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Claire Ward: The right hon. Lady says that it is for the avoidance of doubt, but I am quite sure that in other circumstances, perhaps she, and certainly many of her right hon. and hon. Friends, would say that provisions should not be added to Bills-creating more legislation-simply for the avoidance of doubt. Indeed, I am well aware that they have criticised it when they have believed that it has happened in the past; yet, on this occasion, they think it acceptable to make an amendment that is simply not needed. Even more than that, it has the potential to do harm. It may well result in the offence not being prosecuted, because somebody believes that they can rely on the provision. I hope that that is not the case.
David Taylor (North-West Leicestershire) (Lab/Co-op): It is true that the section would not change the threshold of the offence, but that is not at all the same as saying that it either has no effect or would not be useful. Would it not at the very least provide a signpost to police and prosecutors, saying that they should lay off innocent people who merely discuss or criticise sexual conduct? That is what we see in case after case. That is the purpose of the section and why we should retain it, and later on I shall certainly seek to catch your eye, Mr. Deputy Speaker, to make those points in more detail.
Claire Ward: The legislation before us is not the appropriate place in which to put the police guidance to which my hon. Friend refers. Indeed, legislation is not necessarily the place for it. Guidance may well be the place to put it, and we will seek in due course to look at the guidance. The right hon. Lady said earlier from a sedentary position that the section purports to be for the avoidance of doubt, but in effect it creates doubt where there should be none. In that way, we believe that it is not simply unnecessary, but potentially damaging to the effectiveness of the offence itself.
People with strongly held religious or moral beliefs must of course be free to express their views. [ Interruption. ] The right hon. Lady says that she does not have the right to express her strongly held religious or moral beliefs. I contend that she certainly does, but not where it breaches the level of the offence, which has an incredibly high threshold.
Miss Widdecombe: I probably do have the right, and I regularly use this place to exercise it. But those who do not enjoy parliamentary privilege, and, instead, express the same views on the radio, in letters to their council and in the literature that they give out, find that they do not have that right.
Claire Ward: I am afraid that I do not agree with the right hon. Lady. One does not need parliamentary privilege to express one's views. Freedom of expression is permitted, allowed and encouraged, the difference being when it is intended to incite hatred. There will be people who hold a religious or moral belief and have objections to homosexuality or to certain sexual practices. They are perfectly entitled to hold those opinions, and nothing in the Bill changes that; rather, it ensures that at the point where their words are threatening and their behaviour is intended to stir up hatred, the offence will bite.
Miss Widdecombe: I am grateful to the hon. Lady for her customary grace in giving way. I have said in this House that I do not believe that homosexual couples should adopt children. No police appeared on my doorstep. When a children's author gave exactly the same opinion on a radio programme-under questioning; they did not just volunteer it-the police got involved.
8.30 pm
Claire Ward: The right hon. Lady is not entitled to express her views on matters only because she is a Member of this House and entitled to parliamentary privilege. Many of the incidents to which she refers come under the Public Order Act 1986, and therefore the threshold is considerably lower than in the Bill. The high threshold in the Bill relates only to threatening words and behaviour intended to stir up hatred. People are perfectly entitled to express their views about homosexuality. Some will find those views distasteful, offensive or even insulting, but there is nothing in these offences that prevents that expression of opinion. Those uttering such threatening words or exhibiting such behaviour intended to stir up hatred should not have the cloak of a so-called freedom of expression clause to protect them. Frankly, I am surprised that so many hon. Gentlemen on the Opposition Benches-and indeed the right hon. Lady, who is sitting there on her own-think that people should be entitled to protection where they have used threatening words that are intended to stir up hatred.
Mark Pritchard (The Wrekin) (Con): The public record speaks for itself on my position on protecting and standing up for the rights of homosexuals. What does the Minister think would lead to a vicar, for example, or perhaps an imam in the constituency of the Lord Chancellor, falling foul of the legislation that she has put before the House?
Claire Ward: In order to fall foul of the Bill, the person's words would have to be threatening and their behaviour intended to stir up hatred. If they did intend to stir up hatred, I believe, and the Government believe, that they should be guilty of the offence-that the threshold should have been reached. If the hon. Gentleman does not believe that, he is saying that it is acceptable for people to stir up hatred on the ground of sexual orientation and that that is freedom of speech.
Mark Pritchard: I am grateful to the Minister for giving way; she is being very gracious. In order to have clarity, does she think that the Old Testament or the New Testament, the Koran or the Hadith, or the Torah, for example, would fall foul of this legislation?
Claire Ward:
I think that the hon. Gentleman is trying to find out whether I wish to have a religious and philosophical debate on the holy books. As a Roman Catholic, I can make reference to only one book. The reality is that if somebody uses the words that may be contained in a religious book with a clear intention to stir up hatred, they will fall foul of this offence. Someone may simply express a view that they do not agree with homosexuality or with certain sexual practices-they can have freedom of speech and expression-but that is entirely different from taking it to a level where they
intend to be threatening and to stir up hatred on the ground of that sexual orientation.
