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"things done or said...which...constituted circumstances of an extremely grave character, and caused"-
"to have a justifiable sense of being seriously wronged."
Although it might be difficult to understand how "things said" would of themselves amount to sexual infidelity-I understand the point that the hon. Member for Cambridge is making-if we were to remove that term we could leave a loophole that might be exploited in the future. For clarity, and to ensure that the provision is seamless, the provision refers to the words in the original subsection-"things said or done."
David Howarth: That is precisely why it is important that if there is to be a subsection 6(c), it refers to 4(a), as my amendment does, or to 4(b) rather than to the first words in subsection (4) because those words cannot possibly apply in terms to sexual infidelity.
Claire Ward: That is why we are ensuring that there is seamlessness between the subsections with the words "things said or done". That will ensure that sexual infidelity cannot be relied on in those circumstances.
The hon. and learned Member for Beaconsfield seemed to suggest that there is no support for the amendment, beyond some form of political correctness. I have to tell him that is quite contrary to the reality of the situation. We have received more than 40 representations, from individuals and groups, asking the Government to seek to overturn the vote taken in the other place. Those organisations are significant and varied. They include the Women's National Commission, Amnesty International, the Eaves group, Justice for Women, violence intervention programmes and a range of other rape crisis organisations and other groups that support women who have been raped.
All the representations we have received have stated clearly that in the killing of a wife or girlfriend by a partner, actual or suspected infidelity has often been used in the past to reduce murder to manslaughter. The law should be clear that that is no longer acceptable. The penalty for infidelity should not be death, and partners who believe it is their right to kill should always go on trial for murder. In this instance, our concern is that men who kill women should not be able to plead the traditional argument that she was unfaithful.
Claire Ward: In inviting the House to reject the Lords amendments, we are seeking to complete unfinished business from the last Session. The House will recall that we introduced offences of inciting hatred on grounds of sexual orientation in the Criminal Justice and Immigration Bill. During its passage, the other place passed an amendment that inserted what is now section 29JA into the Public Order Act 1986. That section contains a so-called freedom of speech saving
"for the avoidance of doubt".
Regrettably, for want of time, we were unable to overturn the Lords amendment, but the Minister of State, Ministry of Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle) made it clear that when the opportunity arose, we would return to the issue. To this end, a clause in this Bill sought to repeal section 29JA of the 1986 Act. The House approved that clause by a majority of 152 on Report in March. That
was the third occasion on which the House has made it clear, by a substantial margin-202 on 6 May 2008-that there was no need for the freedom of speech saving provision.
The other place has seen fit to strike out the clause, thereby seeking to retain the unnecessary, unwanted and potentially harmful saving provision. We should send a clear message back to the other place that it is ill conceived, ill judged and ill advised. Furthermore, that has been the settled will of the elected House on three occasions to date.
Mr. Edward Leigh (Gainsborough) (Con): Let there be no mistake: people who stir up violence and hatred against homosexuals are completely wrong. But there is nothing in the Waddington amendment that does that. All the Waddington amendment allows is a
"discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct".
Lord Waddington is not trying to stir up hatred. He just wants free speech. If people want to say that Roman Catholicism is wrong, let them. That is free speech, and the House should be very careful when it attacks free speech.
Claire Ward: The House is not attacking free speech. It is clear that people retain their right to freedom of speech. The clause is unnecessary because the threshold of the offence is already set incredibly high. We introduced these new offences in the Criminal Justice and Immigration Act 2008 to protect a group in our society who are at times the victims of bigotry and hatred. We considered carefully how to formulate the offences, recognising the particular sensitivities about offences that impact on freedom of speech. We believe that we have got the balance right without the so-called freedom of expression saving provision. In introducing those new offences to protect victims of that bigotry and hatred, we looked very carefully before we proceeded.
Mr. Grieve: I have listened carefully to the Minister, and the argument that everything is all right is one to which the House must pay considerable attention. She will be aware that only two weeks ago, under existing law, a case in Norwich gave substantial cause for concern. The right of freedom of expression-the right of people to express views that might appear unpalatable and with which one might disagree-is being visited not with the reply, "I disagree with you," but with a visit from the police. That must be a subject of concern for the Minister, and the fact that it has happened only recently, following the case in Lancashire some years ago, suggests that there is still a real problem. Individuals are finding that they cannot express themselves with views that are certainly not about hatred, but about freedom of expression and conscience.
There is nothing to prevent freedom of expression, and many of the incidents to which the hon. and learned Gentleman refers, as he well knows, fall under the Public Order Act 1986, in which there is a much lower threshold. Therefore, it is not the basis of the offence under discussion, which involves a high threshold and is exactly the reason why the so-called freedom of speech section is not necessary. It is simply unnecessary and has the potential to remove the impact
of the offence itself, and we do not wish to see that. If he accepts that bigotry and hatred on the ground of sexual orientation is completely unacceptable, he should see that we will do nothing to water down that offence. The offence already has an incredibly high threshold.
Dr. Evan Harris (Oxford, West and Abingdon) (LD): I am grateful for what the Minister says, and I hope that she will join me in continuing to point to those who raise valid concerns about the Norfolk and Lancashire cases that the problem is the police's treatment of section 5 of the 1986 Act, which contains an "insulting" provision. Will she say anything more about her Department's undertaking to review whether she would accept, in some later legislation now, the amendment that I and my colleagues proposed to remove "insulting" from the offence and raise the threshold in that legislation? It would deal with all the mischief in the examples that other hon. Members have given-rightly in that context, although not in this one.
Claire Ward: I wish to ensure that we deal with the legislation before us. What is before us is an opportunity to make sure that the will of this elected House, which has had an opportunity on three occasions to state that it does not believe that this so-called freedom of expression section is a necessary or wise addition to our legislation. We have got the balance right already.
We looked at existing models in legislation to decide which way we wished to proceed. The first model is used for race hate offences. In the case of racial hatred, the 1986 Act criminalises threatening, abusive or insulting words or behaviour that are intended or likely to stir up racial hatred-a low threshold. In contrast, the second model, provided by the religious hatred offences, sets a much higher threshold. In that case, an offence is committed only when threatening words or behaviour are used with the intention of stirring up hatred. It is not enough that the words or behaviour are abusive, insulting or merely likely to stir up hatred. We have adopted that model for the offences of stirring up hatred on the ground of sexual orientation.
Mr. Gerald Howarth (Aldershot) (Con): The Minister refers to the religious hatred provision, but she will be aware that it contained a further protection, which she has not mentioned. That is what we seek in the legislation before us-the same protection as that which is in the religious hatred provision.
We have set a very high threshold for the offences, which can be prosecuted only with the consent of the Attorney-General. The reason why the so-called freedom of expression section is not required is that the Attorney-General already has a duty under the Human Rights Act 1998 to consider rights in the European convention on human rights. The provision does not need to be in the Bill, and therefore we must question why those Lords who supported the amendment wanted it made to the Bill. Such freedom of expression already exists.
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