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Secondly, I regret the fact that the Government’s formulation does not seem to cover what I believe to be the real mischief—the liability of organisations such as the British National party to seek to equate all homosexuals, or particular homosexuals or a particular gay club, with paedophilia. I can think of nothing more inciting to, or more designed to incite, racial hatred than making that analogy, but it may not be done in threatening terms. Stonewall told me that the Government would argue in another place that that issue was covered by the existing provisions, but the Minister in the House of Lords specified that it was not. It is therefore an omission. That is a matter for regret. I do not want us to have
restrictive measures, but if anything is going to cause problems, it will be in that area. That will not necessarily come from religious voices; indeed, it is far more likely to come from the odious religious right.
I do not share the concerns of the right hon. Member for Maidstone and The Weald regarding the sexual orientation regulations, as a series of measures. They are a series of progressive measures that give rights to people to escape discrimination. There is clearly an implication that people who run commercial businesses are not allowed to discriminate. I do not want to go too far into this area, and I urge the right hon. Lady not to either, but I do not accept that either those measures, or the measure that we are debating, are anything other than progressive measures that should be welcomed.
Miss Widdecombe: The hon. Gentleman calls this a progressive measure, but that is a matter of opinion. We have had a series of measures that impinge more and more on people’s rights to speak and to act in accordance with their conscience.
Dr. Harris: I accept that, and that issue must be strictly controlled. If one acts as a public authority, or is in the commercial sector—we have debated this—that is a reasonable balance. I accept what the right hon. Lady says about controlling the right to object to behaviour. That might be the case; however, it is being controlled not by this measure, but by sections 4A and 5 of the Public Order Act 1986.
I am sure that my hon. Friend the Member for Cambridge (David Howarth) would accept that none of his solutions would cover the problem of the ludicrous police investigations that have been mentioned. In my constituency, we had a case in which a student—who was, I think, the worse for drink—who asked a police officer if his horse was gay, was arrested under the Public Order Act. That is preposterous. I also found it preposterous that, in Trafalgar square, at a free speech rally—which had been cleared by the police—in support of the Danish cartoonists, someone who was wearing a T-shirt with the cartoon on should be arrested under the Public Order Act because there had been a complaint that someone had been caused distress and alarm. I do not think that the police were acting in the right way. I am grateful to the Minister for offering to meet to discuss the matter, because the guidance that she is promising will not cover that area, and there is an urgent need to ensure that free speech is covered much more widely than the issues that are dealt with by this measure are covered.
We are lucky to be having this debate. It was only because of the abysmal turnout by some peers on the Government side that this amendment got through in the Lords. I cannot understand why the Government are able to get lots of their Members to turn out to vote down reasonable measures but cannot persuade them to vote on this sort of thing. It was the Government’s decision to go to 11.30 pm in the House of Lords, yet they were surprised when the amendment was passed.
I do not believe that the Lords amendment should exist; I agree with the Minister entirely on that. There should not be a free speech rider; it is unnecessary and it does not give the victims of incitement to sexual orientation hatred the status that they deserve. As has been pointed out, it is unnecessary because the threshold
is high and the offence is narrow. The proposal will cause confusion, as I pointed out to the hon. Member for Arundel and South Downs (Nick Herbert). Urging persons to refrain from certain conduct might, in itself, be threatening, yet the amendment states that
“for the avoidance of doubt”
“shall not be taken of itself to be threatening”.
That simply confuses the issue, and brings a lack of clarity. If someone were to say, “Gays had better stop doing that, or else”, those words would of themselves be threatening, even without the context that my hon. Friend the Member for Cambridge thinks is so important.
Mr. Beith: The words “or else” are threatening.
Dr. Harris: But under this amendment, those words by themselves should not be taken to be threatening.
Mr. Beith: My hon. Friend has rather weakened his argument by adding the words “or else” to the words in the amendment. He thus made it into a threat, whereas the original words did not.
Dr. Harris: I know, but the amendment refers to urging persons to refrain. Certainly, when I am urged by people in authority not to do something, a consequence is often implied; that situation would be covered by the amendment and would not be considered threatening in and of itself. However, the words that I have just used are threatening, as my right hon. Friend admits. It is therefore right that we should reject the Lords amendment.
When we come to choose between amendments (a) and (c)—amendment (b) acts as a stem towards either amendment (a) or amendment (c), so I do not feel strongly about amendment (b)—it seems right that we should use the words that the Government themselves used in the Human Rights Act 1998 to provide extra cover, which some people argued was unnecessary, for the press. The Act states that the courts, when considering issues of privacy,
“must have particular regard to the Convention right to freedom of expression”
provided by the European convention on human rights. Those words are rooted in existing statute, and this issue should therefore unite those on the Opposition Benches. I hope that we will have a vote on amendment (a) and that the House will support it.
