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However, I hope that my hon. Friend will forgive me if I bring us back to Lords amendment 59. I wish to bring my remarks to a close, as other Members wish to participate in this debate. We on the Opposition Front Bench will vote to support Lord Waddington's amendment. We believe that it is innocuous, that it provides much-needed reassurance in a difficult area and above all-I emphasise this to the Minister-that it will not prevent the successful prosecution of somebody who intends to incite hatred through threats.
David Taylor: There is indeed a strong sense of déjà vu about this debate, given that it is the fourth time that we have discussed the free speech clause. We have also discussed a previous attempted free speech clause, as proposed by my hon. Friend the Member for Heywood and Middleton (Jim Dobbin) in January 2008. I do not want to add to the sense of déjà vu by repeating all the arguments that have been made before, but I want to explain why I think the Government are still wrong on the matter and why I wish they would let the free speech clause remain on the statute book, where it has been for the past 18 months.
The other place has voted for the clause three times, most recently in July, by 186 votes to 133, giving a majority of 53. I unsuccessfully moved an amendment in this place on 24 March to retain the free speech clause, so I was obviously pleased with the vote in July. I was especially pleased that more and more Back Benchers in the Lords from my party seemed to see the sense in a free speech clause. They either voted for it in greater numbers or abstained. I had hoped that the Government would start to see the sense in the free speech clause too.
I find it hard to accept that we are again being asked to vote against the free speech clause. I thought that free speech, civil liberties and human rights were exactly the sorts of things that we were supposed to be in favour of. I am sure that they brought my hon. Friend the Minister into the Labour party, among other things, and they certainly did me in North-West Leicestershire. We should say that we support civil liberties. We all quote Voltaire and proclaim our tolerance, but here we have an opportunity to uphold tolerance for people whose views we may not agree with, but who have a right to those views and a right to express them in a reasonable way.
Before anybody intervenes with a dreadful example of incitement to violence against gay and lesbian people that they claim would be protected by the free speech clause, let me remind hon. Members-for the third time, and briefly-what it says:
"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."
The clause does not remove any mention of the context of the remarks. We are not talking about protecting foul rap lyrics or violent rants; we are talking about protecting discussion, criticism or the urging of people to modify their conduct. If someone uses threatening words and intends to stir up hatred, that is of course not mere discussion, but discussion with threats and intent to stir up hatred, which falls squarely within the offence, and so it should.
The free speech clause is irrelevant in one sense. As paragraph 392 of the explanatory notes makes clear, it would not affect
"the threshold required for the offence to be made out."
The clause would not provide a defence, which is what the Minister implied at one point. It would not narrow or alter the scope of the offence, which is what she tried to say earlier. However, if threats and an intention to stir up hatred are not present, the discussion falls outside the new offence, and the free speech clause simply makes that plain. It is, as it says, for "the avoidance of doubt", and would help to protect innocent people from unnecessary and intimidating police investigations.
We need that protection, because there seems to be quite a lot of doubt, and as a result quite a lot of unnecessary investigations. In fact, people seem to make complaints to the police as a tactic to silence opinions that they do not like. I am sure that hon. Members from all parts of the House would agree that we should deprecate that. That is not what the criminal law is there for, nor is it what the police are there for. We should make that clear when there is doubt.
Who wants the criminal law to be used to silence discussion or criticism of sexual conduct? Who wants the new homophobia offence to be used against those who merely urge people to modify their conduct or, in religious language, to repent of their sins? There have been countless cases, and several more since we last discussed the matter in the House seven or eight months ago, of exactly that happening.
Andy Robertson is a street preacher. There is a video of him on YouTube, which hon. Members may watch in their offices before the vote. He comes across as an eminently calm and sensible man, and he has preached in the streets of Gainsborough, Lincolnshire for 10 years with no complaints whatever to the police or civil authorities. Yet police officers were sent in by a council employee to move him on, and told him that describing homosexuality as a sin falls foul of section 5 of the Public Order Act 1986. I shall return to that. The preacher had not even mentioned homosexuality, but the police, having failed to move him on by citing irrelevant council byelaws, seemed to seize on unfounded and unsubstantiated allegations of homophobia as a device for shutting him up. If they can do that with section 5 of that Act, which is a general offence covering harassment caused by threats, abuse or insult, who can doubt that they would use the new offence, which specifically covers homosexuality?
I look forward to hearing the hon. Member for Oxford, West and Abingdon (Dr. Harris) if he catches your eye, Mr. Deputy Speaker. He believes that we should remove the word "insulting" from the section 5 offence. I think he probably has a point, and I hope that the Government will listen to it, but that will not solve the problem of how to stop the new homophobia offence being abused in similar ways. Recent cases have shown that a dangerous attitude to gay rights is prevalent among the police and that makes it important to include the free speech clause.
Another example with a little more detail is that of Pauline Howe, which is the most recent case to hit the headlines. She is a 67-year-old grandmother who wrote to her council complaining about a gay pride march at which she says she was verbally abused. She used old-fashioned, politically incorrect words and several biblical references, and I doubt whether many of us in the House would have written a letter in those terms. I hope that the Minister is listening to my comments, and not just to Front Bench conversations. Pauline Howe's letter
certainly did not merit two officers interrogating her in her living room, and apparently frightening the living daylights out of her, but that is what happened.