Dr. McCrea: Does the Minister realise that, if the Bill is passed, it will become more and more difficult in this United Kingdom for a preacher to express biblical standards? Someone could be perceived to be stirring up hatred if they were simply quoting the Scriptures and preaching from God's precious word. That is a disgraceful situation.
Claire Ward: I am afraid the hon. Gentleman is not correct. A person would have to intend their words to be threatening and stir up hatred. That would have to be their intention, not the perception. Nothing in the Bill will prevent a preacher or follower of any religion from expressing their views, provided that they are not intending to stir up hatred. That is quite different.
I want to make it absolutely clear that those who hold views different from mine or those of other Members, and who do not believe that homosexuality is acceptable and have objections to certain sexual practices, are entitled to continue to hold and express them. They may not use threatening words and intend to stir up hatred on the ground of sexual orientation, but that is quite different from the reality of what goes on in churches, mosques and other religious places up and down the country. The hon. Gentleman, and indeed many Opposition Members, may well be doing a disservice to many people of strong religious and moral views on such matters who hold different views but do not intend to stir up hatred. It is a really high-level offence.
Mr. Gerald Howarth: Will the Minister give way?
Claire Ward: I am going to proceed, and then the hon. Gentleman will have a better opportunity to express his views.
If we had set the bar for the offence too low or had not afforded sufficient protection for freedom of speech, I am quite sure that the Joint Committee on Human Rights and the Equality and Human Rights Commission would have been the first to say so. Both bodies have carefully examined the offence and separately concluded that there is sufficient protection for freedom of speech without the need for section 29JA of the 1986 Act.
We should send a clear and unequivocal message to the other place. It made a wrong call in the last Session in passing the so-called freedom of expression saving provision. It has made the wrong call again this Session in seeking to block its repeal. On three occasions, this elected House has rejected the need for it, and I invite it to do so again by rejecting the Lords amendment.
Mr. Grieve: We are certainly revisiting an old topic. I rather disagree with the Minister in her view about the behaviour in the other place the last time this matter came up for consideration. On the face of it, whatever the Government may have felt about the matter, they were prepared to accept the Lords amendment on that occasion. One can only conclude that, in their willingness to do so, they made the evaluation that Lord Waddington's amendment was innocuous. In my judgment, that is exactly what it was.
The Minister has studiously avoided debating why the offence in question cannot be successfully prosecuted
under Lord Waddington's amendment, because she has no case to make about that. If there were a problem, the Government could at least have allowed the offence to be tested. If it had then turned out that it was causing problems when it got to court, they would have had a greater justification for asking the House to reconsider the matter.
Mr. Leigh: Is it not interesting that the Minister never actually discussed Lord Waddington's amendment? We all agree that it is wrong to threaten or stir up hatred, but Lord Waddington's amendment said simply:
"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."
That is all that we are saying-simply discussing the matter is not threatening behaviour or worse- [Interruption.]
Mr. Grieve: I agree entirely with my hon. Friend. I heard from a sedentary position the hon. Member for Oxford, West and Abingdon (Dr. Harris) saying, "Not if it is threatening," but the words "of itself" make it quite plain that if it were threatening language in that context, the freedom of speech defence would not be open to the individual concerned. Therefore, his anxiety is misplaced.
I say this to the hon. Gentleman, seeing as he is participating in this debate: we have in the past worked together on similar issues regarding religious hatred. One comment that he often made then-indeed, I even remember him conceding in the context of this offence-was that such offences, which the House creates, can have a chilling effect on freedom of speech. He may have been the first person to use the words "chilling effect" in the House. I certainly remember them coming first from him.
The fact of the matter is that there is plenty of evidence, unfortunately, in the context of the Public Order Act 1986, that the offence is having a chilling effect. Its interpretation, based upon a form of political correctness handed down by what is perceived to be the line taken by those in authority, is leading to abuse in a number of circumstances by the police who threaten individuals with prosecution unless they desist from expressing perfectly legitimate views. That causes me great concern, but I am glad to say that that has in no case led to prosecution and that in one case it led to the police subsequently providing an apology for their conduct. Nevertheless, we must bear that point in mind, because the Government intend-I do not think the Minister disagrees with this-the offence to be far more serious, although I accept that the test for it may be different, as she said.
