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David Howarth:
Absolutely. However, the problem is that the amendment mysteriously misses out some rights. We want to concentrate on the right to free
expression. If one lists many rights, the question arises why they are not all listed. The one that is missing is the right to life. Dealing with homophobic hatred means protecting some people’s lives. If rights are to be listed, one may as well include those that are important from the victim’s point of view.
It is odd that, although the amendment lists the rights in exactly the same terms as they appear in the Human Rights Act and the European convention on human rights, it cannot bring itself to specify their source. Perhaps I am making more of a political point than a serious point for today, but it is peculiar and perhaps emblematic that the Conservatives can use in an amendment the terms of several human rights, but cannot bring themselves to mention the words “Europe” or “human” in doing that. Nevertheless, that amendment’s approach is correct—the procedural approach is the best.
Mr. Garnier: I was muttering because I was dismayed at the poverty of the hon. Gentleman’s argument, which surprises me. His amendment (a) and my amendment (c) try to achieve the same outcome. I would not have thought that he needed to waste much time making offensive remarks when our amendments are designed to achieve the same purpose. We need to be concerned about why the Government find neither our nor his approach appropriate.
David Howarth: I accept that point. Amendments (a) and (c) try to deal with the problem seriously and they require a serious response from the Government. I do not believe that the Government’s answer—on the one hand, the approach is unnecessary; on the other, it would have no effect—is convincing.
The necessity derives from the need to tackle the problem of the absurd investigations. There is also an effect—it may not be as great as some people wish, but it is a definite effect. The choice for the House in tackling the problem of balance is the substantive words approach, but I do not believe that that works; or the guidance alone approach, which is not yet sufficient, although it has a certain promise, especially when the detail is produced; or the procedural approach. I am a little confused by the Conservative party’s stance, which appears to favour the substantive approach on the one hand and the procedural route on the other. The Conservatives must decide between the two. Nevertheless, I hope that hon. Members will find an acceptable way forward that is also acceptable to the House of Lords.
Sir Patrick Cormack: I always find such debates difficult because whenever the House of Commons tries to quantify or qualify free speech, it moves in a dangerous direction.
I yield to no one in my abhorrence of acts of hatred and crimes committed against individuals for their beliefs or practices—whatever those beliefs or practices, so long as they are legal. Homosexual conduct is rightly not stigmatised as criminal any more. Nevertheless, some people, particularly in the Christian Churches but also in other faiths, strongly believe that that conduct—not the people—is wrong and sinful. Whatever one’s personal view of those beliefs, they are sincerely held. When they are articulated, sometimes with force, vehemence and clarity, they can have the effect of inciting undesirable,
nasty people to do thoroughly nasty things, yet it is important that the law should not be brought to bear on those who utter the words, and do not do so because they wish to incite.
Maria Eagle: I assure the hon. Gentleman that the offence would not apply in those circumstances because the potential offender—the person who uses threatening words or behaviour—has to intend to incite hatred. The circumstances that he describes would not, therefore, be caught by the offence.
Sir Patrick Cormack: I do not for a moment impugn the Under-Secretary’s good intentions and I would like to see the guidance to which she has referred. It is a pity that she could not produce it this afternoon—I do not criticise her—but if it is to be produced tomorrow in the other place, why could it not be produced this afternoon in this place?
There is the difficult matter of who is to decide what constitutes the intentions. We had a similar discussion on the low-level cases, to which my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) referred. Some people have heard rather simplistic preachers and decided that they were speaking from hatred when they were preaching from what I would call over-simplistic philosophies.
Maria Eagle: Such preachers and bishops have been investigated for offences with a much lower threshold. The public order threshold is threatening, abusive or insulting words, which is much lower than threatening words or behaviour intended to incite hatred. Does the hon. Gentleman not understand and accept that?
Sir Patrick Cormack: Yes, I understand the Under-Secretary’s point, but I believe that we are considering an imperfect way of dealing with the problem. I was brought up on Voltaire’s maxim:
“I disapprove of what you say, but I will defend to the death your right to say it”,
“He lash’d the vice, but spared the name”.
We have moved a long way from those propositions in the Bill and in much other legislation that we have passed in recent years. I am worried lest people who do not intend to do anything other than proclaim their heartfelt beliefs fall foul of the measure. I repeat that I do not doubt the Under-Secretary’s good intentions, integrity or belief that she has found a solution, but I beg leave to remain unconvinced by it.
Sammy Wilson (East Antrim) (DUP): Given the zealousness with which some police officers have pursued those who do exactly as the hon. Gentleman describes, does he not accept that, despite the guidance and the high threshold, both of which the Minister has talked about, there is a danger that prosecutions will be started? The impact of those prosecutions will be to silence people who, according to the Minister, should not be silenced and whom the law is not intended to silence.
