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My sense is that the amendment needs to be there. Lastly, with the noble Lord, Lord Waddington, I note that a number of people, of whom Ben Summerskill is one and who speak from the point of view from which he speaks, have also expressed concern that without a provision like this in the Bill there will be a chilling effect on precisely the sort of straightforward,

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open discussion of these issues which, as I have understood it, people like him want to engage in. I respect Ben Summerskill and others for making that point.

There is a good reason for the amendment, which arises out of a strong sense that this point needed to be made by the Roman Catholic and Anglican Churches in this country. I am glad that the matter is here under the leadership of the noble Lord, Lord Waddington.

Baroness Turner of Camden: I hope that the Government will not feel disposed to accept the amendment. I support the Bill as it stands because there is, regrettably, a great deal of homophobia. I have received a number of letters, as I am sure all Members of the Committee have, about this section of the Bill. I received a letter from a woman yesterday in which she described how her son had been shadowed and eventually kicked to death. Everybody concerned, including the police, agreed that it was because of his sexual orientation. That is clearly unacceptable. It is unacceptable that people should be put in fear of their lives because of their sexual orientation.

I do not support the wording of the amendment. The last sentence in particular—

seems to run against the established law in this country, which allows people to have civil partnerships. It is their right by law to have civil partnerships, but under the wording of the amendment it would be perfectly all right to urge them—perhaps even threaten them—that they should not participate in one.

You cannot describe this situation in terms of the provisions on religious hatred. We are in a different environment here. We are not talking about a belief, but a state in which people have a certain sexual orientation whether they want it or not: that is what they are like. That is why they ought to have protection and be able to live their lives in accordance with what the law has laid down and made arrangements for.

I understand what has been said about freedom of speech. If I were to choose between the two amendments, I would prefer that of the noble Lord, Lord Thomas of Gresford, which seems very reasonable. This one, however, I do not accept at all. It contains a threat, particularly in the last sentence, which the Government should not be prepared to accept. The Bill as it stands should be supported because it attempts to deal with a genuine problem and give protection to those who deserve it. They do not deserve to be harassed and threatened. I therefore hope that the Government will not be prepared to accept the amendment.

Earl Ferrers: I am fascinated to hear the argument of the noble Baroness, Lady Turner, and admire the way in which she puts it, so clearly and carefully, on something she obviously feels very strongly about. I would like to agree with her but unfortunately do not find that I can.

When the noble Lord, Lord Thomas of Gresford, said that my noble friend Lord Waddington’s amendment would mean that somebody giving such-and-such an

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observation would be not guilty, I can only tell him that my concern is that people who are making certain observations which they are entirely entitled to make will find themselves guilty. I worry about freedom of speech. Of course we understand about people who are homosexuals and are that way inclined, but that should not prevent a priest or, indeed, a right reverend Prelate getting up and saying that the belief of his church is that that practice is wrong. A lot of people may think it is right and natural, but it is reasonable for a church to say that it is not right.

Lord Thomas of Gresford: Would the noble Earl accept that the priest concerned is not likely to be using threatening words and behaviour with intent to stir up hatred against a person on the grounds of his sexual orientation, unless he was using hell fire or something?

Earl Ferrers: I need only ask: what about the right reverend Prelate the Bishop of Chester? As far as I know, he was making a perfectly reasonable observation, but his speech was gone over by the police, who then got hold of the Crown Prosecution Service which decided that they should announce that there was no harm done. That is a bad state of affairs. First, it is bad that the police should spend their time doing that, and secondly, it creates an aura of fear of what you say. I do not think that that is right and proper. We have gone a long way down the path of trying to make people who have thought one way think another way. We are almost in the position of having reverse discrimination, where if somebody says something it is an offence, even though he has always been used to saying it. I am fearful about that.

My noble friend Lord Waddington referred to the late Harry Hammond, a disabled pensioner who was dragged to the ground by a mob and assaulted. What had he done? He had displayed a banner calling upon people to stop their immorality. People have held banners for ages saying, “The wages of sin is death”, and I do not see that there is anything particularly wrong about that. Somebody got hold of him and pulled his banner, and he fell to the ground. He then suffered an attack from which he subsequently died. But Mr Hammond was the one arrested by the police, and he was convicted as a criminal by the local magistrates before he died while attempting to uphold what he felt was Bible morality. The fact is that he was attacked by homosexuals for his protest against homosexuality. He was arrested and fined, and his attackers were not even questioned. That is what I refer to as reverse discrimination. We have seen it all over the place. I do not think it is a good thing that we should put people so much in fear of what they say that they dare not say it. That is what happens in a police state, and I fear that we are going down that road. I agree with the amendment tabled by my noble friend Lord Waddington. People ought to be able to say what they think; churches ought to be able to say what they think, even if one does not like it. This amendment would help that come about.

