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Amendment (a) in lieu of Lords amendment No. 86 agreed to.

Amendment (a) to Lords amendment No. 88 agreed to.

Lords amendment No. 88, as amended, agreed to.

Amendment (a) to Lords amendment No. 89 agreed to.

Lords amendment No. 89, as amended, agreed to.

Lords amendments Nos. 87, 90 and 91 agreed to.

Schedule 26

Hatred on the grounds of sexual orientation

Lords amendment: No. 285.

5.30 pm

Maria Eagle: I beg to move, That this House disagrees with the Lords in the said amendment.

Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to take amendments (a) to (c) in lieu thereof.

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Maria Eagle: The question before us is an important one. The purpose of the offence that we are considering is to protect a group that is targeted for hatred, abuse and even worse, merely on grounds of sexuality. But we also need to protect freedom of speech—as we have made clear from the beginning of the passage of this Bill—where that does not threaten safety and public order. That balance was much in our minds as the Bill was drafted. Before the offence was drafted, I consulted representatives of a wide range of interests on all sides of the argument, and encountered many passionately held views.

The balance between protection from the incitement to hatred for a particular group of people and the protection of freedom of speech was in our minds as we drafted the offence, and has been a constant theme in our consideration of the Bill over these long months. Those who have participated in debates or read Hansard will be able to confirm that.

We debated thoroughly the question of freedom of expression before we sent these offences to the other place for consideration. Across the Chamber, we agreed that we should seek to limit freedom of expression only where this was necessary and proportionate to the aim of public safety and public order. The House concluded that there were substantial safeguards in the system to ensure that the offence as drafted did not overstep the mark and that we had got the balance about right. Not every hon. Member agrees, and those who do not will get their say, but votes of the House have indicated that that was the collective view.

Since then, the Joint Committee on Human Rights and the Equality and Human Rights Commission have both given a view, and they agree that we have got the balance about right.

Andrew Selous (South-West Bedfordshire) (Con): We all agree that no one should be abused for their lifestyle, but the Minister keeps mentioning balance. An elderly pensioner couple, a bishop of the Church of England, a Roman Catholic archbishop, a leading Muslim figure and a leading author have been investigated by the police, and when that happens people worry about the nature of our society. We must maintain that essential freedom of speech while avoiding the harm and upset that neither she nor I wants to see.

Maria Eagle: I agree about the need to strike an appropriate balance. I began my remarks by saying that there was general agreement across the House about the need to get the balance between these difficult issues right. The hon. Gentleman refers to incidents involving public order offences with a threshold much lower than what we are considering today. I shall deal with the differences between those thresholds later in my remarks, so I hope that he will bear with me. I shall keep his comments in mind, and I want to reassure Members of this and the other place that the Government want to get the balance right.

I believe that we are more or less there. I shall deal specifically with the question of thresholds, as the threshold for the offence proposed in the Bill is higher than the thresholds for the public order offences that have been examined by investigating officers. It is important to note that the thresholds for the latter are much lower, but I shall set out the Government’s position in a bid to be as helpful as possible in reassuring those who have concerns.

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The Government have said repeatedly that we believe that no additional wording is necessary to safeguard free speech. We have listened to other opinions, and I have consulted. We have tried to take all that into account in the drafting of the provision. We do not want to include in the offence anything that is unnecessary, as that would not make the offence any clearer. Instead, the proposed wording would introduce confusion, which we should avoid in respect of an offence of this sort.

Amendments (a) to (c) are likely to generate confusion. As a public authority, the Attorney-General is already bound by the Human Rights Act 1998 to have regard to the convention on human rights when considering whether to give her consent to a prosecution, so to put on the face of the Bill another requirement that she should do so would be to repeat something that she has to do already. It could also give rise to difficulties with statutory interpretation: when the courts or others look at the legislation, they will ask why Parliament inserted a provision that was already implicit in it. For those reasons, I have concerns about accepting amendments (a) to (c); they do not add anything substantive to the Bill.

I know, however, that those who tabled the amendments are looking to reassure people. My hope is that we can do the same in a slightly different way that does not cause the legal issues or problems with statutory interpretation that the formulations chosen for amendments (a) to (c) do.

Miss Ann Widdecombe (Maidstone and The Weald) (Con): The cases cited by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) did not reach the Attorney-General. They did not come under her discretion, and the convention on human rights did not apply, as they were dealt with at a much lower level, by the police. One reason to put something explicit on the face of the Bill is to ensure that the need to have regard for religious freedom and freedom of conscience is taken into account at all levels.

Maria Eagle: I understand what the right hon. Lady says, but I am not one who thinks that putting things that are otiose on to the face of a Bill necessarily adds to its clarity. There are better ways of achieving the same end, and I hope that she will agree that what I am about to suggest in that regard will do the job. We all want people to be reassured, and the offence must be as clear as it can be. In addition, we all want the people obliged to investigate incidents and to decide whether they should be prosecuted to be absolutely clear about where the threshold is and what behaviour is caught by the offence.

