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Session 2007 - 08 Publications on the internet General Committee Debates Criminal Justice and Immigration Bill |
Criminal Justice and Immigration Bill |
The Committee consisted of the following Members:Alan
Sandall, Committee Clerk
attended the Committee
Public Bill CommitteeThursday 29 November 2007(Morning)[Sir Nicholas Winterton in the Chair]Criminal Justice and Immigration Bill9
am
The
Chairman:
I congratulate the Committee on making such
excellent progress on Tuesday and on sitting late. It almost reminds me
of the good old days.
Clause 124 ordered
to stand part of the
Bill.
Schedule 21Minor
and consequential amendments
Amendments made: No. 54,
in schedule 21, page 222,
line 26, at end
insert
Criminal Justice Act 1961
(c. 39)
2A In section 38(3)(c) of the Criminal
Justice Act 1961 (construction of references to imprisonment or
detention in case of children and young persons) after in
accordance with insert a determination of the Secretary
of State or of a person authorised by him, in accordance with
arrangements made by the Secretary of State or in accordance
with..
No.
210, in
schedule 21, page 222, line 26, at
end insert
Criminal Appeal
(Northern Ireland) Act 1980 (c. 47)
2A In
section 13A(3) of the Criminal Appeal (Northern Ireland) Act 1980
(grounds for allowing appeal against finding of unfitness to be tried),
in paragraph (a) for the finding substitute a
finding..[Maria
Eagle.]
The
Minister of State, Ministry of Justice (Mr. David
Hanson):
I beg to move amendment No. 236, in
schedule 21, page 222, line 26, at
end insert
Prison Act 1952 (c.
52)
2A In section 43(1)(aa) of the Prison Act
1952 (provision by Secretary of State of young offender institutions),
at the end insert or other persons who may be lawfully detained
there..
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 372, 241, 205, 206, 373, 251 and
370.
Mr.
Hanson:
Good morning, Sir Nicholas. Welcome
back to the Chair for our final sitting. The
amendments are technical, but I shall say a word about three of
them.
Amendment
No. 236 is designed to bring the statutory definition of a young
offender institution up to date. The change in definition will enable
the Secretary of State subsequently to exercise an order-making power
under section 41(6) of the Crime and Disorder Act 1998. It will allow
the Youth Justice Board to exercise, concurrently with the Secretary of
State, the power to enter into contracts for the provision and the
running of young offender institutes.
Amendment No. 205 is a small
amendment. It relates to the double jeopardy provision under part 10 of
the Criminal Justice Act 2003. For the first time,
the Act permitted retrials in respect of a number of very serious
offences. The amendment addresses a small anomaly, which is that,
unlike the High Court and the magistrates court, Crown courts and the
Court of Appeal do not sit for urgent cases on Saturdays. The amendment
would allow them to do so in the event of that requirement being needed
in respect of double
jeopardy.
Amendment
No. 372 makes technical amendments to the Youth Justice and Criminal
Evidence Act 1999. Among other
things, the 1999 Act prescribed various procedural protections for
complainants and other witnesses. New paragraph 8C rectifies an
unintended omission from the list of offences to which some of those
protections
apply.
Amendment
agreed
to.
The
Parliamentary Under-Secretary of State for Justice
(Maria Eagle):
I beg to move amendment No. 237, in
schedule 21, page 223, line 19, at
end insert
Football Spectators Act
1989 (c. 37)
6A In paragraph 1(c), (k) and (q) of
Schedule 1 to the Football Spectators Act 1989
(offences)
(a) for Part
III substitute Part 3 or 3A;
and
(b) for (racial
hatred) substitute (hatred by reference to race
etc).
Broadcasting Act 1990 (c.
42)
6B (1) Section 167 of the
Broadcasting Act 1990 (power to make copies of recordings) is amended
as follows.
(2) In subsection
(4)(b), after section 24 insert or
29H.
(3) In subsection
(5)(b), after section 22 insert or
29F..
The
Chairman:
With this it will be convenient to discuss the
following: Government amendments Nos. 246, 252 and
221.
Government new
clause 34Hatred on the grounds of sexual
orientation.
New
clause 49Hatred on grounds of sexual
orientation
(1)
Save where expressly limited by subsection (2) below, nothing in this
section affects any persons
right
(a) to respect
for private and family life, his home and his
correspondence;
(b) to freedom
of thought, conscience and religion, including the right to change his
religion or belief and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief, in
worship, teaching, practice and
observance;
(c) to freedom of
expression, including the freedom to hold opinions and to receive and
impart information and ideas without interference by any person or
public authority;
(d) to
freedom of peaceful assembly and to freedom of association with
others.
(2) It is an offence
whether by words or acts for any person to do, or to incite any other
person to do, any act with the intention of causing physical or mental
harm to any person or group of persons on the basis of hatred of their
sexual orientation or presumed sexual
orientation.
(3)
In this section words and
acts include the making known to any third party of
oral, written or printed words by any method of publication including
electronic, wireless or internet media, and an offence under this
section may be committed in a public or a private
place.
(4) Where a body corporate is guilty of an offence
under this section and it is shown that the offence was committed with
the consent or connivance of a director, manager, secretary or other
similar officer of the body, or a person purporting to act in any such
capacity, he as well as the body corporate is guilty of the offence and
liable to be proceeded against and punished
accordingly.
(5)
Where the affairs of the body corporate are managed by its members,
subsection (4) applies in relation to the acts and defaults of a member
in connection with his functions of management as it applies to a
director.
(6) No criminal
proceedings under this section may be initiated or continued save by
the Crown and with the permission of the Attorney
General.
(7) A person guilty of
an offence under this section shall be
liable
(a) on
conviction on indictment, to imprisonment for a term not exceeding two
years, or a fine, or both;
or
(b) on summary conviction,
to imprisonment for a term not exceeding six months, or a fine not
exceeding the statutory maximum, or
both..
Government
new schedule 2Hatred on the grounds of sexual
orientation
1 Part 3A of the
Public Order Act 1986 (c. 64) (hatred against persons on religious
grounds) has effect subject to the following
amendments.
2 In the heading for Part 3A at the end
insert or grounds of sexual
orientation.
3 In the italic cross-heading
before section 29A at the end insert and hatred on the
grounds of sexual orientation.
4
After that section
insert
29AB
Meaning of hatred on the grounds of sexual
orientation
In this
Part hatred on the grounds of sexual orientation means
hatred against a group of persons defined by reference to sexual
orientation (whether towards persons of the same sex, the opposite sex
or both).
5 In the italic
cross-heading before section 29B at the end insert or hatred on
the grounds of sexual orientation.
6 (1)
Section 29B (use of words or behaviour or display of written material)
is amended as follows.
(2) In subsection
(1), after religious hatred insert or hatred on
the grounds of sexual
orientation.