Lord Dear: I find myself following the noble Earl, Lord Ferrers, and agreeing with every word he said. I shall not attempt to go over the same ground. I

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support the amendment. When the Lord, Lord Waddington, was taking his rather large stick and belabouring the constabulary in various parts of the country, a number of noble Lords looked at me, making eye contact, almost urging me on. I therefore stand to address that one point if nothing else.

The noble Lord, Lord Waddington, was a little harsh on the police who are between a rock and a hard place because the current law is confusing. I have some sympathy with forces that have a complaint made to them as to what they should do in the current state of affairs. Were they to turn their backs on the complaint, they could almost guarantee that Stonewall and others would immediately complain about them. They therefore have little recourse but to investigate the facts and put them to the Crown Prosecution Service, which makes the decision. The decision is with the CPS and would remain with it.

Having tried to put that part of what the noble Lord, Lord Waddington, suggested to the Committee into context, I agree with everything that has been said about the need for clarification on this issue. Noble Lords will have shared my experience of a post bag full of letters from well meaning, honest, decent people who are fearful of being prosecuted if they simply express an opinion. One may or may not agree with the opinion, but they want to be able to express an opinion on this issue. I make no comment about where I stand on that, other than to say that I recognise the need for freedom of expression. It is for that reason, and that reason alone, that roundly I support the amendment tabled by the noble Lord, Lord Waddington.

Baroness O'Cathain: On this issue, I agree with Peter Tatchell. Over the years, I have not always agreed with him, but on the creation of a homophobic hatred offence, he is right. He has concluded that the introduction of such an offence is unnecessary and a danger to free speech. I also note that Matthew Parris and Iain Dale, both prominent homosexual journalists, have also declared themselves opposed to this offence. In fact, when the Government announced they were bringing forward Clause 126, they found themselves being criticised in the media by almost everyone from the Christian Institute, to Liberty, and to the comedian Rowan Atkinson. There is very little support for this, but we are where we are. The Government have pressed ahead, so we have to find a way of making it less bad.

The Government have an almost perfect record of completely ignoring protests from the people they are supposed to represent. Whatever the Government want, the Government get, whether or not it is a manifesto commitment. I therefore support amendment tabled by the noble Lord, Lord Waddington. It is an eminently sensible attempt to make sure that this legislation does not add to the climate of fear that already exists around the controversial subject of homosexuality.

Noble Lords will know from their postbags that there is already a great deal of concern among the general public—Christians in particular—about the freedom to speak out, however moderately, on sexual ethics. Given the number of high-profile complaints to the police, some of which were mentioned by my

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noble friend Lord Waddington, it is easy to see why. Noble Lords might not agree with the churchman who says that all sex outside marriage is a sin, but do we want an environment in which he feels afraid to express his point of view? Some noble Lords may want to live in that kind of a society; I do not.

A lawyer recently told me of the case of a street preacher who was preaching the Gospel in the streets of one of our major cities. He was not preaching about homosexuality per se, but he read out a Bible passage which listed various sins, including homosexuality. A complaint was made to the police, who duly turned up. The preacher spent the next hour in the back of a police van answering questions about the Bible passage. The police eventually let him go and turned their attention to the complainant, who they finally concluded was just a trouble-maker. Some will say, “All's well that ends well”, but the fact is that those policemen, no doubt reluctantly, deprived the preacher of an hour of his valuable time for no good reason. It should have been immediately obvious that the reading from the Bible was not a criminal matter, but the politically correct climate in which the police now operate meant that they felt obliged to take that silly complainant seriously. The amendment before us would make clear to the police that expressing an opinion on homosexuality is a matter of freedom of speech. If the words used really are threatening, existing public order legislation will apply and the police can intervene, but disagreement should not be a crime.

