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Let us imagine it: two pensioners sitting in their front room, terrified by the police walking in. These are the things that I have opposed all my adult life, whether in apartheid South Africa, in Iran or in many other parts of the world. I was proud, as a member of the Labour Party and chairman of its international committee, to argue for free speech, and I find it hard to come to this House and have to plead that your Lordships will back a simple amendment that clarifies the issue and makes clear that there will be no infringement of free speech.

On 3 March I said:

I ask again: is this what the Government I have worked for all my adult life to get elected want? I find it offensive, and many of the people I have worked with over the years share my views.

In previous debates the Government have said that a free speech clause is unnecessary. It is said that the wording of the offence already strikes the right balance between preventing the incitement of hatred and the protection of free speech. If that is so, why not underline the need for balance by including a free speech clause? It is very straightforward. From what I have read, the Government do not object in principle to such a clause.

I was quite surprised when I was given a copy of a letter sent to my noble friend Lord Stoddart of Swindon—he is my noble friend. The letter takes up the issue of the Racial and Religious Hatred Act 2002. I may be a bit touchy, and as I get older I feel things that I should not, but this is a Minister writing to a Member of this House:

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Where I come from, that smacks of arrogance: Parliament makes a decision, but they still think they were right, and above the will of Parliament. I find that a little bit odd.

My view is that the criminal law should be clear in explaining what is and what is not an offence. If the 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 as to what they may discuss or debate on the subject of homosexual practice in their teachings.

I urge the House to give wholehearted support to the amendment and to demonstrate to the Government that we are seeking to protect the very precious principle of free speech. At Second Reading a number of illustrations were given by noble Lords that there is quite a lot of evidence that the public, the police and, on occasions, some courts have failed to take sufficient account of the protection of freedom of expression in cases which involve criticism of the practice of homosexuality. This is not about that issue; it is about the right of people to have a point of view and to express it. I hope that the House will support the amendment.

11 pm

Lord Elton: My Lords, perhaps I may beg the Minister to have in mind that the object of his legislation, as I understand it, is to take out the heat of the encounters between people with different views about sexual orientation. Where there is an entirely disproportionate reaction to criticism by one group of another of the sort we have heard from my noble friend Lord Waddington and from the noble Lord, Lord Clarke of Hampstead, will he pause to think what effect that is going to have on relations between the two groups in question? It must exacerbate them and therefore in order to achieve the policy objectives which the Minister has in bringing this before Parliament, there must surely be a clause such as my noble friend has devised to prevent that happening.

Baroness Turner of Camden: My Lords, I urge my noble friend not to accept this amendment. I spoke against it in Committee and my views have not changed, even though there has been a slight amendment to the original wording. I believe that it is necessary because there has been an increase in homophobic violence, some of it ending in death, as has already been reported. The Government are to be commended on introducing this Bill, which is designed to try to deal with that. It refers to incitement to hatred. It is not about expressions of opinion, it is about incitement to hatred. Clearly, that should be deplored in any event. It leads eventually to the commitment of homophobic actions.

I have had a number of letters about this amendment, some in support and some not. Those in support have often said that they oppose it on grounds of religion because they take the view that this is anti-Christianity. I have to say to my noble friend that I, as I am sure have a number of other noble Lords, have a number of friends who are devout Christians. For example, I was able last year to go to the civil ceremony of a couple of friends of mine, both of whom are devout Christians

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and both of whom spend a lot of time doing good works which they feel is an expression of their Christianity. Certainly, it is by no means a view held throughout the Christian community that this kind of action should be taken in relation to homosexuals. Not everybody holds the same view about homosexuality as the people who wrote to me in support of the amendment.

The Government have done the right thing in introducing this provision in the Bill. We are not talking about religion as far as the religious incitement is concerned, the different arrangements in relation to religious hatred and so on. Religion is a belief whereas sexual orientation may be a state of being. Therefore different arrangements should apply. It seems to me that the Government have made a genuine attempt to try to deal with an increasing problem of homophobia and violence against gays and lesbians. I think that they should be supported for it and I commend them for doing so.

