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The question is whether the Bill is capable of catching the circumstances raised by the noble Lord, Lord Thomas, if an allegation is made in a threatening way. We do not think that we should expand the offence automatically to cover all suggestions that homosexuals are paedophiles, even if those suggestions are made in a way that would not otherwise be threatening. That would be a small but significant extra incursion into free speech. We have determined that the right place to draw the line in this case is for the offence to catch only material that is really threatening in the ordinary sense of the word. If we extend the offence specifically to cover allegations of a propensity for child sexual abuse, what about other allegations that might be made against homosexuals? What about allegations, for instance, that all gay people have AIDS and intend to infect everyone else, which has been the subject of some material in the past?

If we specify, it leads to the old problem of criminalising one specific aspect of homophobic hatred. There is also the danger that perpetrators will simply shift their line of attack to some other suggestion that is threatening and will stir up hatred. The noble Lord raises a matter of very real concern, but I rest my case in the wording of the Bill under which, when an allegation is considered to be threatening and with intent to stir up hatred on the grounds of sexual orientation, it would already be caught.

Lord Thomas of Gresford: Do I understand the Minister clearly to be saying that if the association were made by a person between homosexuality and paedophilia that amounted to a threat in the context, that would be caught by the provision as drafted?

Lord Hunt of Kings Heath: Yes, because it rests in terms of whether what is said can be judged to be threatening and with an intention to stir up hatred.

Lord Thomas of Gresford: On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Waddington moved Amendment No. 137:

The noble Lord said: I ought to start by saying that some of us may doubt whether there is any need for Clause 126 at all. I say that because the Public Order Act as it stands outlaws threatening abusive or insulting words or behaviour likely to cause harassment, alarm or distress with higher penalties when the crime is aggravated by hostility towards the victim because of his sexual orientation. The prosecution of a Mr Harry

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Hammond—many noble Lords will know the case—shows the law’s potency. I remind the Committee that he was prosecuted to conviction for displaying a placard bearing the following words, “Stop homosexuality, stop lesbianism. Jesus is Lord”. In the light of that conviction, one wonders what statements or conduct will be caught by this clause that are not caught already.

I remind the Committee that where the Public Order Act does not bite because no one who is likely to be caused harassment, alarm or distress is present, prosecutions can be brought under the Serious Crime Act 2007, which replaces the old law on incitement with a new law against,

Surely the encouragement of violence against gays is an offence now and we need no new law to say so.

I am sure we all agree on one thing: there is no place in a civilised society for hatred towards gay people. However, surely there is also a wide measure of agreement that, if we are to have this new offence, punishable, I remind the Committee, with up to seven years’ imprisonment, we must ensure that it does not catch people who, honestly believing in the tenets of their religion, be it Christianity, Judaism, Islam, Sikhism or Baha’i, express, for example, the view that, while a homosexual inclination is not wrong, homosexual practice—like, for that matter, adultery or heterosexual sex outside marriage—is.

To put it in another way, Clause 126 makes it an offence to use threatening words or behaviour within intent to stir up hatred, but we must ensure that the police do not construe criticism as threats or confuse strong criticism of a person’s conduct with the commission of an offence. That is the purpose of the amendment and there are two very good reasons why the Committee should support it. First, the Government seem to be saying that there is no need for a free speech clause because the clause requires both threats and proof of intent. However, the religious hatred offence, created as recently as 2006, also requires threats and, in addition, requires intent, and Parliament still insisted on a free speech clause. Of course, religion is—at least, to some extent—a matter of choice, whereas sexual orientation is not, but while sexual orientation does not involve choice, sexual behaviour obviously does.

