Clause 61 — Hatred against persons on grounds of sexual orientation

Bill Presented – in the House of Commons at 8:00 pm on 9th November 2009.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice 8:00 pm, 9th November 2009

I beg to move, That this House
disagrees with Lords amendment 59.

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following: Lords amendment 119, and Government motion to disagree.

Lords amendment 121, and Government motion to disagree.

Lords amendment 236, and Government motion to disagree.

Lords amendment 239, and Government motion to disagree.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

In inviting the House to reject the Lords amendments, we are seeking to complete unfinished business from the last Session. The House will recall that we introduced offences of inciting hatred on grounds of sexual orientation in the Criminal Justice and Immigration Bill. During its passage, the other place passed an amendment that inserted what is now section 29JA into the Public Order Act 1986. That section contains a so-called freedom of speech saving

"for the avoidance of doubt".

Regrettably, for want of time, we were unable to overturn the Lords amendment, but the Minister of State, Ministry of Justice, my hon. Friend Maria Eagle made it clear that when the opportunity arose, we would return to the issue. To this end, a clause in this Bill sought to repeal section 29JA of the 1986 Act. The House approved that clause by a majority of 152 on Report in March. That was the third occasion on which the House has made it clear, by a substantial margin-202 on 6 May 2008-that there was no need for the freedom of speech saving provision.

The other place has seen fit to strike out the clause, thereby seeking to retain the unnecessary, unwanted and potentially harmful saving provision. We should send a clear message back to the other place that it is ill conceived, ill judged and ill advised. Furthermore, that has been the settled will of the elected House on three occasions to date.

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Photo of Edward Leigh Edward Leigh Chair, Public Accounts Committee

Let there be no mistake: people who stir up violence and hatred against homosexuals are completely wrong. But there is nothing in the Waddington amendment that does that. All the Waddington amendment allows is a

"discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct".

Lord Waddington is not trying to stir up hatred. He just wants free speech. If people want to say that Roman Catholicism is wrong, let them. That is free speech, and the House should be very careful when it attacks free speech.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The House is not attacking free speech. It is clear that people retain their right to freedom of speech. The clause is unnecessary because the threshold of the offence is already set incredibly high. We introduced these new offences in the Criminal Justice and Immigration Act 2008 to protect a group in our society who are at times the victims of bigotry and hatred. We considered carefully how to formulate the offences, recognising the particular sensitivities about offences that impact on freedom of speech. We believe that we have got the balance right without the so-called freedom of expression saving provision. In introducing those new offences to protect victims of that bigotry and hatred, we looked very carefully before we proceeded.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I have listened carefully to the Minister, and the argument that everything is all right is one to which the House must pay considerable attention. She will be aware that only two weeks ago, under existing law, a case in Norwich gave substantial cause for concern. The right of freedom of expression-the right of people to express views that might appear unpalatable and with which one might disagree-is being visited not with the reply, "I disagree with you," but with a visit from the police. That must be a subject of concern for the Minister, and the fact that it has happened only recently, following the case in Lancashire some years ago, suggests that there is still a real problem. Individuals are finding that they cannot express themselves with views that are certainly not about hatred, but about freedom of expression and conscience.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

There is nothing to prevent freedom of expression, and many of the incidents to which the hon. and learned Gentleman refers, as he well knows, fall under the Public Order Act 1986, in which there is a much lower threshold. Therefore, it is not the basis of the offence under discussion, which involves a high threshold and is exactly the reason why the so-called freedom of speech section is not necessary. It is simply unnecessary and has the potential to remove the impact of the offence itself, and we do not wish to see that. If he accepts that bigotry and hatred on the ground of sexual orientation is completely unacceptable, he should see that we will do nothing to water down that offence. The offence already has an incredibly high threshold.

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Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful for what the Minister says, and I hope that she will join me in continuing to point to those who raise valid concerns about the Norfolk and Lancashire cases that the problem is the police's treatment of section 5 of the 1986 Act, which contains an "insulting" provision. Will she say anything more about her Department's undertaking to review whether she would accept, in some later legislation now, the amendment that I and my colleagues proposed to remove "insulting" from the offence and raise the threshold in that legislation? It would deal with all the mischief in the examples that other hon. Members have given-rightly in that context, although not in this one.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I wish to ensure that we deal with the legislation before us. What is before us is an opportunity to make sure that the will of this elected House, which has had an opportunity on three occasions to state that it does not believe that this so-called freedom of expression section is a necessary or wise addition to our legislation. We have got the balance right already.

We looked at existing models in legislation to decide which way we wished to proceed. The first model is used for race hate offences. In the case of racial hatred, the 1986 Act criminalises threatening, abusive or insulting words or behaviour that are intended or likely to stir up racial hatred-a low threshold. In contrast, the second model, provided by the religious hatred offences, sets a much higher threshold. In that case, an offence is committed only when threatening words or behaviour are used with the intention of stirring up hatred. It is not enough that the words or behaviour are abusive, insulting or merely likely to stir up hatred. We have adopted that model for the offences of stirring up hatred on the ground of sexual orientation.

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Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

The Minister refers to the religious hatred provision, but she will be aware that it contained a further protection, which she has not mentioned. That is what we seek in the legislation before us-the same protection as that which is in the religious hatred provision.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

And the hon. Gentleman will recall that the Government did not approve the extent of the Lords amendment on that occasion, either.

We have set a very high threshold for the offences, which can be prosecuted only with the consent of the Attorney-General. The reason why the so-called freedom of expression section is not required is that the Attorney-General already has a duty under the Human Rights Act 1998 to consider rights in the European convention on human rights. The provision does not need to be in the Bill, and therefore we must question why those Lords who supported the amendment wanted it made to the Bill. Such freedom of expression already exists.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The right hon. Lady says that it is for the avoidance of doubt, but I am quite sure that in other circumstances, perhaps she, and certainly many of her right hon. and hon. Friends, would say that provisions should not be added to Bills-creating more legislation-simply for the avoidance of doubt. Indeed, I am well aware that they have criticised it when they have believed that it has happened in the past; yet, on this occasion, they think it acceptable to make an amendment that is simply not needed. Even more than that, it has the potential to do harm. It may well result in the offence not being prosecuted, because somebody believes that they can rely on the provision. I hope that that is not the case.

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Photo of David Taylor David Taylor Labour, North West Leicestershire

It is true that the section would not change the threshold of the offence, but that is not at all the same as saying that it either has no effect or would not be useful. Would it not at the very least provide a signpost to police and prosecutors, saying that they should lay off innocent people who merely discuss or criticise sexual conduct? That is what we see in case after case. That is the purpose of the section and why we should retain it, and later on I shall certainly seek to catch your eye, Mr. Deputy Speaker, to make those points in more detail.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

The legislation before us is not the appropriate place in which to put the police guidance to which my hon. Friend refers. Indeed, legislation is not necessarily the place for it. Guidance may well be the place to put it, and we will seek in due course to look at the guidance. The right hon. Lady said earlier from a sedentary position that the section purports to be for the avoidance of doubt, but in effect it creates doubt where there should be none. In that way, we believe that it is not simply unnecessary, but potentially damaging to the effectiveness of the offence itself.

