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to enable people to maintain the maximum possible level of independence, choice and control.
The low level of the personal expenses allowance compromises the quality of life and dignity of older people by restricting their ability to meet their essential physical and social well-being needs. An amount of £21.15 is simply not enough.
My Bill would place a duty on the Secretary of State for Health to undertake an annual review of the level of the personal expenses allowance, including public consultation, so that it can be increased to a level that guarantees a decent, minimum standard of living. Thrifty and frail pensioners in this country deserve a better deal than they are getting on such matters from this Government. I commend the Bill to the House.
[Relevant Documents: The Second Report from the Justice Committee, Session 2008-09, The Coroners and Justice Bill, HC 185, and the Governments response, HC 322, and the Eighth Report from the Joint Committee on Human Rights, Session 2008-09, Legislative Scrutiny: Coroners and Justice Bill, HC 362.]
(1) The Director of Public Prosecutions, in consultation with the Attorney General, must issue guidance to prosecutors explaining the operation of the offences under Part 3A of the Public Order Act 1986 (c. 64) that involve hatred on the grounds of sexual orientation.
(b) the importance of the rights to freedom of expression, freedom of thought, conscience and religion, respect for private and family life and freedom of assembly and association provided by the European Convention on Human Rights.. (David Howarth.)
(1A) Threatening in subsection (1) extends to words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003 (c. 42)..
David Howarth: We now come to a short debate about the aspects of the Bill involving homophobic hatred. The offence of using threatening words or behaviour with intent to stir up hatred on grounds of sexual orientation was created by the Criminal Justice and Immigration Act 2008. Anyone who knows anything about the lives of gay people in this country knows why the provision was necessary and important.
Homophobic bullying and intimidation are distressingly common occurrences. Recent research shows that one in eight lesbian or gay people have experienced hate crime in the past three years. The problem is not only distressingly common but can have lasting deleterious effects on the lives and well-being of the victims. I hope
that no one in this debate will question the need for the provision; if they do, I hope that they will be honest enough to say so openly.
This debate focuses on a particular aspect of the 2008 Act. Some religious groups have said they are afraid that the new law will catch them because their religion strongly disapproves of homosexuality, and their representatives or preachers want to continue to say so publicly. It is important, however, to stress what the 2008 Act says and what the new crime is. The Act says:
A person who uses threatening words or behaviour, or displays written material which is threatening, is guilty of an offence if he intends thereby to stir up hatred on the grounds of sexual orientation.
That means that the words have to be both threatening and intended to stir up hatred. It is not enough for the words to be insulting or offensive; they have to threaten. Nor is it enough that the words may have the effect of stirring up hatred; they have to be specifically intended to do so.
The crime is difficult to prove at the best of times. If a charge was brought against a saintly religious leader whose intention was to save souls, I cannot see how anyone might think that that offence had been committed.
The problem is not what the law says, but the fact that some rather odd investigations have been startednot under the provisions that I have mentioned, which are not yet in force, but under different ones. That has given rise to a great deal of anxiety and I am sure that we will hear about the cases in the course of the debate. However, it is important to realise that those cases are brought under entirely different provisions. It is right to say that people should not have to suffer unreasonable and unfounded investigation.
Mr. Dominic Grieve (Beaconsfield) (Con): Cases in which people have been exposed to this sort of intrusive investigation, even though no prosecutions have been brought, have been those where the existing laws have been stretched even further to warrant the police coming and knocking on their doors. Should not the hon. Gentleman bear that in mind when considering whether this legislation, which is very specific, may be a mistaken encouragement to others in authority to do likewise?
David Howarth: That is why it is very important that we have specific legislation to give guidance to the authorities about how they implement the new laws. The offence that is usually referred to, as in the cases of Miguel Hayworth and Stephen Green, concerns section 5 of the Public Order Act 1986, whereby it is a crime to use threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. In my view, that provision is in itself a violation of freedom of speech. It seems to allow prosecution merely for insults, and for insults that are merely likely to cause distress but have not necessarily done so.
David Howarth: And without intention, as my hon. Friend says. That is why yesterday I would have supported his amendment, which we never reached, to remove the word insulting from that provision. That answers the point made by the hon. and learned Member for Beaconsfield (Mr. Grieve).
The provisions regarding hatred on the grounds of sexual orientation are not the sameinsult is not enough; likelihood of distress is not enoughbut some people are anxious about the possibility that the police and the Crown Prosecution Service will not recognise the difference. I accept that that anxiety exists and that we should do something about itthe question is what. There are two proposals on the table.
The first is to do what the 1986 Act already says following the so-called Waddington amendment, which went through after extensive ping-pong between this House and the other place last year, when the Government eventually gave way. I thought they were wrong to do so, and divided the House right at the end of that process. They did it because they were up against a deadline on another provision in the Bill about industrial action in prisons. However, they made it clear that they were with me in spirit, if not in the Lobby.
For the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.
There are many problems with the Waddington amendment. First, it is not aimed at the problem that it is supposed to solve. The problem lies not in the content of the lawa point that it seems to admit itself by using the phrase,
For the avoidance of doubt
but in a possible mistaken interpretation of the law by the police and the CPS. If the police pay no attention to the wording of the offence itself, why should we believe that they will pay attention to the wording of the Waddington amendment? Secondlythis is the most important criticismit either achieves nothing at all or is attempting to do something that we should oppose. If it really is
For the avoidance of doubt,
A deeming provision is a statutory section that tells courts to ignore reality but to treat one thing as another. Last year, we passed about 85 deeming provisions. In the Energy Act 2008, for example, we deemed a place where uranium was enriched to be premises owned or used for the purposes of the Crown, so that the Official Secrets Act would apply even when the place was owned by someone else. It is very common for us to do this. The difficulty with the Waddington amendment is that it can be read as deeming discussion of sexual conduct and so on not to be threatening or intended to stir up hatred even when the words actually were threatening and were intended to stir up hatred. That is particularly
worrying in the case of urging persons to modify such conduct, which is what the amendment refers to. Such urging could certainly be done in a threatening way and with the necessary intent. There is a danger that the Waddington amendment could be read in a deeming manner so that a person doing such urging in a threatening way, with intent, would not count as having done so.
