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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