Baroness Butler-Sloss: I support the amendment tabled by the noble Lord, Lord Waddington. It is clear from what the noble Baroness, Lady Turner, said that there are terrible cases that need to be dealt with. She gave the example of a young man who was killed because of his sexual orientation. The amendment would not in any way affect the proper way of dealing with such a terrible case, but I am affected by the view expressed by the noble Lord, Lord Waddington, about the chill factor. I just wanted to add this: the chill factor applies not only to Christians; it applies to Jews and Muslims and, I think, to Sikhs. The Muslim and the Jewish populations in this country have been much quieter about it than the Christians, but they will also be subject to the chill factor if the freedom of expression is not included by way of the amendment.

Baroness Howarth of Breckland: I speak as a Christian, but, far from the chill factor, I realise that in another era I would probably have been burnt at the stake, because I hold very different views.

I absolutely agree with the noble Lord, Lord Waddington, that freedom of speech is extremely important. Voltaire said, “I may disagree fundamentally with what you are going to say, but I will fight to the death to ensure that you are able to say it”. The real worry that I have with the amendment moved by the noble Lord is the flip side of its wording. I believe that it gives freedom to those who are homophobic to use it in a homophobic way. That is why I support the government amendment and what the noble Baroness, Lady Turner, said.

I worked for many years in Childline. One of the major problems that children brought to us was bullying and, in particular, homophobic bullying. Those children

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experienced extraordinary things being said to them in the playground, whether they were gay or not. Very often, that was allowed by teachers because they found it difficult to know how to manage or stop homophobic bullying. We have discussed that in the House before. Many of your Lordships have agreed that homophobic bullying, whether the child is homophobic or not, is unacceptable, because of what that does to children. When they grow up, they believe that it is all right to use that sort of language.

I, too, have received correspondence from the mother whose child was kicked to death. In my time, I have met with other people who have received severe beatings because they were homosexual. My great worry is that the wording of the amendment moved by the noble Lord, Lord Waddington, would give licence to that, because it would appear in the Bill. If there were some other wording that did not include the issue of behaviour, I could support the noble Lord in saying that we all have a right to freedom of speech. As I said, I may disagree fundamentally with that point of view, but I believe that those who have a different religious perspective and point of view have a right to put it. With that, I shall be supporting the Government's position.

Lord Stoddart of Swindon: I support the amendment moved by the noble Lord, Lord Waddington; indeed, I am a signatory to it. I do not intend to say very much, because most of what I would have said has already been said.

On 27 February, the noble Lord, Lord Hunt, said that he was short of time and that he wanted the Bill through by 8 May, I think it was. I asked him whether, if he was short of time, he would drop Clause 126. There would then have been no need for the amendment or this discussion tonight. As the noble Lord seemed happy that people should ask him further questions about what clauses should be dropped, I wrote to him and asked him whether he would either drop Clause 126 or agree to an amendment. I have not had a reply yet, and I am taking that to mean that he is still considering it. I sincerely hope that he will. Perhaps he will indicate what he intends to do when he winds up the debate.

I cannot understand, especially in the light of people's views, which have been expressed to all of us in many letters, why the Government will not agree to accept the amendment or some other amendment that safeguards freedom of speech, which is absolutely vital to our democracy. Without freedom of speech, we have no democracy. The more legislation of this sort you produce, the more concerned and confused people will be as to what they can say. I simply do not understand why the Government do not accept that. The Minister’s reply to the debate on Second Reading was totally unsatisfactory. It did not properly explain—to me, anyway—why there should be a difference between racial and religious incitement and incitement on sexual orientation, in that two of them have the safeguard for free speech, but he will not accept a safeguard for the third, which we are discussing at present.

I want to make another point to the Government. This is the third set of clauses of this sort that we

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have. Where will it stop? Never, apparently, because all sorts of special pleading is going on. Indeed, on 28 February, the noble Lord, Lord Morris of Manchester, asked a Question for Written Answer about making the incitement of hatred on grounds of disability a criminal offence. So it has already started. What was the reply? Although the Government rejected the idea for the present, they added that they would,

Ominous words indeed. Exactly where is that special pleading going to stop?

People over the age of 65 are considered to be aged and decrepit. They cannot speak and should be sent back home, instead of talking in this House. The fact is that the aged are under attack. They are being told that they are no longer of any use to society, so they will not get operations under the health service. The latest that we have heard is that a lady of 59—by no means aged, but obviously some people thought that she was—was refused an operation. People are now beginning to attack old people because they are affecting the economy. They are drawing too much on the economy. Let us get rid of them at a certain age.

