Committee (6th Day)

Coroners and Justice Bill – in the House of Lords at 12:45 pm on 9th July 2009.

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Votes in this debate

Clause 61 : Hatred against persons on grounds of sexual orientation

Debate on whether Clause 61 should stand part of the Bill.

Photo of Lord Waddington Lord Waddington Conservative 1:05 pm, 9th July 2009

Before I come to Clause 61, there are one or two general points I should make. The issue is not whether there should be protection for gays against those minded to stir up hatred against them or whether there should be a new offence of stirring up hatred on the grounds of sexual orientation. Last year, the House decided that there should be such an offence, and there was no disagreement about the matter. The issues today are, first, whether there should be a provision to protect free speech, similar to that in the offence of stirring up religious hatred, and, secondly, a quasi-constitutional point about whether it is right that the Government should be using this Bill to repeal a provision they put on the statute book less than a year ago.

As a result of the Government's actions, we are in an interesting position. When I spoke a year ago, my job was to satisfy the House that we should attach to the new offence a provision safeguarding free speech. Now the boot is on the other foot, and it is for the Government to try to show what conceivable public benefit will flow from the repeal of that provision. It is up to the Government to show why there is this urgency to scrap the free speech safeguard without waiting to see whether in practice it causes prosecutors or anyone else the slightest difficulty.

I find it impossible to understand the Government's position. Do they say that the words they seek to repeal have no effect and are unnecessary? If so, the words are doing no harm either, and by putting Clause 61 in the Bill, the Government are just wasting our time. Or are they saying that the words would cause mischief? If so, they had better tell us how. As the words are clear enough, and by no stretch of the imagination can be read as licensing threats—a proposition advanced by the Liberal Democrats in the other place, but which, according to all the legal advice we have taken, has not the slightest substance—are we not bound to assume that the Government want to prevent, in the words of the safeguard,

"discussion or criticism of sexual conduct or practices", even when such discussion or criticism is not threatening or intended to stir up hatred? Surely that is what the police are going to assume, for if the free speech clause is unacceptable to the Government, what possible reason can there be for that opposition, other than that the Government feel that discussion or criticism of sexual conduct is of itself threatening and likely to stir up hatred and had better be stopped?

After that, the Government have a plain duty to tell us why it is right to have a free speech safeguard in the religious hatred offence but no free speech safeguard here. Some have argued that there is a greater need for protecting freedom of expression in the religious hatred offence than in this offence, but how on earth can that be right when none of the cases of the police overstepping the mark has occurred in the area of religion and all have occurred in the area of sex? There can be no substance in that argument.

Some have gone on to argue that this offence is more like that of race hatred than the offence of religious hatred. Religion, they say, is a matter of choice, but sexual orientation, like race, is wished on one. Many Muslims who talk of punishment for apostasy would deny that religion is a matter of choice, but even if it were, the assertion would get us precisely nowhere. What possible relevance does the alleged immutability of sexual orientation have to the question of whether the discussion of sexual behaviour should be allowed under the law or banned on pain of seven years' imprisonment? The answer, of course, is none.

Free speech is a precious commodity—part of the very essence of a civilised society. It demands, says Matthew Parris,

"rough-and-tumble and give-and-take".

It is so precious, says Peter Tatchell, that:

"It should be limited only in exceptional circumstances—when it slips into inciting violence and murder".

Rowan Atkinson told us of his worry that, without the safeguard, people would be unsure of what they were allowed to say and fearful of expressing a viewpoint on many matters. He helps us to remember that not only the churches and religious believers fear that revoking the safeguard will be taken as a signal that criticising homosexual behaviour could be a criminal offence. You do not have to be religious to be interested in, and wish to debate freely, whether children from stable heterosexual family backgrounds do better than others, and the merits and demerits of gay adoption.

Many might say that that is absolutely obvious and that such discussion cannot be seen as evidence of hatred any more than jokes with a sexual content can be. It may seem obvious to you and me, but it certainly was not obvious to the police who, after Lynette Burrows had doubted the wisdom of gay adoption on the radio, gave her a lecture on homophobia and noted her behaviour in police records. Nor was it obvious to the police who, after a city councillor had made a tame joke about transgenderism at a police public liaison meeting, interrogated him for two hours before letting him off with a caution.

That brings me to the question of guidance. Some may say that the whole matter can be dealt with by guidance, but I remind your Lordships that these abuses have happened while the police have been furnished with guidance—in particular, the 2007 CPS guidance on prosecuting cases of homophobic crime. Unfortunately, that guidance is so erroneous that one is tempted to conclude that the police acted not in spite of it but because of it. The guidance does not suggest that there may be legitimate comment on sexual practices; instead, it makes the bold assertion that homophobia does not necessarily mean hatred of gays but includes mere dislike of a person's behaviour. After going on to stress that a homophobic incident is any incident that is perceived to be such by any member of the public, not necessarily by anyone who feels victimised, it as good as encourages the police to investigate incidents that amount to no more than a member of the public complaining that someone else has had the temerity to criticise homosexual practices. There is no mystery as to why the Fleetwood couple came to be persecuted; the police followed the guidance—so the last thing on earth we want is more guidance like that.

What is needed is what we have now; a statutory provision that says that one must not assume from mere discussion or criticism of sexual practice that there is an attempt to stir up hatred. One must look at the circumstances and the manner in which the words are spoken to see whether they were threatening and driven by hate. Back in 2007, Ben Summerskill of Stonewall told the committee considering the Criminal Justice and Immigration Bill that Stonewall,

"would have no objections to any indication in the Bill that there was a mindfulness of the importance of free speech".—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 16/10/07; col. 80.]

Our free speech safeguard provides just that.

Finally—I say this in all seriousness and earnestness—if ever there was a time when events required the Government to make clear their commitment to free speech, it is right now when everyday free speech is assailed. They must surely know that if the safeguard is removed it will be taken, as Tom Harris MP said,

"as a green light to all those who believe they can silence anyone who disagrees with them".

Instead of trying to get rid of this safeguard, the Government should declare boldly that letting people express their views, including views that other people may not like, is what a free society is all about. This clause must not stand part of the Bill.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour 1:15 pm, 9th July 2009

I hope that my noble friend on the Front Bench will not agree with the noble Lord, Lord Waddington, and his colleagues that Clause 61 should not stand part of the Bill.

As we have heard, last year Parliament passed a new and important offence of incitement to hatred on the grounds of sexual orientation. That appears in the Criminal Justice and Immigration Act, although it has not yet become operable. It is very important because there has been some evidence of an increase in violent offences against gay and lesbian people. I believe that the police have reported a rise in the number of such offences, including a number of murders of gay men. Statistics for Greater Manchester in particular are extremely worrying.

There is also much homophobic material in circulation that is intended to inflame hatred against people because of their sexual orientation. It may be argued that some songs, for example, do not really mean very much—they are simply songs—but they emerge from a culture, mostly in the Caribbean, that is deeply homophobic and where violence and murders on such grounds are commonplace.

We have made considerable advances in recent years in our tolerance of sexual differences in orientation—with improvements in the law, civil partnerships and so on—but violent minorities still exist in our society. We do not want anything in legislation—any sort of loophole—that would encourage this. Last year, as the noble Lord, Lord Waddington, explained, an amendment was added to our legislation, in Section 29JA of the Public Order Act, which could provide such a loophole even though the movers of the amendment may not have intended this—and I am sure they did not. However, it could have a detrimental effect on gay people and it certainly stigmatises them. Moreover, it is quite unnecessary as the law we already have is meant to deal with incitement to violence. It does not prohibit the genuine expression of religious opinions or freedom of expression, to which the noble Lord, Lord Waddington, referred.

Clause 61, which had a substantial majority across all political parties in the other place, is meant to remove this because it is felt to stigmatise gay people and thereby provide incitement for some of the more extreme elements in our society. We do not want a society in which gay and lesbian people fear for their lives, as unfortunately occurs in some societies in other countries. In Iraq, for example, which now has a democracy, a leading cleric has called on his supporters to kill homosexuals, and to do so in the most cruel and degrading way possible. In this country, we have moved beyond that; we are humane and compassionate, and we do not want that kind of activity. We should not put forward anything that could give encouragement to the nastiest in our society who want that kind of extremism here. Therefore we should support Clause 61 and resist efforts to delete it from the Bill.

