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My other problem with the amendment in the name of the noble Lord, Lord Waddington—I do not have this problem at all with the amendment in the name of the noble Lord, Lord Thomas—is that anyone reading it would regard it as free speech about homosexuality. From a Christian perspective, we want the freedom to speak about marriage and the Christian understanding of marriage as the proper context for sexual relationships. We do not want a privileged part of the law that is seen to allow criticism of homosexual activity, as from a Christian perspective one would be equally critical of heterosexual activity outside marriage. The amendment’s focus on sexual orientation will be read as particular permission of the freedom to criticise homosexual behaviour. From a Christian perspective, this freedom should be even-handed across different sexual orientations.

Although there might be a case for further elucidation in the Bill—the amendment of the noble Lord, Lord Thomas, attempts to provide that, although leaving this to the Attorney-General may not be very satisfactory—if we take words for what they mean, the intent to stir up hatred is a pretty high bar, and with guidance issued to the police to clarify the offence, it should be enough in our society. My fear is that precisely by putting this sort of amendment into law, we almost draw attention again to the homosexual issue. That would have the quite unintentional effect of signalling out a group of people identified by their sexual orientation as different. That is the mistake. That is what leads to the bullying and the violence, which is a real problem, as the noble Baroness, Lady Howarth, said. It is because that is such a real problem that the amendment, although it means well and although I agree with the proposer and the way in which he introduced it, has a certain danger in it. If we are to have anything, I would prefer something along the lines of the amendment proposed by the noble Lord, Lord Thomas.

The Lord Bishop of Winchester: I respect and appreciate the points that my friend the right reverend Prelate is making. I particularly respect his emphasis on marriage. However, if he reads lines 28 to 32 on page 268, which are the significant element, and the amendment, he will see that both speak very clearly about a particular sexual orientation, and that both are entirely patent of the kinds of things about which he is speaking. Moreover, both the Bill and the Government’s amending of it are drawn even-handedly, and so is this amendment. I think that the noble Lord has raised a hare which really need not be raised in this regard if he looks carefully at the form of words.

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The Lord Bishop of Chester: I would say only that I believe this demonstration of freedom of speech is exactly what your Lordships expect.

Lord Thomas of Gresford: In response to the noble Lord, Lord Stoddart of Swindon, putting this in its context, we are concerned with an amendment to the Public Order Act 1986. Using threatening words and behaviour is an offence, per se. But it has been determined that we have particular problems in our society which need to be addressed. For example, it is a more serious offence to use threatening words and behaviour with intent to stir up hatred on the grounds of race. Similarly, it has been recognised that there are problems of religious bigotry towards various religions, so it is thought to be right to have a more serious offence than the basic offence of a person using threatening words and behaviour with intent to stir up hatred against someone because of their religion.

Now we come to a third category. No one in this Chamber can deny that homophobia exists and is a serious problem. If they do deny that, they can talk to me about professional experiences of murder cases where that has been the only reason why people have been killed. Homophobia exists and the purpose of this provision—just as with race and with religion—is to make it a more serious offence, which is punishable by a more serious penalty because of that intent to stir up hatred on the grounds of—

Lord Stoddart of Swindon: No one is suggesting—I am certainly not—that there is no homophobia, if we can use that term. There certainly is and we all deplore it. The problem is that we are proceeding to make it difficult to make any criticism of any minority. Even atheists sometimes, with respect to the right reverend Prelates, are under attack. When I spoke I instanced the Written Question by the noble Lord, Lord Morris of Manchester. Where do we stop in making specific arrangements for various minorities?

