also said:

"I dread something almost as bad—a culture of censoriousness, a questioning, negative and leaden attitude that is encouraged by legislation of this nature but is considerably and meaningfully alleviated by the free speech clause."

He said that it

"would provide succour and reassurance to those of us in the creative world."

My union, Unison, has sent out a briefing that says that the free speech clause is a "Tory wrecking amendment". Unison is entitled to that view, but I do not think that it is being fair. The majority of the sponsors of my amendment are not Tories—although I welcome support from everyone—and even Stonewall does not believe that it is a wrecking amendment.

Let me turn to new clause 11, because I said that I would explain why it is not up to the job of meaningfully protecting free speech. For a start, it focuses mainly on the decision to prosecute, but we are not concerned about prosecutions at this point. None of the cases that I listed earlier resulted in a prosecution. The liberties of those people were breached not by the Attorney-General authorising a prosecution, but by decisions earlier in the criminal justice process.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I notice that the hon. Gentleman used the qualifying word "mainly". Does he concede that new clause 11 also refers to the guidance going to the police?

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Photo of David Taylor David Taylor Labour, North West Leicestershire

There is some merit in that, but it is not a particularly strong point.

New clause 11 reminds the Attorney-General about human rights law, but human rights law applies to the police, prosecutors and the Attorney-General anyway and, to judge from the list of cases that I gave earlier, precious use it has been. New clause 11 also proposes guidance, but that will be issued anyway, without the need for a new clause. New clause 11 does not even say that guidance must deal with free speech; it just says that guidance must deal with

"the operation of the offence".

Presumably that will include pointing out that the religious hatred offences have a free speech clause, whereas the homophobic offence does not.

Experience has shown that guidance is the problem, not the solution. When two six-foot police officers in body armour interrogated pensioners Joe and Helen Roberts for 80 minutes after they had phoned the council to complain about its gay rights policies, the officers were almost certainly acting in accordance with the guidance issued in March 2005 by the Association of Chief Police Officers and the Home Office. The guidance is called "Hate Crime: Delivering a Quality Service" and in paragraph 2.2.6 it tells officers:

"The perception of the victim or any other person is the defining factor in determining a hate incident. The apparent lack of motivation as the cause of an incident is not relevant as it is the perception of the victim or any other person that counts."

So a hate crime is to be treated as a hate crime even if it is not a hate crime—I need to think through that one. Paragraph 2.5.1 says:

"If, as victims of hate crimes or incidents, individuals experience indifference or rejection from the police this in effect victimises them a second time."

I would hate to be a police officer trying to navigate my way through that lot. Some obviously believe that the answer is to come down like a ton of bricks on people about whom complaints of homophobia have been made, regardless of whether they have broken any laws.

I do not believe that we can leave it up to guidance to protect the precious civil liberty of freedom of speech. The existing wording asserted by Parliament less than a year ago provides clarity and reassurance; we must keep it. We must remove clause 58 from the Bill. I hope that we will have the opportunity to vote in a few minutes' time, as I shall press the amendment.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General, Shadow Secretary of State

As this is a short debate, I shall try to keep my remarks as short as possible. David Howarth has raised an important issue, and I think that there is common ground between us that the right to freedom of speech and expression must be protected. It must be protected in terms of how a statute would be interpreted in court, but it also has to be interpreted, to use an expression often used in the past by Dr. Harris, against the chilling effect that a statute can have if it is mistakenly applied by those in authority. As David Taylor rightly highlighted, there are, unfortunately, quite a number of examples in which laws—not this law, but others that in many ways stretch even further—have been applied in an oppressive way against perfectly respectable people. We have to keep that in mind when we come to legislate.

The hon. Member for Cambridge says that he considers that the law drafted last year—without Lord Waddington's saving clause—would be sufficient and all right if we simply had guidelines. I have to say to him that I have some anxiety about using guidelines in that way. I accept that guidelines may be of some utility, but the fact of the matter is that if guidelines are disregarded and a legal process against an individual starts to get ratcheted up, there is nothing to stop it until the matter gets into the courts; and by then, as we know, a great deal of damage has been done in many cases to the individuals concerned in terms of stress, their reputation and the anxiety they are placed under—all quite needlessly. It thus seems to me that it would be sensible for the House to consider whether having a saving clause would help.