People with strongly held religious or moral beliefs must of course be free to express their views. [ Interruption. ] The right hon. Lady says that she does not have the right to express her strongly held religious or moral beliefs. I contend that she certainly does, but not where it breaches the level of the offence, which has an incredibly high threshold.

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

I probably do have the right, and I regularly use this place to exercise it. But those who do not enjoy parliamentary privilege, and, instead, express the same views on the radio, in letters to their council and in the literature that they give out, find that they do not have that right.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I am afraid that I do not agree with the right hon. Lady. One does not need parliamentary privilege to express one's views. Freedom of expression is permitted, allowed and encouraged, the difference being when it is intended to incite hatred. There will be people who hold a religious or moral belief and have objections to homosexuality or to certain sexual practices. They are perfectly entitled to hold those opinions, and nothing in the Bill changes that; rather, it ensures that at the point where their words are threatening and their behaviour is intended to stir up hatred, the offence will bite.

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

I am grateful to the hon. Lady for her customary grace in giving way. I have said in this House that I do not believe that homosexual couples should adopt children. No police appeared on my doorstep. When a children's author gave exactly the same opinion on a radio programme-under questioning; they did not just volunteer it-the police got involved.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice 8:30 pm, 9th November 2009

The right hon. Lady is not entitled to express her views on matters only because she is a Member of this House and entitled to parliamentary privilege. Many of the incidents to which she refers come under the Public Order Act 1986, and therefore the threshold is considerably lower than in the Bill. The high threshold in the Bill relates only to threatening words and behaviour intended to stir up hatred. People are perfectly entitled to express their views about homosexuality. Some will find those views distasteful, offensive or even insulting, but there is nothing in these offences that prevents that expression of opinion. Those uttering such threatening words or exhibiting such behaviour intended to stir up hatred should not have the cloak of a so-called freedom of expression clause to protect them. Frankly, I am surprised that so many hon. Gentlemen on the Opposition Benches-and indeed the right hon. Lady, who is sitting there on her own-think that people should be entitled to protection where they have used threatening words that are intended to stir up hatred.

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Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

The public record speaks for itself on my position on protecting and standing up for the rights of homosexuals. What does the Minister think would lead to a vicar, for example, or perhaps an imam in the constituency of the Lord Chancellor, falling foul of the legislation that she has put before the House?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

In order to fall foul of the Bill, the person's words would have to be threatening and their behaviour intended to stir up hatred. If they did intend to stir up hatred, I believe, and the Government believe, that they should be guilty of the offence-that the threshold should have been reached. If the hon. Gentleman does not believe that, he is saying that it is acceptable for people to stir up hatred on the ground of sexual orientation and that that is freedom of speech.

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Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

I am grateful to the Minister for giving way; she is being very gracious. In order to have clarity, does she think that the Old Testament or the New Testament, the Koran or the Hadith, or the Torah, for example, would fall foul of this legislation?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I think that the hon. Gentleman is trying to find out whether I wish to have a religious and philosophical debate on the holy books. As a Roman Catholic, I can make reference to only one book. The reality is that if somebody uses the words that may be contained in a religious book with a clear intention to stir up hatred, they will fall foul of this offence. Someone may simply express a view that they do not agree with homosexuality or with certain sexual practices-they can have freedom of speech and expression-but that is entirely different from taking it to a level where they intend to be threatening and to stir up hatred on the ground of that sexual orientation.

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Photo of William McCrea William McCrea DUP, South Antrim

Does the Minister realise that, if the Bill is passed, it will become more and more difficult in this United Kingdom for a preacher to express biblical standards? Someone could be perceived to be stirring up hatred if they were simply quoting the Scriptures and preaching from God's precious word. That is a disgraceful situation.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I am afraid the hon. Gentleman is not correct. A person would have to intend their words to be threatening and stir up hatred. That would have to be their intention, not the perception. Nothing in the Bill will prevent a preacher or follower of any religion from expressing their views, provided that they are not intending to stir up hatred. That is quite different.

I want to make it absolutely clear that those who hold views different from mine or those of other Members, and who do not believe that homosexuality is acceptable and have objections to certain sexual practices, are entitled to continue to hold and express them. They may not use threatening words and intend to stir up hatred on the ground of sexual orientation, but that is quite different from the reality of what goes on in churches, mosques and other religious places up and down the country. The hon. Gentleman, and indeed many Opposition Members, may well be doing a disservice to many people of strong religious and moral views on such matters who hold different views but do not intend to stir up hatred. It is a really high-level offence.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I am going to proceed, and then the hon. Gentleman will have a better opportunity to express his views.

If we had set the bar for the offence too low or had not afforded sufficient protection for freedom of speech, I am quite sure that the Joint Committee on Human Rights and the Equality and Human Rights Commission would have been the first to say so. Both bodies have carefully examined the offence and separately concluded that there is sufficient protection for freedom of speech without the need for section 29JA of the 1986 Act.

We should send a clear and unequivocal message to the other place. It made a wrong call in the last Session in passing the so-called freedom of expression saving provision. It has made the wrong call again this Session in seeking to block its repeal. On three occasions, this elected House has rejected the need for it, and I invite it to do so again by rejecting the Lords amendment.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

We are certainly revisiting an old topic. I rather disagree with the Minister in her view about the behaviour in the other place the last time this matter came up for consideration. On the face of it, whatever the Government may have felt about the matter, they were prepared to accept the Lords amendment on that occasion. One can only conclude that, in their willingness to do so, they made the evaluation that Lord Waddington's amendment was innocuous. In my judgment, that is exactly what it was.

The Minister has studiously avoided debating why the offence in question cannot be successfully prosecuted under Lord Waddington's amendment, because she has no case to make about that. If there were a problem, the Government could at least have allowed the offence to be tested. If it had then turned out that it was causing problems when it got to court, they would have had a greater justification for asking the House to reconsider the matter.

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Photo of Edward Leigh Edward Leigh Chair, Public Accounts Committee

Is it not interesting that the Minister never actually discussed Lord Waddington's amendment? We all agree that it is wrong to threaten or stir up hatred, but Lord Waddington's amendment said simply:

"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."

That is all that we are saying-simply discussing the matter is not threatening behaviour or worse- [Interruption.]

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I agree entirely with my hon. Friend. I heard from a sedentary position Dr. Harris saying, "Not if it is threatening," but the words "of itself" make it quite plain that if it were threatening language in that context, the freedom of speech defence would not be open to the individual concerned. Therefore, his anxiety is misplaced.