Photo of Baroness D'Souza Baroness D'Souza Crossbench

Even the most ardent proponent of freedom of expression will admit to the need for some restrictions under particular circumstances. What is always sought is a balance between competing rights. In this case the balance is between the fundamental and vital right to free speech and the right to remain free from discrimination and, indeed, insult. Even the international instruments themselves reveal contradictions. Thus, for example, Article 19 of the International Covenant on Civil and Political Rights allows for the widest possible interpretation of freedom of expression, while Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination in fact contradicts this. To answer this conundrum one needs to go into rather legalistic arguments, but perhaps the important question to ask here is this: does censorship in any form actually contribute to the reduction of so-called hate speech, or does the limit on free speech condemn hatred to the dangerous underground and perhaps lead to actual violence? This view is based on the belief inherent in democratic societies that ideas, views, perceptions, and indeed insult and hatred, are better dealt with by more, not fewer, words. Inevitable clashes in society can and must be discussed as the first step towards resolution.

Is censorship justified in the interests of equality and dignity of the individual? The answer here must be yes, but I would argue strongly that such restrictions must be very carefully weighed as to their effect on the values underlying free speech. First of all, speech must almost never be restricted on the basis of content alone, but on context.This I think is where the clause as it stands risks infringing legitimate expression. There are already on the statute book several laws that criminalise incitement to religious or gender-based hatred; and encouraging the commission of an offence is in itself an offence. The clause, however, is so worded as to create confusion not only for victims, but for perpetrators and importantly for those who police the law, and it is sufficiently broad to allow only guidance, but, I stress, not a guarantee—that is, a binding obligation—of free speech.

Some distinguished lawyers of first amendment rights have pointed out in landmark judgments that anything which might have a chilling effect on free speech is to be disallowed. Uncertainty as to what the law does or does not allow to be spoken—in this case, legitimate views on homosexuality—because of the fear of false allegations of homophobia undoubtedly exerts what, to my mind, is a chilling effect. To argue that the law should not interfere with anti-social speech or insult does not mean that free speech adherents are indifferent to the rights of minorities. To the contrary, they believe that freedom of expression is a vital right in the struggle to defeat discrimination, bigotry and intolerance.

We impose restrictions on free speech at our peril. We in this evolved democracy must be aware that individual rights are fragile and need constant vigilance for their protection. We would not be doing our duty in this House if we do not continue to insist on a free speech clause on the face of this Bill.

Photo of The Bishop of Chichester The Bishop of Chichester Bishop

Last year, we were told that the Waddington amendment was unnecessary, and we are now told that its removal will not affect the threshold required for the offence to be made. In other words, it does not make much difference either way. That may be true, although I think it is arguable. However, the making and unmaking of laws has a symbolic significance going far beyond the strict letter of the law itself. This, after all, was the real justification for the necessary and welcome introduction of a specific criminalisation of incitement to hatred on the ground of sexual orientation. After all, the new offence was not strictly a new offence and it is unlikely to lead to the conviction of anyone who could not perfectly satisfactorily be convicted on the grounds of other laws already in force. The main point of what we did in this House and the other place last year was, importantly, symbolic rather than strictly necessary. However, it was important to send a clear and specific signal, and that is what the amendment to the Public Order Act did.

So, too, the Government's ill judged attempt today to omit the section inserted by your Lordships' House last year is primarily symbolic. Whatever the strictly logical position, and regardless of whether last year's amendment was strictly necessary, its removal now would be of huge symbolic significance. It would correctly be seen as lowering the level of protection afforded for legitimate debate about matters of profound social as well as personal importance. This is especially so when we see it alongside the continuing protection offered by the law in respect of freedom of discussion about religion. The parallel is bound to be drawn and people will ask why there is a difference.

Noble Lords will have their own take on the strictly legal case to be made for or against this amendment, but I do not think that we should be in any doubt but that its defeat would cause a shudder of fear in everyone who values freedom of speech and open discussion. It is not always easy to balance freedoms—or indeed rights, as the noble Baroness, Lady D'Souza, said—but that is what is really at stake in the debate.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 1:30 pm, 9th July 2009

First, may I say how heartened I am that the Leader of the Conservative Party has apologised on behalf of his party for Clause 28 and the symbolic and other damage it did. It is very encouraging that the main Opposition party has taken that position. Secondly, I do not suppose any of us has to make claims about their commitment to anything in particular, but like the noble Baroness, Lady D'Souza, I can say that I have spent the whole of my professional life fighting for two main values: first, freedom of speech and, secondly, equality, including human dignity. I am in perfect agreement with the right reverend Prelate that whatever we do today will have symbolic significance. Whether it is huge and generates a shudder of fear is perhaps hyperbole, but I agree that symbols matter.

I speak as a member of the Joint Committee on Human Rights, which has looked at this issue not once, but twice, and is composed of members of all parties as well as none. On each occasion it decided that the free speech protection of the law, as it will be if we pass this clause and reject the Motion, is perfectly adequate. Since no one else has yet done so, perhaps I may try to explain the relevant background and why I believe that we should firmly reject the Motion of the noble Lord, Lord Waddington. The law we have now distinguishes between incitement to racial hatred on the one hand and incitement to religious or homophobic hatred on the other. Where race is concerned, it is an offence to use insulting, abusive or threatening language—there is no requirement of specific intent to stir up hatred—if,

"having regard to all the circumstances, racial hatred is likely to be stirred up".

That is wrong. I do not like speech offences of any kind. Indeed, my old boss Roy Jenkins and I erred when we allowed the race hate offence to be as wide as that, but it is too late to reverse it these days. So that is incitement to race hate, a broadly drawn criminal offence which does not even require specific intent.

The offence is much narrower in relation to religious and homophobic hatred. The language used has to be threatening, not merely insulting or abusive, and there has to be an intention to stir up religious or homophobic hatred. In addition, both religious and homophobic hatred have, at the moment, a savings clause, which I shall come to. The reason why this House and the other place made a distinction between race and religion in the Racial and Religious Hatred Act—with the support of the Bishops, as I recall, for which we were most grateful—is that a verbal attack on members of a racial group is an attack on their common humanity, their inheritance and their birthright, which are fixed and immutable. But a verbal attack on a member of a religious group—not because of their group identity but expressing intemperate criticism of, or hostility to, the beliefs, teachings or practices of their religion—is not an attack on their common humanity unless in reality it involves an attack on their ethnicity, their origin and their biology, as so often happens with British Muslims, who are really being attacked for ethnic reasons in disguise.

Religion and belief are concepts that defy precise legal definition. They concern matters of faith and philosophy and are strongly influenced by history and politics and by tradition and culture. The line separating religious beliefs from political beliefs is often blurred, not least because religion is often used and misused for political purposes. The distinction between stirring up hatred of someone because of his religious beliefs and expressing hatred of those beliefs or practices in the abstract is quite subtle. So this House has decided, as has the other House, that the law protects religious believers against deliberate intimidation, threats of violence and intimidation, but it does not protect the actual beliefs and practices from abusive and insulting criticism.

The need for writers and artists to be able to criticise and ridicule religious beliefs and practices is the reason why I drafted what is referred to as the "English PEN clause", which prevents thin-skinned people from trying to use the criminal law to stop an attack on religious beliefs and practices which does not amount to the use of threatening language against individuals. I was responsible for that and the House overwhelmingly supported it.

The question is: where should homophobic hatred be placed on this scale? Should it be more like race or more like religion? Even though, in my view, sexual orientation, being an immutable characteristic, is more like race, I am pleased that the Government chose to put homophobic hatred in the same place as religion, leaving a large space for free speech. They chose to criminalise only that which deliberately stirs up hate and only that which uses threatening language—not insulting or abusive language—leaving a person completely free, however unpleasant and evil it may be, to insult someone because they disapprove of homosexuality. Because the offence is crafted so narrowly and already leaves fully adequate protection for free speech, there is no need for any additional savings clause. Discussion of sexual orientation, however unpleasant and offensive, does not entail the same controversy as religion where, as I have said, there is a need for an express free speech clause.

There have been some controversial police actions in relation to the other harassment provisions of the Public Order Act in which the police, trying to shake off their old homophobic image perhaps, have been overzealous in investigating claims of homophobia—for example, in relation to comments by Sir Iqbal Sacranie, the former secretary-general of the Muslim Council of Britain, or the evangelical Christian literature distributed by a retired Lancashire couple. However, it is clear that the specific homophobic hate speech offence does not criminalise such words, behaviour or writing unless they are threatening and intended to stir up hate.

The unanimous view—a unanimous view taken not once but twice—of the Select Committee, with its legal advisers and including, for example, the noble Earl, Lord Onslow, and two Conservative Members of Parliament, so it is not a party matter, is that there are adequate free speech safeguards. I fully agree with the principles referred to by the noble Baroness, Lady D'Souza; the question is how they are to be applied in practice. The removal of Section 29JA would not result in jokes involving gay people being outlawed or prevent the expression of opposition to same-sex relationships where the discussion does not amount to threatening language with intent to stir up hate. It would categorically not impede genuine freedom of expression.

