Clause 38 - Public order offences

Crime and Courts Bill [Lords] – in a Public Bill Committee at 8:55 am on 12th February 2013.

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Photo of David Hanson David Hanson Shadow Minister (Home Affairs) 8:55 am, 12th February 2013

I beg to move amendment 113, in clause 38, page 40, line 38, at end insert—

‘(4) The Government must publish an impact assessment on the removal of “insulting” from section 5(1) (harassment, alarm and distress) and from section 6(4) (mental element: miscellaneous) of the Public Order Act 1986 no later than 12 months after this legislation is enacted. This report must include details of the number of public order complaints made, the characteristics of each complaint and the outcome of each case.’.

My colleague, my hon. Friend the Member for Walthamstow, was due to move the amendment, but I will attempt to commence the discussion on it to keep the Committee engaged. Please accept that I am as versatile as the proverbial egg on such matters. I shall try my best to discuss the amendment in detail—I am sure that we have all been here at some point in our lives, Ms Dorries. The amendment is in my name and the names of my hon. Friends the Members for Darlington, for Walthamstow and for Sedgefield.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I welcome you to the Chair, Ms Dorries. For the benefit of the Committee, I wish to say that my right hon. Friend has shown over many years in government and opposition a breadth of understanding, experience and knowledge that will stand him in good stead this morning. We all look forward to his contribution and will hang on every word he utters.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I am grateful to my right hon. Friend. You may not be aware, Ms Dorries, but he and I spent two very happy years together in Northern Ireland and on occasion we had to deal with matters off the cuff.

I strongly feel that the amendment my hon. Friend the Member for Walthamstow supports will be of great interest to the Committee. It calls on the Government to publish an impact assessment on the removal of “insulting” from section 5(1) of the Public Order Act 1986, as discussed in another place. A range of colleagues  who have discussed the issues have expressed considerable concern over many years about the use “insulting”. The word has led to a lot of discussion in another place and among the public at large.

The amendment, which my hon. Friend will deal with in detail shortly, would ensure a public impact assessment on the removal of “insulting”. We will assess whether we can support the Government’s proposal, which we did not divide over in another place, today. With those introductory remarks—an appetiser for the main event—she will speak in detail about her concerns. I am grateful for this early dip in the water.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

We are discussing insulting language, and having relied on Transport for London and its variable qualities, I am well aware that I will hear much of it from my Whip this morning. I will have many insulting words to say to those who run the trains at Walthamstow station.

Clause 38 is an interesting clause, particularly with the amendment. In this job, we all have to deal with insults in our daily lives—if we are honest about the language we hear. There is a strong tradition in Parliament of insulting language. Looking at and thinking about the clause, I had cause to revisit some of my favourite pieces of insulting language in Parliament. People from both sides of the House have been less than parliamentary in how they talk about each other. Michael Foot once described a Tory MP as

“living proof that a pig’s bladder on a stick can be elected”—[Official Report, 20 February 1990; Vol. 167, c. 873.]

The Minister for Policing and Criminal Justice (Damian Green) rose—

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

I hope the Minister is not going to suggest that I am referring to him.

Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice

No, no. For the record, it was Tony Banks who used that phrase, not Michael Foot. In memory of them both, we should get it right.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

It is a wonderful thing to have my insults corrected by the right hon. Gentleman. I shall therefore refrain from suggesting that any of the ones that I am about to quote could ever be used in relation to him, particularly the one that I hope was indeed said by Churchill about Stafford Cripps:

“He has all the virtues I dislike and none of the vices I admire.”

I certainly would not want to say that about the right hon. Gentleman.

My point is that being able to insult people has been part of British tradition. Being able to make what people might feel is a wry joke or a comedic instruction has been part of British culture for many years. Indeed, sometimes what people might think of as an insult is taken by some people as a compliment. My hon. Friend the Member for Walsall South is not in her place, but she regularly seems to take as a compliment my suggestion that she is like Gok Wan in her comments about what I wear. However, this amendment and this legislation refer to the times when something is perhaps not a joke, when something is perhaps not intended—

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

If the hon. Gentleman wishes to contend with a minute of Trinny and Susannah, I can only sit down and wait for what he might say.