(3) Omit
subsection (3).
7 In section 29C(1)
(publishing or distributing written material), after religious
hatred insert or hatred on the grounds of sexual
orientation.
8 In section 29D(1) (public
performance of play), after religious hatred insert
or hatred on the grounds of sexual
orientation.
9 In section 29E(1)
(distributing, showing or playing a recording), after religious
hatred insert or hatred on the grounds of sexual
orientation.
10 In section 29F(1)
(broadcasting or including programme in programme service), after
religious hatred insert or hatred on the
grounds of sexual orientation.
11 In section
29G(1) (possession of inflammatory material), for religious
hatred to be stirred up thereby substitute thereby to
stir up religious hatred or hatred on the grounds of sexual
orientation.
12 (1) Section 29H (powers of
entry and search) is amended as
follows.
(2) In subsection (1), omit
in England and
Wales.
(3) Omit
subsection (2).
13 (1) Section 29I (power
to order forfeiture) is amended as
follows.
(2) In subsection
(2)
(a) in paragraph
(a), omit in the case of an order made in proceedings in
England and Wales,; and
(b) omit paragraph (b).
(3) Omit subsection (4).
14 In section 29K(1) (savings for reports of parliamentary or
judicial proceedings), for or in the Scottish
Parliament substitute , in the Scottish Parliament or
in the National Assembly for Wales.
15 (1)
Section 29L (procedure and punishment) is amended as
follows.
(2) In subsections (1) and (2),
omit in England and
Wales.
(3) In
subsection (3), in paragraph (b), for six months
substitute 12
months.
(4) After that
subsection
insert
(4) In
subsection (3)(b) the reference to 12 months shall be read as a
reference to 6 months in relation to an offence committed before the
commencement of section 154(1) of the Criminal Justice Act
2003.
16 In section 29N
(interpretation), after the definition of dwelling
insert
hatred
on the grounds of sexual orientation has the meaning given by
section
29AB;..
And
the following amendments thereto: (a), after paragraph 6, sub-paragraph
(2) insert
(2A) After
subsection (1)
insert
(1A) An
action under subsection (1) may include any action intended to equate
sexual orientation with a propensity or intention to commit an
imprisonable
offence..
(b),
after paragraph 13
insert
(13A) After section
29I insert
29IA
European Convention on Human
Rights
Unless expressly limited
by any provision within this Part, no right under Article 10 of the
European Convention on Human Rights shall be
affected..
Maria
Eagle:
Good morning, Sir Nicholas. Welcome back to what
should be our final sitting. This group of amendments deals with the
inclusion of an offence of incitement to homophobic hatred into the
legislation, as explained on Second Reading by my right hon. Friend the
Secretary of
State.
There
has been widespread debate on the issue, not only
among the parties represented here on the Committee, but between the
Government and other parties and among interested bodies outside
Parliament. Indeed, we took evidence at the beginning of the
Committees deliberations in relation to the desirability of
such legislation and the form that it should take. The Government
believe that it is desirable.
The Government have a good
record in ensuring that the rights of gay, lesbian and bisexual people
are protected, and we are committed to ensuring that all people can
live free from the fear and discrimination that can and does ruin lives
and blight communities. It is important that gay, lesbian and bisexual
people are accepted by our society and are able to play a full part in
itsentiments from which I suspect that no one in the Committee
or in the House would demur.
It is for that reason that the
Government have taken much action in our period of office to make sure
that the rights of gay, lesbian and bisexual people are protected. We
have set up a cross-Government working group to tackle hate crime that
is working on a number of priorities to help emphasise the importance
of protecting all members of our society. We know that hate crime is
corrosive and insidious. The more society stays silent about it, the
more that perpetrators feel that they can get away with it. The
Governments key priority is therefore to encourage people to
come
forward and report what has happened. We need better to understand what
is happening in order effectively to intervene and prevent
it.
The criminal
justice system plays an important part in that policy. A framework of
offences and sentencing ensures that crime motivated by homophobic
hatred is dealt with in a way that takes into account the wider harm
cased by such crime. We are doing more to ensure that such crime is
reported and properly recorded, so that we can assess the extent of the
problem. Hon. Members will also recall that, on the civil side, we have
introduced civil partnerships to ensure that the status of a gay
partnership is recognised in
law.
We need to do
more, however. We need to make sure that hatred of people simply on the
basis of their sexual orientation as a group is understood to be
unacceptable, and is recognised as such. We should not underestimate
the damaging effect of incitement to hatred, because it damages not
only individuals, who might end up as targets of crime, feeling
discriminated against and isolated from society, but entire communities
as well as the community spirit that is so important to a successful
and democratic society. Left unchecked, that creates an atmosphere in
which hatred and intolerance aimed at particular groups are seen as
normal and acceptable, and it makes crimes against particular groups
and individuals seem more justified and acceptable too. Crimes that
occur against people because of sexual orientation are not justifiable
or acceptable, and we need to deal with incitement to hatred before
hatred becomes engrained, endemic and accepted as part of our
society.
There has
been an offence of inciting racial hatred since as long ago as 1965.
That legislation is now contained in the Public Order Act 1986, and is
well established. Last year, the Government introduced offences of
inciting religious hatred that came into force in October this year,
and we now propose to introduce offences of inciting hatred on the
basis of sexual orientation. Inciting hatred on that basis is harmful
and divisive in the same way as is inciting hatred on the grounds of
race or religion, and people should be protected from such incitement
just as they are from incitement on grounds of race or
religion.
When the
House debated the religious hatred offences last year, some strong
views were expressed about the offences and about the need to balance
them against freedom of expression. In many ways, that it the nub of
the whole debate, because freedom of expression is of enormous value to
our society and to our democratic way of life. It is a real concern,
and the balance that we are all seeking to achieve is between freedom
to say what one feels and thinks and incitement of hatred of a group
because of sexuality, race or religion. That is the balance that we all
seek in casting the
law.
In a democratic
society, it is important that we interfere with freedom of speech only
where there is a need to protect people in society from harm. As a
result of concerns, the offences of incitement to religious hatred, as
proposed by the Government, were amended and changed during the passage
of that legislation. The Government thought at the time that the
proposed offences were clear enough and that there were robust
safeguards against the offences being used maliciously or
inappropriately. However, Parliament thought otherwise and they were
changed during their
passage.
As the
Secretary of State said on Second Reading, in drafting the current
proposals we have taken as our starting point the amended offences of
inciting religious hatred, which are now contained in part 3A of the
Public Order Act 1986. I want to be very clear about what the new
offences do and do not cover because that is not immediately apparent
from reading the proposals, such is the way in which legislation is
written. No doubt the hon. and learned Member for Harborough may have
something to say about that when discussing the
proposals.