However, there is real concern among the vulnerable gay and lesbian community that Section 29JA creates a legal loophole which could enable extremists to stir up hatred and attempt to avoid prosecution for words or actions that were deliberately meant to foment hatred. That concern is at least as great as the fear referred to by the right reverend Prelate.

I hope that the Committee will accept the view of the Joint Committee. For what it is worth, my own view is that if the speech crime were to be interpreted over-broadly, I have no doubt whatever that the courts, looking at the Human Rights Act which requires them to interpret every statute, including this one, in accordance with Article 10 of the European Convention on Human Rights, would again ensure that a case was not brought.

The problem I have about the specific language we are being asked to keep is that it seems entirely superfluous. Section 29JA states 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 to be threatening or intended to stir up hatred".

I ask rhetorically: how could any reasonable person possibly believe that the discussion or criticism of sexual conduct or practices, or urging people to refrain from or modify their conduct or practices, could be regarded as threatening or as intended to stir up hatred? Of course they could not. Therefore, this is an otiose provision.

Photo of Lord Tebbit Lord Tebbit Conservative

I am grateful to the noble Lord, but he has already explained that perfectly reasonable police officers have interpreted it in exactly that way and have arrested and detained people for behaving and speaking in a way which the noble Lord says no one could possibly misunderstand. But they did and it has happened.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Of course the noble Lord, Lord Tebbit, is right. There are idiots in all quarters. If police officers abuse their discretion in a particular way and interpret the law unlawfully, they will be vulnerable to disciplinary action, legal action and so on. But we cannot legislate on the basis of what some people have done in misunderstanding the law. The law is perfectly clear, as I have said, and there is no need for us to put in something which I regard as an oxymoron, or otiose, or both.

Photo of Lord Elton Lord Elton Conservative

When the noble Lord read out the passage with which we are all concerned, he should have emphasised the words "of itself". Section 29JA states that,

"such conduct or practices shall not be taken of itself".

That surely is the protection that we need. It means that if you say something which is offensive to someone, it is not of itself threatening unless you do it in a manner or under circumstances which make it so. That is all that this is intended to achieve. It is exactly what my noble friend intends it to do and I hope your Lordships will support him.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I am grateful to the noble Lord, Lord Elton. It is precisely the words "of itself" that create something completely unnecessary. No sensible person could possibly believe that, of itself, discussion or criticism of sexual conduct or practices could be regarded as threatening. That is why, unlike the English PEN clause in the religious context, neither I nor the Joint Committee regard this as being in any way necessary. On the contrary, it creates confusion rather than certainty.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

The noble Lord has made some rather interesting—

Photo of Lord Elton Lord Elton Conservative

May I just finish the point? The noble Lord, Lord Lester, said that no reasonable people could interpret it that way. Does he think that the people who wrote the guidance to the police that my noble friend read out were reasonable?

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I have no idea. I dare say that the guidance can be improved in all kinds of ways. We are concerned not with guidance but with the law of the land.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

As always, the noble Lord has made some interesting distinctions, but in my judgment he has not dealt with the powerful point made by the noble Baroness, Lady D'Souza, about the chilling effect of the removal of the section on the protection of freedom of speech, nor the right reverend Prelate's point about the symbolic effect of removing the section. I, too, am rather puzzled by the response of the Government; it is as if there were some urgency to remove the section. I wonder where the pressure is coming from for Clause 61 to repeal the free-speech protection. I detect no sense of burning public anger in favour of this. Certainly, many are concerned about the effect on freedom of speech, many of whom admire the Government's record on freedom of speech in other spheres.

Gay rights supporters are divided. Matthew Parris has already been cited by the noble Lord, Lord Waddington. The only major pressure appears to come from Stonewall. That organisation has done some significant work to enhance the dignity of gay people, but surely the Government are not bound to accept its entire agenda. In fact, there must be little of that agenda left now. It is but a lobby, and the Government should have a wider perspective. In passing, I consider the malign effects of accepting Stonewall's view on Christian adoption agencies. It was predictable, and it was predicted, that it would have those malign effects on some of the most caring adoption agencies in the country. The effect of the Equality Act (Sexual Orientation) Regulations 2007 has been that most of the 14 agencies, mostly Roman Catholic, have been forced either to withdraw from adoption services entirely or to abandon their religious ethos to continue. The result has been a victory for political correctness and defeat for vulnerable children and common sense.

The Waddington amendment, in my judgment, is moderately drafted, avoids doubt and in no way raises the threshold. The real problem of the repeal of this protection is that it will stifle honest expression of opinion—the so-called "chilling effect". Official guidance will not solve the problem; it does not have the force of law. The protection should be in the Bill. Guidance can be modified or withdrawn, and the current guidance is extremely weak. The noble Lord, Lord Waddington, has already cited paragraph 3.10 of the CPS guidance on prosecution, dated July 2007.

Some will say that there is no real problem; after all, there is a longstop in the fiat of the Attorney-General, who must sanction any prosecution. It is said that that is a powerful protection. The certainty, though, is that it will take time for any investigation to reach the Attorney-General, from the complaint to the police investigation to consideration by the Crown Prosecution Service. In the mean time—there are many examples of this—decent, law-abiding citizens will be in fear and dread as a result of that perhaps quite protracted investigation.

There is no doubt, from experience, that oversensitive zealots will make complaints about, at the very least, provocation. In April this year, for example, a gentleman, Mr Kwabena Peat, was suspended from his senior teaching job for complaining that the staff INSET day was used to promote homosexual lifestyles. In 2006 a Member of the Scottish Parliament complained after a sermon by the Roman Catholic Archbishop of Glasgow, who had stood in favour of the institution of marriage and against civil partnerships.

In a more recent example, on Monday 6 July the Independent reported that since the right reverend Prelate the Bishop of Rochester made his statement, with which some may or may not agree, he has been accused of pandering to hate and homophobia after calling on homosexuals to repent:

"Sharon Ferguson, of the Lesbian and Gay Christian Movement, condemned Dr Nazir-Ali for making comments that she said would encourage hatred".

That is the problem: she has made the allegation that what he said would encourage hatred. No doubt, if she were to pass that to a sympathetic police officer, it would shortly be investigated. Ultimately, of course, it would not proceed because either the CPS or the Attorney-General would stop it. I am confident that the right reverend Prelate is sufficiently robust to withstand the anxiety during any possible period of investigation; I am less confident about ordinary law-abiding citizens who will have to suffer the trauma of that period of investigation.

In my judgment, the clause provides clear and necessary guidance. It follows the precedent of the religious hatred law, and it should be retained if, as the noble Baroness has said, we value and give proper weight to free speech.

Photo of Lord Dear Lord Dear Crossbench 1:45 pm, 9th July 2009

As one of the four Members of the Committee opposing the Question that Clause 61 stand part of the Bill, I accordingly support the continuation of what is now generally referred to as the Waddington amendment, which was agreed by your Lordships about 12 months ago. I need to make a number of points immediately.

Like probably everyone in your Lordships' House, I do not hold anti-homosexual views, nor do I advance them; in fact, I abhor homophobia. I fervently believe in a tolerant society but I also agree with freedom of expression within the law, and it is that phrase "within the law" that concerns much of what we are dealing with today.

There is no direct case law to help us. Yet if one examines the long line of cases that start with Beatty v Gilbanks in 1882—I will give the Hansard writers the references later—which was the Salvation Army case, all the way through to the great review of the law in this area, Redmond-Bate v DPP in 1999, one sees a consistent guide that where the right of public expression of view has been challenged in the courts, the issue of reasonableness has been at the forefront of the minds of the judges.

If I may be allowed a reminiscence just for a moment to make a point, I recall a time in the late 1970s—perhaps it was the late 1980s—when, as a fairly senior police officer, I was often involved with the policing of large demonstrations and marches, some of them in those days very large indeed. I remember sitting at home watching the evening television news which showed yet another march wending its way slowly through some street or other in yet another city, the marchers flanked intermittently by uniformed police officers. My young daughter, watching this, turned to me and asked, "Daddy, why are policemen always demonstrating?". I had then to explain in simple terms, as we shall explore later on, what concerns us today—that there is a right within the law to demonstrate beliefs and views within reasonable bounds, and that it is the duty of the police to allow that to happen.