Photo of Oliver Heald Oliver Heald The Solicitor-General

I was not intending to do that. Denis Healey, after an intervention from Lord Howe, Geoffrey Howe, said that it was

“like being savaged by a dead sheep.”—[Official Report, 14 June 1978; 5th series, Vol. 951, c. 1027.]

Does the hon. Lady agree that that is a classic of its genre?

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

Absolutely. I certainly would not want to quote Aneurin Bevan in response to what the hon. Gentleman has said, because Bevan said that listening to a speech by Chamberlain was

“like paying a visit to Woolworth’s: everything in its place and nothing above sixpence.”

That is certainly not what I would say about the hon. Gentleman’s interventions.

My point is that this clause and this amendment relate to when insults are not meant in good humour, with good faith, with good will—when people say and do things that are deliberately designed to hurt, to wound, not to be laughed off, not, indeed, to be an insight, but to cause distress and alarm in our society. Unfortunately, there are people who seek to do that.

We know that section 5 of the Public Order Act 1986 makes it an offence to use

“threatening, abusive or insulting words or behaviour” or, indeed, “disorderly behaviour”, but what is crucial, in terms of the way in which this legislation is enacted, is that the offence having occurred does not depend on stress having been caused, so although someone may not take offence, the way in which language is used is intended to threaten or to harm. Particularly crucial for this legislation and the way in which it is interpreted is that it is about the interpretation of that offence—how people take offence, in a sense. Whether people are intending to be insulting is less in the eye of the beholder and more in the person who listens to the insult or listens to the words that are being said.

We also understand, obviously, that the legislation can be cited in terms of a racial or religiously motivated offence. It is not about a gentle dig at someone, but about causing distress and alarm—the way in which it is done is designed to upset people, to curtail debate. I would like to think that all of us in this room are proud defenders of free speech, but all of us also recognise the way in which words can sometimes be used to curtail free speech, to shut down a debate, to harm or wound someone deliberately, to frighten someone into not speaking. Therefore, the way in which speech is interpreted, the way in which the guidance on section 5 is used, is critical.

The Crown Prosecution Service states:

“There must be a person within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question. A police officer may be such a person, but remember that this is a question of fact to be decided in each case by the magistrates.”

It is this question of how the determination of an insult was made, how the determination that fear and distress was caused was made, that is, I think, at the heart of the proposals to remove this piece of the legislation and, indeed, our amendment about understanding what impact that removal might have on certain groups of people who will be insulted or distressed by the use of language.

Both the police guidance and the CPS guidance are clear about the difficulty that there sometimes is about how the legislation might be interpreted. The ACPO guidance says that the key is to distinguish between the message or opinion being communicated and the manner in which it is conveyed.

“It is conduct of behaviour which is gratuitous and calculated to insult that is the subject of the offence, rather than the public expression of an offensive message or opinion.”

My mother used to say that even if a person was trying to smile at someone, if they were saying something hurtful, it was still hurtful. That is one of the issues at the heart of some of this legislation. Given the uncertainty about the interpretation of someone’s intention and the interpretation in relation to alarm or distress having being caused, Opposition Members think that it is right that this question has been examined. We think that it is right that people have considered whether this legislation has been used appropriately. I am sure that many people will have examples of where they feel that it has not been used appropriately—where it has been used to prosecute people whose words may not be very pleasant or appropriate, although whether they meet that threshold test of being designed to cause fear, harm or distress is in question.

Certainly the Joint Committee on Human Rights recommended that the Government look again at this issue, because it thought that threatening or abusive language should be covered by the remit of the legislation, but that insulting language was an unnecessary addition. The difficult test between whether something was insulting, as opposed to threatening or abusive, was debated in quite some detail by the Lords. The Joint Committee recommended that the Government amend this piece of legislation, and a broad campaign to achieve that has brought together an unusual set of bedfellows—both the National Secular Society and the Christian Institute, and also Mr Tatchell and the Independent Police Complaints Commission.