Now, Lord Waddington, as well as having been a past Home Secretary, and, I believe, a man of moderate views— [Interruption.] Yes, a man of moderate views, I suggest to my hon. Friend John Bercow. Lord Waddington has also been a lawyer. When I listened to the comments of the hon. Member for Cambridge, it prompted me to look again at the saving clause to see whether it contained the mischief of being a deeming provision along the lines that he identified. He has clearly raised a serious issue for the House to consider. I have to say, however, that having looked at the provision and read it over and over again, I do not see that it can have the possible effect that he has suggested. The reason for that is the appearance of the two words "of itself" in its penultimate line which refers to something that

"shall not be taken of itself to be threatening or intended to stir up hatred".

It seems to me that those words make it absolutely plain that if a person carries out a discussion or criticism of sexual conduct or practices that is accompanied by threatening language, those words "of itself" would immediately take that person outside the scope of the saving clause. I have to say that I just do not agree with the hon. Gentleman's analysis that the saving clause could be used to justify people coming forward and using hateful terminology, language and threats.

The more I listen to that argument, the more I take the view that a saving clause is required, so let me explain briefly to the House why I think this is so important. First, it will provide comfort and reassurance to people that they can continue to express their views. One of the things we are experiencing at the moment in this country is that people of moderate views on any side of an argument are increasingly deterred from expressing their views at all, but those who are full of extreme opinion, whether they be at one end of the spectrum or the other, are not deterred in any way by the law and, in fact, have a free field for themselves. That is not good for the health of our democracy or our civic life. We also need to consider that when Parliament enacts legislation in this way, groups and individuals will undoubtedly attribute to it meanings that Parliament may not have intended.

I thought it worth looking at Stonewall's briefing, because I have a high regard for Stonewall and its campaign for gay rights. To support its analysis of why the new offence was needed and why it opposed the saving clause, it presented a number of examples. One involved rap lyrics expressing great hatred, such as "Hang lesbians with a long piece of rope". Quite apart from the fact that I would expect that to be caught by existing law, I feel completely comfortable with the idea of enacting legislation of the kind that we passed last summer, which will criminalise it.

Stonewall says that another example of the sort of thing that it would like halted is a website which describes, in referring to homosexuality generally,

"young people who are being drawn into a lifestyle characterised by disease, degradation, death and denial."

When I was talking recently to my hon. Friend Alan Duncan, who is a very old friend of mine—we have known each other since university—I said to him that I did not think that his life had been characterised by any of those phenomena. Most people reading the website would consider it to be utterly wacky. I have to say, however, that if it is Stonewall's opinion that such material should be criminalised, the House needs to approach the matter with some caution.

I am afraid that, just as with incitement to religious hatred, messages are sent out from this place that are latched on to by pressure groups wishing to prevent other people from expressing legitimate views, even if those legitimate views are in fact nonsensical. We cannot have a working democracy without the underpinning of freedom of speech, which also requires tolerance of opinions that we may consider to be bonkers or which we may dislike. As long as hatred is not stirred up, which is the mischief that we have been trying to address—as long as the civil order of society is not being undermined—we must tolerate such opinions. Indeed, as politicians, we tolerate them all the time.

For those reasons, let me simply say that I am unpersuaded that Lord Waddington's amendment is in any way mischievous. I believe that it is sensible. As we need some saving clause in an extremely difficult piece of legislation in which the balance that we strike will always pose a problem, I can think of no good reason for us to get rid of it on the basis of the arguments that I have heard this afternoon. I therefore intend to support the retention of Lord Waddington's amendment, and encourage my hon. Friends to do so as well.

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Photo of Evan Harris Evan Harris Shadow Science Minister 5:15 pm, 24th March 2009

I respect the hon. and learned Gentleman's position on matters of free speech. He is right to criticise Stonewall's view that that material would be caught. That is not our view, and I do not believe that it is the Government's view. I hope that they will make that clear in due course.

Does the hon. and learned Gentleman agree that if we are to solve these problems, we must make it clear, in statute and in the minds of the police, that there is no right not to be offended? We need to get rid of the idea of insult, especially unintentional insult—as in section 5 of the Public Order Act 1986—from our statute book, and also to ensure that guidance throughout makes it clear to the police that they cannot take seriously complaints of insult which is not direct abuse. Does the hon. and learned Gentleman agree with that?

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General, Shadow Secretary of State

Yes. I apologise to the hon. Gentleman for the fact that, in the time allowed, I have not dealt with that point.

The question of insulting behaviour raises an important issue. I am not sure that I can do full justice to it in this short debate, but if the hon. Gentleman wishes to revisit it, I shall be happy to discuss it carefully with him. I can see that there may well be merit in getting rid of an expression that, I think, carries a number of connotations in wider legislation and that may be undesirable. There is, however, an issue that I think we cannot completely avoid. In some cases, insult, particularly if it takes place in a public arena, can reach a point at which it becomes incitement to a breach of the peace. We must guard against that possibility, but subject to that, I am sympathetic to what the hon. Gentleman has said.