The second reason is that even Stonewall, the body that seems to have persuaded the Government to insert Clause 126 in the Bill, can see the case for some words about free speech being added to it. I say that because Ben Summerskill told the Public Bill Committee on 16 October last year:

It seems to me that the real difficulty about the Government’s position is that there is nothing in recent history to show that the police are very good at distinguishing between legitimate comment and language calculated or intended to stir up hatred. Some would say that they did not show themselves very good at spotting the difference between stirring up hatred and legitimate comment in the case of Mr Hammond, to

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which I have already made reference. They certainly did not do so in the case of the right reverend Prelate the Bishop of Chester. I am sorry to embarrass the right reverend Prelate by mentioning the matter but I think that it is very important for others that what happened should not be forgotten. The right reverend Prelate had commented to his local paper on research showing that some homosexuals reoriented to heterosexuality and, as a result, found himself the subject of investigation by the Cheshire police. He was never questioned by the police but that there was a police investigation is beyond doubt, and it was sufficiently serious to involve discussions with the Crown Prosecution Service. We know that because the Cheshire constabulary issued a statement in these terms:

That seems remarkably like saying that the police thought that if this proposed offence had been on the statute book, the right reverend Prelate could have been for the high jump. I do not see how you could read those words of the Cheshire police in any other way.

6.45 pm

The Lord Bishop of Chester: To ensure that the record is accurate, the noble Lord is right to say that there was no contact whatever between me and the police, which was interesting at the time. However, partly supporting his point, the police seemed to assume that the newspaper report was accurate without making any attempt whatever to check with me whether it was. Therefore, I assure the noble Lord that at the time I did not feel particularly liable for the high jump because I believed that any offence was caused by the reporter. However, I think that the police should at least have checked whether the report was accurate before engaging in media activity.

Lord Waddington: I am very glad that the right reverend Prelate took the opportunity to make that absolutely plain, but of course it does not affect the point that I am making. The fact is that the police quite wrongly wasted their time, as well as other people’s, carrying out some sort of investigation into the words, which perhaps they had read in a local paper. They took it so seriously that they issued a public statement saying that they had investigated the matter and that they had wasted police time having discussions with the Crown Prosecution Service.

That same lack of sense by the police was shown in the case of Mr and Mrs Roberts of Fleetwood, who were subjected to police interrogation after doing no more than complain about their council’s gay rights policy. The police certainly did not show themselves very expert at recognising the difference between fair comment and stirring up hatred when they questioned Lynette Burrows after she had said on the radio that homosexual men might not be the right people to bring up children.

I could go on and on but the point is that all this has happened under the present law. When Christians and others have already been subjected to questioning

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and investigation by the police for expressing their views, it is surely very difficult to argue that there is no risk at all of this new provision, if left unamended, being misused. Having been so ready to conclude that words are likely to cause harassment under the present law, the police, without help of the kind afforded by my amendment, may well be all too ready to conclude that he who criticises fiercely must have intended to stir up hatred.

I respectfully suggest to your Lordships that we would be wise to pay regard to the churches’ submission to the Public Bill Committee’s hearing on the Bill. I should like to quote one passage from it:

In plain words, it should be clear in the Bill who will be caught by its provisions and that a Christian expressing strong views will not be caught. A promise that guidance will be provided for the police, the courts and the prosecution cannot possibly be an adequate substitute for clarity in the law itself.

I have to say in parenthesis that the Liberal Amendment No. 137ZZA does not begin to address the problem with which we are confronted. The problem is not that the Attorney-General may not recognise his responsibilities; the problem is that unless something is done people will be interrogated and locked up long before the matter can reach the Attorney-General. We need clear words in the Bill so that police officers do not interrogate people like the Roberts and do not arrest people such as the fellow who appeared on “One Man and His Dog” and then made facetious remarks at a country fair. We need clear, plain words in the Bill and not guidance after the mischief has been done.

I have already said that the religious hatred provision contains a provision to safeguard free speech, to make it plain that criticism—even robust criticism—does not constitute a threat. If a similar provision to the religious hatred provision is not inserted in this clause, there is the obvious danger that a police officer will notice the difference between the two provisions and conclude that, when it comes to considering words used about sexual behaviour, the right to free speech is something that he does not have to consider although, if it were a case of religious hatred, he would have to consider free speech.