That is not quite as clear as saying there is widespread opinion that this piece of legislation, and particularly this offence of insulting language, is an unnecessary protection given that a large number of people wish to be able to insult people, or indeed a large number of people who feel comfortable with being insulted. The amendment would ensure that were we to remove the concept of insulting language from the legislation, that group of people who secure protection from the legislation would not be unduly harmed. By celebrating insults, free speech and that particularly and peculiarly British nature of debate and discussion, we do not want to inadvertently open the door to the persecution of minority groups within our communities. In particular, Stonewall has argued that section 5 provides protection for lesbian, gay and bisexual people against homophobic abuse; a pertinent point given some of the letters, emails and conversations that some of us may have had over the last couple of weeks.

Stonewall report that one in eight lesbian and gays experience a homophobic incident or hate crime every year, and 88% of those said that the incident involved insults, abuse, or harassment. I understand that many of my Labour colleagues wrote to the Prime Minister following some of his comments regarding the debates on the film “The Innocence of Muslims”. I know how distressing that film was to many people in my community and how insulting they felt it was. I had particular cause to deal with it when the English Defence League threatened to show this film in my local community—the EDL has no connection to my local community, but it was clearly intending to use this material to cause harm, distress and to insult my local Muslim community. It would be interesting to hear if the Minister feels that that example of insulting behaviour would be dealt with by other forms of legislation. Certainly, Labour colleagues had cause to write to the Prime Minister when he said that there would be more protection for those who felt insulted by such films. Clearly, there seems to have been a bit of a volte-face in terms of the removal of the concept of insulting language, which the Government are now supporting—I note they did not support that in the Lords. We should, however, consider the impact on such groups.

It is interesting for the Opposition to consider that the Government, having accepted from the Lords that there is a problem, are now saying “Well, actually, let’s just remove the concept because of what the Director of Public Prosecutions said”. We have not yet seen the evidence of the likely impact of that removal on those minority groups and on those who do not have the same power and status within society to be able to challenge those people who wish to insult them. They need our protection, and that was the original intention of this legislation, even if, on occasion, it has not been used in the manner in which all of us would wish.

The DPP had suggested that the word insulting could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions against those who commit an offence under the remaining parts of the Act. However, we are yet to see the detail of that. On Second Reading, the shadow Home Secretary asked the Minister to provide an assessment of the impact of the removal of section 5 on different groups, particularly vulnerable and minority ones. We have yet to see that.

I have a series of questions for the Minister. Has there been an assessment of the likely impact of the removal of section 5, given that we know that some groups are disproportionately affected by this piece of legislation? I believe that is why Lord Taylor of Holbeach in the other place said that it was not right to remove this piece of legislation. Have the Government ensured that all other forms of legislation will then be amended accordingly to make sure that if we do remove this concept of insult, there are other mechanisms for taking on those people who might seek to insult people in our society, and to cause that level of distress of harm? We believe that the amendment offers an opportunity to make sure that we have got the balance right in terms of protecting people and protecting the right to free speech, while also making sure that people have the right to live a life without distress. I look forward to the Minister’s comments; I am sure he has a number of insults he may  wish to share with the Committee. I would not dare to suggest that there are many that I could offer him or that would be as self-reflecting as I find them.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

I congratulate the hon. Lady not only on getting here but also for giving us the last hurrah of this discredited part of section 5 of the Public Order Act. I was hoping and expecting that Opposition Members would at least be reluctant converts to the fact that insulting language needs to be removed from the legislation, but not yet. It will be interesting to see whether they want to vote against the clause standing part of the Bill.

On the amendment, we are not talking not about whether we insult people in the House or whether constituents insult us, but about whether we should criminalise insulting words and behaviour. The amendment is simply not necessary, because we already know full well what impact the clause will have. It will mean that students such as Sam Brown will no longer be arrested under section 5 of the Public Order Act for calling a police horse gay. Anti-seal-culling protesters will no longer be threatened with arrest and the seizure of their property for using toys seals coloured with red food dye to make their point. Street preachers such as Dale McAlpine will not be arrested and held in a police cell for simply responding to a police community support officer’s question about Christian sexual ethics. Pensioners such as John Richards will no longer be liable to arrest for displaying an A4 window sign saying:

“Religions are fairy stories for adults”.