I say this to the hon. Gentleman, seeing as he is participating in this debate: we have in the past worked together on similar issues regarding religious hatred. One comment that he often made then-indeed, I even remember him conceding in the context of this offence-was that such offences, which the House creates, can have a chilling effect on freedom of speech. He may have been the first person to use the words "chilling effect" in the House. I certainly remember them coming first from him.

The fact of the matter is that there is plenty of evidence, unfortunately, in the context of the Public Order Act 1986, that the offence is having a chilling effect. Its interpretation, based upon a form of political correctness handed down by what is perceived to be the line taken by those in authority, is leading to abuse in a number of circumstances by the police who threaten individuals with prosecution unless they desist from expressing perfectly legitimate views. That causes me great concern, but I am glad to say that that has in no case led to prosecution and that in one case it led to the police subsequently providing an apology for their conduct. Nevertheless, we must bear that point in mind, because the Government intend-I do not think the Minister disagrees with this-the offence to be far more serious, although I accept that the test for it may be different, as she said.

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Photo of Evan Harris Evan Harris Shadow Science Minister

If I catch Mr. Deputy Speaker's eye, I will respond and show how much the hon. and learned Gentleman and I agree on various points. There has, in fact, been a prosecution along the lines that he hoped there would not be. However, how can the words

"discussion or criticism of sexual conduct"- and so on-

"shall not be taken of itself to be threatening or intended to stir up hatred" avoid doubt if what is said in that context is threatening and intends to stir up hatred? It may not be a problem to his forensic mind, but most people out there would see it as totally inconsistent. It is a get-out: as long as a person is threatening and intentionally threatening while discussing sexual conduct, they are okay, but when they discuss other things, they are not.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I must say, it is not only the way I read it, but any sensible person who gives the words their plain English meaning must come to the same conclusion. Clearly, if I make an expression which "of itself" amounts to no more than a reasoned criticism, it cannot be threatening, but it is perfectly plain from Lord Waddington's amendment-indeed, I have not heard the Government challenge this or suggest otherwise-that if the words constituted threats, anyone standing up in court and saying, "Well, I was justified in making the threat because it was just part of a criticism of somebody else's way of life or habits," would not get off the hook. I entirely concur that it would be grossly improper if they did. For those reasons, Lord Waddington's amendment provides considerable comfort to those who happen to have strong views about how people should conduct themselves, and it does nothing to diminish the ability to prosecute this offence.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

On the contrary, this provision gives comfort to those who wish to incite hatred or to be threatening. They will believe that they can do those things if they are given this freedom of expression clause. It is completely unnecessary if they are not threatening or intending to stir up hatred. The hon. and learned Gentleman refers to a range of circumstances that have occurred in the past, but that was not under this legislation. It was under the public order legislation, which is quite different.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice) 8:45 pm, 9th November 2009

I would be more reassured if the Government were taking the public order legislation problems that have arisen more seriously, but there is no sign that they have tabled amendments to try to deal with that problem. As we know from a recent case, the problem is continuing. Indeed, if I understood the hon. Member for Oxford, West and Abingdon correctly, he knows of an instance in which a prosecution was brought, although it was not completed. For that reason, we should be very wary of legislation that fetters freedom of speech.

The Minister cannot have it both ways. On the one hand, she says, "The legislation's fine; you shouldn't worry about it." Then she suddenly starts saying, "Actually, the saving clause will encourage people to commit this offence, not deter them from doing so." If that is the case, she will have to provide a much better argument than she has done this evening. From what she had to say, it was not apparent how this saving clause would operate to do what she claimed it would. The saving clause, given its plain English meaning, cannot achieve the mischief that the Minister claims. It is noteworthy that when this matter was considered in the other place, it was supported by a large number of lawyers, who would therefore have some understanding of how this clause would be interpreted in the courts.

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Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

In the absence of this protection that my hon. and learned Friend and I both support, is it not the case that various examples have been cited by my right hon. Friend Miss Widdecombe and, I might add, Sir Iqbal Sacranie and the Bishop of Chester, both of whose collars were felt by the police? The public feel intimidated, and there is nothing in the Government's line that would remove that sense of intimidation. The Government are resisting the one, modest amendment that would reassure the public. We do not need that reassurance because we are Members of Parliament and we can fight for ourselves, but many of my constituents feel very threatened that if they put a foot out of line, they will lose their jobs.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I agree with my hon. Friend. The other factor that is worth bearing in mind is that as this debate has gone on-the Minister cannot escape this-more people have come forward to express their concerns about this proposal. They include, in many cases, people who may have different sexual orientations from the majority, but think that the provision is entirely unnecessary to provide them with protection. They have also expressed the view that the saving clause introduced by Lord Waddington is a modest and moderate way to provide reassurance that freedom of expression will be maintained. The Government do not help the cause of reducing bigotry and improper or violent behaviour against people of a different orientation by fettering freedom of expression. That is why this House should be so careful before it embarks on such a course of action, and that is why Lord Waddington has been sensible in trying to find a formula that would provide reasonable reassurance that this provision would not be misused-not just in terms of who eventually gets convicted in court, but above all in terms of who is oppressed by those in authority arguing that they have transgressed by expressing legitimate opinions. The Minister cannot get away from the fact that that is a current problem and has not been concocted out of thin air.

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Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

My hon. and learned Friend touches on the important point of precedent, and we have already seen that with the public order legislation. I do not wish to put him on the spot, but-given his concern about the public order legislation and the crossover with this Bill-perhaps I shall invite him on to the spot to say what he would do as Justice Secretary should we form the next Government in May.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

It is quite plain that the way in which public order legislation has been applied needs to be reviewed. That is something that many hon. Members across the House would agree on, including, I suspect, the hon. Member for Oxford, West and Abingdon. That does not necessarily mean that the legislation needs to be altered, but the guidelines certainly need to be reviewed, because there is a continuing failure to understand what the offences that it is intended to deal with are.

However, I hope that my hon. Friend will forgive me if I bring us back to Lords amendment 59. I wish to bring my remarks to a close, as other Members wish to participate in this debate. We on the Opposition Front Bench will vote to support Lord Waddington's amendment. We believe that it is innocuous, that it provides much-needed reassurance in a difficult area and above all-I emphasise this to the Minister-that it will not prevent the successful prosecution of somebody who intends to incite hatred through threats.

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Photo of David Taylor David Taylor Labour, North West Leicestershire

There is indeed a strong sense of déjà vu about this debate, given that it is the fourth time that we have discussed the free speech clause. We have also discussed a previous attempted free speech clause, as proposed by my hon. Friend Jim Dobbin in January 2008. I do not want to add to the sense of déjà vu by repeating all the arguments that have been made before, but I want to explain why I think the Government are still wrong on the matter and why I wish they would let the free speech clause remain on the statute book, where it has been for the past 18 months.