Miss Widdecombe: Will the hon. Gentleman tell me whether he has any comprehension of how merely writing a letter to an official body could constitute an offence against public order?
David Taylor: I am not a lawyer, but merely a humble accountant, if that is not an oxymoron. I cannot explain that, but we have an eminent lawyer on the Front Bench-the Secretary of State-who may be able to explain that in an intervention or in some other way.
Mark Pritchard: Does the hon. Gentleman share my concern that without protection the Bill could be enforced in areas such as home schooling, when some people bring their children up in a particular faith, whether Jewish, Muslim, Christian or another faith? [ Interruption. ] The Minister may think that that is nonsense, but I am reflecting some of my constituents' concerns, and I am entitled to do so. If she has something to say, she should say it from the Dispatch Box or from the Back Benches and not from a sedentary position. The point is serious. Does the hon. Gentleman agree that there is concern that the provision could be extended to home schooling, and that people in their own homes could be restrained from teaching their children in a particular faith course?
David Taylor: There is a risk of that-I am not sure that there is any evidence that it is happening yet-depending on the atmosphere within which the police interpret the new legislation, and the pressures to which they will no doubt be subjected.
Pauline Howe has been the subject of a considerable public outcry, and her freedom of speech has been defended by people across the political and philosophical spectrum. I am sure that Ministers have heard or know of Ben Summerskill of Stonewall, who said that the police response in her case was "disproportionate", although I do not know where he stands on free speech. One minute he is giving evidence to Parliament that he does not mind having a free speech clause in the homophobia offence, but the next minute he is campaigning against it. However, he said that the police response to Pauline Howe was "disproportionate", and I agree, but in 2007 he said that he was shocked that the police allowed Christians to demonstrate outside Parliament against the sexual orientation regulations. We rightly allow all sorts of demonstrations, some of them pretty unpleasant, outside this place, and I do not think that a few hundred hymn-singing Christians should be deprived of the democratic rights that the rest of the population enjoy. Mr. Summerskill might not be the most reliable guide on the subject of free speech.
We were told in the debate in the other place-and, by inference, this evening-that the Waddington clause says nothing about free speech and that we should therefore not retain it. That is a silly, specious argument. Just because something does not contain the term "free speech" does not mean that it does not protect free speech. We legislate in all kinds of ways to protect
free speech without putting the actual term into the text. The Waddington clause protects free speech by defining a range of moderate expressions-discussion, criticism and urging-that already fall outside the offence, and by drawing them to the attention of the police and prosecutors. It is therefore signposted.
9 pm
Mark Durkan: My hon. Friend has given a number of examples-albeit from different legislation-to support his concerns. Has he heard any examples from the Minister, or from anyone else in the Government, of how the existing provision on free speech has either confounded or frustrated the basic intent of the current legislation?
David Taylor: No, I have not. We have not heard any convincing arguments at all. We have seen some smoke and mirrors, and some hand-waving, but we have heard no evidence.
The Minister said tonight-I paraphrase slightly-that the clause has no effect and that we can therefore dispense with it. It is true that it does not change the threshold of the offence, but that is not the same as saying that it has no effect. It provides a signpost to police and prosecutors that they must leave innocent people alone if all they have done is discuss or criticise sexual conduct. There is plenty of evidence that there is a real problem with the police's handling of these cases, and the effect of the clause will be to tackle that problem.
The Minister also said a moment ago that bad people would try to hide their actions behind the clause. I can say, even as a non-lawyer, that they would not have much luck. The explanatory notes make it clear that the clause does not affect the threshold of the offence. If someone breaches the threshold of the offence, the free speech provision will do them no good whatever. I believe that the Minister is demonstrating what psychologists call cognitive dissonance, in that she is holding two mutually conflicting opinions at the same time. She is struggling with the tussle that they are causing in her brain. The free speech clause either achieves nothing or it allows bad people to get away with things that they would otherwise not get away with-she cannot have it both ways. It is either one or the other. It is a binary, black or white, zero or one, yes or no. There is no middle way that the Minister, as part of the new Labour intake into this place, would like to see.
Nasty people who are facing prosecution will always cast about looking for a way to get off. They often falsely cite the Human Rights Act 1998, but I do not think that any hon. Members believe that that is a reason to repeal that Act. Similarly, the fact that people will falsely, and unsuccessfully, cite the free speech clause is not a reason to repeal it. We are told that use of the phrase "of itself" might mean that people can ignore the context of the remarks. That argument did not make any sense to me when the Lib Dems last raised it, and it still does not. I recall that the hon. and learned Member for Beaconsfield (Mr. Grieve) dealt with it fairly deftly at that time, although he did not get the chance to do so again tonight. I do not believe that it strips the context from the remarks that have been made.