For the present, we have quite a simple issue to deal with. We have a piece of legislation, passed on to the statute book last summer, that has not yet been brought into operation and that has not yet been given the chance to see whether it works. I do not see anything in Lord Waddington's amendment to justify its deletion at present. Its support goes much wider than people with a religious viewpoint. It extends across a wide spectrum of those who have deep anxieties about the erosion of freedom of speech, including within the theatrical world, as has been shown by Rowan Atkinson.

For those reasons, although I am mindful of the mischief that we are trying to address and I want the incitement of hatred on the grounds of sexual orientation to be prohibited, I believe the amendment does nothing to prevent that from happening that and does a great deal to ensure that the legislation that we pass is balanced. For those reasons, I support the amendment.

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Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Mr. Grieve and Dr. Harris are right: Stonewall's example in the briefing is wrong about what would be caught by this part of the law.

Amendment 1 deals with freedom of speech, but it is important that we remember that we are also talking about the freedom of gay people to live their lives free from hatred and bigotry. When we debated the offence of stirring up hatred on the basis of sexual orientation last year, we had a long discussion about freedom of expression and were rightly concerned about getting the balance right.

We need to protect groups that are the target of threatening behaviour intended to stir up hatred. We must also ensure that those who have concerns about some types of sexual behaviour are free to express their arguments and concerns in a reasonable way. They do not need to fear that they will be caught by the criminal law. Last year, we had a very lively debate and the Government took the view that no additional provision was needed to ensure freedom of expression. The offence that we are talking about has a very high threshold and a number of safeguards are built into the system to ensure that the offence cannot be used in any way that disrupts the balance between those two concerns.

The Joint Committee on Human Rights, in its report published last week, reaffirmed its view that we have the balance right, as did the Equality and Human Rights Commission at about the same time. Last May, this House agreed, by a very large majority, that we had got the balance right. However, as David Howarth rather; I must get my university towns in the right order—pointed out, the other place inserted a measure for the avoidance of doubt. We all agreed with the principle that the offence should not be misused. As I say, those safeguards have already been built into the offence. The additional provision was and still is unnecessary. It serves only to make the offence less clear; it muddies the waters. This House rejected the amendment and I ask it to do so again today.

In last year's debates, the Under-Secretary of State for Justice, my hon. Friend Maria Eagle, said that we would return to the issue, so it should come as no surprise to any hon. Member, including those who have put their names to amendment 1, that we are now seeking to repeal the so-called freedom of speech saving provision.

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Photo of John Bercow John Bercow Conservative, Buckingham

Does the Minister recall the comment made by the distinguished lawyer, Lord Thomas of Gresford:

"Freedom of speech is not derived by clauses inserted into every statute for the avoidance of doubt."—[ Hansard, House of Lords, 21 April 2008; Vol. 700, c. 1373.]

There may be doubt in Lord Waddington's mind, but I do not think that there is doubt more widely. The measure was carried, on a pathetic turnout, by 81 votes to 57, and it is time we got rid of it.

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Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

The hon. Gentleman, as always, puts the argument so eloquently that I simply endorse what he says.

It was again evident from the debate that there are strong and divided views about where the correct balance lies. I remind the House, however, that the offence covers only behaviour that is threatening and is intended to stir up hatred. I think all Members will agree that that type of behaviour cannot be acceptable under any circumstances. It should not be protected by freedom of speech, and any provision that implies otherwise should not be on the statute book. That is why I invite the House to reject amendment 1.

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Photo of David Taylor David Taylor Labour, North West Leicestershire

Does my hon. Friend agree—I assume she does, as she will have signed off the information given by the Government at the time of this debate—that if the removal of the free speech clause will not affect the threshold of the offence, logically its retention cannot affect the threshold of the offence either, and that the clause is being used not as a defence but as a signpost to help police and prosecutors deal with allegations more speedily and effectively?

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Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I will come on to the guidance in a moment, but let me just point out a key difference to my hon. Friend. Last May, this House voted on and rejected by a majority of 202 a Lords amendment inserting a saving into the sexual orientation offence. By contrast, in January 2006 we accepted, by only one vote, a Lords amendment inserting a freedom of speech saving into the Racial and Religious Hatred Bill. The saving for the religious hatred offence is the settled will of the House, whereas the saving for the sexual orientation offence is not the will of the House, which is what I ask Members to endorse today.