In other words, I do not believe that the safeguards proposed in the amendments would help the police and those others at the lower levels to whom the right hon. Member for Maidstone and The Weald (Miss Widdecombe) referred to interpret and use the offence appropriately. In fact, they add cause for confusion about an offence that we have from the beginning tried to make as clear as possible, and that is, as currently drafted, very clear.

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We have looked carefully at some of the examples cited in which the police have allegedly been over-zealous in investigating incidents; the hon. Member for South-West Bedfordshire (Andrew Selous) and the right hon. Member for Maidstone and The Weald (Miss Widdecombe) referred to some of them. I think that we would all agree that those cases involve a delicate balance, and the police need to act sensitively and proportionately. That is a matter for training, guidance and awareness, rather than a matter of putting words in the Bill that do not make the offence clearer.

Sir Patrick Cormack (South Staffordshire) (Con): The hon. Lady is trying to deal with the issue moderately and reasonably, and we are grateful for that, but would it not give a little extra reassurance and confidence if people lower down the food chain, if I might put it that way, were prohibited from taking the initiative and taking the sort of actions that can destroy a life? The people cited by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) experienced great distress. It is not impossible to envisage people being driven to the end of their tether by that sort of thing. All that we ask is that we try to prevent by anticipating.

Maria Eagle: I understand the hon. Gentleman’s point, and I understand the concerns that those who are investigated by the police for any offence may have, and the impact that such investigation can have on their day-to-day lives and reputations. I do not believe that we will solve the problem by putting in the Bill a requirement, in terms, that the Attorney-General consider particular issues, when it is implicit that she has to consider them anyway. That does not go directly to the heart of the issue, which is the understanding or otherwise of those who are responsible for investigating offences. However, I believe that we can take actions that would address the issue.

Mr. Garnier: I fully accept the Minister’s point that the Attorney-General is, by implication, required to take into account the matters that I set out in my amendment (c), but the Bill will be read not only by the Attorney-General, but by chief officers of police, who will instruct subordinate officers on how to approach the issue. I accept that the issue is very delicate, but the greater the clarity in the Bill, the greater the clarity of the guidance that senior officers will give to inspectors, sergeants and police constables.

Maria Eagle: I agree that clarity is tremendously important, but I do not agree that the hon. and learned Gentleman’s amendment, or the Liberal Democrat amendment (a) for that matter, would provide that clarity; I think that they would do the opposite. Let me suggest how we might move forward with what ought to be a more targeted way of dealing with the concerns that hon. Members raise. First, some of the incidents mentioned by the hon. Member for South-West Bedfordshire and the right hon. Member for Maidstone and The Weald were investigated under current public order legislation, which deals with

That is a much lower threshold than the one we suggest for the offence that we are considering. The wording of our proposed offence follows that of the religious hatred offence, which is committed when someone uses
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words or behaviour that are threatening and intended to stir up hatred. That is a much higher threshold, and that is an important difference to bear in mind when considering the issues. That threshold allows much less room for subjective judgment than, say, the phrase, “abusive or insulting words”.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): I agree that the threshold for the offence that we are considering is much higher, and appropriately so, but I hope that the Minister will say how she will deal with the fact that clearly there is either too low a threshold, or prosecution is too readily used, in cases that come under sections 4A and 5 of the Public Order Act 1986. I share the concerns that Conservative Members have raised, although I have a different perspective on the matter. Will there be new guidance?

Maria Eagle: I am doing my best to come on to what I propose, but I keep giving way to Opposition Members—and I will continue to do so, if they wish me to. The hon. Gentleman has to give me a little more leeway, so that I can get on to the safeguard that I am proposing. I just wanted to make the point that we are not talking about an equality of threshold; there is a much higher threshold for the proposed offence than there is in respect of the public order offences that gave rise to some of the examples that caused concern. It is important that we bear that in mind.

It is a high threshold that we have adopted because we understand the concerns that we have heard about freedom of expression. We recognise the importance of defending freedom of expression and we want, therefore, to be as clear as possible about what the offence will cover and what it will not cover. I cannot think of words or behaviour that are threatening and intended to stir up hatred that should be regarded as acceptable for freedom of expression reasons. Some in the Chamber may be able to think of examples, but the threshold is very high.

5.45 pm

Amendment (b) deals with guidance. I said in the House on Report that we intend to issue guidance about the offence, which we hope will be useful for all criminal justice agencies and for all those who seek to implement and use the legislation. The guidance will also be available to the public.

We understand from the Crown Prosecution Service that it intends to issue guidance to prosecutors on commencement of the new offences by way of a policy bulletin and legal guidance. Legal guidance provides prosecutors with an online source of information on legislation and policy on a range of legal issues, and is accessible to the public on the CPS website. That ought to be available to anybody who might feel concerned about the way in which the offence would work and the way in which the CPS would enforce the provisions once they are on the statute book, should they get there.