The other place has voted for the clause three times, most recently in July, by 186 votes to 133, giving a majority of 53. I unsuccessfully moved an amendment in this place on 24 March to retain the free speech clause, so I was obviously pleased with the vote in July. I was especially pleased that more and more Back Benchers in the Lords from my party seemed to see the sense in a free speech clause. They either voted for it in greater numbers or abstained. I had hoped that the Government would start to see the sense in the free speech clause too.

I find it hard to accept that we are again being asked to vote against the free speech clause. I thought that free speech, civil liberties and human rights were exactly the sorts of things that we were supposed to be in favour of. I am sure that they brought my hon. Friend the Minister into the Labour party, among other things, and they certainly did me in North-West Leicestershire. We should say that we support civil liberties. We all quote Voltaire and proclaim our tolerance, but here we have an opportunity to uphold tolerance for people whose views we may not agree with, but who have a right to those views and a right to express them in a reasonable way.

Before anybody intervenes with a dreadful example of incitement to violence against gay and lesbian people that they claim would be protected by the free speech clause, let me remind hon. Members-for the third time, and briefly-what 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."

The clause does not remove any mention of the context of the remarks. We are not talking about protecting foul rap lyrics or violent rants; we are talking about protecting discussion, criticism or the urging of people to modify their conduct. If someone uses threatening words and intends to stir up hatred, that is of course not mere discussion, but discussion with threats and intent to stir up hatred, which falls squarely within the offence, and so it should.

The free speech clause is irrelevant in one sense. As paragraph 392 of the explanatory notes makes clear, it would not affect

"the threshold required for the offence to be made out."

The clause would not provide a defence, which is what the Minister implied at one point. It would not narrow or alter the scope of the offence, which is what she tried to say earlier. However, if threats and an intention to stir up hatred are not present, the discussion falls outside the new offence, and the free speech clause simply makes that plain. It is, as it says, for "the avoidance of doubt", and would help to protect innocent people from unnecessary and intimidating police investigations.

We need that protection, because there seems to be quite a lot of doubt, and as a result quite a lot of unnecessary investigations. In fact, people seem to make complaints to the police as a tactic to silence opinions that they do not like. I am sure that hon. Members from all parts of the House would agree that we should deprecate that. That is not what the criminal law is there for, nor is it what the police are there for. We should make that clear when there is doubt.

Who wants the criminal law to be used to silence discussion or criticism of sexual conduct? Who wants the new homophobia offence to be used against those who merely urge people to modify their conduct or, in religious language, to repent of their sins? There have been countless cases, and several more since we last discussed the matter in the House seven or eight months ago, of exactly that happening.

Andy Robertson is a street preacher. There is a video of him on YouTube, which hon. Members may watch in their offices before the vote. He comes across as an eminently calm and sensible man, and he has preached in the streets of Gainsborough, Lincolnshire for 10 years with no complaints whatever to the police or civil authorities. Yet police officers were sent in by a council employee to move him on, and told him that describing homosexuality as a sin falls foul of section 5 of the Public Order Act 1986. I shall return to that. The preacher had not even mentioned homosexuality, but the police, having failed to move him on by citing irrelevant council byelaws, seemed to seize on unfounded and unsubstantiated allegations of homophobia as a device for shutting him up. If they can do that with section 5 of that Act, which is a general offence covering harassment caused by threats, abuse or insult, who can doubt that they would use the new offence, which specifically covers homosexuality?

I look forward to hearing Dr. Harris if he catches your eye, Mr. Deputy Speaker. He believes that we should remove the word "insulting" from the section 5 offence. I think he probably has a point, and I hope that the Government will listen to it, but that will not solve the problem of how to stop the new homophobia offence being abused in similar ways. Recent cases have shown that a dangerous attitude to gay rights is prevalent among the police and that makes it important to include the free speech clause.

Another example with a little more detail is that of Pauline Howe, which is the most recent case to hit the headlines. She is a 67-year-old grandmother who wrote to her council complaining about a gay pride march at which she says she was verbally abused. She used old-fashioned, politically incorrect words and several biblical references, and I doubt whether many of us in the House would have written a letter in those terms. I hope that the Minister is listening to my comments, and not just to Front Bench conversations. Pauline Howe's letter certainly did not merit two officers interrogating her in her living room, and apparently frightening the living daylights out of her, but that is what happened.

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

Will the hon. Gentleman tell me whether he has any comprehension of how merely writing a letter to an official body could constitute an offence against public order?

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Photo of David Taylor David Taylor Labour, North West Leicestershire

I am not a lawyer, but merely a humble accountant, if that is not an oxymoron. I cannot explain that, but we have an eminent lawyer on the Front Bench-the Secretary of State-who may be able to explain that in an intervention or in some other way.

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Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

Does the hon. Gentleman share my concern that without protection the Bill could be enforced in areas such as home schooling, when some people bring their children up in a particular faith, whether Jewish, Muslim, Christian or another faith? [ Interruption. ] The Minister may think that that is nonsense, but I am reflecting some of my constituents' concerns, and I am entitled to do so. If she has something to say, she should say it from the Dispatch Box or from the Back Benches and not from a sedentary position. The point is serious. Does the hon. Gentleman agree that there is concern that the provision could be extended to home schooling, and that people in their own homes could be restrained from teaching their children in a particular faith course?

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Photo of David Taylor David Taylor Labour, North West Leicestershire

There is a risk of that-I am not sure that there is any evidence that it is happening yet-depending on the atmosphere within which the police interpret the new legislation, and the pressures to which they will no doubt be subjected.

Pauline Howe has been the subject of a considerable public outcry, and her freedom of speech has been defended by people across the political and philosophical spectrum. I am sure that Ministers have heard or know of Ben Summerskill of Stonewall, who said that the police response in her case was "disproportionate", although I do not know where he stands on free speech. One minute he is giving evidence to Parliament that he does not mind having a free speech clause in the homophobia offence, but the next minute he is campaigning against it. However, he said that the police response to Pauline Howe was "disproportionate", and I agree, but in 2007 he said that he was shocked that the police allowed Christians to demonstrate outside Parliament against the sexual orientation regulations. We rightly allow all sorts of demonstrations, some of them pretty unpleasant, outside this place, and I do not think that a few hundred hymn-singing Christians should be deprived of the democratic rights that the rest of the population enjoy. Mr. Summerskill might not be the most reliable guide on the subject of free speech.

We were told in the debate in the other place-and, by inference, this evening-that the Waddington clause says nothing about free speech and that we should therefore not retain it. That is a silly, specious argument. Just because something does not contain the term "free speech" does not mean that it does not protect free speech. We legislate in all kinds of ways to protect free speech without putting the actual term into the text. The Waddington clause protects free speech by defining a range of moderate expressions-discussion, criticism and urging-that already fall outside the offence, and by drawing them to the attention of the police and prosecutors. It is therefore signposted.

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Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party 9:00 pm, 9th November 2009

My hon. Friend has given a number of examples-albeit from different legislation-to support his concerns. Has he heard any examples from the Minister, or from anyone else in the Government, of how the existing provision on free speech has either confounded or frustrated the basic intent of the current legislation?