6.30 pm
Sir Patrick Cormack: Exactly so. I completely understand and agree with the hon. Gentleman’s point. I therefore remain worried. I would like to see, at the earliest possible date, the notes for guidance and to know their precise statutory effect, how they will be distributed and what seminars and other means of communication will be employed to ensure that police chiefs and those who serve under them fully understand them.
This House will be moving in an unfortunate direction if it passes legislation that can in any way inhibit a sincere individual from proclaiming his or her religious beliefs and convictions. I remain convinced that we are in danger of moving in that direction with this Bill.
Dr. Evan Harris: Can the hon. Gentleman explain why religious conviction should have a special place and why political convictions should not enjoy the same legal favours? Some really abstruse religions might look to anyone else like simple political prejudice, so if he can make that case, as I am sure he will attempt to, how would he define religion?
Sir Patrick Cormack: I accept that entirely. I am talking about mainstream religions, in particular Christianity. Of course the hon. Gentleman should have the right to articulate whatever beliefs he holds without the fear of the law, and so should I. If anybody listening to us subsequently performs a violent, nasty act, the law is adequate to deal with it. There I rest my case.
Miss Widdecombe: In addressing the issue, we need to consider the context in which provisions in the Bill for the avoidance of doubt are now perceived as necessary. If the Bill, with its high threshold, to which the Minister rightly referred, had been the only similar piece of legislation in the past five years, the concern would have been nothing like as great. However, the Bill is another measure in a raft of legislation that either has already been used or has the potential to be used to curb freedom of speech.
That is why there is concern about the additional measure and why, despite whatever the threshold in the Bill may be, we believe it necessary to include something specific. That is why I support the amendment that Lord Waddington moved in the other place, and which has been sent to us, and why I co-sponsored a similar amendment in an earlier stage of the Bill in this House.
I should like to refer briefly—you will not allow me to refer to it in any depth, Madam Deputy Speaker—to some of that previous legislation. That includes the interpretation of the Public Order Act 1986 that led to a series of incidents, which my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) enumerated, that have given rise to considerable concerns about the value that we in Britain now put on free speech.
In the case of the Lancashire couple who had asked to distribute Christian literature in registry offices alongside the registry office’s own literature on civil partnerships, the police visited their home and spent an hour and 20 minutes questioning them. That is the first time in this country—or at least the first such incident that has been publicised—that the police have knocked on someone’s door not for something that they have done, but for an opinion that they have expressed.
The same thing happened to the children’s author Lynette Burrows, who in the course of a radio interview expressed the view—in response to questioning, not gratuitously—that she did not believe that homosexual couples should be allowed to adopt. She had the police on the phone within a short time of arriving home, for an opinion that she had expressed. I shall not go into all the others, such as Iqbal Sacranie, who have also been scrutinised. However, although we are not talking about the KGB knocking on the door at dawn or people being shanghaied off to the Lubyanka, it is now an established fact that, under public order legislation, people have been visited by the police for expressing an opinion. That has raised a lot of concern in the country.
That legislation was followed in fairly short order by the sexual orientation regulations, in which, for the first time, people have been obliged to participate in activity that they do not agree with. For example, a Christian printer was obliged to print homosexual literature—he was not obliged to print abortion, hunting or any other sort of literature, but he was obliged to print that.
The concern has grown. Now that we have the current Bill, it has crescendoed. I accept what the Minister said about the threshold. If the Bill had appeared in isolation, we would not be so worried, but we cannot take it in isolation from how other legislation has been interpreted and implemented. There is now a serious concern—principally, but by no means exclusively, on the part of religious faiths—that our ability to express what we believe and to refuse to participate in activity in which we do not believe is being severely curtailed.
My hon. Friend the Member for South Staffordshire (Sir Patrick Cormack) referred to his upbringing, in which Voltaire apparently played a significant part. I grew up in a less philosophical household. Nevertheless, it was in the immediate post-war period, when people had lost life and limb, and shed blood—husbands had not come back; sons had not come back—to fight the Nazis. Yet in that very same society, Colin Jordan and Oswald Mosley were allowed to hold their rallies, because we believed in free speech.
At the height of the cold war, when we had a whole raft of weapons pointing straight at us from the Warsaw pact countries—we tend to forget that now—people were allowed to stand for Parliament as communists. They would not be elected, but they were allowed to stand. People were allowed to distribute communist literature on street corners. [ Interruption. ] For all I know, the Justice Secretary may have done so in his youth. I certainly did not do that, but we were allowed to do so if we wanted to. There was no restriction on such activity, despite the huge level of social disapproval, because of free speech.