Maria
Eagle:
The new offences cover words, behaviour or material
which are threatening and which are intended to stir up
hatred.
I shall not
comment on the broad grins on the faces of most Committee members on
hearing that intention expressed by the hon. and learned Gentleman. I
do not wish to provoke him, so I will leave it well
alone.
Mr.
Philip Hollobone (Kettering) (Con): I am
listening to the Ministers comments with great interest. Will
she give us some more evidence, from her Ministrys point of
view, about why there is a need for such legislation at
all?
We had some very
powerful evidence in the evidence sessions about existing legislation
in this area. For example, section 146 of the Criminal Justice Act 2003
includes tougher sentences for offences motivated by hatred of the
victims sexual orientation. Under the Public Order Act 1986, it
is already an offence to use threatening, abusive or insulting words or
behaviour in a way that is likely to cause harassment, alarm and
distress. That measure has been used to arrest people for making
homophobic comments. The Protection from Harassment Act 1997 makes it a
civil or criminal offence to harass somebody. There are also offences
for actual bodily harm and assault under the Offences Against the
Person Act 1861 and there is the offence of common
assault.
In addition,
the Crown Prosecution Service said in October
that
homophobic crime is
being tackled head on and with
success.
Why is there
need for new legislation in this
area?
9.15
am
Maria
Eagle:
I am happy to deal with that point. I was seeking
to set out very clearly what the new offences will and will not catch
for the purposes of clarity, not only for the Committee, but for those
who will read the Official Report. I hope that the hon.
Gentleman does not think that I am avoiding his question, but I want to
set out what the offences will and will not do before dealing with that
point, if he will offer me a little
patience.
As cast in
the amendments, the new clause and the new schedule, the offences are
aimed at threatening words and behaviour. They are aimed not at
insulting or abusive words and behaviour, but threatening words and
behaviour. In order for the offence to be made,
there must be an intention to incite hatred, not a likelihood that
hatred will be incited. That indicates that the offences are being
pitched at the very highest level of intending to incite. We hope that
this strikes the correct balance between making it clear that inciting
hatred of a group, simply on the basis of its sexuality, is criminally
wrong, while protecting inadvertent speech that may be taken by others
to be inciting
hatred.
The intention
of the person committing the offence is what is important. We believe
that to be the correct level at which the offence needs to be pitched
and that that level is very clear. It balances properly freedom of
speech and expression against the importance of making it absolutely
clear that inciting hatred of a group on the basis of its sexuality is
criminally wrong.
As
my right hon. Friend, the Secretary of State said on Second Reading,
the offence is much closer to that of inciting religious hatred than
that of inciting racial hatred. It should allay the concerns of many
who have contacted the Government and, no doubt, members of the
Committee, who are concerned about inadvertently stumbling into
committing offences, for example, by preaching religious doctrine or
telling jokes, or through playground banter among childrensome
of which can be cruel but is not criminally wrong. That is why the
offence that we are putting into the Bill at this stage, if the
Committee agrees, is pitched so that there can be no misunderstanding.
The hon.
Gentleman
Maria
Eagle:
I have not answered the hon. Gentlemans
first point yet. I hope that he will allow me to deal with the points
that he has made.
I do
not disagree with what the hon. Gentleman said. There are offences on
the statute book aimed at tackling crime against individuals that is
motivated by antipathy or hatred of the sexuality of that person. He is
quite correct to say that the 2003 Act made an aggravating feature of
many crimes of violence; the motivation of attacking someone because of
their sexuality is an aggravating feature that the judge can take into
account on
sentencing.
However,
the hon. Gentleman may remember the evidence given at the beginning of
the Public Bill Committee by Stonewallwhich we agree
withthat there is a lacuna, in that there are already offences
dealing with hatred leading to violence against an individual; it is an
aggravating feature to be motivated by hating gay and lesbian people.
The lacuna relates to the fact that it is not presently unlawful to
incite hatred of a group of people, without picking out an individual
on the basis of their sexuality. The new provisions seek to deal with
that lacuna. The hon. Gentleman is champing at the bit and I will give
way.
Mr.
Hollobone:
In that evidence session, which was one of the
most interesting parts of our deliberations, Mr. Summerskill
of Stonewall quoted the example of a gentleman demonstrating in
Parliament square, in what has been described by some as a prayer rally
and by others as a demonstration. The gentleman concerned was shouting,
Dont allow homosexuals to pervert these
children. In Mr. Summerskills words, nearby
were
little tots, not adolescents or
19-year-olds[Official Report,
Criminal Justice and Immigration Public Bill
Committee, 16 October 2007; c. 78,
Q173.].
In his view, that was
clearly incitement. Under the legislation that the Minister is
proposing, would that be
incitement?
Maria
Eagle:
I have made it very clear that threatening words
and behaviour and an intention to incite hatred are what the amendments
and new clauses seek to put on the other side of the law. The intention
of the individual doing the act and the context in which he does it are
tremendously important. It is for the prosecuting authorities and the
police in any individual case to take a view, on the basis of what they
see and what is happening, on whether it falls foul of the law.
However, I stress again that threatening words or behaviour, as well as
the intention of the person who is engaging in it, are the key to the
offence.
Will the
Minister confirm that, on the occasion to which my hon. Friend the
Member for Kettering refers, no action was taken by the police against
the individuals holding up those placards, and, had they thought that
there was a breach of the peace or some other offence being committed
or about to be committed, they had ample powers to do something about
it?
Maria
Eagle:
Yes, indeed, that is my understanding. Of course,
the people watching, with a view to considering whether the law was
being broken, did not have the benefit of what we are considering here,
because it was not and is still not yet law. It is important to stress
again that such matters will have to be considered on their individual
facts. It is not possible for me to say precisely in every instance
what would or would not fall foul of the law. However, I have sought to
make it very clear what the offence would and would not catch because
it is not evident what the provision means. I have set out what we seek
to make unlawful and what would not be caught. We believe that we have
struck the correct balance between the importance of having free speech
in this country and the offences that we seek to put on to the statute
book.
Mr.
David Burrowes (Enfield, Southgate) (Con): I should like
to press the Minister further on her response to my hon. Friend the
Member for Kettering. This is an opportunity to clarify what should and
should not be criminalised. I ask the Minister to explain further
because it is important in terms of what happens not only in court but
before court and how the police take action. Concerns have been
expressed about the heavy-handed approaches taken by the police, not
only potentially in terms of that rallyalthough there was no
actionbut also in matters involving the Bishop of Chester, Joan
Helen Robertson and Iqbal Sacranie, which all led to investigations. It
is important that the chill factor, which people already feel, is not
increased by this new clause. Will the Minister explain clearly that
she does not seek to circumvent Christian organisations, which wish to
express their beliefs and
criticise sexual practice, and to distinguish in her comments the issue
of whether it is done in a temperate or intemperate way, which was
suggested in the evidence Ben
Summerskill?