Lord Dearing: In this Committee, there has been a reasoned, cool discussion of a very difficult issue. I hope that the Government will listen to and reflect carefully on what has been said and that we will not have a Division. I go a long way towards the amendment of the noble Lord, Lord Waddington, but not all the way, because it goes a little too far. None of us wants any incitement to hatred of homophobia, nor do we want any bullying or discrimination. But, at the same time, we want the right for reasoned discussion and disagreement about these things. There will be a way to find this balance. When I looked at the noble Lord’s amendment, I agreed happily with him that nothing should stand in the way of discussion or reasoned disagreement, but on antipathy I drew back because that is getting too near to incitement. I hope that the Government have listened carefully to what has been said and will reflect on it to see if they can move somewhere near the point put forward by the noble Lord, Lord Waddington.

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Lady Saltoun of Abernethy: I, too, support the amendment proposed by the noble Lord, Lord Waddington. It worries me that nowhere in this schedule does the proposed new crime appear to involve a clear intention to offend, to threaten or to incite hatred. I am not at all sure that any of the amendments we have discussed today have addressed that.

Lord Lyell of Markyate: I have listened carefully to this debate. If there is a Division, I shall support the amendment of my noble friend Lord Waddington. I understand the noble Lord, Lord Dearing, and the reason why he was cautious. If we have to express a view in a vote, my view will be that there is a real problem with the Bill without an amendment that is at least very close to that of my noble friend Lord Waddington.

I listened most carefully to the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Turner of Camden, and I entirely share their view that I do not wish to see gays bullied. I am very proud of the fact that my cousin was the late Sir Peter Pears, and he and Benjamin Britten had to suffer a great deal of bullying during their lifetime, which was entirely wrong. There is a very real danger that the balance has gone the other way. My noble friend Lord Waddington has got extremely close to getting it right, even if he has not got it absolutely right. It is very important that the Government listen. I am sure that the Minister listens, but I hope that the whole Government will listen very carefully. If for some reason the Committee does not agree this amendment, I hope that the Government will none the less come back with a significant change that improves the position.

Baroness Howe of Idlicote: I shall speak briefly, because I have been quite riveted by the exchanges on this issue. I have absolutely no doubt that freedom of expression on this issue needs to be available. However, I am not happy with the wording of the amendment of the noble Lord, Lord Waddington. I agree with every word that my noble friend Lord Dearing has said. I hope very much that the Minister will go away and think again of a suitable amendment.

Lord Kingsland: If it comes to it, as I suspect that it will, the Opposition will have a free vote on this matter. Speaking personally, in the interests of free speech I shall support the amendment of my noble friend Lord Waddington.

Lord Hunt of Kings Heath: I thank the noble Lord, Lord Kingsland, for ever for his pithy wind-up speech. I agree with the noble Lord, Lord Dearing. This has been a very good discussion in the best traditions of your Lordships' House. Whatever views we bring to this debate, it has been an extremely important and useful rehearsal of a number of important issues which your Lordships have discussed in a number of Bills over the past few years. Freedom of speech is critical to all of us. We would not be here in your Lordships’ House if that were not so. In responding in a reasoned way, as the noble Lord,

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Lord Dearing, has suggested, let me say that many of the fears and concerns that have been expressed by Members of the Committee are unfounded.

First, I want to say why we have brought forward this proposal in the first place. The Government have seen evidence, and the committee in the other place took oral evidence, that gay people are a target for threatening words and behaviour which stir up hatred. Noble Lords will have seen some of the evidence presented. As we have heard, it shows extreme political parties trying to whip up hatred against the gay community by associating homosexuality with child abuse or with the spread of disease. Recent BNP campaign literature distributed to voters in north Wales featured photographs of child murder victims and claimed that a majority vote by mainstream parties to equalise the age of consent indicated that MPs were trying to legalise child sex step by step.

Violently homophobic lyrics in some reggae and rap songs urge the torture and murder of lesbians and gay men. Stonewall has commented that while some artists and their record producers have said that the songs in question will not be performed in the future, other artists have refused to make such a commitment, and no legal action as yet been taken to prevent the sale or distribution of such material in Britain. The lyrics in some of these reggae and rap songs suggest taking a “bazooka” to kill gay men, hang lesbians with a “long piece of rope”, and:

From what the noble Lord, Lord Waddington, said earlier, I am sure that he does not disagree that these are serious matters.