Café owners such as Jamie Murray will no longer be warned by police officers to stop playing Christian DVDs in their premises. Peter Tatchell will not be arrested and charged for protesting against the fundamentalist Muslim group Hizb ut-Tahrir. People such Kyle Little will no longer be arrested for saying woof to two Labradors, and I should declare an interest as the owner of Labrador called Cholmeley.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover

Was Mr Little arrested for insulting the dog or a person?

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

I do not have the precise detail, but we need to recognise that Labradors and Labrador owners will be safe under clause 38.

The clause will mean that teenagers will be able peacefully to protest against Scientology without being issued with a court summons. Hotels owners such as Ben and Sharon Vogelenzang will be free to engage in conversations with Muslim guests about Mohammed and about Islamic dress for women, without being charged under section 5 and consequently losing their business. That will be the impact of clause 38. Those are real-life examples, and there are sadly many more. Having been a practitioner dealing with many of the cases that came to court, I know that section 5 was lazily used. We should know that it is a public order offence to protect the public.

The villain of the piece in section 5, and the cause of many of these outrageous cases, is the issue of insulting words and behaviour.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

We all recognise the examples he gave. Those are the sorts of things I mentioned, so we do not think the measure has necessarily been applied appropriately. The case he is making is about how the legislation on  insulting behaviour is applied, but will he say whether there are any incidents where it has been appropriately applied? Does he recognise that there are people in society whom it has protected from distress? This is about what we do to make sure that those people receive protection.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

The DPP has given advice on this. In many of these prosecutions, the insulting behaviour could properly have been characterised as abusive and could have been prosecuted quite properly. The problem is not only about cases coming to court and being properly prosecuted, but about the provision’s chilling effect and its application. Previous Governments have attempted to issue guidance to deal with the inappropriate use of this provision, but the issue has not been dealt with properly, so, quite properly, the provision needs to be removed.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

I agree with the hon. Gentleman, and he is right, but if the Government accepted the spirit, rather than the detail, of the amendment tabled by my hon. Friend the Member for Walthamstow, we would, in the future, have proof that he was right. If any attempt was made to change the law again in the future, there would be a body of evidence to show that it did not make sense.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate 9:15 am, 12th February 2013

I hear the hon. Gentleman, but the straightforward reason for resisting the amendment is that the CPS and the DPP have already carried out a thorough impact assessment. The amendment is simply not necessary, and it is not necessary to resist the proposed change, as the right hon. Member for Delyn did in 2009, when he was a Minister and was lobbied to make reforms. I hope that he will not resist the clause and that he will be a reluctant convert. At that time he indicated that reform might deprive police of the power to criminalise those who torment disabled people. That claim, though well intentioned, I believe is wide of the mark. There is no need to outlaw insults and jeopardise civil liberties in order to protect some disabled people. Indeed, the hon. Member for Walthamstow also mentioned other groups. The “abuse” limb of section 5 is certainly wide enough to catch those who torment people.

There are better tools in the box than the “insulting” limb of section 5. Civil and criminal powers, the Protection from Harassment Act 1997, breach of the peace and other areas of public nuisance can be properly applied to ensure that it is targeted better in terms of police powers.

As the hon. Member for Walthamstow said, we only need to take the word of the Director of Public Prosecutions. He said,

“I therefore agree that the word ‘insulting’ could safely be removed without risk of undermining the ability of the CPS to bring prosecutions.”

The impact of clause 38 is that it will not undermine the ability of the CPS to bring prosecutions in cases involving vulnerable victims. To bind the Government to the additional expense and inconvenience of an impact assessment in 12 months, as amendment 113 suggests, is unnecessary.