Maria
Eagle:
I have not used the words temperate or intemperate.
I seek to explain as clearly as I canand I hope that I have
done sowhere the offence will bite. It is then for the police
and the prosecuting authorities to consider whether or not, in any
individual circumstance, the offence is made out. That is not something
that I can do from here in the Committee.
I have made it clear that we
understand the importance of not restricting free speech. We do not
seek to prevent church or religious groups from preaching their
doctrine, but they would have to have regard to the law and ensure that
they do not intentionally incite hatred of another group. As long as
they are not doing that, they will not fall foul of these
offences.
Mr.
Burrowes:
When the clause is enacted, there will not be
the protection clause within the religious hatred provision, and there
will, in essence, be a disparity in protection. It is important that
the Minister explains why there is not that same protection within this
clause, and, without that protection, she must be clear where the
protections are, and perhaps look at issuing clear guidance to the
police. The Police Federation said that it would welcome clear guidance
on how to deal with such a matter. There have been instances in which
heavy-handed approaches have been taken.
Finally, the concern is that
some organisations, from their sincerely held beliefs, seek to change
homosexual behaviour and orientation. Indeed, there are trusts that
seek to do that. Some homosexual groups may find that threatening. The
Minister must clarify whether those organisations can be prevented from
carrying out their practice on homosexual
orientation.
Maria
Eagle:
That was a long intervention, but I will try
to deal with the points raised by the hon. Gentleman. The offence will
be made out only if there are threatening words or behaviour that are
intended to incite hatred. Anything short of that will not fall foul of
the offence. I seek to be clear with the Committee. We believe that
this is the correct way in which to protect people who are gay, lesbian
or bisexual from incitement to hatred on the basis of their sexuality,
while balancing the needs of our society to support freedom of speech.
I do not seek to be obfuscatory, but it is impossible for me to be
clear about every possible circumstance that might be thought up by
members of the Committee. That is not my job, that is the job of the
prosecuting authorities and the police who will implement the law if
and when it is passed. The hon. Gentleman made some reference to
guidance. It is our intention to ensure that there is guidance because
it is in nobodys interest for there to be misunderstanding
about what the law means once it is passed, and we will seek to make it
clear now.
On Second
Reading, the Secretary of State made reference to transgender and
disabled people. He said that we would listen to any representations
and evidence that there was an issue about incitement to
hatred against transgender and disabled people. There is certainly crime
against those people and, as the hon. Member for Kettering indicated,
there are laws to deal with crime and ways in which the criminal
justice system can act. We are not aware, however, of any group that is
deliberately stirring up hatred of transgender or disabled people in
the way in which it is clear that there are groups that do that against
gay, lesbian and bisexual people, so for the time being we have not
included transgender or disabled people in the offences, but we are
well aware of the particular vulnerability of those groups. I would be
happy in future to consider any evidence that incitement to hatred
against them is happening, but at present we do not have that evidence.
If the evidence were to justify it, thought would be given to including
them in the offences.
We do not expect there to be
large numbers of convictions under the offences. The numbers convicted
of the offences of racial hatred are smallperhaps three to four
a year. Nevertheless, there are important cases that tackle damaging
and unacceptable behaviour, so we must continue to ensure that we
challenge such behaviour if it is to be
tackled.
Mr.
Hollobone:
I am grateful to the Minister for setting the
proposal in the context of other legislation. As a former Northern
Ireland Minister, she will know better than I about the existing
legislation in the Province with regard to homophobic hatred. Will she
advise the Committee whether any prosecutions have been brought under
that
legislation?
Maria
Eagle:
I am not aware of any prosecutions having been
brought. Last time I checked, there were no such prosecutions but that
is not to say that there could not be in appropriate circumstances;
that would be a matter for the police and the prosecuting authorities.
That would be the same with the legislation that we are
considering.
On a
practical basis, there are other safeguards to ensure that the offences
will not be used maliciously or inappropriately. The CPS will bring a
case only if it is satisfied that there is sufficient evidence to
provide a reasonable prospect of successful prosecution, and it will
proceed only if it is in the public interest to do so. The
Attorney-General will have to agree to any prosecution, as is the case
with racial and religious offences.
I should mention that we intend
to issue guidance to accompany the offences, to try to ensure that the
police, courts and prosecutors are fully informed and able to use the
offences effectively and consistently, which should provide further
reassurance. Although this is unlikely to be central to the debate, I
should add that in drafting the offences, we have taken the opportunity
to correct some minor drafting errors in part 3A of the 1986
Act.
I know that the
new offences have generated a lot of interest and some strong views, as
has been reflected in the evidence that the Committee heard at the
beginning of our deliberations, from a number of diverse organisations.
I hope that I have said enough to demonstrate that we have taken those
views seriously, and that we have sought in particular to balance
properly the requirement to protect gay, lesbian and
bisexual people from incitement to hatred and to cover the lacuna that I
have mentioned, while ensuring that the offences are necessary and
proportionate and that we can protect free speech. On that basis, I
commend the amendments to the
Committee.
9.30
am
Mr.
Garnier:
I said from a sedentary position that I had
remarkably little to say, and then that that was a relative term given
that some of my contributions in the Committee could not by any means
be described as short or fall within the expression relatively
little to say. Whether I have anything useful to say is a
different
question.
The
debate on the Government amendments, our new clause 49 and the
amendments tabled by the hon. Member for Somerton and Frome is not
about whether we, as individuals or members of our respective political
parties and Members of Parliament, approve of homosexuality,
evangelical Christianity or the tenets of Islam or any other religion.
It is about whether the law of the land needs to be extended in the way
outlined either by the Government or by me to create a new criminal
offence designed to deter those who wish to do harm and protect those
to whom harm could be done on the basis of their
sexuality.
I hope that
it is uncontroversial that right-thinking people do not deliberately
and unjustifiably cause harm to others, and that they disapprove of
those who do. Equally, it is the duty of Parliament, where necessary,
appropriate and proportionate, to protect actual and potential victims
of deliberate and unjustifiable harm by means of the criminal law. The
precedent that the Minister relies uponreligious hatred
lawsis not helpful or happy. Those laws, which the Government
passed through Parliament in the face of considerable opposition, were
neither helpful nor necessary, but that is last years business.
If, in some future Parliament, the matter is raised again, it can be
reopened, but I prefer not to approach what we are discussing through
the conduit of religious hatred legislation, which is a distraction and
does not provide a helpful
example.