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Photo of David Taylor David Taylor Labour, North West Leicestershire

No, I have not. We have not heard any convincing arguments at all. We have seen some smoke and mirrors, and some hand-waving, but we have heard no evidence.

The Minister said tonight-I paraphrase slightly-that the clause has no effect and that we can therefore dispense with it. It is true that it does not change the threshold of the offence, but that is not the same as saying that it has no effect. It provides a signpost to police and prosecutors that they must leave innocent people alone if all they have done is discuss or criticise sexual conduct. There is plenty of evidence that there is a real problem with the police's handling of these cases, and the effect of the clause will be to tackle that problem.

The Minister also said a moment ago that bad people would try to hide their actions behind the clause. I can say, even as a non-lawyer, that they would not have much luck. The explanatory notes make it clear that the clause does not affect the threshold of the offence. If someone breaches the threshold of the offence, the free speech provision will do them no good whatever. I believe that the Minister is demonstrating what psychologists call cognitive dissonance, in that she is holding two mutually conflicting opinions at the same time. She is struggling with the tussle that they are causing in her brain. The free speech clause either achieves nothing or it allows bad people to get away with things that they would otherwise not get away with-she cannot have it both ways. It is either one or the other. It is a binary, black or white, zero or one, yes or no. There is no middle way that the Minister, as part of the new Labour intake into this place, would like to see.

Nasty people who are facing prosecution will always cast about looking for a way to get off. They often falsely cite the Human Rights Act 1998, but I do not think that any hon. Members believe that that is a reason to repeal that Act. Similarly, the fact that people will falsely, and unsuccessfully, cite the free speech clause is not a reason to repeal it. We are told that use of the phrase "of itself" might mean that people can ignore the context of the remarks. That argument did not make any sense to me when the Lib Dems last raised it, and it still does not. I recall that Mr. Grieve dealt with it fairly deftly at that time, although he did not get the chance to do so again tonight. I do not believe that it strips the context from the remarks that have been made.

We are also told that we can deal with the cases that we are worried about by amending section 5 of the Public Order Act. The Government are apparently consulting on section 5; perhaps the Minister will confirm where we are on that. Perhaps changes will be recommended, but that is not the offence we are dealing with here. We are dealing with the homophobic hatred offence. If a general offence, such as section 5, can be used against people for expressing views on homosexuality, it is inevitable that an offence that specifically deals with homosexuality will be used even more often. So we must pay special attention to the need to protect free speech in this area.

There is a lot of public sympathy for these victims of police heavy-handedness in the area of gay rights, and I think that people would like to see us make provision to try to stop this sort of trampling on people's civil liberties. The free speech clause does nothing whatever to reduce the level of protection that the Government-quite rightly, and with widespread support-aim to give to gay people.

The Government admit that the clause does not affect the threshold of the offence; it cannot therefore be used to defend actions that fall within the ambit of the offence. It does not remotely affect any of the other criminal offences that can be used to target those who perpetrate or encourage acts of violence towards any members of our society or to target words that cause "harassment, alarm or distress". We should find the guilty and prosecute them-who would not endorse that sentiment?-but we should not catch the innocent in the crossfire of that approach.

The free speech clause does no harm whatever; it does only good. If we remove this free speech clause, we send out the message that we are quite happy to take a risk with the freedom of people like Andy Robertson and Pauline Howe. I, for one, am not prepared to take that risk: I will vote against the Government and I urge other hon. Members to do exactly the same.

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Photo of Evan Harris Evan Harris Shadow Science Minister

It is good to be back on this subject. I always predicate my remarks on these issues with the words of the late and greatly missed Linda Smith, who said, "I'm not religious; I get on with everyone." I doubt whether that could apply to me, but it is fair to say that I have a record of protecting free speech. That is true in respect of religious hatred-as Mr. Grieve will remember, we worked together on curtailing what would have been an overly broad offence. I have also worked on proposing the repeal of blasphemy, on opposing the criminalisation of the so-called "glorification" of terrorism, on calling for libel law reform and, indeed, on proposing an amendment to get rid of the "insulting" provisions in section 5 of the Public Order Act 1986, which we were not able to debate during the passage of this Bill through the House because of the use, yet again, of a preposterous undemocratic programme motion, which denied us the opportunity to provide due scrutiny to Government legislation. I should add that owing to yet another programme motion that has not been consulted on-at least not with Liberal Democrat Members-the provision passed in the other place to repeal seditious libel and criminal libel is one that once again we cannot debate. I hope the House will therefore accept that I have a record of supporting free speech.

I want to make it very clear that I support free speech for homophobes. I believe that people who are homophobic-that will include some religious people who may not necessarily intend any offence, but they are perceived as homophobic by some people-should have the right to free speech without great restriction, albeit within certain limits. It is a good thing that we are discussing homosexuality in the context of free speech rather than the rights and wrongs of homosexuality. I think that that is a sign of how things have progressed during my time in the House.

I have to say to supporters of the Waddington amendment, however, that they are promoting the wrong amendment. If they want to tackle the existing mischief and the future mischief of over-policing of comments that might be taken to be homophobic, they have to ensure that our law does not criminalise insulting speech, whether intentional or not, that is short of threatening-or, in the case of directly causing harassment, distress and alarm to someone, something that is short of abusive. While "insulting" exists in the Public Order Act, inserting this provision into it will, with or without the Waddington amendment, still make people feel that they cannot insult people on the basis of sexual orientation and will still make the police believe-perhaps the police should think much more carefully about this, but the "insulting" provision is on the statute book-that they have to investigate complaints, particularly given the fact that people feel that the police should take seriously complaints about incitement to hatred or insulting behaviour on the grounds of race, sexual orientation or religion. I thus urge the House to recognise that in a sense we are debating the wrong amendment. I will come on in a few moments to the right amendment to remove the insulting provisions from the statute book, but it has been put to this House-although not debated-and is supported by the Joint Committee on Human Rights.

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Photo of David Taylor David Taylor Labour, North West Leicestershire

The hon. Gentleman may have heard that I anticipated his bringing up this point. I think that his point should be supported and that the word "insulting" should be removed. Is he firmly of the opinion, however, that that is all that is necessary to improve this particular legislation and that the chance of further over-the-top and heavy-booted action by the police and other authorities would be much less if that one word were removed?

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Photo of Evan Harris Evan Harris Shadow Science Minister

It would be much less, because the police clearly would not investigate in the outrageous cases about which we have heard. The treatment of Pauline Howe, whom the hon. Gentleman mentioned earlier, was not disproportionate but absurd. It was disgraceful that the police wasted their time on such a matter. If the "insulting" provision was not there, I am certain that the problem would be less. We cannot legislate for every over-officious police officer, but we can make a clear statutory change to get rid of that provision. Although we are not debating that provision now, it is relevant.