Mr. Gerald Howarth (Aldershot) (Con): I rise strongly to support my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack), both of whom have made strong cases. I also want to apologise to the Minister and to my hon. Friend the Member for Arundel and South Downs (Nick Herbert) for not having been here for the bulk of my hon. Friend’s speech or for that of the Minister. However, I hope that I have picked up much of the thread of the debate as we have gone along. I must also declare an interest as the churchwarden of the Royal Garrison church in Aldershot.
These are difficult issues, as my hon. Friend the Member for South Staffordshire explained. One pitfall
of debating these matters is that we are always at risk of treading on sensitivities. Fortunately, the tenor of the debate this evening has done the House proud, but deeply held convictions are involved. As my right hon. Friend the Member for Maidstone and The Weald said, it is extraordinary how we have moved in a short space of time from observing centuries of established Church of England teaching to questioning that teaching. Those who previously questioned that teaching were given every right to argue their case, but those of us who now seek to defend that original teaching are regarded almost as pariahs. The House therefore needs to be extremely careful about the possibly unintended consequences of this legislation.
My right hon. Friend and my hon. Friend have both given examples of past practice. I would add to the catalogue set out by my right hon. Friend the case of the Bishop of Chester. That was a dreadful case in which the bishop had his collar felt by P.C. Plod in the form of no less than the chief constable of Cheshire. That was absolutely extraordinary and outrageous. I wrote to the bishop to support him, but I also wrote to the chief constable to tell him that he had absolutely no business interfering with the freedom of expression of a bishop.
The Minister has said that a protection is available in the legislation because the authorities will have to prove intent to stir up hatred. That will probably be okay for the bishop, and it might be just enough to spare Lynette Burrows and Sir Iqbal Sacranie. However, I fear that lesser mortals will not enjoy the sort of protection that the bishop and certain others will undoubtedly enjoy as a result of the measure that the Minister is seeking to present to the House this evening. I fear that, if a complaint were lodged against an ordinary mortal, who was perhaps slightly less careful in the way that he had phrased his remarks—and which might not have been uttered in a religious building such as a church or a church hall—the police and the authorities would have no compunction about looking over their shoulder and saying, “I’d better not feel the collar of the bishop, because I might get into trouble, but this is only a mortal soul. We will be able to deal with him with impunity.”
I am afraid that the Minister has not persuaded my right hon. and hon. Friends and me that the protection that she has sought to present to the House as being sufficient will turn out to be so. It is also unfortunate that the guidance notes are not here tonight. This Government have frequently produced legislation that needs to be interpreted or supported either by statutory instruments or by some form of guidance, and it is a discourtesy to the House not to produce such guidance, especially when the Minister is partly relying on it.
It is right that we should adopt the amendment that has been proposed in the other place. I can see nothing wrong with saying “for the avoidance of doubt”. After all, under our constitutional arrangements, when there is an element of doubt in the minds of the judiciary—rather than in this place—it is the duty of the courts to interpret the will of this House. That is why a procedure now exists whereby the courts can take into account remarks made from the Dispatch Box. When we are dealing with a matter as sensitive and as essential to the culture of these islands as the freedom of expression of our people, it is our duty to leave the courts in no doubt
as to our intentions. The hon. Member for Cambridge (David Howarth) suggested that one of his reasons for opposing the amendment was that the courts had no need of guidance. If that were the case, there would be no harm in accepting the Lords amendment and incorporating it into the Bill, because we would then all be clear as to the position. Furthermore, the judges would be clear about it as well, because the House would have given its express view and made its intention crystal clear.
These are extremely important issues. The fact that there is not a large number of right hon. and hon. Members in the House tonight should not leave the public with the feeling that we do not care about these matters. Free speech is extremely important. I myself have taken advantage of the Bill of Rights of 1688 in the last few days, and it is extremely important that we should be able to afford the protection of free speech that we enjoy here to our fellow citizens.
7 pm
It is significant that both Matthew Parris and Iain Dale have spoken against this legislation, and the House would do well to take advantage of the offer from the other place. It may have been late at night and the Government may have sent their people home to bed early, but the result there was a sensible compromise that will assist the promotion of freedom of expression as well as protecting those whom the House wishes to protect. It is also important to send a clear message to the judges that they must err on the side of allowing freedom of speech in our country.
Mr. William Cash (Stone) (Con): I had not intended to speak in the debate until I heard the extremely powerful arguments put by my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and my hon. Friends the Members for South Staffordshire (Sir Patrick Cormack) and for Aldershot (Mr. Howarth).
A huge question about freedom of speech is at stake, and it deserves a fuller House and more careful deliberation. I listened to the hon. Member for Oxford, West and Abingdon (Dr. Harris). I have to say—I hope that he will understand my saying it—that he engaged in a degree of sophistry. He does not want anything to impinge on his crusade, but his letting slip a reference to the “odious religious right” prompted me to get to my feet. I would say that that demonstrates a degree of—
Mr. Cash: Yes, I think that is fair. I see that the hon. Member for Oxford, West and Abingdon is about to rise and is probably going to deny that he said that. It seems not now, but never mind. The fact remains that he was seeking to weave his way through an extremely important Lords amendment to demonstrate that, for him, it was not just objectionable but not necessary, which is where I part company with him.