In the days when homosexuality and abortion were unlawful, there were campaigners who wanted to change those laws, in the face of huge social disapproval. Nobody prevented them from exercising their right of free speech. Our society was different then and had a completely different set of values, but nobody prevented those people from exercising their right to campaign for a change to those laws. However, now that the laws have changed, the rights of people to object to some of those changes are being curtailed.
That is, if I may put it this way, a libertarian dictatorship. That is our concern on the Conservative Benches. We are not trying to undo the legislation or say that people
should be able to be cruel or discriminatory towards somebody on the grounds of sexual orientation. We are merely saying that, in the context of recent legislation and the social way in which free speech is now being curtailed, we want the Bill to make it explicit that if someone disapproves of something or believes something to be wrong, that should not, of itself, be an offence.
The hon. Member for Cambridge (David Howarth) poured scorn on the term “of itself”.
David Howarth: But what does it mean?
Miss Widdecombe: I shall tell the hon. Gentleman exactly what it means. When the police rang up Lynette Burrows, she had threatened nobody, and had caused no public disorder that I am aware of. Her opinion, of itself, was a reason for them to contact her. That is what we seek to avoid happening with this legislation. I very much hope that the House will agree with the Lords amendment and will disagree with the Government’s motion, not because I dispute the importance of the threshold, but because of the context in which legislation is now being interpreted and because of the desperate need out there for reassurance.
Dr. Evan Harris: It is a privilege to listen to and follow the right hon. Member for Maidstone and The Weald (Miss Widdecombe), who speaks so clearly. I do not necessarily agree with everything that she said, but as I shall go on to say, there are some real issues of freedom of expression that we need to deal with.
I declare an interest as the president of the Liberal Democrat campaign for lesbian and gay rights, but I have to balance that role against my well-established stance on seeking freedom of expression. The balance of this legislation is important to someone such as me and to those whom I seek to represent.
I am glad that there is an increasing stirring on the Conservative Benches from Members who are concerned about freedom of expression. May I suggest that it would be more consistent and coherent if that concern extended to the issue of consenting adults viewing films and reading literature that those Members might consider to be offensive, and which others might consider to be pornographic? Conservative concerns about freedom of expression often do not extend to all free expression, and are sometimes quite censorious.
Provisions on incitement to hatred need a rational framework, and we are slowly but surely getting there. Our laws on incitement to racial hatred have a very low threshold, in that there is no requirement to intend to stir up hatred and the language can be threatening, abusive or insulting. That is a long-standing provision, and I do not propose that it should be changed. However, it is a low threshold.
At the other end of the spectrum, we need a high threshold to capture cases involving the criticism of people’s opinions, whether they be political or aesthetic; I include in that religious opinions, even though they are often felt more strongly. That is why the House got things absolutely right with the narrow offence for incitement to religious hatred, which required an intention to incite hatred and was restricted to threatening language. Given that opinion is not innate and given that the Government were not offering any concessions on the matter, it was appropriate to have a freedom of speech
saver clause, which hon. Members will remember debating and which is now on the statute book. I am pleased that there has been no plan to repeal that clause.
Sexual orientation falls somewhere in between those two ends of the spectrum. It is towards the racial hatred end, in terms of requiring protection, because it is innate and part of a shared or common humanity; it is not something that one can alter or choose. However, it perhaps requires less protection because there is a great deal of sincerely held, often religious, opinion that extends to sexual orientation that does not—generally speaking, in this country, thank goodness—extend to race. I find homophobia just as offensive as racism, but there are people who sincerely hold such views but do not intend to stir up hatred against individuals. The threshold for offences in relation to sexual orientation therefore needs to be middle-ranking.
When, on Second Reading—a long time and many clauses, new clauses and extra parts and schedules ago—I invited the Secretary of State to place the threshold close to that for incitement to religious hatred, but without the freedom of speech saver, he got it absolutely right. The Government have since then, broadly, got it right in choosing to stick with that, because the provisions in the Bill, without the Lords amendments, would exempt most religious language. That is a fact.
6.45 pm
As has been said, even the most ardent pastor who is strongly against homosexual behaviour does not intend to stir up hatred against people. That is obvious, and now that the Minister has offered guidance, it will be obvious from the guidance. On many occasions, such language will not be threatening, but fire and brimstone language can be threatening. That is why the word “threatening” alone is not sufficient to ensure that the threshold is high enough. I hope that the Government will succeed in persuading others, as they have persuaded me—or I persuaded them; whichever way around it was—that the combination I mentioned is exactly right.
I have two concerns about scope of the Bill, the first of which concerns the Government’s failure to cover in the Bill what is known as transphobic hatred, because the bigots out there who do intend to stir up hatred using threatening language against gay people do not make a distinction between people with transgender or homosexual tendencies, so the mischief could exist in both those regards. The same protection should be given in both such cases, and I regret the fact the Government have not taken the opportunity to do that.
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