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

What the hon. Gentleman says may be true, and the menace may be section 5 of the Public Order Act, but it is not before us tonight, it is not for amendment, and there is no immediate proposal by the Government to amend it. We must therefore use what is at our disposal to try to guarantee free speech. Given the circumstances that we are in-rather than those he wishes us to be in-he should support this amendment.

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Photo of Evan Harris Evan Harris Shadow Science Minister

I am an eternal optimist, and I believe that we should aim for the right legislation, not create the wrong legislation on the way to getting the right legislation. My hon. Friends and I will support the Government in the Lobby tonight, and I suspect that there will be another large majority in favour of deleting the provision, so the matter will go back to the House of Lords. However, their lordships should apply themselves to the specific legislation where the problem lies.

Let me set out the reasons for the position taken by the Liberal Democrats. As the Minister said, the incitement to racial hatred provision currently has a low threshold. However, the religious hatred provision rightly has a much higher threshold-it was important that that was restricted to threatening language, and that "intentional" was a requisite part of the offence. Given the importance of being able to proselytise freely, or to criticise religion, there should be a broad free speech saving that was not about religious conduct or practice but about the arenas in which speech would take place, such as those of political discourse, comedy, performance or broadcast. Clearly, that would not be in the nature of language that was threatening and intended to incite hatred such as when talking to a bunch of skinheads in a pub. The measure that we agreed for religious hatred is therefore the right one.

In relation to hatred on the grounds of sexual orientation, the Government have done what is essential: they have ensured that the measure deals with threatening only, and intentional language only. I can think of no pastor or street preacher who is so extreme that they would seek to incite hatred and use threatening language. They might do one or the other, but it is hard to imagine a preacher who would do both. I do not necessarily have good views of religious extremists, but I cannot think of one who is likely to do that. Some religious extremists incite violence directly, and that is already an offence, but they do not go the roundabout way of intending to stir up hatred using threatening language; they usually talk about measures that incite violence directly. No example has been given of the sort of religious speech that would be covered, without the so-called saving. The saving is unnecessary to protect religious speech.

However, there is a real danger out there of extremist political parties using threatening language about sexual orientation that is intended to stir up hatred, without otherwise breaching another part of the statute. Again, let us imagine the British National party saying something homophobic in the context of paedophilia, which is, of course, a myth about homosexuality. However, if it is inciting, and if it uses the words, "And they've got it coming to them," that adds the threat, and that is the real mischief. We know how child abuse is sometimes dealt with in the popular press, and how that can create the sort of mob mentality that is the execution of the incitement of hatred. That would rightly be caught by the offence.

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Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party 9:15 pm, 9th November 2009

The hon. Gentleman has touched on an attempt to answer the basic question that I was going to ask him. Does he know of any case in which the existing free speech saving clause has prevented investigation or a prosecution when it might have been suggested that one should have taken place in the broad public interest?

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Photo of Evan Harris Evan Harris Shadow Science Minister

This offence has not existed for long while the free speech saving clause has been in place, so I do not think that there has been an issue in that regard. What we must deal with is the existing mischief, rather than hypothetical situations. There is a real threat of incitement to homophobic hatred by extremist political parties, as opposed to the religious. The example that I gave would not currently constitute an offence because it does not directly incite violence, but incites hatred and involves the use of threatening language. Until we have this law, there was no provision to deal with incitement to hatred on grounds of sexual orientation.

Let me turn to the so-called Waddington amendment. I do not doubt the sincerity of Members who support it, but I note that its sponsors in the Lords were not very keen on free speech when it came to the repeal of the blasphemy laws, and generally have not been defenders of free speech when it comes to terrorism law. There is clearly a lobby in favour of extra provisions for free speech in one area, the area of sexual orientation, but we must take that on its merits. What concerns me about that amendment is that its wording creates confusion.

Let me give the hon. and learned Member for Beaconsfield an example, because he invited me to do so. The amendment states that the

"criticism of sexual... 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."

Does that mean that if some extremist group, probably political rather than religious, says, "These gays should keep their dirty practices away from our children or they will get what is coming to them," that would be covered by the clause? They might think, rightly or wrongly, that because they were restricting their language to criticism of practices-and it is clearly critical of a sexual practice-and urging people to refrain from such practices, albeit in an outrageous and distorted way, they would benefit from the protection of the clause. They might say that their language should not of itself be taken to be threatening or intended to stir up hatred, although it clearly is threatening and does stir up hatred.

I think it is a bit too late for the hon. and learned Gentleman to get out his law books after the damage has been done, and to say, "No, actually they do not benefit from the saving clause", but I should be grateful if he could address the issue.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I do not think they would benefit from the saving clause, because their language would be threatening. That is clear from the expression, "They will get what is coming to them." I do not think that, given those circumstances, that is a valid criticism of the operation of the saving clause. It is, of course, right to say-we have debated this in the past-that incitement to hatred should not be construed as the same as expressing a dislike of something, including quite an intense dislike. There is a dividing line between the two, and in my experience courts, and indeed police officers, ought to have no difficulty in telling the one from the other.

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Photo of Evan Harris Evan Harris Shadow Science Minister

What if I say to the hon. and learned Gentleman that the wording was, "These gays had better keep their dirty practices away from our children"? There is a threat in that wording, but is the hon. and learned Gentleman saying that that of itself should not be taken to be threatening or intended to stir up hatred? This is the difficulty, and I note that the hon. and learned Gentleman is not rising to deal with it. There is not a direct threat in the words "had better", but there is an implicit threat. I could also have used the words "or else". In the context of a mob or crowd of skinheads, for example, in a pub back room, that is a problem.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I do try to listen to an argument before I intervene, and I think that those words would be caught in exactly the same fashion.

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Photo of Evan Harris Evan Harris Shadow Science Minister

That is the opinion of the hon. and learned Gentleman, but it is not apparent in the wording of the saving clause. It could be taken to lead people to believe that as long as they talked only about sexual conduct or practices and not about homosexuality itself, nor about people themselves, that was a get-out. It is no good saying, "Well, when the first case is prosecuted, this will filter out to the mobs," because that is not the way these things work. I therefore think this is unnecessary and, as the Minister said, it could cause confusion. I disagree about whether it would be covered, but we do not have to agree on that; rather, we have to recognise that it is not clear law.

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Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

Will the hon. Gentleman not agree that the example he has given is of people not talking about the actual sexual practices of homosexuals, but alleging criminal behaviour and the threat of criminal activity-which he has rightly said they are not involved in, because he said that paedophilia is a completely misdirected accusation that comes from people of prejudice against people of homosexuality? Therefore, by the hon. Gentleman's own explanation, this is not of itself a discussion of their sexual practices.

