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

Part of Pension Credit and Personal Expense Allowance (Duty of Consultation and Review) – in the House of Commons at 4:45 pm on 24th March 2009.

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

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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