Exactly where are we going to stop with writing special cases into law about people against whom incitement should not be made? The answer is that we should all be equal before the law, and the law should be constructed in a way that incitement to hatred is an offence not against certain people but against everyone. I wish that the Government would understand that because, if they do not, and the decline of the right to free speech carries on, we are on the road to fascism. They really ought to know that.

7.30 pm

My final point is that the clause refers not to homosexuality but to sexual orientation. It is quite possible that certain groups would want to incite hatred against heterosexuals. I am fed up with hearing people who dare simply to say something that might be a little derogatory, or perhaps to make a joke, about homosexuality, being described as homophobes. That is insulting and could in some contexts lead to violence. Another thing that we see regularly—I do not know whether it is an annual event—is the gay pride parade, which I and many others consider to be triumphalist and could be used to incite hatred against other sexualities. People may think that that is far-fetched, but these days nothing is far-fetched. This is why this House in particular must be careful to uphold our freedoms, particularly the freedom of speech, because, as I said at the beginning, once we lose that, we are lost for ever.

Lord Monson: Roughly 42 years ago, the Wolfenden recommendations came before your Lordships’ House, well before the House of Commons dared to consider them. As so often, this House gave a lead to the other place. I was strongly in favour of the proposals, and was one of those who voted in favour for the first time. The result was 94 votes to 49. Bernard Levin, in his column the next day, said, “Hoorah for their Lordships”.

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Our action seems wholly uncontroversial—indeed, perhaps slightly on the timid side today—but, at that time, a great many people, particularly north of the border but also in England and Wales, regarded it as definitely radical and provocative. We were called all sorts of rude names, which of course one shrugged off. However, there were more moderate opponents, who tended to argue along these lines: “Yes, the Wolfenden proposals are all very well, but they are the thin end of the wedge. The pendulum is bound to swing too far in the other direction. Mark my words, before many years are out, they”—the more militant homosexuals and not, of course, the ordinary discreet sort—“will demand not merely toleration for their sexual activities—no problem about that—but positive respect, even admiration, for them”. To which I replied, “Oh, come on. Nonsense. You’re being alarmist”. With hindsight, I have to say that I was wrong and they were right.

The danger is not that people will go to prison for criticising certain homosexual behaviour—for the simple reason that no British jury would ever convict, even if the Attorney-General authorised a prosecution—but that, as the noble Lord, Lord Waddington, the noble Earl, Lord Ferrers, and the noble Baroness, Lady O’Cathain, pointed out, the police, in their anxiety to carry out the wishes of their politically correct superiors, will harass people. For that reason, it is vital that we support the amendment.

Baroness Whitaker: Many speakers have mentioned freedom. Some have also mentioned equality. One of the problems is that quite a large number of people in this country do not live in freedom and equality but go about their business in fear and intimidation. That is why I have difficulty with the amendment of the noble Lord, Lord Waddington, because it seems to me that it would preserve the freedom of hate speech and bears little relation to what happens when people are waylaid, insulted, threatened and sometimes killed. That is why we cannot have this amendment; it would simply alter the balance of equality against those who are most vulnerable.

The Lord Bishop of Chester: I pretty much agreed with what the noble Lord, Lord Waddington, said when he introduced this debate, although I am not entirely convinced that the amendment would be helpful. I entirely agree with the noble Lord, Lord Stoddart, about the importance of freedom of speech, but in any society free speech must be responsible speech, too; responsibility must be given an equal weighting.

The difficulty with the amendment is that, given the way in which the offence is construed, it really should not be necessary. Requiring proof that there is intent to threaten is a pretty high threshold. There is the additional requirement that the Attorney-General gives consent, which is pretty much a back-stop provision, as we understand it. If we also have to have this in the Bill, we are at least in theory justifying permitting in certain circumstances speech that intends to threaten, because of the additional amendment that we have passed. This may have been a structural flaw in the

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Religious Offences Bill, which also had these two provisions, which seemed to be in a certain amount of tension.

I do rather agree with the question of where we stop if we go on from here. It has been said, for example, that there is no reference here to transsexuals or to age or whatever. That may be for another day. I hope that we can stop here. Given the state of the law elsewhere in this area, I understand why this offence has been introduced.

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