As I said previously, we are dealing with finely balanced judgments of what might or might not cause offence. The circumstances of Redmond-Bate in 1999 are particularly interesting and bear closely on the circumstances at which we are looking today. In 1997, three women were preaching from the steps of Wakefield Cathedral. They were described as fundamentalist Christians. They attracted a crowd of around 100, some of whom took exception to the views being expressed and became hostile. A police constable asked the women to stop preaching and, when they refused, he arrested them for breach of the peace and subsequently charged one of them further with police obstruction. The appellant, one of the three women arrested, was convicted by the magistrates and her appeal to the Crown Court was dismissed.

But in 1999, two years later, at the Queen's Bench Division, Lord Justice Sedley and his fellow judge took a very different view and allowed the appeal, holding that the women had not acted unlawfully. The judgment in that case is interesting because it reviewed the whole scope of the law at that time and not much has changed since.

Lord Justice Sedley made a number of particularly relevant points in his judgment. He cited Articles 9 and 10 of the European Convention on Human Rights, especially Article 9.2, which states:

"Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law"—

I ask noble Lords to note what comes next—

"and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others".

In other words, mere annoyance or disagreement with those views is not enough.

Article 10.1 states:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority".

Continuing to review the case law in that case, and the arguments adduced by counsel, the judge said this—and it is particularly telling:

"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers' Corner ... demonstrates is the tolerance ... extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modem writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power".

What a long way we seem to have come since those words were spoken 10 years ago.

Many Members of your Lordships' House are better experienced and better qualified than me to develop an argument from case law, and I fully appreciate that nothing that I have said can ignore the fact the Parliament can legislate pretty much as it likes and that the material that I have quoted is only persuasive—

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I wonder whether the noble Lord appreciates that the whole of what Sir Stephen Sedley said is something which I, certainly, and, I am sure, others like me completely endorse. That, I think, is common ground.

Photo of Lord Dear Lord Dear Crossbench

I am grateful to the noble Lord.

As my young daughter noticed all those years ago, the police are always likely to be present in those circumstances and to be drawn willy-nilly into the arguments. I brought in that reminiscence to ask where the police stand in this.

Prior to your Lordships' House approving the Waddington amendment a year ago, the police and the prosecuting authorities were, frankly, between a rock and a hard place. There was never any question then, nor is there now or will be in the future, that behaviour would be tolerated if it was offensive, aggressive, threatening or demeaning, and that the police would, should and will act accordingly to uphold the law. However, prior to the Waddington amendment, the police regularly received complaints from homosexual groups that exception was taken to remarks that homosexuality was deplored on religious grounds. The police were forced to act. They operated, as we have already heard alluded to, against a background of the Home Office's guidance notes on how to handle hate crime under the Public Order Act 1986, to which the issue of sexual orientation was added by the Criminal Justice and Immigration Act 2008. The so-called guidance notes in fact required rigid adherence. Any complaint of hate crime, by whomsoever made, even a bystander, had to be recorded as such and fully investigated. No exercise of discretion was countenanced. Accordingly, the police, and later the CPS, when faced with a complaint concerning remarks about sexual orientation, would follow the Home Office's guidance notes, go through the whole procedure of interview, sometimes following arrest—fingerprinting, taking DNA samples, police bail, sometimes charge—even though pretty well everyone in the official process knew that there was little or no chance of a prosecution, much less a conviction, following.

What a waste of time, what a waste of money and resources, and what a terrible burden to place on the person being arrested or interviewed, often waiting months for an outcome that was obvious to everyone except them. In many cases, the tactics were obvious: a complaint from a pressure group, police pressured into action with an implied threat of a complaint against them for neglect if a full investigation was not carried out and the inevitable chilling effect, about which we have heard already, on others who might be tempted to protest similarly in the future. In short, it was a very successful tactic to limit freedom of speech and freedom of expression.

Perhaps the most important question of all is what has happened since the Waddington amendment a year ago. Despite intensive research, I cannot trace a single instance of police intervention during that time in these circumstances. So what is the official response from the Association of Chief Police Officers? Well, there is no official response, a stance that I applaud because noble Lords will remember, as I do, ACPO a few years ago having its fingers burned when it intervened publicly in two separate debates concerning proposed legislation. Since then it has sensibly kept its head below the legislative parapet. However, my recent discussions privately with senior ACPO figures, including those most closely involved with issues of this nature, reveal two facts critical to our debate today: first, not only has ACPO not declared an official stance but it has not given an unofficial view in any quarter; secondly, it would much prefer to see the defeat of Clause 61 and the continuation of the Waddington amendment. The reasons given to me for this are simple and perhaps obvious. With the Waddington amendment in place, the police are released from the virtual straitjacket imposed on them previously; they can exercise common sense and good judgment on the day; and they can police with the light touch which is so often sought and required by society.

I have said enough perhaps. This clause denies any exercise of common sense, balance or discretion; it seeks to prevent reasonable expression; it is legally and jurisprudentially stifling; and it will serve no purpose but to return us to the wholly unsatisfactory state of affairs that existed a little over 12 months ago.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour 2:00 pm, 9th July 2009

I have been somewhat intimidated by the Bill. It has tremendous scope, covering many emotive issues. I am not a policeman or a lawyer; I am not interested in political correctness; but I am interested in the welfare of society at large. The amendment to remove Clause 61 seems so fraught with unintended consequences that I feel moved to speak. Some have talked of symbolic significance; I want to talk about unintended consequences. I cannot believe that the movers of the amendment would wish to see unintended consequences or any section of society punished by anything that they may support.

Let me set out very briefly what I think the dangers are. The proposal opens the door to the possibility of discrimination, bullying and mistreatment of lesbians and gay men. That may not be the intention, but that is what it may do. We need to retain Clause 61. The issue is not the protection of free speech; this is not in jeopardy, nor is the issue of the rights and wrongs of an offence of incitement to hatred on the grounds of sexual orientation, which was agreed by both Houses last year. The question is whether the retention of the exemption brought forward last year is appropriate. I suggest that it is not.

Two arguments have been put forward—first, that the section is necessary to protect religious expression and, secondly, that the section has no real effect but cannot do any harm. The first argument is just not so. No person of faith, in a temperate expression of their beliefs, could be deemed to be intentionally stirring up hatred. The Crown Prosecution Service or a magistrates' court would simply not accept this. The second argument is very odd. It is suggested that the section which was added to the law simply sends a reassuring message to certain people that something never caught by this law and that they have never been prevented from doing may continue.

The exemption would have an effect. It would have a stigmatising effect on lesbian and gay people in this country. It offers extremists who would stir up hatred against lesbian and gay people a defence for their actions. This is what I mean by unintended consequences, and I hope that noble Lords proposing the amendment will consider this effect. Lesbians and gay men are also law-abiding citizens, and they say that legal niceties can be twisted to harm them. I have read and know of excruciating stories from young men and women who are homosexual. Some have been driven to suicide by taunts; many have suffered depression; and many are afraid to go to school because of homophobic bullying. Many are living in fear and dread.

I am a patron of an organisation called Families and Friends of Lesbians and Gays, founded by and for parents of children who are lesbian or gay. Many of these parents have openly said that they had never thought about sexual orientation or had actually been prejudiced against homosexuality until their son or daughter declared that they were lesbian or gay. These parents are now aware of the difficulties that their sons or daughters face, and of how brave they, as families, have to be to combat hatred and discrimination.

People do suffer; there are unintended consequences of what we do. Clause 61 provides some defence for people. It must not be removed. Any unintended consequences of an amendment about sexual conduct and practices that could result in threat and misery must be resisted. This House should not send out this kind of message. I support Clause 61 and will vote against attempts to remove it. I beg those who oppose the clause standing part of the Bill to consider what I have said about unintended consequences, and I beg the House to reject the proposal and support the retention of Clause 61.

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench

I support the proposal of the noble Lord, Lord Waddington. I shall be very brief in view of the hour, but I shall make three points. First, we are not discussing the basic protection that the law rightly provides for our citizens against harassment, danger or stirring up hatred on grounds of race, religion or sexual preference. That is right and is unchanged. We are discussing the Government's proposal to remove one article—the free speech clause—from the Public Order Act, which states that certain actions are not to be taken as threatening or intended to stir up hatred.

I am surprised to find this proposal in this Bill. Parliament decided very recently, after a full discussion in this House and with the agreement of the House of Commons to put this article in the law. The Government can always propose to amend legislation, but in my view very strong reasons are needed to propose the selective change of legislation of such recent date. I do not see those reasons; on the contrary, it is clear that some of our citizens, particularly those who are Christians and in Christian groups, believe that the article offers them some protection against harassment. The public, the police and the courts are entitled to look for some stability in legislation.