Lord Monson: My Lords, I respectfully point out to the noble Baroness, Lady Turner, that there has not been a slight change in the original wording, there has been an enormous change in the original wording. It is much more moderate and makes no mention whatever of homosexuality.

People should not only have a legal right to urge others to refrain from certain sexual practices, in certain circumstances I submit they have a moral duty to do so. The United Nations Convention on the Rights of the Child, which has been ratified by the United Kingdom, deems a child to be anyone under the age of 18, and as such deserving of protection from physical and mental harm. In consequence of a change in the law about seven and a half years ago, forced through under the Parliament Act against the better judgment of the great majority of your Lordships, 16 and 17 year-olds can now legally be subjected to medically dangerous sexual practices, in addition to relatively safe practices to which there can be much less objection. This is all the more paradoxical in the light of the Government’s determination with all the powers at their command to try to prevent under-18s from smoking, which in statistical terms is decidedly less dangerous than being sodomised.

As I said on the previous occasion, there is very little danger in practice of anyone being sent to prison for seven years, seven months or even seven weeks if this extremely modest and moderate amendment is rejected by the Government for the simple reason that no British jury would convict. However, there will on the other hand be a very great danger of the unfortunate ordinary policeman and policewoman being urged on by politically correct chief constables to step up their harassment of critics of such behaviour just as the right reverend Prelate the Bishop of Chester, Lynette Burrows, Robin Page and many others were inexcusably harassed.

Lord Smith of Finsbury: My Lords, I am loath to disagree with my noble friend Lord Clarke who has been a good and valued colleague for many years but I am afraid that I cannot agree with the conclusions of his very moving contribution to this debate. I hold no brief for anyone who causes unnecessary distress to anyone because they have made a joke or an inappropriate

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remark. However, let us not forget that the background against which the Government have placed this measure in the Bill is that every single day in this civilised country of ours people are abused, attacked, have hatred expressed against them and on some occasions suffer extreme violence simply because of their sexuality. That is the background which has led to the introduction of the measure in the Bill. In my book, incitement to hatred on grounds of sexual orientation is as unforgivable and unacceptable in a civilised society as incitement to hatred on grounds of race or colour. I believe that it may have been when the noble Lord who moved this amendment served in the Home Office that that provision was rightly brought into the law of this land.

It seems to me that this amendment falls foul of two things. First, if it is simply about allowing people to express a view, it is unnecessary because the measure as it stands in the Bill allows the expression of views. It is incitement to hatred that the measure is about. If all that the proposer of this amendment is interested in is ensuring that people should be free to speak their conscience, there is nothing in the Bill as it stands which prevents them doing so.

However, I have a greater fear about this amendment. For all the moderation and the consensual way in which the noble Lord quite rightly moved it, my worry is that it will drive a coach and horses through the intention of the clause and it will allow those who stand up and incite hatred to take refuge in this clause, if it is amended, in justifying their behaviour. That to me would be a step backwards. Let us ensure that the law of the land protects the life and person of people whose only crime happens to be being different in their sexual orientation.

Earl Ferrers: My Lords, the noble Lord, Lord Smith of Finsbury, has made a very impassioned and understandable speech and it has been a moving one but I would ask the Minister to have fairly broad shoulders over these things. As with any argument, there is an argument on one side and there is an argument on the other side. The noble Lord, Lord Smith, said that day after day people were being damaged for being homosexuals. We all agree that that should not happen, so the ball can swing the other way and people can find that the things that they are doing which have been considered perfectly normal and reasonable are now illegal.