I cannot see why the Government resisted this amendment in the Commons, cross-party as it is and similar to, but narrower, milder and not as far reaching, as the provisions in the Racial and Religious Hatred Act 2006. It is surely not good enough to say that it is not necessary. If this amendment will do no harm and will give a clear signal to the police that they must pay due regard to the legitimate exercise of free speech and religious liberty, that will surely be a good thing. I beg to move.

Lord Clarke of Hampstead: I apologise for jumping up but sitting around here all day waiting for this moment has put me a little on edge. Like many other

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Members of the Committee, I have received a good deal of correspondence on the subject of this clause—a clause that I and others seek to amend. I shall quote one sentence from one of the letters that I have received. The writer, a gentleman from York, said:

I share his concern.

The concept of bringing in laws that forbid the precious right of free speech in our society is in itself a frightening prospect. In a nation such as ours, with proud traditions of freedom, even contemplating the suppression of opinions is frightening to all who genuinely want to be able to speak out against that which they think is wrong, harmful and potentially dangerous—they fear they will be treated as criminals. It is indeed frightening. Is this what our Government want? The amendment is clear in its intent to ensure that nothing in this part shall prohibit discussion of, or restrict criticism of or expressions of antipathy towards, other people's conduct or their lifestyle.

I have received a number of detailed legal opinions from various sources. As a lay person I found them most interesting. However, my support for the amendment comes from my very strong feeling that to prevent the discussion of subjects that cause very real concern for many individuals and groups is wrong. No matter how many legal opinions you get, I believe that what is being suggested is wrong. This amendment will give protection to those who hold the view that certain activities are wrong so they may express their views in an open and honest way.

The Government have said that a free-speech clause is unnecessary. They say that the wording of the offence already strikes the right balance between preventing incitement to hatred and protecting free speech. If that is so, why not underline the need for balance by introducing and including a free-speech clause? From what I have read, the Government do not object, in principle, to such a clause. It has been argued by the Government that there is a high threshold set for the offence which covers only threatening words or behaviour which are intended to stir up hatred on the grounds of sexual orientation. It is also necessary to obtain the Attorney-General’s consent before any prosecution may proceed.

I believe that it is most necessary for a free-speech clause to be included for a number of reasons. My view is that criminal law should be clear in explaining what is and what is not an offence. If this Bill is enacted without a clause that protects freedom of expression, religious believers will be uncertain about what they can say as well as uncertain about what they can discuss or debate on the subject of homosexual practices in their teachings. I fully understand what Clause 126 means: it will be an offence of incitement to hatred on the grounds of sexual orientation and it appears to be the same wording as the offence of incitement to religious hatred in the Racial and Religious Act 2006. In the case of a religious hatred offence, if I understand it correctly, a specific clause protects the principle of free speech which the noble Lord, Lord Waddington, has just mentioned.

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This issue should not be left to ministerial guidelines. Guidelines are not the same as clear definition in law. At Second Reading a number of illustrations were given by noble Lords and we have heard some repeated by the noble Lord, Lord Waddington—a whole list of examples can be found in the debate at Second Reading. There is quite a lot of evidence that the public, the police and, on occasions, some courts failed to take sufficient account of the protection of freedom of expression in cases that involve criticism of the practice of homosexuality. I hope that my noble friend will tell me whether my understanding of the difference that there appears to be between the Act I have mentioned and the Bill is correct. I urge the Committee to give wholehearted support to the amendment and to demonstrate to the Government that we seek to protect the very precious principle of free speech.

Lord Thomas of Gresford: I have an adjacent amendment to this one. Of course, we support the principle of free speech and we try, in Amendment No. 137ZZA, to put it in an appropriate way in the context of the offence that is suggested or promoted by Schedule 26. The offence is not one of criticising people because of their sexual orientation, or of criticising people for their conduct relating to their sexual orientation. The offence is using threatening words and behaviour with the intent of stirring up hatred on the grounds of sexual orientation. That is the burden of this offence. It is not generally saying that you cannot express your views about gay people or what they do.