We are also told that we can deal with the cases that we are worried about by amending section 5 of the Public Order Act. The Government are apparently consulting on section 5; perhaps the Minister will confirm where we are on that. Perhaps changes will be recommended, but that is not the offence we are dealing with here. We are dealing with the homophobic hatred offence. If a general offence, such as section 5, can be used against people for expressing views on homosexuality, it is inevitable that an offence that specifically deals with homosexuality will be used even more often. So we must pay special attention to the need to protect free speech in this area.
There is a lot of public sympathy for these victims of police heavy-handedness in the area of gay rights, and I think that people would like to see us make provision to try to stop this sort of trampling on people's civil liberties. The free speech clause does nothing whatever to reduce the level of protection that the Government-quite rightly, and with widespread support-aim to give to gay people.
The Government admit that the clause does not affect the threshold of the offence; it cannot therefore be used to defend actions that fall within the ambit of the offence. It does not remotely affect any of the other criminal offences that can be used to target those who perpetrate or encourage acts of violence towards any members of our society or to target words that cause "harassment, alarm or distress". We should find the guilty and prosecute them-who would not endorse that sentiment?-but we should not catch the innocent in the crossfire of that approach.
The free speech clause does no harm whatever; it does only good. If we remove this free speech clause, we send out the message that we are quite happy to take a risk with the freedom of people like Andy Robertson and Pauline Howe. I, for one, am not prepared to take that risk: I will vote against the Government and I urge other hon. Members to do exactly the same.
Dr. Evan Harris: It is good to be back on this subject. I always predicate my remarks on these issues with the words of the late and greatly missed Linda Smith, who said, "I'm not religious; I get on with everyone." I doubt whether that could apply to me, but it is fair to say that I have a record of protecting free speech. That is true in respect of religious hatred-as the hon. and learned Member for Beaconsfield (Mr. Grieve) will remember, we worked together on curtailing what would have been an overly broad offence. I have also worked on proposing the repeal of blasphemy, on opposing the criminalisation of the so-called "glorification" of terrorism, on calling for libel law reform and, indeed, on proposing an amendment to get rid of the "insulting" provisions in section 5 of the Public Order Act 1986, which we were not able to debate during the passage of this Bill through the House because of the use, yet again, of a preposterous undemocratic programme motion, which denied us the opportunity to provide due scrutiny to Government legislation. I should add that owing to yet another programme motion that has not been consulted on-at least not with Liberal Democrat Members-the provision passed in the other place to repeal seditious libel and criminal libel is one that once again we cannot debate. I hope the House will therefore accept that I have a record of supporting free speech.
I want to make it very clear that I support free speech for homophobes. I believe that people who are homophobic-that will include some religious people who may not necessarily intend any offence, but they are perceived as homophobic by some people-should have the right to free speech without great restriction, albeit within certain limits. It is a good thing that we are discussing homosexuality in the context of free speech rather than the rights and wrongs of homosexuality. I think that that is a sign of how things have progressed during my time in the House.
I have to say to supporters of the Waddington amendment, however, that they are promoting the wrong amendment. If they want to tackle the existing mischief and the future mischief of over-policing of comments that might be taken to be homophobic, they have to ensure that our law does not criminalise insulting speech, whether intentional or not, that is short of threatening-or, in the case of directly causing harassment, distress and alarm to someone, something that is short of abusive. While "insulting" exists in the Public Order Act, inserting this provision into it will, with or without the Waddington amendment, still make people feel that they cannot insult people on the basis of sexual orientation and will still make the police believe-perhaps the police should think much more carefully about this, but the "insulting" provision is on the statute book-that they have to investigate complaints, particularly given the fact that people feel that the police should take seriously complaints about incitement to hatred or insulting behaviour on the grounds of race, sexual orientation or religion. I thus urge the House to recognise that in a sense we are debating the wrong amendment. I will come on in a few moments to the right amendment to remove the insulting provisions from the statute book, but it has been put to this House-although not debated-and is supported by the Joint Committee on Human Rights.
David Taylor: The hon. Gentleman may have heard that I anticipated his bringing up this point. I think that his point should be supported and that the word "insulting" should be removed. Is he firmly of the opinion, however, that that is all that is necessary to improve this particular legislation and that the chance of further over-the-top and heavy-booted action by the police and other authorities would be much less if that one word were removed?
Dr. Harris: It would be much less, because the police clearly would not investigate in the outrageous cases about which we have heard. The treatment of Pauline Howe, whom the hon. Gentleman mentioned earlier, was not disproportionate but absurd. It was disgraceful that the police wasted their time on such a matter. If the "insulting" provision was not there, I am certain that the problem would be less. We cannot legislate for every over-officious police officer, but we can make a clear statutory change to get rid of that provision. Although we are not debating that provision now, it is relevant.
Miss Widdecombe: What the hon. Gentleman says may be true, and the menace may be section 5 of the Public Order Act, but it is not before us tonight, it is not for amendment, and there is no immediate proposal by the Government to amend it. We must therefore use what is at our disposal to try to guarantee free speech. Given the circumstances that we are in-rather than those he wishes us to be in-he should support this amendment.
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