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Photo of Tom Harris Tom Harris Labour, Glasgow South

It seems to be very curious logic to say that because the House voted one way at some point in the past, that somehow binds the House today to vote in exactly the same way. Could not Members change their mind at some point?

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Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Of course the House can change its mind, and we will discover in the Lobby in 20 minutes or so whether the House has changed its mind, but I think that the fact that this was introduced last year for an offence that has not yet been put on the statute book is a pretty persuasive argument for believing that that was the House's view at that time.

We had long debates about the guidance and about what guidance should be issued. There is a clear need for guidance, as there always is when any new offence is introduced. The Ministry of Justice will provide short explanatory guidance about the offence. The Crown Prosecution Service will issue guidance for prosecutors, and the Association of Chief Police Officers will revise its hate crime manual to include guidance on all incitement to hatred offences. All the guidance will be available before the offence comes into force. However, I am quite persuaded by the argument put by the hon. Member for Cambridge, and I would like to reflect on it. Therefore, although I ask him to withdraw new clause 11, I invite him to take up the opportunity of meeting the Director of Public Prosecutions to consider whether it would be appropriate to make the guidance statutory.

I fully understand the motivation behind new clause 37, but I believe that it is unnecessary. Allegations about offences, and specifically about child sex offences, are a very easy and damaging way of stirring up hatred on the grounds of sexual orientation. Such allegations are damaging and distasteful and should be challenged, but we believe that it is not necessary to mention them specifically in the offence. In many instances, allegations linking sexual orientation with child sex offences will be threatening as well as distasteful, and will be caught by the offence. However, when the circumstances mean an allegation is not threatening, it will not be caught, and we think that is right.

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Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

I believe the Minister said in response to the Liberals that she will consult the Attorney-General on prosecuting guidelines. May I invite her to extend her consultation to those of us who feel extremely concerned about these issues, because we fear that the guidance will be as misleading as the CPS guidance to which I referred?

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Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice 5:30 pm, 24th March 2009

I have invited the hon. Member for Cambridge, who moved the new clause, to discuss that with the DPP, and I think that that is the appropriate thing for him to do. I do not think that it is necessarily appropriate to extend that to the whole House, but hon. Members can make their views known to the Attorney-General and the DPP as they think fit.

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Photo of Evan Harris Evan Harris Shadow Science Minister

On new clause 37, does the Minister agree with us that whenever any linkage of homosexuality with paedophilia is intended to stir up hate it should, by definition, be considered threatening? Is she saying that even if such a linkage is made in the context of a deliberate attempt to incite hatred, rather than, for example, academic discourse, it would not be, in some circumstances, considered threatening and therefore would not be an offence? That is a matter of concern to us, so will she agree to reflect on it a little further?

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Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I have to reject the hon. Gentleman's argument, because the word "threatening", in this context, has to have its normal English meaning. We do not think that it is right to stretch that to include words or behaviour that it would not naturally cover, because it would muddy the waters. I am concerned that if we were to go down the road he suggests in new clause 37, those who make such allegations could shift their grounds to similar but equally damaging allegations—for example, saying that gay people are responsible for HIV/AIDS. Although I understand the concerns that he is trying to address, I do not think that the new clause is the way to address them. I therefore hope that he will not press it to a Division, but will join us in the Lobby to reject amendment 1.

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

I support amendment 1, but irrespective of which side of the argument one stands on today, it is regrettable, given the widespread concern about free speech in this country, that we are restricted to one hour in which to discuss the issues. If the Government had respect for the public's worries about free speech, they would have allowed rather longer.

We have heard a great deal, especially from those on the Liberal Democrat Benches, about how arrests, persecutions and inquiries were somehow nothing to do with the law, but were all to do with a misguided application, as though some PC Plod somewhere had decided to knock on the door—

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

I remind the hon. Gentleman of his reply to me.

In the Lancashire case, a couple were questioned by the police for an hour and 20 minutes. They had asked the local council whether they could distribute Christian literature alongside the council's literature on civil partnerships. There was an outcry, and Lancashire police stood their ground and said it was a proper intervention. The local council also stood its ground and said that it was a proper intervention under the law—not under this Bill—that it was then invoking. It was only when the couple sued—or commenced suing; there was a settlement—that the police and local council decided that they had got it wrong. When that is the attitude of senior police and authorities, who are responsible for implementing the law that this place passes, we sometimes need very simple, straightforward clarifications that almost hit them on the nose, so that they actually understand what Parliament intends.