The reform was actively campaigned for by the Christian Institute, the National Secular Society, Rowan Atkinson, Peter Tatchell, Liberty, Justice, Big Brother Watch, the parliamentary Joint Committee on Human Rights and, indeed, the Liberal Democrats whose party policy includes reform of section 5. It is backed by the Equality and Human Rights Commission, the Independent Police Complaints Commission and ACPO. To those can now be added hon. Members and those in the other place.

The time has certainly come to make the change. We should not stand in the way of what the clause seeks to do. We need to take the word of Lord Hurd, the Home Secretary who introduced section 5 in 1986. He himself has voted for reform. When the legislation was going through Parliament he told the House of Commons that section 5 was originally intended to

“provide the police with more effective powers to protect the public against hooligan behaviour”—[Official Report, 13 January 1986; Vol. 89, c. 794.]

but without undermining civil liberties. It seems that he could see, along with everyone else, that it had undermined civil liberties and he joined the majority of Conservatives, Liberal Democrats and Labour Peers in voting for clause 38.

The change is overdue and the Government are right to back it. The impact assessment has been made; we do not need another. We should leave clause 38 alone. I finally ask the Minister to confirm that when guidance, as I understand the Home Secretary said, is issued on the application of section 5 without “insulting”, there is proper consultation with all those groups in Reform Section 5 to ensure that the guidance is correct and does what is intended. Let us now decriminalise minor insults and let free speech begin.

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

Wow! Thank you, Ms Dorries, and welcome to what may be the final morning of our deliberations. We will see how we progress. The right hon. Member for Delyn set a commendable benchmark for brevity as he introduced the amendment. If we can stick to that sort of time limit throughout the rest of the day we should stay well on track.

I do not find this matter difficult. It seems a modest liberal measure and, as a modest liberal person, I commend it to the Committee. I shall speak a little bit more because I know a lot of debate has taken place in the other place and other public forums about the desirability of making the change. What is now clause 38 was added to the Bill in the other place by way of a non-Government amendment. This is the first time that a Government Minister in either House has had the opportunity to explain the Bill in its existing form.

The clause will amend section 5 of the Public Order Act 1986. It will no longer be an offence to use insulting words or behaviour that are likely to cause harassment, alarm or distress. It will also repeal as an offence the display of any writing or other form of visible representation that is insulting and likely to cause harassment, alarm or distress. Lastly, it will mean that the related racially aggravated offence would likewise not cover insulting words, behaviour, writing or pictures.

Those who have campaigned for this change in the law feel that the word “insulting” in section 5 could discourage people from exercising their right to freedom  of speech. My hon. Friend the Member for Enfield, Southgate gave some powerful examples. They feel it has a disproportionate impact in relation to groups who practise their religion by preaching in public. They feel that removal of the word “insulting” will give people greater clarity on what they can say and do in public without falling foul of the law. I strongly endorse the sentiment expressed by my hon. Friend the Member for Enfield, Southgate that people should be able to express their religious views in the course of their normal activities without feeling that they are likely to be arrested for that.

The Government have considered this matter carefully. They launched a public consultation in October 2011 that sought views on specific aspects of public order powers, including the effect of the word “insulting” in section 5. A summary of the responses to the consultation was published on 1 February.

The consultation showed that the arguments for and against removal of “insulting” are finely balanced, and we had representations from different viewpoints, but, in essence, it is a case of balancing the right of people in a democratic society to express themselves freely with the need to protect the rights of others to go about their lawful business without being caused harassment, alarm or distress. The Government recognise the need to protect freedom of speech, but we are also concerned to ensure that the police have the powers they need to tackle behaviour that is clearly unacceptable.

The Director of Public Prosecutions has re-examined the case law surrounding section 5 and could not identify any case that could not be characterised as “abusive” as well as “insulting” in the types of areas where Members and others have cause for concern that the law would otherwise be inadequate. He is therefore of the view that “insulting” could be removed safely from section 5 without undermining the ability of the CPS to bring prosecutions where appropriate. In light of that advice, the Government are content for the clause to remain in the Bill.

