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“could mean that a very small number of people of extreme views attempt to avoid prosecution”.
I am sure that a very small number of people could do that using all sorts of methods, including the Human Rights Act 1998, evidence laws and other provisions that we consider essential to protect civil liberties and that we would never dream of repealing. Stonewall does not say that the freedom of speech provision would prevent convictions, thereby contradicting the Justice Secretary. It does not say that it will prevent prosecutions, but only that a small number of extremists will attempt to use it to get out of a prosecution. I do not think that they would succeed and I suspect that Stonewall does not think that, either. Stonewall has been candid. Its members know that a free speech clause does not seriously undermine their intention for the new offence.
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Whenever the House legislates, we engage in a balancing act. In the case that we are considering, on one side of the scales, we have freedom of speech, freedom of religion and the pressing need for reassurance about the prevention of potentially widespread abuses of civil liberties. On the other side, according to Stonewall, we have a tiny number of extremists who might point to the free speech clause when they are charged, but almost certainly without success. The organisation does not, therefore, make a strong argument against a free speech clause.
Indeed, Stonewall’s director, Ben Summerskill, said in evidence to the Public Bill Committee that considered the Criminal Justice and Immigration Act 2008:
“We would have no difficulties if the provisions as drafted indicated the mindfulness of those who created them for the importance of free speech.” ——[ Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 80, Q179.]
A free speech clause simply indicates Parliament’s mindfulness of the importance of free speech.
What does the free speech new clause say? Let us have it again—it is worth hearing. It says that
“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”—
whether that has two meanings may emerge in debate—
to be threatening or intended to stir up hatred.”
It simply makes it clear that discussion or criticism of sexual conduct is not caught by the homophobia law.
The religious hatred free speech clause, for which the House voted in January 2006, goes much further. It protects
“expressions of antipathy, dislike, ridicule, insult or abuse”
against religion. I do not understand how anyone could support a clause, which allows expressions of antipathy, dislike, ridicule, insult or abuse against religion, but oppose a provision, which allows mere discussion or criticism of sexual conduct. That defeats logic. I do not understand why the Government would insist on repealing only the weaker of the two provisions, when they claim to oppose both.
Dr. Evan Harris: Let me try to explain why there is a difference. The religious saver specifies that abuse and ridicule are not covered by the offence. It is tautological but they are not. The Waddington amendment does not exclude ridicule or abuse, because they are already excluded, but purports, according to one interpretation, to allow the exclusion of intentional threatening incitement as long as it refers only to practice. That is the difference, and the hon. Gentleman must explain whether he understood the comments of my hon. Friend the Member for Cambridge (David Howarth) when he outlined the potential effect of new clause 11.
David Taylor: I shall deal with that at the end of my remarks.
The religious free speech clause deliberately narrows the definition of the offence whereas the homophobic free speech provision does not. It simply clarifies what is already outside the scope of the offence. It is not a defence but a signpost, so that those involved at the early stages of the criminal justice system—police and prosecutors— have it drawn to their attention clearly and simply that certain legitimate activities are outside the definition of the offence. That way, if vexatious complaints are made, the police and prosecutors can simply point to the free speech provision and dismiss the complaint, instead of spending time and taxpayers’ money pursuing pointless complaints and trampling on the civil liberties of innocent people in the process.
It is also worth emphasising that the Waddington amendment refers to criticising not sexual orientation, but sexual conduct. I repeat: it does not create a defence. I welcome the support of Liberty—often paid-up members of the Liberal Democrat tendency—for amendment 1. It speculates that clause 58 might possibly remove a defence, but the explanatory notes have got it right. The Ministry of Justice officials who drafted the notes state in paragraph 372:
“The removal of the section will not affect the threshold required for the offence to be made out.”
Clearly, if removal of the free speech clause will not affect the threshold of the offence, its inclusion will not affect the threshold, either. We are tinkering. If it is not necessary to change, it is necessary not to change—a favourite phrase of the hon. Member for Buckingham (John Bercow). The explanatory notes are more accurate and fairer than the Justice Secretary was to those who tabled the free speech clause. On Second Reading, the Justice Secretary alleged that those tabling it intended to make a conviction difficult.
When Lord Waddington moved the amendment, he said that he wanted to make it plain
“that I did not in Committee, and do not now, seek to weaken the protection that the Government’s proposal is designed to give gay people. I have never set out to narrow the scope of the provision. My intention has been absolutely clear: to make clear what both the Government and I agree is outside the scope of the provision.”—[ Official Report, House of Lords, 21 April 2008; Vol. 700, c. 1365.]
I hope that the Secretary of State will accept that it is not our intention to provide help to those who use threatening language intentionally to stir up hatred against anyone. “For the avoidance of doubt” means just that. It does not change anything; it just makes clear what is already there. The Office of Public Sector Information’s online statute law database lists 588 legislative uses of the phrase “for the avoidance of doubt”—from the Children Act 1975 to the Crossrail Act 2008—so there is hardly anything unusual about it.