It is right
that society should not simply permit, but should promote and
celebrate, freedom of speech. To permit freedom of speech does not mean
that, as individuals, Members of Parliament and members of our
respective parties, we are bidden to agree with others
opinions. I am sure that we all know that the common-law defence of
fair comment in the law of defamation is ancient and has been
reinforced by the courts decisions over the years and
underlined to some extent by developments in statute law in the past 50
to 100 years. I refer to a case that is relatively recent in legal
terms, that of Silkin v. Express Newspapers. From memory, it was
in the early 1960s, when not the recent Silkin brothers but their
fatherI think he was also a Law Officer, but that does not
really
matter
Mr.
Garnier:
Lewis Silkin. The Minister is perfectly right. He
had a well-known firm of solicitors, Lewis Silkin and
Partners.
However,
the short point is that Lewis Silkin was defamed, as he thought, by the
Daily Express, and its defence was the defence of fair comment,
which required it to establish that first, the article in question
constituted comment, and secondly, that if it was such, it was based on
fact. When directing the jury at the end of the case, the judge,
Mr. Justice Diplock as he then was, said that it had
absolutely nothing to do with whether he or the jury, but particularly
the members of the jury, agreed with the comment. He said that people
should be free to say even quite hurtful and utterly disagreeable
things as an expression of their view, and that members of the jury,
representing society, should not find against the Daily Express,
nor should anyone find against anybody else, just because they
disagreed with the other partys
comments.
I am sorry
that I do not have the words that Mr. Justice Diplock
uttered with me now, because they would encapsulate
more understandably and neatly the point that I am trying to get
across, which is that the British notion of free speech and
freedom of expression is vital, and we should neither throw it away nor
undermine it. If we do, we will undermine one of the building blocks
that makes this country a decent place to live.
If we create
a law of the category outlined by the Minister, we must be persuaded
that it is necessary and sufficiently clear and understandable to a
number of people: the public, because we all need to know the
boundaries that Parliament decides are those beyond which we may not
travel; the people who implement and enforce it, so that the constable
on the beatif there is such a thing nowadaysor at a
gathering knows what he should, or needs to, do; the local police
commander, be he an inspector or a superintendent, so that he knows
whether to take the matter to the Crown Prosecution Service; and the
CPS, so that it knows how best to advise the police, or how and whether
to seek advice from the Attorney-General.
It is very easy to make laws
and to pass what I call early-day motion laws, about which the hon.
Member for Somerton and Frome and I constantly complainthat is
to say, laws that send out a message. I do not believe in laws that
send out a message; I believe in laws that meet a public need, set
boundaries and penalties for infringements, are clear beyond doubt and
do not need to be message-sent. According to the material that the
Government have put before us, and to some extent, that we have seen in
the evidence sessions, I have accepted, for my own part and on behalf
of the official Opposition, that there is a need for this particular
law.
The next
question is about how we frame the law. If I may say so, the
Governments attempt is unnecessarily complicated and quite
difficult to follow. It is quite difficult to follow as a matter of
procedure in this Committee, because one has to undertake an audit
trail to wind ones way back to the base legislation upon which
the Government have built the new offence. So I turn to my new clause
49 to see whether I can persuade the Government and members on both
sides of the CommitteeI suspect that we are not agreed on the
principle or the way in which it should be brought into lawthat
it is the better way to proceed. I shall do my best to try to persuade
the Committee that it provides protection to those whom the Government
seek to persuade us need protection but also that it protects the
ancient right of freedom of
expression.
I begin my
new clauseI do not make any secret of thisby stealing
from the European convention on human rights some fundamental freedoms
that are set out in it. Subsection (1) refers to
respect for private and family
life, his home and his
correspondence,
which
corresponds to article 8 of the convention,
and
freedom of thought,
conscience and religion, including the right to change his religion or
belief and freedom, either alone or in community with others and in
public or private, to manifest his religion or belief, in worship,
teaching, practice and
observance,
which
corresponds to article 9. I hope that that will reassure my hon.
Friends the Members for Enfield, Southgate and for
Kettering.
The Bishop
of Chester and the man standing in Parliament square, assuming he has
not broken one of the many other laws that the Government have passed
to prevent people from standing in Parliament
square[
Interruption.
] Let us hope that he
will not be caught by my new clause, even if the Prime Minister sends
the boys in blue to pick up chaps who hold up disobliging
placards.
I wish it to
be known that the official Opposition are adamant that the right to
private and family life, and the right to freedom of thought and so on
should be publicly maintained, as should
the
freedom of
expression, including the freedom to hold opinions and to receive and
impart information and ideas without interference by any person or
public authority,
which
is in subsection (1)(c). So, be one an evangelical Christian, a
follower of Islam or of any other religious or non-religious group that
has strong views about the practice of homosexuality, one can, subject
to what I say later, say so at the top of ones
voice.
I also wish
publicly to uphold
the
freedom of peaceful
assembly and...freedom of association with
others.
I have
replicated articles 8, 9, 10 and 11 of the European
convention.
However,
just as under the convention and our law, both statutory and common
law, rights cannot be universal; that is, they cannot be exploited in
all circumstances. I come back to my tired old example of the law of
defamation because, until the Committee started, that is something
about which I thought I knew a
little.
9.45
am
We know that
the right to freedom of expression is curtailed in that one cannot say
wrong or factually inaccurate things that are defamatory without being
dealt with under the law of defamation. One cannot wander around
causing damage to peoples property, albeit that may be an
infringement of ones freedom of movement. I do not need to go
through O-level essay examples to demonstrate my
point.
We also know
from the European convention that each of the freedoms that are
referred to in new clause 49(1) are restricted, and that the
restrictions must be broadly proportionate, necessary and loosely
agreeable in a democratic society. Again, I do not need to go through
the examples.
I seek
only to limit those freedoms through subsection (2), where I attempt to
make it
an offence
whether by words or acts for any person to do, or to incite any other
person to do, any act with the intention of causing physical or mental
harm.
I shall pause there and seek to explain
what I am trying to do.
Like the Government, I believe
that if there is to be a crime it has to be one that is based upon
intention. It has to be based upon an intention to do something
malevolent, and the malevolent thing that needs to be intended is the
causing of physical or mental harm. Physical harm is easy to recognise
and does not need a description. I can understand that defining mental
harm may cause people to worry, but it is, in fact, something that is
recognised. It is not to be equated with general distress or upset, so
the examples that my hon. Friend the Member for Kettering produces of
people holding up placards saying unpleasant things do not come within
my new clause.
I go
back to my Mr. Justice Diplock example: people say
unpleasant things which may be impolite, ugly or disagreeable to all
sorts of people, but they are not prevented from saying them, nor would
they be under my new clause. Mental harm is something that is
identifiableby expert evidence, if necessary. It can be looked
at and considered by the Attorney-General and the police, and an
empirical decision can be made by a court. If something is done with
the intention of causing somebody genuine mental harmbeyond
simple distress and upsetmy new clause would bite, but it would
bite only if the thing were done with the intention of causing that
harm to people
on the
basis of hatred of their sexual orientation or presumed sexual
orientation.