Lord Monson: The lyrics quoted by the Minister are terrible, of course, but is it not already a criminal offence to call on people to murder lesbians, gays or anybody else?

Lord Hunt of Kings Heath: As the noble Lord, Lord Thomas, suggested, there is a particular concern about how such lyrics or other material might be used to stir up hatred against a group of persons, and that is significant to the legislative changes set out in the Bill.

Lord Tebbit: I do not think the Minister has quite answered the point put to him. Those examples are quite clearly criminal. Why were they not prosecuted? The law would allow for their prosecution today. Why do the Government not get on with it?

Lord Hunt of Kings Heath: With respect, it is not for the Government to prosecute because those matters are best left to the DPP. It is not for a Minister to intervene.

I understand the concerns as to whether this proposed change in legislation might have an impact on freedom of expression. This has been thought about very carefully. It was thoroughly debated as the Bill passed through the other place and it was agreed that no additional safeguard was necessary for freedom of expression. The Government are of the

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view that words or behaviour which are threatening or intended to stir up hatred can never be justified by the need for freedom of speech and that is why we think we have the balance right.

The recommendations of the Joint Committee on Human Rights have frequently been quoted in debates on the Bill in your Lordships’ House, so on this occasion I will quote back to noble Lords what that committee has said about this. It welcomes the new offence as a measure that enhances human rights. It also welcomes the fact that the offences are narrowly defined,

Surely that is the relevant point. The committee took the view that this provides an appropriate degree of protection for freedom of speech. The Equality and Human Rights Commission also supports the new provisions, saying that they strike the right balance,

Earl Ferrers: The noble Lord says that the Government have got the balance right, but does he think that it is right that a person like Mr Hammond, who was not doing anything other than holding up a placard, should be taken to court and convicted, whereas the people who actually pulled him down and kicked him, eventually causing his death, were not even interrogated, let alone taken to court? That is not fair.

Lord Hunt of Kings Heath: I am not going to be drawn into a commentary on an individual case. The noble Earl knows that he would never have done that as a Minister and equally he knows that I will not. The two bodies I have quoted have said that the threshold is very high. As we have seen in terms of the definition of hatred, a person who uses threatening words or behaviour or displays any written material which is threatening is guilty of an offence if he intends thereby to stir up hatred on the grounds of sexual orientation. That is where these bodies argue that the balance is right.

The noble Lord, Lord Stoddart, referred to other groups, making what I suppose may be called the slippery slope argument. The Government have said that we will look at other groups if there is evidence that hatred is being stirred up against them as opposed to individuals. That must remain the position and I do not apologise for it. If there is evidence that a particular group is being threatened or hatred against it is being stirred up in the way described as the problem at the moment, it must be right for any Government to consider the matter.

I understand the concerns about the impact which this offence might have on freedom of expression. Noble Lords have referred to previous debates and provisions in regard to the offence of religious hatred, and we took that as our starting point. The religious hatred offence covers words or behaviour that are threatening and intended to stir up hatred. That is what the new proposed offence also covers. It is true

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that the religious hatred offence contains a clause about freedom of expression similar to the one now proposed in this amendment. We did not duplicate that. The freedom of expression safeguard was added by Parliament during the passage of the religious hatred offence, but the Government said at the time that we did not think a safeguard was necessary and we do not think that such a safeguard is necessary in relation to this proposal.

I know that there is concern about whether these offences would have what has been described as a “chilling” effect on debate, particularly for those individuals and organisations who believe that homosexual behaviour should be discouraged. That concern is quite understandable, and the examples cited by noble Lords in voicing their concern that it would no longer be possible to express those views seem to come within this category. But I do not see how the offence as set out in the Bill could have such a chilling effect on debate, on reasonable expressions of dislike, on comedians telling jokes, or on the preaching of religious doctrine concerning homosexuality. None of these would be caught by the offences unless they were also threatening and intended to stir up hatred.

