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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