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If the law is not properly enforced, and if we pass a law that is abused and even results in arrests—even if no charges are brought—that law will be brought into disrepute. That would not help anybody, least of all the gay community. We all agree that we need to strike the
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right balance and that the right guidance needs to go to police officers to ensure that temperate comment is not caught by the legislation. In that sense, there is not an enormous amount between my party and the Government. However, we have to discuss the right way to achieve that clarity.

We tabled two amendments in lieu of the Lords amendments. They set out an approach slightly different from that taken in the House of Lords. As the Minister said, the first is to require the Attorney-General, in consenting to a prosecution, to have particular regard to freedom of expression and other articles drawn from the European convention on human rights. The second, related requirement is that guidance must be issued to chiefs of police and Crown prosecutors, drawing their attention to that requirement.

Those are hardly onerous requirements; they are perfectly reasonable safeguards to ensure that those fundamental principles of freedom of expression are considered by the relevant authorities. I did not understand the precise objection to the inclusion of the wording of those articles in the amendment. I see no legal difficulty in repeating them and in requiring the Attorney-General, in considering prosecutions, to have particular regard to them. The advantage would be that the House made plain its intention to hold free speech highly and to stipulate that free speech be properly considered before any prosecution. The Minister herself talked about issuing guidance. Why, then, does she not accept our amendment, which would require such guidance? Our difficulty is that the Minister is now talking about tabling another amendment, which we have not seen. However, our amendment is perfectly reasonable and could be considered.

In the absence of Government support for our approach, we have the approach taken by the Lords in their amendment No. 285, which is similar to that taken in a cross-party amendment tabled in this House at an earlier stage. I should say that the amendment is in no sense a wrecking amendment. The protection for free speech that it seeks would not undermine the fundamental protections to be given to gay people.

Lynne Featherstone (Hornsey and Wood Green) (LD): Does the hon. Gentleman not see that if we agreed to the Lords amendment, we would have to explain to gay people why they seem to deserve less protection than religious groups?

Nick Herbert: We need to remind ourselves that the purpose of the amendment is to say what will and will not be subject to the criminal law. The amendment does not weaken the protection for gay people, but it makes clear that the kind of temperate comment to which Stonewall referred will not be caught by the legislation.

I would rather that people did not make such comment. I do not wish to indicate to people any kind of licence to make such comment, whether it falls within the criminal law or not. However, we are not here to legislate for matters of taste; we are deciding whether comment should fall within the scope of the criminal law. All the amendment seeks to do is say that for the avoidance of doubt, criticism of sexual conduct and urging people to refrain from certain sexual conduct should not of itself be taken as threatening or intended to stir up hatred. That is a perfectly reasonable safeguard.

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Maria Eagle: Does not the hon. Gentleman believe that the terms of the threshold that we have set in the proposed legislation provide that clarity? Temperate language cannot be caught by the offence; it is pretty clear that only words and behaviour that are threatening and intended to stir up hatred are caught.

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Nick Herbert: I do not see the harm in ensuring that that is clear in framing the legislation. When certain forms of abuse were discussed at the pre-legislative scrutiny stage, in Committee and in the other place, it was not clear, and in some cases Ministers would not answer, as to whether particular hateful lyrics fell within the scope of the Bill. Therefore, Parliament’s intention was not clear, and that is why it is necessary for us to be absolutely clear now. The Minister did not say anything about amendment No. 285 and why it would in any way upset the protection that is being afforded.

Dr. Evan Harris: The amendment introduces confusion. It says that

certain sexual conduct

but if a group of skinheads says, “Gays had better stop that activity”, that is urging them to refrain, but it is also rather threatening, the implication being, stated or unstated, “Or else.” The exemption would apply to urging people to refrain from certain activity rather than to being directly threatening, but in context the former can be threatening. The amendment would merely introduce confusion where there was less confusion to start with.

Nick Herbert: The hon. Gentleman is right about context, and the courts will have to have regard to that. What we are trying to establish, and to find some way of writing into the Bill, is what happens when, for instance, religious groups express in a temperate and reasonable way their hostility to the conduct of gay people, as opposed to gay people themselves. I would rather that those groups did not do so. I object to such hostility, and I wish to debate with people the grounds for such criticism. However, we should all agree that merely temperate criticism should not fall within the scope of the Bill, and the amendment seeks to clarify that it will not. Unless the Government accept a similar amendment—whether our own proposals to have regard to the importance of free speech, or this amendment or some variant of it—religious groups and others will continue to worry that they will be unable to express sincerely held views.