Dr. Evan Harris: If I catch Mr. Deputy Speaker's eye, I will respond and show how much the hon. and learned Gentleman and I agree on various points. There has, in fact, been a prosecution along the lines that he hoped there would not be. However, how can the words
"discussion or criticism of sexual conduct"-
"shall not be taken of itself to be threatening or intended to stir up hatred"
avoid doubt if what is said in that context is threatening and intends to stir up hatred? It may not be a problem to his forensic mind, but most people out there would see it as totally inconsistent. It is a get-out: as long as a person is threatening and intentionally threatening while discussing sexual conduct, they are okay, but when they discuss other things, they are not.
Mr. Grieve: The way I read the saving clause that Lord Waddington drafted-
Dr. Harris: Only the way you read it.
Mr. Grieve: I must say, it is not only the way I read it, but any sensible person who gives the words their plain English meaning must come to the same conclusion. Clearly, if I make an expression which "of itself" amounts to no more than a reasoned criticism, it cannot be threatening, but it is perfectly plain from Lord Waddington's amendment-indeed, I have not heard the Government challenge this or suggest otherwise-that if the words constituted threats, anyone standing up in court and saying, "Well, I was justified in making the threat because it was just part of a criticism of somebody else's way of life or habits," would not get off the hook. I entirely concur that it would be grossly improper if they did. For those reasons, Lord Waddington's amendment provides considerable comfort to those who happen to have strong views about how people should conduct themselves, and it does nothing to diminish the ability to prosecute this offence.
Claire Ward: On the contrary, this provision gives comfort to those who wish to incite hatred or to be threatening. They will believe that they can do those things if they are given this freedom of expression clause. It is completely unnecessary if they are not threatening or intending to stir up hatred. The hon. and learned Gentleman refers to a range of circumstances that have occurred in the past, but that was not under this legislation. It was under the public order legislation, which is quite different.
8.45 pm
Mr. Grieve: I would be more reassured if the Government were taking the public order legislation problems that have arisen more seriously, but there is no sign that they have tabled amendments to try to deal with that problem. As we know from a recent case, the problem is continuing. Indeed, if I understood the hon. Member for Oxford, West and Abingdon correctly, he knows of an instance in which a prosecution was brought, although it was not completed. For that reason, we should be very wary of legislation that fetters freedom of speech.
The Minister cannot have it both ways. On the one hand, she says, "The legislation's fine; you shouldn't worry about it." Then she suddenly starts saying, "Actually, the saving clause will encourage people to commit this offence, not deter them from doing so." If that is the case, she will have to provide a much better argument than she has done this evening. From what she had to say, it was not apparent how this saving clause would operate to do what she claimed it would. The saving clause, given its plain English meaning, cannot achieve
the mischief that the Minister claims. It is noteworthy that when this matter was considered in the other place, it was supported by a large number of lawyers, who would therefore have some understanding of how this clause would be interpreted in the courts.
Mr. Gerald Howarth: In the absence of this protection that my hon. and learned Friend and I both support, is it not the case that various examples have been cited by my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and, I might add, Sir Iqbal Sacranie and the Bishop of Chester, both of whose collars were felt by the police? The public feel intimidated, and there is nothing in the Government's line that would remove that sense of intimidation. The Government are resisting the one, modest amendment that would reassure the public. We do not need that reassurance because we are Members of Parliament and we can fight for ourselves, but many of my constituents feel very threatened that if they put a foot out of line, they will lose their jobs.
Mr. Grieve: I agree with my hon. Friend. The other factor that is worth bearing in mind is that as this debate has gone on-the Minister cannot escape this-more people have come forward to express their concerns about this proposal. They include, in many cases, people who may have different sexual orientations from the majority, but think that the provision is entirely unnecessary to provide them with protection. They have also expressed the view that the saving clause introduced by Lord Waddington is a modest and moderate way to provide reassurance that freedom of expression will be maintained. The Government do not help the cause of reducing bigotry and improper or violent behaviour against people of a different orientation by fettering freedom of expression. That is why this House should be so careful before it embarks on such a course of action, and that is why Lord Waddington has been sensible in trying to find a formula that would provide reasonable reassurance that this provision would not be misused-not just in terms of who eventually gets convicted in court, but above all in terms of who is oppressed by those in authority arguing that they have transgressed by expressing legitimate opinions. The Minister cannot get away from the fact that that is a current problem and has not been concocted out of thin air.
Mark Pritchard: My hon. and learned Friend touches on the important point of precedent, and we have already seen that with the public order legislation. I do not wish to put him on the spot, but-given his concern about the public order legislation and the crossover with this Bill-perhaps I shall invite him on to the spot to say what he would do as Justice Secretary should we form the next Government in May.
Mr. Grieve: It is quite plain that the way in which public order legislation has been applied needs to be reviewed. That is something that many hon. Members across the House would agree on, including, I suspect, the hon. Member for Oxford, West and Abingdon. That does not necessarily mean that the legislation needs to be altered, but the guidelines certainly need to be reviewed, because there is a continuing failure to understand what the offences that it is intended to deal with are.
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