One person said very effectively that a Christian who declares to an adulterer the Bible’s teaching that adultery is wrong should not be made a criminal by the state and face a jail sentence of up to seven years. That is so whether he is talking to an adulterer or a homosexual. People ought to be allowed to say what their views—and their religious views—are. We have heard the problems of the right reverend Prelate the Bishop of Chester. The police went over his speech because it was thought that he had said something wrong. I do not believe that that is what the law should encourage people to do.

The amendment of my noble friend Lord Waddington, is, if I might respectfully say so, very carefully drawn so as not to infringe the Government’s desires to protect homosexuals; it merely states:

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So the Government’s desires to protect those who are homosexually oriented remain but the right to the freedom of speech also remains. I hope the Minister will have a broad mind over this because it is wrong to curtail the freedom of speech and, without this amendment clarifying that, there is a great danger that that would happen.

The Lord Bishop of Newcastle: My Lords, this amendment succeeds one that was debated in Committee. In its original form it would have exempted certain sorts of speech or writing about sexual conduct from prosecution, even if they were threatening or intending to stir up hatred. Had I been able to be present then, I could not have supported it. But this new version is for the avoidance of doubt and so the question really hinges on whether it is necessary.

If we take the view that the definition of the offence is both sufficiently clear and narrow and the word used is threatening—not insulting, not abusive, but threatening—and if the Bill already meets concerns about possible loss of freedom of expression, that makes the amendment unnecessary. If, on the other hand, the argument is that the amendment will not do any harm and it conceivably might do some good in protecting freedom of expression, it can be entertained for two reasons. The first is that it would give some protection from petty harassment by overzealous police officers investigating vexatious complaints, as indeed has happened. Secondly, it can be argued that the amendment would be helpful in meeting concerns about the so-called chilling effect of the Bill on free speech and expressions of opinion. We need to listen carefully to what the noble Lord, Lord Smith, said. On balance, my view still is that what the amendment says would be much better in guidance to the police and to the prosecuting authorities on the interpretation of the Bill than it would be in the Bill.

11.15 pm

Lord Thomas of Gresford: My Lords, the interpretation of the Bill is not difficult because the offence, as defined, is using threatening words and behaviour with the intent of stirring up,

What are the ingredients that the prosecution has to prove beyond reasonable doubt to the satisfaction of a jury or magistrates? The prosecution has to prove, first, that certain words or behaviour used by the defendant were threatening. I suppose that that could be seen as an objective test. Would the jury or the magistrates consider it to be threatening if those words were used about them? The second ingredient of intent to “stir up ... hatred” requires the jury or magistrates to be satisfied about the state of mind of the defendant and that he intended to stir up hatred. Those are strong words. It throws a considerable burden on the prosecution to satisfy the jury that there was an intent to stir up hatred. An intent to stir

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up hatred surely cannot be derived simply from discussion or criticism of sexual conduct or practices or from urging persons to refrain from or to modify such conduct or practices. That is not enough to satisfy the ingredients of this serious offence that the Government now propose to put on the statute book.

Freedom of speech is not derived from clauses inserted into every statute for the avoidance of doubt. Freedom of speech is derived from our common law heritage and, if necessary, we can go to the European convention to see it all set out. Every time there is an issue, it is not necessary to put it into an Act of Parliament. There is no question of any doubt arising here about the interpretation of the statute—absolutely none. It is clear what the prosecution has to prove. I concur with the right reverend Prelate that if, in the future, there is a suggestion that police officers are acting outside their proper ambit, firm and direct guidance should be given to them by the Attorney-General and by the Director of Public Prosecutions. That is how we can cope with this. The noble Lord, Lord Waddington, has done his best to modify the language of the previous amendment, but the result would be a clause that says nothing. It would not add in any way to the freedoms of expression that we enjoy. I regret to say that we on these Benches will not be able to support the amendment.

Lord Anderson of Swansea: My Lords, the noble Lord examined carefully and forensically the various ingredients of a possible offence. It may be that there would be very few, if any, prosecutions, but surely that is not the point. I guess that many of us have been impressed by letters from individuals around the country who have been met with overzealous police officers who have caused great anxiety until eventually the individuals have been told that no prosecutions will follow. Surely, the aim of this quite modest amendment would be to deter such overzealous police officers from causing such anxiety. I believe that this amendment is indeed modest, and I will have no hesitation in supporting it.