We will ensure that the police have clear guidance on the range of powers that remain available to them to deal with the sort of unacceptable behaviour with which section 5 is concerned, and on which I assume that it was originally conceived, including in respect of hate crime. For example, it will remain an offence under section 5 to use abusive or threatening behaviour or language that is likely to cause harassment, alarm or distress. It will also remain an offence under section 4A of the Public Order Act 1986 to cause intentional harassment, alarm or distress by using insulting language or behaviour. Where such actions are motivated by racial or religious hatred, they would constitute a racially or religiously aggravated offence under the Crime and Disorder Act 1998, with tougher penalties as a consequence.

Where such actions are motivated by other forms for prejudice—for example, against an individual’s perceived disability or sexual orientation—the courts can also treat that as a general aggravating factor. For those reasons, we do not believe that removing “insulting” from section 5 will have an adverse impact on minority groups. I know that that is feared in some quarters, but I hope that I have allayed those concerns.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

May I press the Minister on “Innocence of Muslims”, partly because that reflects a new way in which insults are distributed within our society and also how perceived insults are distributed by online content in particular? He wrote back to my colleagues to say that the Racial and Religious Hatred Act 2006 and the Public Order Act 1986 were relevant in this instance, but guidance on these issues will be published for the police. We have not yet seen that guidance.

Clearly, that is a slightly different issue to someone being in the room at the time at which an insult is portrayed, but it is the threat of the insult that is the crucial question here. I know that that concerns and alarms many in my local community and the Minister has said himself that the Government will deal with that. Will he say whether, in those instances, he feels that other pieces of legislation would cover dealing with that type of insult?

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

I am not sure it is entirely new because people have complained about insults to their religious beliefs since the inception of religion. The hon. Lady cites an example of Muslims, but going back 30 years or so many people with strong Christian beliefs very much objected to “Life of Brian”, which they saw as insulting to their religious views. There are people who still take that view strongly today. It is a matter for the police, the CPS and the courts to decide what action to take in any particular case, but we obviously want, as best as possible, to try to ensure consistency in terms of the application of the law.

The hon. Lady said in her remarks that people should be protected from distress. I am not sure about that. I have been insulted and have found it distressing but I am not sure that someone should be arrested for causing me distress. There would be a lot of Members on the Opposition Benches who would be in prison if, every time they caused me distress, they were arrested. On the balance of harm to society, I have decided that we are better served by allowing them the freedom to use insulting language because the wider common good is served by that.

I am making a serious point, which is that I am not sure it is the role of the state to measure distress in the way that is envisaged by some Opposition members of the Committee. An insult may cause distress to one person and not to another, so it is difficult to calibrate these things finely. I am keen that we have protections against minorities—and majorities in some cases—who feel that they need them. I am trying to reassure the Committee that those protections will still exist. We are not sweeping away all laws that cover this area, but we feel that the law in terms of insulting behaviour goes further than it needs to.

Amendment 113 would require the Government to publish an impact assessment on the effect of Clause 38 within 12 months of its enactment setting out details of all public order complaints made, the nature of each complaint and the final outcome. In 2011-12, more than 28,000 offences were prosecuted under Section 5. I cannot believe that Members on the Opposition Benches, or indeed on this side of the Committee, would seriously want the police to send a report to the Home Secretary on each and every one of those incidents in the future.

While I recognise the need to monitor the impact of legislation, I do not agree that it is necessary or proportionate to produce a formal assessment in the  way proposed by the amendment. The consultation and subsequent debates in this House and in the other place have already allowed the Government to fully assess the impact of this measure including on minority groups. It is the view of the DPP that moving “insulting” from Section 5 will not undermine the ability of the CPS to bring appropriate prosecutions. There will also be a range of other offences available to the police to deploy against the sort of unacceptable behaviour covered by Section 5. The Government will ensure that the police have guidance on these powers.