I need not say much more. I profoundly believe that where people have religious convictions and feel that they have to express views based on their belief and their assessment of the moral purpose that lies behind
so many issues, they should have absolutely no inhibition whatever in expressing those views as a matter of their opinion.
Dr. Evan Harris: I have just checked the recollections of my colleagues. What I meant to say in context was the “odious extreme political right”; in fairness, however, I believe that the religious right can also be odious at times.
Mr. Cash: I rather sensed that that was the case. No doubt the hon. Gentleman, coming from Oxford, will share the same opinions as those of Richard Dawkins on religious matters. The fact remains that some people have profound beliefs, and they should be entitled to express them. Equally, freedom of speech is intrinsic to our liberties—far more so than the concatenations of the Human Rights Act 1998, which presents vast amounts of legalese to support principles that most people understand in normal parlance and by way of common sense. We have a reputation for tolerance and fair-mindedness as a country, so we do not need the Human Rights Act in order to improve something that is natural to the people of this country.
That is all I need to say. I believe profoundly in free speech and I thoroughly endorse the views expressed by Conservative Members.
Maria Eagle: We have had a wide-ranging debate in which all the relevant issues have had an airing. That is a good thing, which I certainly welcome. I am sorry that the hon. Members for Aldershot (Mr. Howarth) and for Stone (Mr. Cash) were not in their places to hear the earlier speeches, as I do not want to repeat everything I said in my opening remarks, which would bore hon. Members who were present. I hope that those two hon. Members will forgive my not going through it all again on account of their not being present to hear the earlier arguments. I do want to respond to one or two points, however.
It is quite clear from this and earlier debates that some views on this matter are irreconcilable, but it is important to note that we have tried to listen to each other’s views and deal with the various points, issues and concerns raised in the debate. I welcome the general recognition across the House that gay and lesbian people should be protected from being attacked on the basis of their sexuality and from incitement to hatred. From Second Reading through the evidence-taking in Committee, the important issues about this matter were raised and generally accepted.
Mr. Gerald Howarth: I wish to raise a very important issue. Anybody who is attacked in this country requires protection. It is absolutely essential to be clear that anyone attacked—not just particular categories of people—should be protected. The Minister is in danger of suggesting that one form of attack is worse than another, whereas any attack on anybody for whatever reason is bad news.
Maria Eagle:
I agree with the hon. Gentleman. I never said any such thing—that any particular group deserves more defence from attack than any other particular group. What I was trying to say is that during the passage of this Bill the House has dealt
seriously with these issues. There are, and always will be, rights that clash. We have never had total freedom of speech with absolutely no restraint on it. That has never been true.
I hear what the right hon. Member for Maidstone and The Weald (Miss Widdecombe) said and I am grateful to her for not arguing with me about the high threshold. She made some points about context. Similarly, the hon. Member for Arundel and South Downs (Nick Herbert) talked about reassurance. He argued—the hon. Member for South Staffordshire (Sir Patrick Cormack) made the same point—that those who express their views and beliefs in a temperate way should not be constrained from so doing by legislation, and I agree. It would not be possible to make out this offence with the very high threshold it has if temperate language were being used to express a view. The offence quite clearly requires words or behaviour that are “threatening or intended to stir up hatred”.
Many examples of some of the ludicrous investigations referred to around the Chamber have not been brought under Bill, as it is not on the statute book yet. They were brought under various parts of public order legislation, which has much lower thresholds, such as words or behaviour “threatening, abusive or insulting”, which are “intended” or “likely” to stir up hatred. All around, that threshold is much lower.
I understand the concern of many Conservative Members. I do not denigrate it. I am not as concerned about it as they are, but I nevertheless understand it because we all believe that freedom of speech is important in this country. I believe that focusing on ensuring that those who investigate crime—the police and those responsible for deciding whether charges should be brought in individual cases, namely the Crown Prosecution Service prosecutors—are those who need to be clear about what this Bill means. That also applies to the other raft of legislation that, rather than thresholds, the right hon. Member for Maidstone and The Weald said provided the context of her concerns and motivated her support for the Lords amendment.
The CPS published its refreshed policy in “Guidance on prosecuting cases of homophobic and transphobic crime” on 27 November last year, which post-dated some of the issues and cases cited by Opposition Members. It is a cautious policy that rightly encourages the police to take very early advice from the CPS in considering individual cases. Some of the examples cited were when individual police officers over-interpreted current legislation, partly perhaps because the thresholds are lower, but also perhaps because the police do not come across these cases every day. They are trying to do their job in good faith, but they have gone a bit too far.
I think it will help if the CPS tells the police that they should ask it about such matters at an early stage, and that the revising and updating of the ACPO hate crime manual will make it easier to make it clear to investigating officers at a lower level what kind of behaviour should be caught by the Public Order Act and what kind should not. However, the threshold for this offence under the Bill is very high, and in those circumstances I am not persuaded that we need the caveat sent down to us from another place.
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