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 Taylor David Taylor Labour, North West Leicestershire 4:45 pm, 24th March 2009

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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