Over the past week, the Minister has frequently criticised amendments as inappropriate to the Bill or to its twin brother, the Policing and Crime Bill. That argument goes both ways; the Clause 61 proposal is simply slipped in among clauses on the coroner's services and issues such as assisted suicide, the law of murder, the defence of provocation, infanticide, pornography, prostitution, conspiracy and terrorist offences. There it is, all by itself. We do not deal with finance in this House, so I know nothing about stealth taxes, but this looks a little like stealth legislation.

Even with no account taken of Brussels, we are none the less bombarded with home-baked legislation—some of it half-baked, of course—that is difficult enough to understand. It really is surprising that in these circumstances the Government have decided to seek to remove this one article on free speech. Clause 61 is not necessary and should be dropped. Yesterday, we discussed the Independent Parliamentary Standards Authority. The Government proposed Clause 10, which would have restricted free speech in the other House; the other House voted against it and struck it out. This seems to be the week of the Government against free speech and, in those circumstances, we should maintain the free speech provision in the law. I support the proposal of the noble Lord, Lord Waddington.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

I, too, support the amendment moved by the noble Lord, Lord Waddington. My name is the fourth name to it. I apologise to your Lordships that I was not here for the first few speeches; the time that I was away was the only time that the noble Lord, Lord West, could give me to pursue questions arising from one that I asked in your Lordships' House a few weeks ago. I was unsuccessful in being in two places at once.

The proposal of the noble Lord, Lord Waddington, and the clause that it seems to hold within the law are necessary and proportionate. I must tell the noble Baroness that I have heard nobody responsible for this amendment say either that it will have no real effect or that it cannot do any harm. I am sure that we would not be troubling your Lordships if we held either of those views. I believe that it will have effect if the clause stays and will do some good for precisely the reasons that the noble Lord, Lord Dear, so magisterially laid out. The chilling effect on the way to a decision by the Attorney-General is potentially, and in some cases actually, very substantial.

The clause is modest in its content; yes, it is declaratory, but we have heard from other speeches why it needs to be so. It needs to make it crystal clear that it does not defend any language or behaviour that is intended to stir up hatred or may result in doing so. I believe that it has potentially and, already actually, good effects, and that it does good.

The question that we are facing in this debate is accurately described as one of free speech. What is at stake is whether your Lordships' House and this Parliament intend to outlaw open discussion and teaching, not just among Christians but among others, of views that differ from the currently dominant political orthodoxy, and therefore privilege, in the face of others, that currently dominant orthodoxy. To be explicit, I mean the orthodoxy that sexual preference is as innate and fixed as ethnicity, and that sexual preference or orientation is more akin to ethnicity than to religious belief. That is the current political orthodoxy that lies behind the Government's Clause 61. People of all sorts in this country need to be assured, peaceably and quietly, whether on street corners, in churches, mosques, synagogues or wherever, that they are free to express views that others may strongly disagree with but which question the current dominant political orthodoxy.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

The right reverend Prelate had the good fortune not to hear what I had to say. I first reassure him that I believe everything he just said to be amply protected by the law. Secondly, although he refers to what he calls "current political orthodoxy", surely even a Lord Spiritual would accept that there is scientific evidence to show that the reason why people are gay is innate and not to do with some kind of personal choice.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

No. My own studies, which I suspect are comparable to that of the noble Lord in these matters, suggest that that is the case for some of those who understand themselves to be gay but for others it may not be. Substantial scientific, psychological and medical research points to the statement that I made a moment ago. That is why I say that this question is by no means settled. To pass law on the assumption that we can use the language of sexual orientation and believe that we are talking about something that is absolutely fixed and clear, as ethnicity might be thought to be, is a mistaken political orthodoxy.

I can draw only one conclusion from the insertion of Clause 61—a conclusion that for me is sadly reinforced by the behaviour of your Lordships' House and the Government over sexual orientation regulations, as the noble Lord, Lord Anderson, graphically described. I will not go into that except to say that Parliament was unnecessarily and aggressively pursuing Roman Catholic adoption agencies. That kind of experience leads me to read Clause 61 with considerable anxiety. That is all the more so when I read the Equality Bill now before the other place. It seems that the Government believe that others' rights trump those of people of faith when there appears to be some tension between the two.

If that is the case, it would be curious in the present day that a range of individuals and groups in this country, Christians among them, rather than the Government and the lobby groups, are seeking to defend a free market in religious and other ideas and the publishing of a range of scientific research. Again, as the noble Lord, Lord Anderson, suggested, it begins to look as if, curiously, at the beginning of the 21st century, Stonewall is being permitted to become the Archbishop Laud of our time. I hope that the House will recognise the implications of Clause 61 and vote with the noble Lord, Lord Waddington, for its removal.

Photo of Lord Davies of Coity Lord Davies of Coity Labour 2:15 pm, 9th July 2009

It was not my intention to speak, but I have been encouraged by my two noble friends Lady Turner and Lady Massey. I shall be going through the Lobby with the noble Lord, Lord Waddington, because I believe that his approach is to reinforce freedom of speech and not to encourage murder and the incitement of hatred. The cornerstone of our democracy is freedom of speech. I am reminded of what an eminent politician said years and years ago. I paraphrase: "I may be bitterly opposed to what someone says, but I will fight ferociously for him to have the right to say it". I believe that to be true today.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I do not have a carefully constructed speech as I was not sure that I would speak at all today. The one group which will find this debate chilling is the gay community. Let us just take our arguments one at a time. I had not intended to speak so I take them steadily.

We are not talking about anything that would result in jokes involving gay people or that a gay person might consider offensive being outlawed. This would certainly not impede genuine freedom of religious expression. As a woman of faith, I would gladly engage in a theological discussion with the Church about the basis of the present discussion on the background of homosexuality. If we took that theological discussion to its extreme, we would stone adulterers in the streets and carry on all the practices in the Old Testament. Christ said, "You may say in law an eye and a tooth for a tooth, but I say unto you love the Lord your God and your neighbour as yourself". We are talking about some of our neighbours.

I am a great advocate of free speech. I believe in free speech and I stand up for free speech. That is why it is good that we have this debate on record, because the police have to be absolutely clear that gay people may be upset by what is said. They may challenge what is said, and the police have to get it right. I know that professionals do not get it right all the time—after all, I am a social worker and we get it wrong, as we see in the press, most of the time. Social workers, lawyers and the police will get it wrong from time to time and we should understand that. It is then up to the Crown Prosecution Service and other services to oversee us, and we know that they do that substantially in other areas. We heard that in the debate about assisted dying this week. We know that considerations are made all along the road, so we have to make sure that we get that right. We have it now in Hansard that we do not expect jokes and bits of free speech to result in prosecution.

However, this is about something quite different. It is about the incitement to do damage to people who are gay or lesbian. During the past few days, there have been a number of debates on the Floor of this House reflecting our thinking about public behaviour. I agree absolutely with the Bishops' Bench that this will send a message to the community. It will send a message to the gay community that it is not valued, because we are prepared to have, on the face of the Bill, something that it finds deeply offensive and which would not stop free speech.

Would noble Lords include in the Bill something that said it was all right to use threatening language intended to stir up hatred against black people? That would be called racism, but it is exactly what noble Lords are suggesting happens here. On the face of this Bill you have something that is called free speech, but is in fact prepared to allow incitement to hatred.

I say all this because it is not really understood how deeply gay people feel this in terms of the offensiveness involved and the way it demeans their lives. They may well not be acceptable to many people in this House: you may not believe that people who feel that they are gay or lesbian are real human beings—are men and women; you may believe that they may have some sort of disease that could be cured and that research may show that. That is a deeply offensive position to take against gay and lesbian people, just as this clause stands on the statute book. I therefore stand with the Government and reject the Waddington amendment.

Photo of Lord Monson Lord Monson Crossbench

Is the noble Baroness aware that Peter Tatchell, Matthew Parris and other prominent homosexuals oppose Clause 61?

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I am speaking not for them but for myself and the people I know.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

I apologise to my noble friend Lord Dear; I did not intend to come between your Lordships and the extremely authoritative speech that he treated us to.