Proponents of the Waddington amendment put a lot of weight on the phrase of itself, but that phrase has at least two possible meanings. It could meanthis is the hopeful interpretationsomething like, But if the way this was done indicates threats or intentions, the provision does not apply. Taken of itself might mean that, but it could mean something rather different, such as, Ask only whether the acts complained of are within this provision, and ignore the context. That would mean that of itself was an excluding phrase, rather than an including one. The latter interpretation would fit closely with the interpretation of the Waddington amendment as a deeming provision, which is a grave danger. That is why the Government are absolutely right to propose removing the Waddington amendment from the legislation. It is either useless or dangerous. I do not, however, think that the Government are right to offer nothing in its place, which is where new clause 11 comes in.
New clause 11 would meet head-on the problem of mistaken interpretations that lead to fruitless and distressing investigations. It would do so by requiring the Director of Public Prosecutions to issue guidance to prosecutors on the meaning of the offence, and crucially, it would require chief constables to make the contentor for those Members who were here yesterday, the gistof that guidance known to police officers. New clause 11 would also introduce a real free speech element by requiring the Attorney-General, whose consent is necessary for any prosecutions to go ahead, to have regard to all the relevant rights and freedoms in the Human Rights Act before giving that permission.
Mr. Gerald Howarth (Aldershot) (Con): The hon. Gentleman is placing enormous reliance on guidance to be issued by the authoritiesthe Crown Prosecution Service or the police. I have an extract from the guidance on prosecuting cases of homophobic and transphobic crime, issued by the Crown Prosecution Service in November 2007. It describes homophobia and transphobia as
terms used to describe a dislike of LGBT people or aspects of their perceived lifestyle. In other words, homophobia and transphobia are not restricted to a dislike of individuals; the dislike can be based on any sexual act or characteristic that the person associates with an LGBT person, whether or not any specific LGBT person does that act or has that characteristic. That dislike does not have to be as severe as hatred. It is enough that people do something or abstain from doing something because they do not like LGBT people.
Surely that is hugely wide-ranging. Parliament has no say in this matter, and we could be faced with a situation where such an interpretation means that anyone who expresses a dislike of this kind of behaviour would be caught by the CPS under its interpretation of the law.
But that guidance has nothing to do with this aspect of the Bill because it has not yet been brought into force. I am proposing guidance specifically
about that aspect; the word homophobia does not exist in the provisions we are talking about. Furthermore, the guidance would have to be issued after consultation with the Attorney-General. That means that there will be accountability to this House over what that guidance says, through the Attorney-General or the Solicitor-General.
The effect of the second part of the new clause would be that the Attorney-General would also have to have regard to all rights of freedom of expression before a prosecution was brought. That would feed back through the system and create at least some hope of a judicial review of a decision to go ahead with a prosecution, which there would not normally be. New clause 11 is far more focused on the real problem than the Governments provisions and would help in a much less dangerous way, but it is capable of meeting genuine anxieties that have arisen in religious communities. It is necessary to do something of this nature rather than, as the Government suggest, do nothing at all.
Dr. Evan Harris: May I bring my hon. Friend back to the fact that there are complaints, which I recognise as genuine, about misguided police investigations and the questioning of individuals who express an honest view? Although I disagree with that view, I absolutely accept their right to express it. Would not a combination of the production of guidance and reform of section 5 of the Public Order Act 1986 to remove the word insulting not only deal with worries about clause 58 but solve those problems?
David Howarth: I am very glad that my hon. Friend has brought me back to his proposal to remove the word insulting from section 5 of the 1986 Act, because that would be a very important reform and I hope that the Government will take it up at some point.
Finally, I wish to speak to new clause 37, which is in my name and that of my hon. Friend. It is an attempt to ensure that a particularly despicable form of homophobic intimidation comes within the meaning of threatening in the Act. That is the disgusting technique employed by certain political groups including the British National party, alleging that gay people have a propensity to be paedophiles and commit offences against children. That particular form of intimidation is not just unpleasant but literally life-threatening. I therefore hope that the Government will accept new clause 37 as well as new clause 11.
We have heard from the hon. Member for Cambridge (David Howarth) about new clause 11, and it is gratifying that Liberal Democrat Front Benchers recognise that there is a need for some reassurance about free speech on the statute book. Sadly, I do not feel that the new clause would work, and I shall say why later if I have time. Having heard the hon. Gentlemans explanation, I still do not understand why they oppose so vehemently the inclusion of a simple free speech clause, which is much more likely to be read and followed by police and prosecutors than page after page of guidance. Either the Liberal Democrats are serious about protecting free speech or they are not, and I cannot understand why
they played such an important role in securing a free speech clause in the case of the religious hatred offence, but oppose a much narrower free speech clause in the case of the homophobic offence.
The so-called Waddington free speech clause has now been law for 10 months, although by a quirk of how this place works the incitement law itself has not yet come into effect. If the offence had been in operation, and there was evidence that the free speech clause was being abused in the unacceptable way that the Government and the Liberal Democrats claim it could be, their case would be significantly stronger. However, I do not think that anybody really believes that such abuses are possible.
The wording of the free speech clause simply does not lend itself to the drastic and repugnant misuse that is alleged. Even Stonewall, which the Liberal Democrats often cite in evidence, does not appear to think that it does. Its briefing note, which came to all of us, stated that clause 58
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