Suppose there were a British National Party meeting and a speaker were to address that meeting saying, “These gays have it coming to them if they insist on committing sodomy with each other”. It is conceivable that the free-speech amendment put forward by the noble Lord, Lord Waddington, particularly its latter part, would prevent that being a criminal offence, even though it was threatening and used with intent to stir up hatred on the grounds of sexual orientation. Why do I say that? Because it refers to conduct; it refers to sodomy as opposed to being a homosexual. That is the problem with the way in which this exception is drafted. It is about conduct rather than about sexual orientation itself.

Taking on board the criticisms of the noble and learned Lord, Lord Mayhew, on the previous amendment, we impress on the Committee that, when a person uses threatening words and behaviour with intent to stir up hatred on the grounds of sexual orientation, it would be better and more appropriate for the Attorney-General to consider whether it is in the public interest—having regard to Article 10 of the European Convention on Human Rights and the right to freedom of expression—that a prosecution should be brought at that point. That is why I support the second amendment.

7 pm

The Lord Bishop of Winchester: Speaking as one whose name is on the amendment—I am glad it is there, and grateful for the speeches of the noble Lords, Lord Waddington and Lord Clarke—and responding immediately to the noble Lord, Lord Thomas of Gresford, it seems that his illustration was not helpful to his case.

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If someone says in a BNP meeting that people “have it coming to them”, it does not take a lawyer to suggest that that is clear example of threat. That is different from the kinds of things explicitly in the amendment.

The noble Lord, Lord Waddington, referred, although rather generally, to the memorandum of the Public Bill Committee from the Department for Christian Responsibility and Citizenship of the Catholic Bishops’ Conference of England and Wales, and the Mission and Public Affairs Council of the Church of England—the churches that he mentioned. The amendment’s form of words, both in the other place and this place, is explicit in the last paragraph of that memorandum. It is particularly there, as the noble Lord, Lord Waddington, made clear, to safeguard the rights of expression of those who judge that they should speak and write with no intention of stirring up hatred, whether out of an orthodox Christian or other faith context. I have vivid memories of a number of times recently when the noble Lord, Lord Tebbit, who is not in his place, has made it clear that although he was saying the same kinds of things in recent months in this House, he was doing so, as I think he put it to me on one occasion, not as “a paid-up member of the right reverend Prelates’ faith, though perhaps as a fellow traveller”.

This is not simply a question of discussion in a religious context, or by religiously motivated people. As the noble Lord, Lord Waddington, made quite clear, there is a whole range of people in this society whose freedom to talk, discuss and offer views runs the risk of being chilled unless some such amendment as this is in the Bill. I recognise that the Joint Committee on Human Rights, on page 19 of its report, believes that there is already appropriate protection for freedom of speech in the Bill. However, the points raised by the noble Lord, Lord Waddington, in particular, note that the view of the Joint Committee on Human Rights, and the Government in another place and at Second Reading in this House, is not well sustained.

It is important that the amendment—this form of words—should be tested. It must be there if we are to recognise the considerable weight of opinion in the country, generally as well as in the churches, not rabidly or threateningly put, or with any intention to raise hatred, but simply because many are of the view, as the noble Lord stated, that full sexual activity is for life-long marriage of two people of opposite genders. That is an extremely important point of view from whatever perspective it is put. It should not be chilled into silence by the possibility—which is not just a fantasy, but for which there is a great deal of evidence—that there have been points when, long before the question gets to prosecution, there has been investigation.

I notice that the noble Lord, Lord Tebbit, is now in his place. It is very nice to see him. I hope that he does not feel that I have misrepresented what he has said in recent weeks in what I said a moment ago.

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