Miss Widdecombe: Does my hon. Friend agree that the amendment that has been sent to us from another place addresses the concerns expressed by the hon. Member for Oxford, West and Abingdon (Dr. Harris)? It clearly states that

In other words, it makes it explicit that context is what matters, and that urging somebody to refrain—as, say, a cleric might—would not “of itself” be an offence. The hon. Gentleman’s point is well covered by the amendment.

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Nick Herbert: My right hon. Friend is exactly right. That is why the amendment is helpful, not unhelpful, and would offer the reassurance that is sought.

We should remind ourselves that the Bill by no means commands universal support in the country or, indeed, among gay people. Some object to it in its entirety, believing that it amounts to an unnecessary restraint on free speech. I do not agree. There is a place for properly drafted legislation to extend this protection, but it is important that it is clear.

David Howarth: I agree with the hon. Gentleman about temperate and moderate language, but the problem is that that phrase does not appear anywhere in the amendment sent to us by the Lords. It would allow any sort of language to be used in such circumstances. All the work is being done by the phrase, “of itself”. Can he explain in what walk of life or in what circumstances words are used without a context?

Nick Herbert: Surely the point is that “of itself” is exactly the safeguard that my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) suggested. It would not allow any words to be used—it simply says that those words alone could not amount to the commission of a criminal offence. Yes, indeed, they would have to be considered in context. That is why I cannot understand what the objections to the amendment are. I repeat that it is not a wrecking amendment—it proposes a perfectly sensible approach. The alternative approach is contained in the amendments tabled by us and by the hon. Member for Cambridge (David Howarth), which would have a similar effect. I suspect that there is less disagreement between us on this matter than it might appear.

I hope that the Government will say more about the guidance that they intend to bring forward. Should the House disagree to the Lords amendment, this matter will go back to the other place tomorrow, so there is very little time for it to hear more about that guidance. The more that the Government can say about the precise scope of the legislation and the kinds of words that they intend to be outlawed, the more they will be able to reassure people about its scope. That is what they need to do.

Mr. David Drew (Stroud) (Lab/Co-op): I am genuinely confused. I can see that the hon. Gentleman is opposing the Lords amendment as it stands and has tabled his own amendments, but is he saying that he is willing to negotiate via what the House of Lords does if and when the Government put their amendment back to it tomorrow? Is not that the best way forward? It would of course be useful if we saw what the Government intend to say, but I wonder if that is the best strategy to take forward instead of outright opposition.

Nick Herbert: It will be a matter for the other place as to what it does, and it will have to decide on that tomorrow. We have not seen what the Government intend to bring forward. My name and that of my hon. Friends has been added to that of the Justice Secretary in relation to disagreeing to the Lords amendment because we wish to table our own amendments. If the Government will not accept our amendments, my view is that we should agree to the Lords amendment, and it
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will then be for the Government to persuade the Lords that it is wrong and to say more about the guidance that they have pledged to bring forward.

We must strike the right balance. I am persuaded that this protection is necessary, and I believe that we are now very close to securing it. However, I want the Government to take on board the fact that concern remains about the inadequacy of guidance and uncertainty in the law. I think that the Minister accepts that, because otherwise she would not have suggested that she was going to come forward with guidance. Until we have seen that, it is necessary to support the Lords amendment and, while it will be a free vote, that is what I personally will do.

David Howarth: I agree with the hon. Member for Arundel and South Downs (Nick Herbert) that this is a vital measure, not only for symbolic reasons but for reasons to do with individual people’s lives. Homophobic hatred creates an atmosphere in which far too frequently the result is terrible violence against people simply because of their sexuality—and sometimes because of their apparent sexuality. We are therefore dealing with an immensely important matter.

I agree with the Minister, however, that the starting point for the discussion is the narrowness of the offence itself. The way in which the offence has been defined means that the only words that count are those that threaten or which are intended to stir up hatred, so there is already substantial protection in the drafting. That is not the case for racial hatred, where those conditions do not apply. However, there is still the problem of absurd police investigations, and some people may feel that their right to express a view in a moderate and temperate way has been interfered with by existing law. Let us not forget that the examples we have considered occurred not under the Bill but under existing public order legislation.

The question is how to deal with the problem. It is apparent from the debate so far that there are three different ways of doing so. We need to consider which of those ways, or which combination, to adopt. One is the Lords amendment, the second is guidance and the third is the procedural safeguards of the sort put forward by us and the Conservatives.

Andrew Selous: Is there not a slight flaw in the hon. Gentleman’s argument? Does it not come down to the issue of in whose mind there is an intention to cause threatening behaviour—the person who feels offended or the person speaking? That has been dealt with in different ways in the past.

David Howarth: For this criminal offence, the intention has to be in the mind of the offender because that is where intentions in criminal law generally have to be. That has been an issue in previous debates on other matters, but not with regard to this particular offence in the Bill. There is a serious problem with the drafting of the first way proposed to deal with the problem: the Lords amendment.