We need free speech about sexual conduct to be put beyond doubt. Joe and Helen Roberts, the Bishop of Chester, Iqbal Sacranie, the Roman Catholic Archbishop of Glasgow, and Lynette Burrows—I could go on—are all names synonymous with vexatious complaints to the police and with heavy-handed police intervention against people whose actions were not inciting hatred against anyone.
Now that the free speech provision is on the statute book, I wonder whether we should not look at things the other way round. Will removing it send the signal that discussion or criticism of sexual conduct is caught by the new offence? The Church of England—my own Church—seems to fear that it might. Its briefing says:
“If it is argued that it is necessary for the effective operation of the law that the amendment should be removed, the implication would be that such discussion or criticism could in itself constitute an offence, and to this we would be strongly opposed.”
Mr. Gerald Howarth: Surely the retention of clause 58 would also indicate to the courts that this House does not believe that there is a need to protect freedom of expression in the way that the hon. Gentleman has articulated.
David Taylor: I am sure that that is right, and I strongly endorse what the hon. Gentleman says.
Someone else who has spoken out is the actor Rowan Atkinson, who just a few days ago addressed a Committee Room packed with Members of the House of Lords about the chilling effect of the law. He said that he did not think that he would be prosecuted because of jokes or drama about sexual orientation, but he also said:
“I dread something almost as bad—a culture of censoriousness, a questioning, negative and leaden attitude that is encouraged by legislation of this nature but is considerably and meaningfully alleviated by the free speech clause.”
“would provide succour and reassurance to those of us in the creative world.”
My union, Unison, has sent out a briefing that says that the free speech clause is a “Tory wrecking amendment”. Unison is entitled to that view, but I do not think that it is being fair. The majority of the sponsors of my amendment are not Tories—although I welcome support from everyone—and even Stonewall does not believe that it is a wrecking amendment.
Let me turn to new clause 11, because I said that I would explain why it is not up to the job of meaningfully protecting free speech. For a start, it focuses mainly on the decision to prosecute, but we are not concerned about prosecutions at this point. None of the cases that I listed earlier resulted in a prosecution. The liberties of those people were breached not by the Attorney-General authorising a prosecution, but by decisions earlier in the criminal justice process.
David Howarth: I notice that the hon. Gentleman used the qualifying word “mainly”. Does he concede that new clause 11 also refers to the guidance going to the police?
David Taylor: There is some merit in that, but it is not a particularly strong point.
New clause 11 reminds the Attorney-General about human rights law, but human rights law applies to the police, prosecutors and the Attorney-General anyway and, to judge from the list of cases that I gave earlier, precious use it has been. New clause 11 also proposes guidance, but that will be issued anyway, without the need for a new clause. New clause 11 does not even say that guidance must deal with free speech; it just says that guidance must deal with
“the operation of the offence”.
Presumably that will include pointing out that the religious hatred offences have a free speech clause, whereas the homophobic offence does not.
Experience has shown that guidance is the problem, not the solution. When two six-foot police officers in body armour interrogated pensioners Joe and Helen Roberts for 80 minutes after they had phoned the council to complain about its gay rights policies, the officers were almost certainly acting in accordance with the guidance issued in March 2005 by the Association of Chief Police Officers and the Home Office. The guidance is called “Hate Crime: Delivering a Quality Service” and in paragraph 2.2.6 it tells officers:
“The perception of the victim or any other person is the defining factor in determining a hate incident. The apparent lack of motivation as the cause of an incident is not relevant as it is the perception of the victim or any other person that counts.”
So a hate crime is to be treated as a hate crime even if it is not a hate crime—I need to think through that one. Paragraph 2.5.1 says:
“If, as victims of hate crimes or incidents, individuals experience indifference or rejection from the police this in effect victimises them a second time.”
I would hate to be a police officer trying to navigate my way through that lot. Some obviously believe that the answer is to come down like a ton of bricks on people about whom complaints of homophobia have been made, regardless of whether they have broken any laws.
I do not believe that we can leave it up to guidance to protect the precious civil liberty of freedom of speech. The existing wording asserted by Parliament less than a year ago provides clarity and reassurance; we must keep it. We must remove clause 58 from the Bill. I hope that we will have the opportunity to vote in a few minutes’ time, as I shall press the amendment.
Mr. Dominic Grieve (Beaconsfield) (Con):
As this is a short debate, I shall try to keep my remarks as short as possible. The hon. Member for Cambridge (David
Howarth) has raised an important issue, and I think that there is common ground between us that the right to freedom of speech and expression must be protected. It must be protected in terms of how a statute would be interpreted in court, but it also has to be interpreted, to use an expression often used in the past by the hon. Member for Oxford, West and Abingdon (Dr. Harris), against the chilling effect that a statute can have if it is mistakenly applied by those in authority. As the hon. Member for North-West Leicestershire (David Taylor) rightly highlighted, there are, unfortunately, quite a number of examples in which laws—not this law, but others that in many ways stretch even further—have been applied in an oppressive way against perfectly respectable people. We have to keep that in mind when we come to legislate.