We believe the measure will not impact adversely on minority groups. This position has been reached after careful consideration of the consultation and responses received from a range of bodies and individuals, many of which represent minority groups. We will, of course, keep the position under review, but on the basis of what I have said and the compelling arguments made by others, not least my hon. Friend the Member for Enfield, Southgate, I would ask Opposition Members to withdraw the amendment and to endorse the clause.

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

It is interesting that the Minister cannot quite clarify whether or not the way in which the film “Innocence of Muslims”—I wonder if the Minister has seen it or understood the concept of something being circulated on the internet and how that influences the ability—[Interruption . ] I say “concept” because this legislation is quite clear about where the offence takes place. Obviously, it is possible for a piece of material that people feel is insulting to be circulated in this way. An offence could take place in one country—after all, that film was produced in America and yet has been transmitted in the UK. This raises some interesting questions about the jurisdiction where an offence takes place and who is held accountable for it.

I note that the Minister cannot clarify that. In my community they sought to threaten to broadcast the film in a public place, clearly designed to cause distress and upset the local community. Whether that would have been abusive as opposed to insulting is not something the Minister has set out.

I also note that the Minister says 28,000 incidents have taken place and yet there is no point in looking at whether in years to come the removal of this piece of legislation would have an impact on those 28,000 incidents and what happens. It seems slightly odd given what Lord Taylor said in the Lords, which is that the Government have a responsibility to protect the public so that communities and law-abiding citizens can live in peace and security. The police must have the powers they need to meet this responsibility. At that point Lord Taylor thought it was important to retain this measure.

The purpose of the amendment was merely to ensure that we were all on the same page. I will not press it to a vote. We recognise that there are issues on how “insulting” has been used, but I caution the Minister to look again at this issue, because many within our local communities do not share his confidence about distress and feel that they are particularly maligned in our society. They recognise that there is an issue about the portrayal of particular people within their religious faith. I was looking for the Minister to reassure us and give us specific examples of how other legislation could be used to protect those people, so that we can get that balance right.

I will happily give way to the hon. Member for Dover. I am sure he has been using his iPad avidly this morning to find some interesting insights.

Photo of Charlie Elphicke Charlie Elphicke Conservative, Dover 9:30 am, 12th February 2013

I thank the hon. Lady for giving way. She has been very generous in taking interventions. If she were in government, does she think that her Government would be making the change that this Government are making?

Photo of Stella Creasy Stella Creasy Shadow Minister (Home Affairs)

That is a slightly odd question, partly because we have not seen the guidance. We are taking on faith—believe me, it is not often that I take something on faith—the Minister’s suggestions on how this legislation will be used, because he has the DPP guidance and we do not. He has also seen the details of the 28,000, so he knows what the impact would be. We are taking it on faith when the Government say that other forms of legislation could be used to prosecute.

All we are seeking is clarity on what those other forms of legislation are, so that we can all be confident that if the possibility of someone being prosecuted for insulting behaviour is removed, sections of our communities that suffer abuse and distress from other people’s behaviour are not opened up to having a lack of redress. The amendment was intended simply to probe that and ensure that the change has been thought through, especially given that the Government were in a different place on this issue in the other place. It is interesting for all of us who have looked at this issue to note that change of heart and to seek the evidence on which that change has been made.

My right hon. Friend the Member for Wythenshawe and Sale East has talked about the question of proof versus expectation, and that is what the amendment is about. We have also not seen the police guidance, which I am sure the Minister has been avidly drafting, so we do not know how it will be interpreted.

With that in mind, I am happy to withdraw the amendment. We wanted to put on record our concern: we would have liked to see those documents, so that we could have confidence and clarity about these instances. They will keep occurring and new technologies will allow new forms of insults to transgress within our societies, and groups who do not have the same power and equality to defend themselves will be affected.

We would like the Government to take a more reasoned view in future and perhaps come back to the evidence base on which the decision has been made. We do not have the evidence base, so we are having to take it on faith. I am a great believer in taking on faith the Minister’s words and I would not insult him by suggesting that he said something that he did not believe in, although that may perhaps have been the case in the past. That is the question of being part of a coalition. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 ordered to stand part of the Bill.