Baroness Knight of Collingtree:My Lords, I support very much what has just been said, and I want to point out to the noble Lord, Lord Thomas, that we are not talking only about those cases that get to court. One man wrote to me when all he had tried to do was to distribute perfectly innocuous letters asking whether people would come to the Easter service. He got a call from two policemen, and was followed up again because there had been complaints from a homosexual supporter that there was something wrong in that way about the leaflet. There was not, but much upset was caused to that man’s family—and to his neighbours, who thought that he had created some terrible fault and done something wrong. It is not just when we get to court. Can we not protect people who simply want to get their friends and neighbours to come to a church service?

Lord Kingsland: My Lords, I said in Committee that the Opposition would be having a free vote on this matter. Personally, I shall be supporting the amendment from my noble friend.

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Lord Hunt of Kings Heath: First, My Lords, the noble Lord, Lord Waddington, has had a long wait before we came to this amendment, and I am sorry that it is so late in the evening. None the less, I think that the noble Lord would agree that he has had a good debate, and that the matters discussed have been raised very clearly indeed.

I want to say at once that I understand the issues that the noble Lord and others have raised. It is described as a chilling effect, this concern that the legislation would unnecessarily inhibit the absolute right of freedom of speech. I certainly understand those concerns, but none the less the Government continue to believe strongly that the kind of clarification in the noble Lord’s amendment, which differs from his in Committee, is not necessary. I am very happy to place on the record that it is indeed possible to discuss these topics or to criticise conduct in ways that are neither threatening nor intentionally “stir up hatred”. In such cases, it would be plain from the meaning of the statute that no offence has been committed. The noble Lord, Lord Thomas of Gresford, made a most important point when he described the process by which a jury would have to come to a decision. The key phrase here involves threatening or intentionally stirring up hatred.

I understand that this amendment differs from those that we have seen previously. It seeks to ensure that discussions or criticisms of sexual practices are not in themselves taken as threatening, or are,

all of which is,

Yet I do not see how any doubt can arise from the offence, as my noble friend Lord Smith and the noble Lord, Lord Turner, have said. Only words or behaviour that are threatening and,

are covered. That is abundantly clear; it will of course, be for the courts to decide whether, in all the circumstances, the words or behaviour were threatening—and the police and the Crown Prosecution Service will need to make a judgment about the circumstances and on whether a prosecution would be likely to succeed. There should be no need to add anything to an offence for the avoidance of doubt if it is well drafted and leaves no room for doubt. I do not believe that the offence, as drafted, leaves any room for doubt whatever.

The noble Lord’s intention is to protect free speech, which is an entirely desirable intent. But the proposed new law covers only conduct that is both threatening and intends to stir up hatred on the basis of sexual orientation. We then come to the question raised by the right reverend Prelate, who answered it very effectively. As my noble friend Lord Smith said, any move that was thought to water down what is contained in the Bill as it is might be taken as giving a green light to the sort of conduct that we do not wish to happen. If, as in this case, we seek to clarify rather than change the law, why would that be necessary?

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I know that, as there is a specific saving for freedom of expression in the religious hatred legislation, the absence of such a provision in the homophobic legislation might suggest to the police and others that they need not worry about freedom of expression in this context. I greatly admire my noble friend and must say to him that, if in my letter I am guilty of arrogance, I apologise. There was no intent on my part. All that I was seeking to suggest is that, although Parliament put that provision into that Bill, the Government did not think that it was necessary and we do not think that it is necessary in this Bill. I hope that that is not arrogance; I am simply expressing the Government’s view. My noble friend knows me. I would hate to be thought of as arrogant and I hope that noble Lords do not think that I am.

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