I do not intend, particularly at this late hour, to intervene at any length, but I have a question and I wonder whether the noble Lord, Lord Lester, might be able to help me with it. It seems clear to me that all of us in this Committee share a presumption in favour of free speech. The noble Lord, Lord Lester of Herne Hill, made it clear that he shared that presumption and in particular that he endorsed entirely the remarks of Sir Stephen Sedley, which were cited. In his exceptionally helpful speech, the noble Lord sought to show us that the present law struck the right balance between the rights of free speech and the protection of gay people, because the offence was sufficiently narrowly targeted to leave space for people to express even disagreeable opinions about gay and lesbian people. The noble Baroness, Lady Howarth, failed to appreciate that distinction when she said that remarks that would be regarded as incitement to racial hatred should be treated in exactly the same way with respect to—

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

That is exactly the distinction that I made. I clearly said that many people may find it offensive to hear some of the issues, but that does not necessarily make it an offence.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

I apologise if I did not hear the noble Baroness correctly. I shall proceed with my question. The noble Lord, Lord Lester, helpfully tried to show us how the law struck the right balance. He was a little undercut by the noble Baroness, Lady Massey, who supported his position, but who I thought showed fairly convincingly that the law was not actually protecting gay people in the way that the noble Lord, Lord Lester, sought to show us it was perfectly adequate to do.

I wish to deal with the characterisation of the current legal position given by the noble Lord, Lord Lester. The noble Lord sought to assure us that the present law was perfectly adequate to protect gay and lesbian people and that the problem with the Waddington amendment was that it would leave lesbian and gay people feeling fearful for their position because people would use the Waddington amendment to conduct all sorts of scurrilous and abusive attacks on lesbian and gay people, such as were calculated to incite hatred, and they would do that under the cover of the Waddington amendment.

I have two questions that I should like the noble Lord to help me with in relation to that, if I have characterised his presentation of the situation correctly. My first question is whether there is any evidence that the Waddington amendment—I know that we have not had a great length of time—has had that effect in the past year. Does it appear to have given rise to a rash of the kind of attacks that the noble Lord told us lesbian and gay people might be fearful of? My more fundamental question is: if it is the case that the present law gives lesbian and gay people perfectly adequate protection, what can they possibly have to fear from the Waddington amendment? If the present law is adequate, how can their fear that the amendment will act as a cloak and cover for scurrilous attacks that have a tendency to incite hatred possibly be justified?

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

The noble Lord, Lord Low, asks extremely difficult questions and I am not able to give an answer that he would find satisfactory. Before I try to answer them, I must say that I am a liberal with a small "l", and therefore I fully understand that the spirit of liberty is one which respects the views of everybody else and I only interfere with free speech where it is absolutely necessary and in very narrow circumstances. I believe that to be true of almost everybody who has spoken today. We are then talking entirely about the balance to be struck and the symbols that will be sent out by whichever way the vote goes this afternoon.

The noble Lord asks me whether there is evidence to show that what is called the Waddington amendment has done harm. I cannot answer that question, but the question I can answer is whether there have been many homophobic physical and other attacks in recent years and months, and the answer is yes there have, but whether they are causally related to the Waddington amendment I would not dare to try to guess, because I do not know how one would be able to prove that one way or the other. The second question is whether gay people have adequate protection under the law as it now stands. They do. They have protection under the civil law against discrimination and harassment, just as people have protection under the law against religious harassment and discrimination. They have protection under the criminal law against threatening words. They have less protection under criminal law than black people do, because black people are protected on a very broad basis; gay people are protected on a much narrower basis, but it is enough. I am not suggesting that any greater protection be given.

The real debate is about symbols. What message will be given if we go one way or the other? The message that will be given by those in favour of the Waddington amendment—we are dealing with irrational matters on both sides—will be that the House has reverted to a position it took 15 years ago and is somewhat homophobic. That may be quite unfair, but that will be the message. The message the other way, equally unfair, may be that the House is taking a different view.

We are dealing with symbols. It is very unsatisfactory that that is so, but it has been symbolised by the right reverend Prelate's speech, with which I respectfully do not agree—but I respect his position utterly, as I respect freedom of religion. I have not really answered the question because I do not think that there is a clear answer.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I should like to make two very short points. First, thinking about unexpected outcomes, I was interested to hear from the noble Lord, Lord Waddington, that he had discussed the original proposal which became the Waddington amendment with Ben Summerskill of Stonewall.

Photo of Lord Waddington Lord Waddington Conservative

I would not like to give that impression. I was quoting from what Ben Summerskill said when giving evidence before the committee on the Bill in 2007. During that hearing, he said that he would not object to something being in the Bill that made clear the importance of freedom of expression.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 2:30 pm, 9th July 2009

I apologise to the Committee for my inaccurate understanding of what was said by the noble Lord, Lord Waddington, but his point seems equally valid. So is the recent comment that Matthew Parris and someone else, I think, saw no outcome for homosexuals from the proposed keeping in law—not making new law—of what was the Waddington amendment. Consequently, it does not appear that there is strong opposition from well known gay people to this modest freedom of speech.

The second point seems terribly important. I endorse what the noble Lord, Lord Dear, said about the police being in difficulties. What would be the message to the police from this House if they were in difficulties from the guidance, and from their obligation to take seriously and deal with each possibly malicious or possibly genuine but unneeded application to them to do something? I mean the sort of referral to the police that would not get to the courts, that would not be given the Attorney-General's fiat, and that the courts would knock down. But it is not at the courts that it matters. It matters at the point of reference to the police—the need of the police to deal with it. Because the law was changed and accepted by the House of Commons, in the last year the police have known where they stood. What are they to understand if we then get rid of the Waddington amendment and keep the guidance? Are they then to act, possibly arrest and certainly interview perfectly respectable people who do not agree with what most of us in this Committee agree, I hope—that gay and lesbian people, among whom we all have friends, have equal rights to absolutely everything? The police will have to deal with the issue.

That is the symbolic message that will go beyond symbolism and into a difficult position both for the police and for Christians, Muslims and Jews who follow the Old Testament and speak out about what they feel. It is important that the Committee reflects on that. For that reason, I will support the noble Lord, Lord Waddington.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

I shall vote with the Government today. I have the greatest respect for the noble Lord, Lord Waddington, and those who have spoken in favour of his amendment. However, my professional experience has led me to realise the dangers of homophobia. I recall many years ago a spate of homophobic attacks in Chester; I was involved in the prosecution of a person who had stabbed a young man simply because he believed that he was homosexual. I have never forgotten what he said to the police about it. He said, "I heard him giggling, so I knew he was a queer", and he killed him. Very much more recently I was involved, on the other side, in a case in which a young man perfectly innocently walking on Clapham Common was attacked by two men and killed.

What lay behind both those incidents was the way people talked among themselves and worked themselves up. When I hear that the opposition to the clause is put forward on the basis of free speech, so that people can criticise such behaviour, I think that it is far removed from the defence of homosexual people that this country needs. I fear that the removal of the section is necessary. Opposing the clause would give a signal; it would be not about enabling people to talk in terms of, "I don't like homosexuals", but about them talking together and working themselves up into attacking and killing people. That is why I shall vote with the Government. However, we are not whipped on this vote, and my colleagues can disagree with me if they wish.

Photo of Lord Tebbit Lord Tebbit Conservative

Almost all that was necessary to be said today was said by the noble and learned Baroness, Lady Butler-Sloss. In my own way, I will turn from the generality of what she said to a more specific case. In his original speech, the noble Lord, Lord Lester, made some perhaps less than kind remarks about the intellectual capacity of certain police officers in relation to one incident that had been cited. We have now heard, of course, that a lady has complained—in general, and not to the police—about the words spoken by the right reverend Prelate the Bishop of Rochester. As the law stands at the moment, if that lady were to go to the police, any sensible police officer could say, "Well, yes, my dear, I hear what you say, but it is clear that no offence was committed". However, if the Government succeed and the Waddington amendment is removed, the police officer would be left in a difficult position. He might believe that no offence had been committed; the noble Lord, Lord Lester, would say that no offence had been committed. But suppose that the police officer just told the lady, "No offence was committed. I shall take no action". He might feel that he would come under attack—that he would be accused of homophobic behaviour for not following the matter up.

We would be creating a most awful pressure on the police, and they would react, naturally enough. They would have to go and interview the right reverend Prelate and discuss the matter with him. As has been said, he is robust enough a man to take care of himself, but that might not be the case with many other people, who would lack the resources to fight the thing through—perhaps even to fight a conviction and take it to appeal. There is no evidence whatever that the amendment has caused any outbreak of homophobic attacks or any of the other nonsenses. The noble Baroness, Lady Turner of Camden, listed all the dreadful offences, which are against the law and which the Waddington amendment did nothing to bring within the law. That serves nothing at all. It is simply an outbreak of emotionalism which obscures the facts. We should stick to the facts and stick to the Waddington amendment.