I have
stolen the phrase presumed sexual orientation from the
Northern Ireland legislation.
I hope that I have managed to
make it clear that the act should be intentional, that it should cause
harm as I have described, and that it should be on the basis of the
hatred that I have set out. I hope that evangelicals and
fundamentalists of any religionI use the word
fundamentalist not in a pejorative sense but to
describe people who have a deep-seated belief in the rightness of what
they believe and what they say about their beliefswill
understand that under subsection (1) they would have every right to
preach and every right to express disgust and to hold very strong views
about other peoples sexuality and the way in which they lead
their lives, as long as they did not intend to cause them physical or
mental harm.
The issue
of intention will often be best understood in the context in which the
individual act or set of words is uttered or done. If my hon. Friend
the Member for Enfield, Southgate and I were to stand up in a pulpit
and preach about this, that and the other to our followers or
congregation, unless it could be demonstrated that we were inviting
those in the church or the assembly hall where we were meeting to go
out and cause physical harm to these people whom we allegedly hate on
the basis of their sexuality, we would not be caught by this new
clause.
I do not
believe that it is likely that members of recognised religions will
stand up in pulpits and say, Yes, I disapprove of other
peoples sexuality. Yes, I disapprove of the sexual orientation
of homosexuals, gays, and lesbians, and then say to the
congregation, Off you go and give them a good thumping.
I simply do not think that that is going to happen, nor do I think that
holding up a placard saying rude things
about gays and lesbians in Parliament square will lead to that result,
either. I rather suspect that those who want to thump gays and lesbians
will do so regardless of whether they have seen the placards. I really
think that we need to lower the temperature of the debate and
understand the context in which such things are likely to
happen.
Harry
Cohen (Leyton and Wanstead) (Lab): I understand why the
hon. and learned Gentleman says that, but does not that go against the
experience of racism? When there is a climate of racism, some people do
go out and thump black or Asian people, thinking that that climate
gives them some sort of authority to do
so.
Mr.
Garnier:
Let me try to give another example. I mentioned
context. Imagine that I were to take a loudspeaker van into a part of
London or Brighton where I knew that lots of gay people lived or
assembled and spoke over the loudspeaker, All of you people who
live in this street or go to this club are revolting, disgusting,
filthy perverts and you deserve to be thumpedand what is more,
I have a van load of people who are coming out to thump you.
Perhaps that is not a very happy example, but clearly, in the context
in which those words were uttered, they could incite my vanload of
skinheads to go out and bash up the people in that neighbourhood. That
is a mile away from a preacher in a church or mosque, or a legitimate
demonstration in Parliament square. We need to separate in our mind
legitimate demonstrations and gatherings, at which people express their
disapproval of this, that or the other, and criminal misconduct. It is
important not to discolour the debate by looking for extreme examples,
or even for examples on the margins. These things are often easier to
recognise than to describe. If I were to take a gang of thugs to a
particular place with a view to inciting them to commit harmful acts, I
am pretty sure that I would be prosecuted under some other law;
however, it may well be that it is necessary for the additional
protection that the Government are looking to be
available.
Subsection
(3) of my new clause proposes
that
words
and acts include the making known to any third party of
oral, written or printed words by any method of publication including
electronic, wireless or internet media, and an offence under this
section may be committed in a public or private
place.
The significance
of thatif there is any significance to what I have to
sayis that I do not limit the activity, which has the intention
to cause harm, to a public place. I can incite someone in my own home
to go out and do harmful things. It seems to me that, if there is any
logic in my arguments about the issue of intention and context, to
limit the offence to activities carried out in a public place is
neither right nor
appropriate.
Subsections
(4) and (5) deal with non-human actors. I do not
think that that is particularly controversial. If
the Committee is with me in relation to new clause
49 and subsections (1), (2) and (3), it must follow that subsections
(4) and (5) fit appropriately into the scheme of the new clause. Again,
I admit candidly that subsections (4) and (5) are stolen from
existing
legislation.
In
subsection (6), I differ from the Government. I wish to impose a double
lock. The subsection states:
No criminal proceedings
under this section may be initiated or continued save by the Crown and
with the permission of the Attorney
General.
It is one thing
for the Attorney-General to give a private citizen the right to
prosecute, as in the Governments proposals; it is quite another
for the Attorney-General to give only the Crownthe state, in
the form of the CPSthe right to advance such prosecutions and
to continue them. I seek to make it impossible, or as close as one can
humanly get, for a malicious prosecution to be
advanced.
Maria
Eagle:
I am speaking from my fading memory of legal
practice, but is it not the case that the Attorney-General can
discontinue prosecutions started privately that she has not approved?
Is that not effectively the same
thing?
Mr.
Garnier:
Yes. I believe that the Attorney-General can
issue a nolle prosequi. That is perfectly true, and it has happened,
but the difficulty is that it leads to unfulfilled
expectations. A malevolent group of individuals, or even a benignly
motivated group, gets very excited, lays a summons and gets the ball
rolling, only to have the matter taken up by the Attorney-General, who
says, No, you cant. That leads to two
problemsa disappointed private prosecutor and a disturbed
potential defendant. At least under my system there is no possibility
of a disappointed prosecutor. I need not say any more about that
provision, which I think is essential. I believe that it would reassure
those who feel that they risk prosecution under the advances in the law
that have been
proposed.
In
subsection (7), I ask for a smaller and less severe penalty than the
Government propose. They have decided on seven years in prison, which I
think is too heavy and too high. If somebody has committed a violent
act that demands a heavy prison sentence, we should prosecute them
under the Offences Against the Person Act 1861 with an
old-fashioned, straightforward prosecution, and then aggravate the
penalty, as my hon. Friend the Member for Kettering mentioned, on the
grounds of the motive behind the assault. On that basis, I suggest that
two years on indictment is entirely adequate.
I hope that I have persuaded
the Government that my approach is neither harmful to their purpose,
nor too restrictive of the rights and freedoms that we enjoy and ought
to enjoy. Nor is it a cop-out or an approach that does not recognise,
as we heard in the evidence session, that there are people who feel
that they are in some danger. I appreciate that the issues underlying
our debate are hugely controversial, but I shall not resolve them
todayindeed, I hope that we do not need to resolve them,
because they are matters that are perfectly properly the
subject of controversial discussion, and they are outside the remit of
my new clause.
I
shall leave amendments (a) and (b), tabled by the hon. Member for
Somerton and Frome, to him to advance. I shall say nothing about
them.
10
am
Mr.