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Photo of Evan Harris Evan Harris Shadow Science Minister

What matters is whether the mob stirred up thinks it is, because that is what causes the damage. It is not for the court to decide whether it is a reasonable statement. The court has to decide whether it stirs up hatred, whether it was intended to stir up hatred and whether the language was threatening; and after the damage has been done it is too late for Members to come back and say, "Well, the saving clause wasn't really intended to cover this, and on a narrow argument." It looks as though it does give a let-out; and it is not an offence to accuse other persons unnamed of criminal offences-we do that all the time-so there is no alternative prosecution.

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Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

The hon. Gentleman has just acknowledged that in the example he has given, hatred had been stirred up. Although the mob would not understand this, if the mob had been stirred up, even with the saving clause, an offence would clearly have been committed.

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Photo of Evan Harris Evan Harris Shadow Science Minister

I do not accept that that is clear, but I also feel strongly that whether or not that is the case, it is not apparent to people reading the statute what the saving clause does and does not allow; that is simply not clear. To put the words

"for the avoidance of doubt" in front of the provision does not make it any clearer. In fact, it makes it seem that it should be obvious, and when it is not obvious, one is puzzled.

Finally, I want to move on to the alternative way of dealing with this. There have been occasions-including all the examples that have been given, such as the Lancashire and Norfolk cases, Iqbal Sacranie and Lynette Burrows-when the people concerned have been questioned by the police. That must stop. The Joint Committee on Human Rights has made it very clear in its considerations of this matter that it is time for the "insulting" provision to be removed from the Public Order Act. It said that in the policing and protest inquiry, which was in the seventh report of 2007-08, and it said it in its eighth report, on this Bill.

It is welcome that the Government are looking at this. However, I hope the Minister will be able to say in winding up that they have stopped looking and are now going to start doing, because I do not think there is opposition to this anywhere in the House. The police may object, because they want the ability to start questioning anyone who insults anyone else short of being threatening or abusive, but that is not good enough.

If the Government are serious about protecting free speech, they have to deal with this, because there has been a prosecution. The case of Hammond v. DPP involved

"an elderly street preacher who preached in the centre of Bournemouth on a Saturday afternoon while holding a large sign with the words: 'Stop Immorality', 'Stop Homosexuality', 'Stop Lesbianism' and 'Jesus is Lord'. A hostile crowd of some 30 to 40 people had formed, some of whom reacted violently by assaulting Mr. Hammond. After his refusal to desist from preaching, and following substantial debate among themselves...the police decided to arrest Hammond rather than his opponents and he was duly convicted of displaying an 'insulting' sign causing 'alarm or distress'...contrary to section 5 of the Public Order Act 1986."

The divisional court upheld the conviction, despite a human rights claim. That means we cannot rely even on article 10 of the convention. We need to get rid of this statute. I understand that, unfortunately, the gentleman died before he was able to take his appeal further. I think that even if just one person is treated like this, it is unacceptable.

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Photo of William McCrea William McCrea DUP, South Antrim

But surely the hon. Gentleman understands that this is the dilemma that preachers face. Here was a person simply standing with a placard, and yet there was no protection for him. The Government know about this. They say they are looking at it, but they are certainly acting in some circumstances where action is not needed. Why are they not doing something that is needed to protect people exercising their lawful right to preach?

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Photo of Evan Harris Evan Harris Shadow Science Minister

I do not think that any of these people would be prosecuted under the law before us, but they clearly remain at risk of being investigated, and potentially prosecuted and convicted, under section 5 of the Public Order Act. The Minister could do us all a favour by helping those of us who want to help the Government by saying something substantive on that point. I think that she and her right hon. Friend the Secretary of State will accept that it has been raised by me on several occasions. It is the real problem. Her doing so would unite The Guardian and Daily Mail, Miss Widdecombe and me-nothing else that I can think of does that-as well as solving her problem in the other place. I urge her to say something on that, so that we get the right law and the right amendment passed. Otherwise, I urge the House to support the Government in this matter.

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

First, may I say to the Minister that neither she nor her right hon. Friend the Secretary of State, or any Minister involved in this law, has the smallest appreciation of how threatened people out there feel when it comes to the exercise of free speech? One of the most common phrases that we hear now, on a wide range of topics, not just this one, is "Of course, you can't say that these days." Normally, it is said to indicate that the person has a view but is afraid, under current state orthodoxy, to express it.

Interestingly, when we last debated this particular amendment from the other place-I hope that the other place insists on it, as it has done in the past-many of the same examples were cited, although the most recent Norfolk one was obviously not available then. The Minister at the time-not this one, I hasten to add-stood at that Dispatch Box and told us categorically, "Of course, this was unreasonable. None of that police action should have taken place." Let us forget for a moment which particular law it took place under. She said that it was all due to misplaced interpretation and all that would be cleared up by guidance.

Several incidents have taken place in which police action has resulted in very severe criticism, including from Ministers. Despite that, despite the publicity given to it and despite the Government apparently distancing themselves from that sort of action, recently there was an exact repeat of the problem in the case of the 67-year-old pensioner from Norfolk. In other words, not all the guidance that is being issued is stopping this particular menace. It may be that Dr. Harris is right when he says that the most satisfactory way of addressing this problem would be through section 5 of the Public Order Act, but that Act is not before us tonight. It is not promised to be before us in the near future or even in the distant future, long after this Government have ceased to exist-it is not promised to be before us at all. Thus we must act with the tools that we have got.

The amendment offers some very necessary reassurance to people who seriously believe at the moment that their freedom of expression is restricted and that it is now possible-we have seen from those examples that indeed it is-that the police will arrive on their doorstep not because of something that they have done, but for an opinion that they have expressed. That properly belongs to totalitarian states; it should not belong to free countries. It should never be a feature of a free country that if one writes to a council to express a view on something-anything at all-it should result in the police arriving on the doorstep.

The amendment seeks to reinstate a clause that simply, for the avoidance of doubt, endeavours to put on the face of the legislation freedom of conscience and freedom of the expression of religious and other views. When such a provision was last opposed by the Government, the entire argument-it is all there in Hansard-was based on its being unnecessary. If it was merely unnecessary, there would not be such movement tonight to remove it, and so now the Minister has changed the position. Now, it is not so much that it is unnecessary, but that it might produce the sort of behaviour that we are trying to curtail.

The ground has shifted, but there needs to be protection for ordinary Britons from having the police on their doorsteps, as happened to the Lancashire couple, to the children's author Lynette Burrows, to Iqbal Sacranie himself-no preacher, said the hon. Lady, is in any danger, but what is Iqbal Sacranie if he is not a religious leader and preacher?-and lately of course in the Norfolk case. There has to be a signal from us that enough is enough; that guidance will not suffice, because it has not sufficed; and that condemnation from this House and from those on the Government Front Bench does not suffice, because it has not sufficed. We must make it explicit that there is freedom of opinion, freedom of conscience, freedom of religious belief and, above all, freedom of the ability to express any of them.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice 9:30 pm, 9th November 2009

This has been an interesting debate. However hard I try to make it absolutely clear to Miss Widdecombe and Mr. Grieve and, indeed, to my hon. Friend David Taylor, who has shifted his place-

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Photo of David Drew David Drew Labour, Stroud

Yes, he is always like that.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

Indeed, he is capable of doing so.