If, in another year or five years, we find that there has been an outburst—that masses of bishops are making incendiary remarks—of course we might reconsider the matter. For my part, I must say that there are moments when I wish that more bishops made more incendiary remarks rather than less.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

We on this side of the Committee have a free vote on this matter; so it would be inappropriate for me to wind up on behalf of the Opposition. I shall say only that I shall be supporting my noble friend Lord Waddington in voting that Clause 61 should not stand part of the Bill.

There is one other observation that I want to make about the circumstances in which we find ourselves this afternoon. The Government did not choose to oppose the decision taken in your Lordships' House last year to support my noble friend Lord Waddington's amendment, which subsequently became Section 29JA of the Public Order Act 1986.

It is, in my view, an abuse of parliamentary procedure to bring this matter back to Parliament without any evidence that Parliament had made bad law, especially when the same Government are in power. Indeed, the Government say, in terms, that Section 29JA is not bad law. Their case is that it is unnecessary law because the definition of the offence of incitement implies, in terms, the contents of my noble friend Lord Waddington's amendment.

In these circumstances, it cannot be good constitutional practice for a Government to compel Parliament—the law-maker—to spend further time on this matter. Indeed, I would describe it as an abuse of legislative procedure.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Whatever its failings, the Bill has resulted in some passionate and important debates, particularly in the course of the past week's hearings in your Lordships' House. Today's debate has been no exception. Clause 61 will remove from Part 3A of the Public Order Act 1986, which includes offences of stirring up hatred on the grounds of sexual orientation, Section 29JA, which deals with freedom of expression. I say for the avoidance of doubt that that section was agreed by this House in the passage of last Session's Criminal Justice and Immigration Bill.

The Government have always said that there is no doubt about the threshold of this offence; I will come to that in a moment. I will first do my best to answer the criticism that it is somehow constitutionally improper for the Government to come back to the issue at this stage. I do not accept that argument for one moment. As has been indicated and as, I think, noble Lords know, we needed to secure Royal Assent for the Criminal Justice and Immigration Bill by 8 May 2008, so we were unable to ping-pong on the Bill beyond the initial rounds. If we had said nothing about it at that time, I could understand the criticism, but at the time we made it perfectly clear that we would return to this issue.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am most grateful to the noble Lord for giving way. The fact that the Government had certain constraints at the time was entirely their decision; there was no obligation on Parliament to pass the Bill by early May. The Government had other priorities; that was why they wanted to move quickly. It is quite clear that, by not opposing this matter, the Government accepted the decision of Parliament. For the noble Lord to suggest that it was otherwise is, I say with great respect, not an accurate record of what occurred.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I would be grateful if the noble Lord would listen to what I have to say before coming back to me.

Photo of Lord Waddington Lord Waddington Conservative

If the noble Lord is going to move on to other matters, I must take him to task—

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I am not moving on to other matters, but I wonder whether I could make my point. Then the noble Lord can respond to me.

Photo of Lord Waddington Lord Waddington Conservative

I want to return to the point of whether the Government made it perfectly clear that they were going to return to this matter, because, of course, they did nothing of the sort. I have here what the Minister said in the House of Commons on 7 May. What she said was the opposite of what the noble Lord has just suggested. She said that,

"between now and commencement we will prepare guidance ... explaining the operation of the new offences ... Of course there will be an opportunity—doubtless there will be frequent opportunities—to revisit this issue in due course, if it is the will of this House or the other House to do so. On that basis, I would like to propose that we do not disagree with the Lords in their said amendment".—[Hansard, Commons, 7/5/08; col. 808.]

How on earth can the noble Lord have the cheek to say that that was an indication that the Government would return to the matter in the very next Session?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 2:45 pm, 9th July 2009

The Minister did not say that we would return to it in this Session, but she said that we would return to it. Let me carry on with the quotation that the noble Lord, Lord Waddington, mentions in part. My honourable friend the then Parliamentary Under-Secretary of State for Justice said:

"We remain of the view that the amendment is undesirable and unnecessary; it does not add anything to the law as it would stand without its inclusion. However, as ... my right hon. Friend ... has explained, there is an urgent need for the Bill to receive Royal Assent".

She went on to say—and this is what the noble Lord has just quoted—that,

"there will be an opportunity—doubtless there will be frequent opportunities—to revisit this issue in due course, if it is the will of this House or the other House to do so".—[Hansard, Commons, 7/5/08; col. 808.]

It was the will of the House to do so and that is what happened by the very large majority of 154 when the Bill was debated in the other House in March. This trumped-up charge of constitutional impropriety is really not worthy of argument. The debate is about something else altogether. It is not about this.

Let us look at what this debate is really about. First, we should look at the threshold for the offence itself. It is a very high threshold indeed. No freedom of expression proviso is needed to clarify the ambit of the offence. It covers only words or behaviour that are threatening and intended to stir up hatred—a very high benchmark indeed. Those terms—"threatening" and "intending to stir up hatred"—have their normal English meaning. If we start to gloss that meaning or explain in more detail what is and is not covered, we perhaps risk making the offence less clear. We do not want to imply that there is ever any justification for threatening behaviour that is intended to stir up hatred, as there is not. The provision purports to be for the avoidance of doubt, but it probably creates doubt where there is none anyway. That is an argument for not accepting the amendment.

When the House discussed this offence during the passage of the Criminal Justice and Immigration Bill, there were legitimate concerns about the possibility of the offence being used in a disproportionate way against people who are merely expressing a dislike of, or distaste for, certain sexual practices. In particular, there was concern about people who are explaining religious doctrine that is against certain sexual activities. There were also concerns that the offence, without a freedom of expression proviso, could stifle comedy or artistic portrayals of homosexual characters. The Government have taken careful note of those concerns, which we know are particularly strongly felt by some noble Lords. We have listened carefully to noble Lords and fully share their concerns about free speech.

Let me be absolutely emphatic: in formulating the offence, we had no intention of stifling debate about sexual orientation, of interfering with the preaching of religious doctrine or of making it more difficult to portray homosexual characters in comedy or drama. On the other hand, we have always intended that the offence should be an effective way of dealing with threatening behaviour intended to stir up hatred on the grounds of sexual orientation. Is there anyone among us who has not seen evidence of that sort of material? It includes rap lyrics that are part of music that sells in huge numbers. We have seen pamphlets from extremist political groups. Also, as we have heard, there are extreme people about who have caused huge concern and upset to the homosexual community, whether gay or lesbian.

Photo of Lord Tebbit Lord Tebbit Conservative

Are there any sections of the Koran that would fall foul of the law?

Photo of Lord Tebbit Lord Tebbit Conservative

Are there any sections of the Koran that, if read out in a public place, would cause an offence under the law?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Not for the first time I cannot answer the noble Lord's question. I am not talking about the Koran; I am talking about this legislation. I dare say that some people would be offended by the Koran being read out.

Photo of Lord Tebbit Lord Tebbit Conservative

With respect, I asked the noble Lord not whether it would be offensive to read it but whether reading it might constitute an offence under the law, particularly the law without the Waddington amendment.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

Is not the answer to this strange query that it could be if it was read out in a way that intended to threaten violence against the people to whom it was read?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The noble Lord has his answer.

I hope that I may continue with my remarks, because I think that noble Lords are probably keen to come to a view on this. Noble Lords who oppose the Government's view on this have made many speeches, but I do not think that it will harm the Committee to hear the arguments for a little longer.

The question before us is whether we need the freedom of speech provision. We have always maintained that we do not. I remind the Committee that the other place discussed the section last year and concluded that we did not need it. The other place voted against it twice, on the last occasion by a majority of 202. Eventually, due to pressure to complete the passage of the Criminal Justice and Immigration Bill, the other place agreed to the amendment which had been originally tabled in this House by the noble Lord, Lord Waddington. Since then, the other place has considered the issue again—in March of this year—and agreed by a pretty wide margin of 154 to support the clause. Of course, we do not have to follow what the elected House of Commons, which is supposed to represent the people of this country, does, but three votes in a comparatively short period, all by large majorities and all to the same effect, is something that the House takes notice of in certain areas and perhaps the Committee ought to, to some extent, here.

But the matter does not end with what the House of Commons has said very clearly on a number of occasions. The Joint Committee on Human Rights has repeated its view that the freedom of expression proviso is unnecessary. It agreed that the balance of the offence was right without any specific provision of this kind. We often take great note of what that Joint Committee says. It represents this House and the other House and contains distinguished Peers and Members of Parliament from all sides of both Houses. What it has to say on this is at least worthy of note.