Heath:
I am most grateful to the hon.
and learned Gentleman for not introducing my amendments. He is entirely
right to say that the Governments way of
framing the new provisions is extremely complex, applying as it does a
series of amendments to previous legislation. One of the difficulties
that arise from introducing a new facet into existing legislation is
that it is then extremely difficult to read the offence or series of
offences as a whole. That is a limitation of our system, and it is an
argument for constantly recodifying legislation where possible, so that
we have the full extent of the extant law in one place. It will be
difficult to reference easily exactly how the amendments work
out.
The hon. and
learned Gentleman makes an interesting point, on which I confess I had
not picked up, on the possibility of private prosecution. I would be
interested to see what the Minister has to say in response to that with
respect to the provisions.
In broad terms, my party and I
are wary of extending the areas of speech hate crime. The risk, if we
are not careful, is that it could lead to a creeping escalation, almost
to the creation of speech hate crimes on demand. That is something we
must resist. It should not be sufficient for a group or individual to
feel that they are likely to be offended for an offence to be created.
However, I exclude entirely from that the subject under discussion
today, because it is abundantly clear that there is evidence of
deliberate incitement to hatred against gay and lesbian people. We have
recognised that problem for some time and we are clear that there is a
need to fill this particular legislative lacuna. That is why I applaud
the Government intentions in their amendments.
Although we are clear about the
need to provide the necessary protection against incitement to hatred,
we must balance that determination with an equal and principled
determination to protect, as far as is possible outside those
restrictions, the freedom of expression and the freedom of speech. The
difficulty we always face when dealing with such matters is deciding
precisely where that balance is struck and whether it will successfully
protect free speech, which does not include the sort of behaviour that
we are trying to catch with the new offence.
I have been struck by the
evidence that we have received. I will not hark back to the debates on
religious hatred. We discussed those measures at length, and although I
think that the arguments in the case of religious hatred were far less
clear-cut than they are in this instance, using parliamentary process
we eventually ended up with workable legislation. It is not brilliant,
but it does include appropriate safeguards. In this instance, we have
had, as one might expect, strong representations from religious groups,
particularly evangelical Christian groups, who are quite rightly
concerned about their freedom to express their faith without fear of
prosecution. We have heard, to a degree, the concerns expressed by
those in the world of entertainment, particularly comics who feel that
they might be constrained from some areas of comedy by legislation that
unnecessarily restrains them from telling jokes or doing sketches, if
that includes some element of ridicule that might be caught by the
legislation.
On the
other side, we have heard a sober recital of incidents by those
representing gay and lesbian groups, in particular the extremely
powerful evidence from
Stonewall, which gave clear examples of excitement to hatred, including
direct incitement to acts of violence which apparently are not, or have
not been, prosecuted under present
law.
What
is the Governments approach? I think that the Government have
come forward with a workable proposal and I commend the Under-Secretary
of State for Justice for her careful work and for listening to what
people have had to say. The Government have listened to some of the
underlying evidence that we have received. For example, one thing that
struck me about many of the messages, letters and other pieces of
evidence that we received from committed Christians, whether they were
within groups or outside them, is their firm view that, however much
they may be against the practice of homosexuality on religious
groundsthey may oppose it very stronglyit is not part
of their Christian purpose to incite hatred against an individual or a
group of individuals. That view is usually summed up as the principle
of loving the sinner but hating the sin. They undoubtedly hate what
they perceive to be a sin, but that does not cause them to hate someone
whom they perceive to be a sinner.
On the other hand, we have
heard evidence that those who strongly support the introduction of the
new offence recognise that the purpose of the law should not be simply
to prevent anyone from causing offence or inviting ridicule. If the law
did that, we would extinguish some very basic elements of free speech.
The people who hold this view are certainly very clear that people
should be able to express their faith. Indeed, the last words said to
the Committee by Mr. Summerskill in his evidence
were:
The
Christian right...are perfectly right to express concern that
their temperate and fair-minded expression of religious belief should
not be curtailed.[Official Report, Criminal
Justice and Immigration Public Bill Committee, 16 October 2007; c.
85, Q193.]
The
Government have proposed an offence of incitement to hatred, but it has
two qualifying factors; first, the speech, conduct or whatever must be
threatening, and secondly there must be intent. Anyone who doubts the
scope of the proposed legislation should realise that, if a person is
not using threatening language and if they do not have the intention of
inciting hatred, they will not be caught by this law. That is as it
should be, and I hope that that will give considerable reassurance to
those who were initially concerned about what this legislation might
result
in.
Mr.
Hollobone:
I am listening with great care to the hon.
Gentlemans words. I have not yet received a satisfactory answer
from the Minister, so I will put the question to the hon. Gentleman. I
would like to return to the subject of the famous demonstration in
Parliament square, when one gentleman waved a placard with the
words:
Dont
allow homosexuals to pervert these children.
Mr. Summerskills view
was that that was incitement and it ought to be caught by this law.
Does the hon. Gentleman think that the law as it is drafted would make
a prosecution against that gentleman
likely?
Mr.
Heath:
I will come on to that precise issue in a moment,
if I may. I think that one of my amendments deals with it, but I want
to explore the issue in slightly more depth than I can in response to
the hon. Gentlemans intervention.
In her comments this morning,
the Under-Secretary of State for Justice rightly stressed the
importance of context. A remark may well fall foul of legislation when
said in one context, but may not do so when said in another context.
Context and intent are closely linked. One can construe intent from
context in some cases, and I would say that the reverse is also true;
one can construe that there is not intent from a particular context. We
have a balanced position, although that is not to say that it cannot be
improved.
Will the proposed measure deal
with those vile lyrics read out to the Committee by Mr.
Summerskill? They were promulgated by so-called respectable record
companies and, to me, they were more than offensivethey were
direct incitements to violence against a class of people. I hope that
the measure will do something to moderate such behaviour. In our last
sitting, when I asked about the position of the so-called respectable
newspapers that run adverts for prostitutes who have been trafficked. I
find it extraordinary that newspapers that preach one thing in their
editorial pages can do the reverse in their advertising features. The
same applies to record companies: they are supposed to be good
corporate citizens, and yet they disseminate material of the type
Mr. Summerskill described. What does the Minister
think?
Mr.
Burrowes:
Will the hon. Gentleman comment on the
interesting fact that no prosecution has been brought for such lyrics
in Northern Ireland, despite the fact that there is a wider ambit of
offence available for prosecution
there?
Mr.
Heath:
I cannot comment on that. To be frank, I am puzzled
why the Northern Ireland prosecution authorities seem to be so supine
in that respect. As Northern Ireland is a separate jurisdiction, we
cannot easily question why there has been no prosecution. Perhaps there
have been no complaints, so no evidence has been considered, but I find
it puzzling that the legislation that is in place appears to be so
ineffective.
I should
say that I am sure that my two amendments are imperfect, and I ask the
Minister not to spend a great deal of time telling us why. There was a
limited period between the publication of the Government amendments and
the last opportunity to table amendments. Simply put, I tabled my
amendments to ensure that we had a satisfactory debate on the issues. I
take full responsibility for them because I drew them up myself. I have
no idea in what way they are imperfect; I am only sure that they
are.