Mr. Alan Beith (Berwick-upon-Tweed) (LD): Before my hon. Friend leaves that point, I want to explore with him the issue of immoderate or intemperate
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language. There is scope for some division of view on, for example, someone who from a religious standpoint argues strongly, using emotive language, that he believes homosexuality to be sinful and likely to result in some form of divine punishment, which might be seen as threatening. I think my hon. Friend and I are at one in what we want to achieve, but is he satisfied that references to moderate or intemperate language—given that he suggested a moment ago that it might have been better to include them in the Bill—will not exclude strongly felt views expressed with no kind of intention to pose a definite threat, still less to instil hatred?

David Howarth: If my right hon. Friend waits for a minute, he will see that I do not think that dealing with the problem by talking about what language is acceptable will ever work. Substantive control, as opposed to procedural control, has fundamental flaws, which is why the Conservatives are in a contradictory position. They are putting forward two contradictory ways of dealing with the problem.

To return to the point made by the hon. Member for Arundel and South Downs (Nick Herbert), one of the problems with the Lords amendment is the statement

I do not think there is much doubt about what the provisions mean. Including a provision with the words “for the avoidance of doubt” automatically suggests that there is something to be doubtful about. In the past, such provisions have been inserted in legislation when the courts have said things that are contradictory or unclear. Parliament then says, “For the avoidance of doubt, this interpretation is the correct one.” There is not yet any court interpretation of the legislation for there to be any doubt about because it has not been passed yet.

The second problem with the Lords amendment are the words “of itself”—as if words can ever float free of context. Words are always used in context, and it is the context that tells us what is going on. Among the Conservatives, there seems to be a naive belief in an abstract notion of language, whereby words have their own existence outside of human beings, human minds or human forms of life. There is no such thing as a context-free sentence—it makes no sense. Every time the Conservatives try to explain how their provision would work, they run into that problem.

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The third problem with the Lords amendment relates to context and how people use words. Urging someone to refrain from particular sexual conduct sounds okay, but it can easily become a code or euphemism for something that, in context, really is threatening. We have seen that in, for example, the way the British National party used religion as an indirect way of attacking people on the basis of race. Society never stands still, and the meanings of words never stand still. Contexts change and words that might appear at one stage to be innocent will not be so at a later stage. The provisions are dangerous, and the problem lies in attempting to solve the problem by saying that there are some permitted words and some unpermitted ones. Such an approach will always run into the problem that words do not have abstract meanings; they have meanings only in social contexts.

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The second way we have been offered to solve the problem is through guidance. The Minister offers us, through the Crown Prosecution Service, guidance to prosecutors on how the provisions should be used. That is not an inconsiderable offer, but it would be even better if the duty to provide guidance were included in the Bill.

Maria Eagle: The CPS will provide guidance in any event. What I am offering the House—I apologise for not having the wording—is statutory guidance from the Secretary of State for everyone in addition to the other guidance that has been produced.

David Howarth: I thank the Minister for that. In a different context, I remember a long debate—about half a day—during consideration of the Companies Bill of what the meaning of “statutory guidance” was. There are two sorts of statutory guidance: when the power to issue guidance comes from a statute, and when there is a duty to issue guidance and it has some sort of legal force. I am interested in the Minister’s offer, and I think that it is a way forward, but I need to see the detail. If the guidance lacks legal force, that is a problem.

The third method of dealing with the problem is procedural. Our amendment (a) and the subsequent Conservative amendments (b) and (c) propose to deal with the problem in that way. Ours would require the prosecution authorities—at the moment, the Attorney-General, but I hope that under the constitutional renewal Bill many Attorney-General powers will be transferred to the Director of Public Prosecutions because these should not be political matters—to

in deciding whether a prosecution should proceed. That is in addition to the guidance, and it is an attempt to create a trickle-down effect. It says that the prosecuting authorities must take a firm view on freedom of expression, which should eventually reach down to the level of the police.

The Under-Secretary said that that sort of thing has no effect, but it does. First, it has a possible administrative effect by diverting the authorities’ attention in a specific direction. Secondly, it has a legal effect because it provides a hook—perhaps not a strong hook, but stronger now, given what happened in the BAE case—for some form of judicial review. If there is no effect, the Government should explain why the Human Rights Act 1998 includes a similar provision on the balance between freedom of expression and privacy. That provision was included on behalf of the press, but it is a suitable model for protecting people who are not the press. I therefore believe that the procedural way forward provides a better balance. If the opportunity arises for a vote on the amendment, I request that one be held.

Amendment (c) would work in a similar way, although I do not believe it is as good. It lists many human rights—

Mr. Garnier: As does the convention.

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