The Equality and Human Rights Commission has reached the same conclusion. We are even more confident of our view given that we have that body's support. The noble Lord, Lord Lester of Herne Hill, has been a supporter of the concept of freedom throughout his career, whether in the courts, this House or elsewhere. If he is convinced that this amendment is not necessary for freedom of speech, I venture to think that the Committee should take note of that.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

Having been somewhat concerned with the origins of this religious hatred, perhaps I may say that the Committee is not concerned with what the noble Lord has said about the intentions of government or what the noble Lord, Lord Lester, thinks; we are concerned with the way in which these intentions have been operated by the police.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I understand that point and I shall come to it shortly.

Apart from the high threshold of the offence, procedural safeguards exist that ensure that the right balance is achieved. I absolutely take on board the point that the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Tebbit, made about this being related to where the police come in. However, the Attorney-General must consent to any prosecution. The Crown Prosecution Service will prosecute only where it is satisfied that a prosecution would be in the public interest. The Human Rights Act ensures that the police, the CPS and the courts must act in a way that is compatible with the convention rights. Therefore, we are satisfied that there are multiple safeguards against this offence being used inappropriately.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

I wish to put a point to the noble Lord that I hope he finds helpful. One thing that has been made clear to us in the debate is that the Attorney-General's fiat comes much too late and is not a sufficient safeguard, as a lot of the damage to people who wish to practise the right of free speech is done long before the matter comes to the prosecuting authorities or the courts or anything of that kind. The point that has been made is that the guidance is not sufficiently helpful in emphasising to the police the imperatives of free speech and that more weight should be given to that in the guidance. Does the noble Lord agree that it could be helpful to this whole issue if the Government would revisit the guidance on these questions?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The Government have said that they intend to issue guidance on the new offence, so by its nature that guidance would be new. I am trying to answer the noble Lord's direct question.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

Would it not be simpler to leave this clause in and to revise the guidance? Would that not be simpler, clearer and more direct?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I shall come on to the Waddington amendment and what its effect might be in a moment. I shall try to deal head on with the issue of the police.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am so sorry to interrupt, but I simply make the point that this is not an amendment by the noble Lord, Lord Waddington. It is about whether or not Clause 61 should stand part of the Bill. That is a not unimportant point when—if the noble Lord, Lord Waddington, so wishes—your Lordships vote.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I am most grateful to the noble Lord for telling me something that I already knew. I did not hear him comment when others described this as the Waddington amendment, but there we are. He is quite right: when it comes to the vote, it is a matter of the clause standing part. I thank him for telling the Committee that.

Let me deal with the police. Some of the concerns we heard last year and this year involved examples which were regarded, perhaps not surprisingly, as inappropriate and overzealous action. As I understand it, those examples concerned public order offences in Sections 4A and 5 of the 1986 Act, which relate to harassment, alarm or distress. The crucial point is that those offences have a substantially lower threshold than the offence we are discussing, cover a wider range of behaviour and carry a lesser maximum penalty.

There may indeed be a considerable case for giving the police more detailed guidance about those particular public order offences. But I have to say that I am not aware of similar concerns in respect of the offence of inciting religious hatred, which has a similarly high threshold.

The noble Lord, Lord Dear, talked about changes in the police approach. I am afraid that I have to say to him and to the Committee that any changes in the police approach over the past year, if indeed there has been a change at all, actually have nothing to do with what was formerly described as the Waddington amendment, for the simple reason that the offences of inciting hatred on grounds of sexual orientation are not yet in force—they are not yet in force at all—and there has been a supposition in this debate that somehow they have already been in force. They have not been. We are not aware that ACPO has expressed any view either way on Clause 61. My experience, and perhaps that of other noble Lords, is that ACPO is not slow in coming forward with its views on matters of this kind.

Noble Lords:

Order!

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

On a matter of order, I remind the Committee that frequent and lengthy interruptions are not appropriate and that it may be sensible for the Minister to get to the end of his speech. I also remind the Committee that we are in Committee, and anybody who has a need to answer points raised in the Minister's speech may speak as many times as they choose to.

Photo of Lord Dear Lord Dear Crossbench

I thank the Minister for giving way. I referred in my speech to the fact that ACPO had not given an official view—which is, I think, true. I am assured by those who are closely in contact with this issue that ACPO had not given an unofficial view—by which I was trying to say in code—within government as well. But ACPO has said in clear terms to me that it would prefer the Waddington amendment to stay, because it has made life easier. I make that point in shorthand, but I make it nevertheless.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The Waddington amendment and the Bill to which it was attached are not in force at present. They are not there. That is not the law of the land as it stands. I must move on.

In response to the noble Lord, Lord Low, the Government have said that we intend to issue guidance on the new offence. The Ministry of Justice intends to issue short explanatory guidance about the offence. The Crown Prosecution Service, in its turn, will issue guidance to prosecutors. We understand that the Association of Chief Police Officers is currently revising its hate crime manual, which will open operational advice about the offences of stirring up hatred. This will be in addition to current guidance, covering topics such as the Human Rights Act. The Government's case is that that, coupled with the high threshold of the offence, makes us believe that the safeguards are adequate—indeed, more than adequate—without the freedom of expression clause.

What I describe as a lawyer's point has been made about whether the Government are saying, on the one hand, that this is unnecessary, or on the other, that it will do harm. Life is not quite as simple as that. It is correct, of course, on a literal interpretation, that this section is unnecessary, because it states a proposition that any court would be able to deduce for itself. It does not, of course, in any way alter the range of behaviour or material which is caught by the offence. But it does not follow that it is thus, necessarily, harmless. Unnecessary material in legislation has a potential to go septic.

If he will forgive me, I should like to remind the Committee that my noble friend Lord Smith of Finsbury said on the Report stage of the 2008 Bill that the section brings a danger that those who do wish to incite hatred may seek to take refuge in this amendment to justify their behaviour. That was true then. It is as true today. That is the real point behind the Government's opposition to what the noble Lord, Lord Waddington, is suggesting. The section is unnecessary, of course, but there will be those outside—no one in this House or this Committee—who will take advantage and thus do their best to make the lives of those who this offence is supposed to protect more difficult.

It is for those reasons that the Government invite the Committee to say that Clause 61 should stand, and that noble Lords should vote Content.

Photo of Lord Waddington Lord Waddington Conservative

I am quite sure that a long speech from me would not be welcomed for one moment. I thank all those who have taken part in what has been a very important exchange. I wish to make only two or three simple points. We are not talking about the terrible threat that is faced by many gays, because that threat can be dealt with—and often is dealt with—under the present law. Nobody is suggesting today that this free speech clause opens the gates to incitement to violence against gays. I am sorry, but I am inaccurate in that remark, because that seemed to be suggested by the noble Baroness, Lady Howarth of Breckland; but of course it is simply not the case. The Government themselves, in their notes on clauses, say that this free speech clause does not raise the threshold for the offence or make prosecutions more difficult.

I also remind your Lordships that those who declaim rap lyrics can be prosecuted now. They can be convicted and sent to prison for a very long time under the 2007 Act, which makes it a specific offence to encourage violence against people. Therefore, rap lyrics have nothing whatever to do with what we are discussing today.

The Minister said that we should not be too worried about all the cases of abuse that have been referred to in which the police have gone hopelessly over the top, because they were only trying to apply the old law, which had a lower threshold. I have to tell the noble Lord that he is wrong on that. I have read very carefully, as I am sure have many noble Lords, about the Roberts case in Fleetwood; they eventually obtained substantial compensation. Although this new law was not in force when they were interviewed by the police, they were told by the police that they were very close to the serious offence of homophobia, punishable by seven years' imprisonment. Therefore, there is not the slightest doubt that at that time the police thought that this law was already in force. I also remind the noble Lord that in my opening speech I referred to the case of the city councillor who made a joke at a police community liaison meeting. That took place after this new law reached the statute book, so I am afraid that the noble Lord is being hopelessly complacent.

There are real abuses that have to be dealt with. I thank the noble Lord, Lord Dear, in particular, for explaining the difficulties with which the police are faced and how they will be helped enormously if this free speech clause remains on the statute book. It will give them proper guidance, which has certainly not been provided in guidance from the CPS. How, in the light of the wording of the existing CPS guidance, the Minister can think that he is giving us comfort when he says that similar guidance will be produced in the near future, I really do not know.

I thank all noble Lords from the bottom of my heart for their contributions to the debate, and I invite them to join me in the Not-Content Lobby.

Division on Clause 61

Contents 133; Not-Contents 186.

Clause 61 disagreed.

Division number 1 Coroners and Justice Bill — Committee (6th Day)

Aye: 131 Members of the House of Lords

No: 184 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

House resumed. Committee to begin again not before 4.21 pm.