The proposed
amendments make two important points, one from either side of the
argument. First, on the free speech element, I am satisfied by the
limitations on the scope of the offences. The requirements for the
action to be threatening and for there to be intent will ensure that
the measure does not have a perverse effect on those preaching from a
pulpit or telling jokes on stage in a theatre; such people will not
fall foul of the law inadvertently. The Minister will tell me that
because all legislation must comply with the European convention on
human rights, it is unnecessary to say that it would help, when
construing the provisions, if we had an explicit statement in the Bill
that no other derogation from the provisions of article 10 will be made
other than the limitations of speech made explicit in the Bill.
However, I would like a reassurance that freedom of
speech, which is guaranteed by our adherence to the convention and by
the Human Rights Act 1998, will be preserved, except for those who
incite hatred against and threaten people in a way that curtails their
freedom of speech. Such a statement would provide effective reassurance
to those worried and valuable guidance to those interpreting the
Act.
10.15
am
Amendment (a)
is more problematic and addresses an issue touched upon by the hon.
Member for Kettering. People are concerned about the ample evidence
suggesting that the easy equation of homosexuality and paedophilia is
used offensively by those who intend to incite hatred against
homosexual people. They can say, All homosexuals are
paedophiles. There is a homosexual, knowing that the, quite
proper, public revulsion against paedophilia makes such comments the
easiest way to incite hatred against homosexual people. That equation
is used in exactly that way, not by Churches or religious organisations
generally, but by politicalI use that term
looselyorganisations in support of their campaigns. They know
perfectly well the consequences of making that equation.
I am not
convinced that under the Governments proposals that could be
construed as incitement to hatred, which undoubtedly it is. Some people
say that all homosexuals are paedophiles in complete ignorance or in
defiance of the evidence. We know that paedophilia is not a proclivity
exclusive to homosexuals or to heterosexuals, and certainly not all
heterosexuals or homosexuals have a proclivity to paedophilia; only a
tiny proportion does. My amendment would make it clear that if that
equation is used with the intention of inciting hatred or with
threatening intent, it could be considered by a court as evidence of an
offence. That would be of great reassurance to many people who feel
threatened by that sort of
behaviour.
When
discussing the chap in Parliament square, we must consider the context.
I do not know the precise words on his placard. If they were simply an
expression of a general view that homosexuality was strongly against
his religious tenets and that he does not want any child to find
themselves a homosexual when they reach the age of maturity, it could
be construed that no offence had been committed. From the example given
by the hon. Member for Kettering, it was not clear that the intention
was to equate all homosexuals with paedophilia, and it would be very
difficult for a prosecuting authority to decide on which side of the
line his statement fell. I suspect that it would not be a prosecutable
offence, although intent might have clearly been exemplified by what he
shouted through his megaphoneI do not know what that was. My
view is that the placard itself would not have been evidence of an
offence, but who am I to tell? I am not a prosecuting authority; I am
not even a lawyer. However, there is a mischief here that we ought to
recognise and
address.
Mr.
Hollobone:
If it helps to inform the debate and the
comments of the hon. Gentleman, according to Mr.
Summerskill, the gentleman
shouted:
Dont
allow homosexuals to pervert these
children.
Mr.
Heath:
This is where I have difficulty.
This becomes a hypothetical case that it is pointless for me to pursue
very far. However, whether to pervert a child is to teach them
something or actually cause or undertake an offence under the law is
something that could only be determined by the context and by intent. I
suspect that it would not be an offence under the law that has been
proposed today, but that would not be for me to determine. I am sorry
that I cannot be more helpful than that, but it is useful for me at
least to try to
respond.
I conclusion,
I ask the Under-Secretary of State for Justice to consider my
amendments, which were tabled with good intent to try to improve her
proposals, to give additional reassurance to those who are still
concerned that the Governments proposals are over-restrictive
of their freedom of speech, and to deal with a particular and
unpleasant aspect of the sort of conduct that she is trying to tackle.
I make it plain that my colleagues and I will support the
Governments new schedule and new clause. We shall consider the
matter further on Report and in another place, but our firm view is
that the intent is right and we are dealing only with the details of
the provisions. She is right to say that there should be protection
against threat and incitement to hatred of an individual or group of
individuals. It is not right that we should seek to make illegal
disagreement or disapproval, or even disapproval expressed in terms
that are offensive or which invite ridicule. There is a difference
between those two things. I think that the hon. Lady has got the
balance
right.
The
Chairman:
Order. Before I call the hon. Member for
Kettering, I wish to point out that we shall adjourn at 10.25 am today
until 1 oclock, and this afternoon we may sit until 7 pm, as
laid down in the programme order. The afternoon sitting may therefore
be very longsix hours. I shall discuss it with the Whips on
both sides of the Committee, but I think it appropriate to tell
Committee members that I intend to suspend the Committee for a short
time, for a cup of tea, a rest and perhaps answer the call of nature,
or whatever. I hope that that is agreeable to the
Committee.
Mr.
Hollobone:
I appreciate what the Government are trying to
do, but I am not convinced of the need to do it. Although I respect the
Governments position, the provision is unnecessary. I have come
to that view on the basis of the evidence that we received in the
public evidence sessions and in the contributions to the debate since
then.
All of us were,
I am sure, appalled by some of the evidence that Ben Summerskill gave
the Committee. Some of the language must have pushed the Official
Report to its absolute limit in terms of reproducing the very
offensive comments that he cited as evidence of homophobic hatred. I am
sure that all of us want to see appropriate measures taken against some
of that offensive material. I would like to hear in more detail from
the Under-Secretary of State for Justice about how she intends her
legislation to enable action to be taken against offensive rap lyrics,
and why such action has not been taken in Northern Ireland, using
existing legislation, against offensive rap
lyrics.
Maria
Eagle:
The hon. Gentleman will be aware that that is a
different jurisdiction. My writ does not run in Northern Ireland. I can
only ask, then tell the hon. Gentleman what I am told, rather than
explain a decision that I have
made.
Mr.
Hollobone:
I appreciate that clarification. I was hoping
that, given the hon. Ladys huge experience in Northern Ireland,
she might have been able to illuminate that point for the
Committee.
The huge
worry of many people who hold faithnot just Christian, but
Muslim and other religionsis that such a provision will have a
huge chilling effect on their ability to pronounce their faith, which
is especially important for evangelical faiths such a Christianity. I
do not want to leave this Committee today without having a clear answer
from the
Minister
It
being twenty-five minutes past Ten oclock.
The Chairman
adjourned the
Committee without Question put, pursuant to the Standing
Order.
Adjourned
till this day at One
oclock.
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