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Photo of Evan Harris Evan Harris Shadow Science Minister

I agree with the hon. Lady and I would point out that taking the word "insulting" out of section 5 of the Public Order Act 1986, which covers causing harassment, distress and alarm through words or behaviour that are threatening, abusive or insulting, will achieve exactly what she wants. That is the change in the law that she rightly requests, because that is the provision under which the couple were wrongly pursued. It is not a surprise that the police would not give way, because the statute includes the word "insulting". Does she agree that that is the way forward?

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Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

I do not agree that that is the only way forward, because that addresses one law. Today, we have to address this law. The chief constable of North Wales, who can be a little zealous sometimes—that is why I am pleased that he is now in charge of hunting—defended six police officers arresting a man who had used a rather vulgar term for a lesbian to a third party. That is the state that we live in. We do not live in a moderate state that is restrained in its application of the law.

Out there in the country, in case Ministers are completely oblivious to it, there is a swelling unease about freedom of speech. Certain sections of the community believe that they would have to overcome a higher threshold before they would be protected from the sorts of allegations that are frequently made. The religious hatred and sexual orientation laws, and myriad other laws that seek to bring equality, have an oppressive heart. The face may be liberalism, but the heart is oppression. We need amendment 1 to ensure that the Bill contains the clearest possible explanation—hammered home and spelled out—so that there can be no doubt in the mind of anyone responsible for interpreting and implementing the law that the ordinary exercise of free speech is not caught by it.

We have free speech in this House that is not commonly enjoyed by many of the people on whom we pass laws. We enjoy a protected position, but people out there—teachers in faith schools, priests in pulpits, ordinary people expressing a particular opinion—now feel afraid to speak freely. There can be no possible objection to Parliament stressing that free speech is not at risk from this Bill. That is all that amendment 1 seeks to do and I commend it to the House.

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Photo of Tom Harris Tom Harris Labour, Glasgow South

I am delighted that so many colleagues have taken their places to listen to my short contribution. I am in a very unusual position. I am speaking against the Government for the first time since I became a Member in 2001 and face the prospect of voting against the Government on a three-line Whip, which I have never done before.

In a sermon in 2006, the Roman Catholic archbishop, Mario Conti, restated the Church's long-held policy that homosexual relationships should not be given the same value as married, heterosexual relationships. As it happens, I do not agree with the archbishop. I am glad that my hon. Friend the Deputy Leader of the House of Commons is in his place. He will remember a conversation that we had a couple of years ago, in which he said, "Tom, the only remotely left-wing thing about you is that you quite like poofs."

I have a long history of support for gay rights in this House. It is a matter of some regret that I have to speak against what the Government are trying to do tonight by removing the so-called Waddington amendment. If one speaks to almost any constituent one will realise that there is clearly public concern that a person who voices an opinion that is not considered to be politically correct could end up being questioned by police.

If they are not avidly tuned into the BBC Parliament channel right now, police officers throughout the country will take a keen interest in this debate, the outcome of which will have a major impact on their already massive work loads. If the Government get their way, officers will have every right to roll their eyes heavenward as they resign themselves to having to deal with an increased volume of correspondence from people who interpret every harsh word uttered as a broken bottle thrown.

When Archbishop Conti delivered his speech, a formal complaint was made against him by Patrick Harvie, a Green Member of the Scottish Parliament, who said that the archbishop's restatement of Church policy was an incitement to homophobic hatred. I assume that Glasgow's chief constable, being a sensible chap, can put that complaint into the bin, but we are making sure that police officers will have to deal with more vexatious actions simply because we are eliminating a provision that any member of the public would consider to be eminent common sense.

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I pride myself in having opposing opinions of my local MP - Tom Harris, which he knows and I have my 3 acknowledgements from the house of commons on his behalf stuck to my fridge, still waiting for his responses.

Whilst I acknowledge that faith groups have an opinion on this issue I do not feel that religious groups should have the influence in affecting policies that are put in place to protect people.

I would also be interested to know if Mr Harris challenged the language of the deputy leadder of the house of commons in the sense that he seems to be infering that "poofs" are something not to be liked. Furthermore more I feel that it is totally atrociuos that he has used this example to give creedance to support his views, when in fact it is extremely derogatory.

Submitted by Chris Boyce

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Given the Government's generous offer, I beg to ask leave to withdraw new clause 11.

Clause, by leave, withdrawn.

O ne hour having elapsed since the commencement of proceedings on consideration, the proceedings were interrupted (Programme Order, 23 March).

The Deputy Speaker put forthwith the Questio n necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

Amendment proposed: 1, in page 34, line 5, leave out Clause 58.— (David Taylor.)

Question put, That the amendment be made.

The House proceeded to a Division.

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The House having divided: Ayes 174, Noes 328.

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Question accordingly negatived.

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