It is easily possible to outline both the existing provisions and the reasons that make the measure unnecessary. It is not necessary to put on the face of the Bill that freedom of expression should be protected. We do not legislate for that in a range of other areas where we believe that we all have a right to express our views, and in this instance we need not do it because the Attorney-General, who would have to consider any prosecution, has a duty to take into account the convention rights under the Human Rights Act 1998-

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I will in a moment.

There is therefore no need for this saving provision on freedom of expression.

The provision might be harmful because it might well give some comfort to those people who wish to stir up hatred and who wish intentionally to use threatening words to stir up hatred. They might well be able to argue that it is simply a use of their freedom of expression to do so, and that cannot be acceptable when we have already set the threshold of the offence so high. For that reason, I believe that it is perfectly possible, perfectly logical and perfectly legitimate to argue not only that it is unreasonable and unnecessary to have this clause but that it could be harmful to do so.

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

I am grateful to the hon. Lady for giving way, but the point has almost passed. She was referring to the unlikelihood of a prosecution. We are seeking to avoid the likelihood of even the earliest stages of an investigation for a mere expression of opinion-in other words, the police on the doorstep.

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I perfectly appreciate what the right hon. Lady is saying, but we heard misconceptions about how the offence might be used.

It has been said that without a freedom of expression provision, the offence will have a chilling effect and may prevent people from proselytising against homosexuality or from expressing their distaste for certain sexual practices. It has been alleged that the offence would prevent people from preaching religious doctrine. It has even been suggested-by Mark Pritchard-that somehow it will fetter the ability of people who want to home-school or to bring up their children in a particular faith.

The offence does not do that. If parents or home educators wish to teach their children, for example, that homosexuality is wrong or that certain sexual practices are wrong or unacceptable, or if they wish to be insulting about such practices or about homosexuality, it would not be covered by the offence, which is simply about threatening words that are intended to stir up hatred. The right hon. Lady and the hon. Gentleman have simply not understood or accepted the high threshold level in the clause. Let me repeat that the offence can bite only when the words or behaviour are threatening and intended to stir up hatred against a group of people on the grounds of sexual orientation.

Evangelical preaching against homosexuality or portraying gay characters in comedy sketches could only be caught up if it was done in a threatening way, intended to stir up hatred. Any words or behaviour that fall into that category should rightly be caught by the law. If the hon. Gentleman or the right hon. Lady are suggesting that they should not be, clearly they are suggesting that it is acceptable to incite hatred against homosexuals. I do not believe that is what the right hon. Lady is saying, but if that is not what she is saying, she needs to give credit to the assurances from the Dispatch Box that the offence is not about criminalising people who simply preach or proselytise their religious or moral values if they do not intend to stir up hatred by doing so.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

Quite apart from the fact that the Minister's remarks are rather offensive in terms of the views of Members on the Opposition Benches, I have absolutely no doubt that section 5 of the Public Order Act was not intended to be applied in the way it has been applied. I have no doubt that if the provision had been debated in the House exactly the same assurances would have been given. The fact of the matter is that the legislation that is being enacted has the capacity to be misused-I do not have the slightest doubt about that-which is the very reason why we thought it was sensible of Lord Waddington to include a saving clause that ensured that did not happen. What can possibly be wrong with that?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I have already explained that it is completely unnecessary to provide such a clause. We do not provide saving clauses or freedom of expression clauses on a range of other forms of offence, where it is not necessary. It is not something that we would advocate. It is simply wrong to imply that the offence could cover anything else, as some Members have suggested this evening.

Freedom of expression or saving clauses imply that there is room for doubt and make the position less clear. The police and prosecutors, and indeed the public, need clarity and certainty about the scope of the criminal law, and the offence as it stands, without the saving provision in section 29JA of the Public Order Act, creates uncertainty. It clouds the issue and it should be removed.

Many Members have made reference this evening to the concerns that have been expressed about purported incidents of over-zealous policing-

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I shall make a little more progress.

Those incidents of purported over-zealous policing have probably taken place under section 5 of the Public Order Act. Without seeing the details, it is not for me to say whether the police acted appropriately in those cases. There are opportunities for people to object and express grievances against the police, should they wish to do so. Dr. Harris is right to make it clear that the Government have said that they intend to examine the issue. In his letter to my hon. Friend Mr. Dismore, the Chair of the Joint Committee on Human Rights, my right hon. Friend the Minister for Policing, Crime and Counter-Terrorism stated:

"In our reply to your report and in oral evidence to the Committee, the Home Office also gave undertakings to consult on amendments to section 5 of the Public Order Act 1986 . . . We have sought views from a range of stakeholders on section 5 and are currently collating the responses".

So we are looking seriously at those issues.

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Several hon. Members:

rose -

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

I want to deal with a few other issues. I shall give way to the hon. Member for Oxford, West and Abingdon, then I intend to make progress so that there is an opportunity to discuss other points that were raised.

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Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to the Minister for re-affirming what the Government said in response to the Joint Committee on the matter. I welcome that, as far as it goes, but can she give any indication of a time scale for any legislation that might flow from that review? In other words, if there is a criminal justice Bill in the next Queen's Speech-as sure as night follows day, there will be-would such a measure be in time to be included in that Bill?

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Photo of Claire Ward Claire Ward Parliamentary Under-Secretary, Ministry of Justice

As I stated, we are considering the responses from stakeholders. We will consider that issue, and the hon. Gentleman will have to wait and see.

Let me deal with the other issues that were raised. Mark Durkan referred to the situation in Northern Ireland. It is an offence in Northern Ireland to incite hatred on the grounds of race, religion, disability or sexual orientation. There is no such offence in Scotland, although the Administration are considering introducing aggravating factors there similar to those that already exist in England and Wales. The law in Northern Ireland does not have a freedom of expression provision of the kind under discussion.

It is important that we make it clear to the public and to those who have strong religious and moral views that we are in no way fettering their freedom of speech. However, we are making it equally clear that those views cannot be used to justify threats or words intended to stir up hatred. The section currently in the legislation is unnecessary. It is appropriate to send a clear message, for the fourth time, back to the other place that this House does not agree with the amendment. This House is making it clear that we do not require a freedom of expression clause, and that the threshold for the offence is already high.

Question put, That this House disagrees with Lords amendment 59.

The House proceeded to a Division.

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The House having divided: Ayes 342, Noes 145.

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Division number 243 Bill Presented — Clause 61 — Hatred against persons on grounds of sexual orientation

Aye: 342 MPs

No: 145 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

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Question accordingly agreed to.

Lords amendment 59 disagreed to.

Proceedings interrupted (Programme Order; this day)

The Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).

Lords amendment s 119 , 121, 236 and 239 disagreed to.

After Clause 103

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