In addition, the CPS published its refreshed policy statement and guidance for prosecuting cases of homophobic or transphobic hate crime on 27 November. The policy statement explains the way in which the CPS deals with cases with a homophobic element. That
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covers crimes with a homophobic motivation, rather than incitement to hatred, but it is useful guidance in this context.

We have also spoken to the police, who intend to issue guidance as part of the updating and revision of the Association of Chief Police Officers hate crime manual. Currently, that deals only with crime that has a hate motivation, but it is intended to expand that to deal with crimes of incitement to hatred. I believe, and the right hon. Member for Maidstone and The Weald may agree or she may not—she will have her chance to do one or the other later—that that is much more likely to be read by the typical bobby on the beat who might be investigating such complaints, and it is probably a much better level at which to pitch the promotion of understanding of the offence, what it means, what the threshold is, what is allowed and what is not allowed.

Neither we nor the Attorney-General will give operational guidance to the police. It would be inappropriate for us to do so, but our guidance will cover the purpose and need for the offence as we have described them during the Bill’s passage through the House. On the important issue of freedom of speech, the guidance will also cover the need to ensure the balance between the convention rights and protecting targeted groups from hatred. We expect to issue such guidance to coincide with the coming into force of the new legislation.

It will be for the police to offer operational guidance on the matters that they will face in dealing with the offence. The CPS gives operational advice to prosecutors, and the police and other criminal justice agencies will take this into account when they are investigating crimes. Any advice must take into account the European convention on human rights, because both the CPS and the police are bound by the Human Rights Act to act compatibly with those rights.

I know the House is keen to find a way through on the issue across all parties, and I am keen to do so, too. The Government are, therefore, ready to table an amendment when the Bill returns to the other place tomorrow afternoon that places on a statutory footing a duty on the Secretary of State to issue the guidance to which I referred. As I said, the guidance will cover the purpose and construction of the offence, what it covers and what it does not cover. We will ensure that the guidance is properly publicised to all interested parties.

In conclusion, we have a clearly defined offence that would bite only on words or behaviour that is both threatening and intended to incite hatred against gay and lesbian people because of their sexuality. We do not believe that it needs further embellishment to protect freedom of speech. The real protection in the offence is the very high threshold required to make it out, in conjunction with clear guidance and understandable—

Dr. Evan Harris: I am not concerned about the need to issue guidance on the legislation because it is narrow and the threshold is high. Before she concludes, however, can the Minister give reassurance about whether there would be new guidance, with or without a duty to do so, on the conduct of potential prosecutions or investigations relating to sections 4A and 5? With respect to unnecessary arrests or investigations by the police, the mischief is in that area. The hon. Lady has not said whether she can do anything to prevent that from happening again.

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Maria Eagle: I can give the hon. Gentleman the assurance that I will be happy to talk to the law officers about that. Today I am concerned with giving assurances about the offence that we are discussing. When hon. Members raise concerns about any offence not working properly or not being investigated according to how it is generally believed it should be, an issue is raised about whether existing guidance should be changed. I will be happy to get back to the hon. Gentleman about that point.

To conclude, I should say that we are ready to provide for statutory guidance to try to provide reassurance, and to introduce a Government amendment to that end. On that basis, I invite the House to disagree with the Lords amendments and reject amendments (a) to (c), because of the additional problems that accepting them would cause in respect of statutory interpretation of the role of the Attorney-General’s office.

Nick Herbert (Arundel and South Downs) (Con): I am grateful to the Minister for how she has explained the Government’s position on the Lords amendment. However, I am afraid that I cannot agree with her approach. Let me try to explain why.

Although this is a free-vote matter for my party, we on the Conservative Front Bench support the principle of this legislation. I strongly support it; we all agree that gay people can live in fear and are subject to violent attacks, and that hateful lyrics broadcast against them, for example, have no place in a civilised society. We all agree that there is a legitimate case for making sure that gay people are protected from such activities. Our difficulty has been to make sure that, in framing a criminal law, a proper balance is achieved between the desirability of outlawing such acts and ensuring that what Stonewall, whose work on promoting this legislation I commend, has described as “temperate comment” is not outlawed.

Although it is true that the clause is rightly limited to intentional acts and threatening words and that merely abusive or insulting words are excluded, the real concern is that there have been many examples of clumsy policing and of arrests in relation to other, similar legislation. That gives rise to greater concern in this House that this legislation may be abused. A related concern is that there may be a chilling effect and that people may feel constrained about what they say.

Maria Eagle: Does the hon. Gentleman accept that what he has described relates to offences that have a much lower threshold and that the high threshold in respect of this offence is the main protection?

Nick Herbert: The concern is to ensure that the police and prosecutors have a clear understanding of the intention of the House in framing this law. One of the problems has been that in our debates until now it has not always been clear exactly what kinds of words would be outlawed. It is important that we establish such clarity in this House and that we make sure that the proper guidance goes to the police and others, so that the law is properly enforced.

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