8 pm

A number of comments were made about the practice of the police and, by implication, the Crown Prosecution Service. I am doubtful whether, frankly, the proposed amendment would clarify matters for the police. It could be argued that it would provide less certainty than is contained in the Government’s provisions. One has to trust the police to distinguish between which cases are appropriate to investigate and which are not. The fact that the Crown Prosecution Service will always assess a case and will bring a prosecution only if there is a reasonable prospect of conviction and if it would be in the public interest is an important safeguard. Most importantly with this offence, as with the offences of inciting racial or religious hatred, the Attorney-General must consent to any prosecution.

Noble Lords seem to suggest that the provision of guidance would not be sufficient. However, my conclusion from the debate is that guidance is exactly what is required. I hesitate to debate with the noble Lord, Lord Dear—to whom, as a Birmingham resident, I pay great tribute for his excellent stewardship and leadership of our local police force—but there is no reason at all why sensible guidance, with the safeguards of the role of the Crown Prosecution Service and the Attorney-General’s final decision, will not provide the kinds of safeguards that are required. When it comes down to it, none of the actions to which noble Lords have spoken would be covered by the offences unless they were threatening and intended to stir up hatred.

The noble Lord, Lord Stoddart, asked me whether I would be prepared to withdraw these clauses. I have written to him; I agreed the letter on Friday and I am sorry that it has not reached him. However, ultimately, we believe that these provisions are sensible. They were debated well in the other place and we have had a good and well tempered debate here. I know that the noble Lord, Lord Waddington, will have to consider

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carefully what action he intends to take but we consider that the Bill as currently drafted meets the concerns that he has expressed.

Lord Waddington: I thank all noble Lords and noble Baronesses who have contributed to the debate. Clearly there is a great deal of support for there being some kind of free speech provision in the Bill and noble Lords will recognise that there has been no proper attempt to justify there being a free speech provision in the religious hatred offence but no free speech provision here.

The Minister said that the matter could be dealt with by guidance. However, I would point out, very gently, that guidance has been in existence for some time now—I have it in my file—and a fat lot of good it has done. There has been a great deal of guidance from the Home Office about the nature of hate crime, and the net result has been the succession of scandals to which we have referred in the course of the debate.

I am not saying that the wording of the amendment cannot be improved. I understand the concerns about the wording which have been expressed by the noble Baroness, Lady Howarth of Breckland, by the right reverend Prelate the Bishop of Chester and by others. I hope that the Minister will go away and consider what has been said and perhaps the Government will come forward with their own formula. For the moment, I am going to accept the advice given to me by the noble Lord, Lord Dearing. I think the right course is to seek leave to withdraw the amendment, but I am doing so in the hope that the Government will come to their senses. I do not honestly think that the points we have made today have been met in any way by the Minister. I am sure that he will recognise from what I have said that unless the Government act to try to meet the points made I will return to the matter on Report. With those words, I beg leave to withdraw—

Earl Ferrers: Before my noble friend takes that auspicious step, he said he was sure that the Minister would consider this to see whether he would improve on it. That is not what the Minister said. He said, “We think the Bill is right as it is”. Before my noble friend withdraws the amendment, he ought to get an undertaking from the Minister that he will consider what has been said with a view to seeing whether the Bill can be improved.

Lord Waddington: I was not being as optimistic as my noble friend. I am merely saying that I hope that the Minister, who at the moment may not be minded to consider this matter, will see sense. He now has a little time before the Report stage to go over what has been said in the course of the debate. He has not answered any of the points made and I shall certainly return to the matter on Report. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 137ZZA not moved.]

Schedule 26 agreed to.

Clause 127 agreed to.

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Lord Bach: I beg to move that the House do now resume. In doing so, perhaps I may suggest that the Committee stage begins again not before 9.05 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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