The hon. Member for Cambridge says that he considers that the law drafted last year—without Lord Waddington’s saving clause—would be sufficient and all right if we simply had guidelines. I have to say to him that I have some anxiety about using guidelines in that way. I accept that guidelines may be of some utility, but the fact of the matter is that if guidelines are disregarded and a legal process against an individual starts to get ratcheted up, there is nothing to stop it until the matter gets into the courts; and by then, as we know, a great deal of damage has been done in many cases to the individuals concerned in terms of stress, their reputation and the anxiety they are placed under—all quite needlessly. It thus seems to me that it would be sensible for the House to consider whether having a saving clause would help.
Now, Lord Waddington, as well as having been a past Home Secretary, and, I believe, a man of moderate views— [Interruption.] Yes, a man of moderate views, I suggest to my hon. Friend the Member for Buckingham (John Bercow). Lord Waddington has also been a lawyer. When I listened to the comments of the hon. Member for Cambridge, it prompted me to look again at the saving clause to see whether it contained the mischief of being a deeming provision along the lines that he identified. He has clearly raised a serious issue for the House to consider. I have to say, however, that having looked at the provision and read it over and over again, I do not see that it can have the possible effect that he has suggested. The reason for that is the appearance of the two words “of itself” in its penultimate line which refers to something that
“shall not be taken of itself to be threatening or intended to stir up hatred”.
It seems to me that those words make it absolutely plain that if a person carries out a discussion or criticism of sexual conduct or practices that is accompanied by threatening language, those words “of itself” would immediately take that person outside the scope of the saving clause. I have to say that I just do not agree with the hon. Gentleman’s analysis that the saving clause could be used to justify people coming forward and using hateful terminology, language and threats.
The more I listen to that argument, the more I take the view that a saving clause is required, so let me explain briefly to the House why I think this is so important. First, it will provide comfort and reassurance to people that they can continue to express their views. One of the things we are experiencing at the moment in this country is that people of moderate views on any
side of an argument are increasingly deterred from expressing their views at all, but those who are full of extreme opinion, whether they be at one end of the spectrum or the other, are not deterred in any way by the law and, in fact, have a free field for themselves. That is not good for the health of our democracy or our civic life. We also need to consider that when Parliament enacts legislation in this way, groups and individuals will undoubtedly attribute to it meanings that Parliament may not have intended.
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I thought it worth looking at Stonewall’s briefing, because I have a high regard for Stonewall and its campaign for gay rights. To support its analysis of why the new offence was needed and why it opposed the saving clause, it presented a number of examples. One involved rap lyrics expressing great hatred, such as “Hang lesbians with a long piece of rope”. Quite apart from the fact that I would expect that to be caught by existing law, I feel completely comfortable with the idea of enacting legislation of the kind that we passed last summer, which will criminalise it.
Stonewall says that another example of the sort of thing that it would like halted is a website which describes, in referring to homosexuality generally,
“young people who are being drawn into a lifestyle characterised by disease, degradation, death and denial.”
When I was talking recently to my hon. Friend the Member for Rutland and Melton (Alan Duncan), who is a very old friend of mine—we have known each other since university—I said to him that I did not think that his life had been characterised by any of those phenomena. Most people reading the website would consider it to be utterly wacky. I have to say, however, that if it is Stonewall’s opinion that such material should be criminalised, the House needs to approach the matter with some caution.
I am afraid that, just as with incitement to religious hatred, messages are sent out from this place that are latched on to by pressure groups wishing to prevent other people from expressing legitimate views, even if those legitimate views are in fact nonsensical. We cannot have a working democracy without the underpinning of freedom of speech, which also requires tolerance of opinions that we may consider to be bonkers or which we may dislike. As long as hatred is not stirred up, which is the mischief that we have been trying to address—as long as the civil order of society is not being undermined—we must tolerate such opinions. Indeed, as politicians, we tolerate them all the time.
For those reasons, let me simply say that I am unpersuaded that Lord Waddington’s amendment is in any way mischievous. I believe that it is sensible. As we need some saving clause in an extremely difficult piece of legislation in which the balance that we strike will always pose a problem, I can think of no good reason for us to get rid of it on the basis of the arguments that I have heard this afternoon. I therefore intend to support the retention of Lord Waddington’s amendment, and encourage my hon. Friends to do so as well.
Dr. Evan Harris: I respect the hon. and learned Gentleman’s position on matters of free speech. He is right to criticise Stonewall’s view that that material would be caught. That is not our view, and I do not believe that it is the Government’s view. I hope that they will make that clear in due course.
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