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Many might say that that is absolutely obvious and that such discussion cannot be seen as evidence of hatred any more than jokes with a sexual content can be. It may seem obvious to you and me, but it certainly was not obvious to the police who, after Lynette Burrows had doubted the wisdom of gay adoption on the radio, gave her a lecture on homophobia and noted her behaviour in police records. Nor was it

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obvious to the police who, after a city councillor had made a tame joke about transgenderism at a police public liaison meeting, interrogated him for two hours before letting him off with a caution.

That brings me to the question of guidance. Some may say that the whole matter can be dealt with by guidance, but I remind your Lordships that these abuses have happened while the police have been furnished with guidance-in particular, the 2007 CPS guidance on prosecuting cases of homophobic crime. Unfortunately, that guidance is so erroneous that one is tempted to conclude that the police acted not in spite of it but because of it. The guidance does not suggest that there may be legitimate comment on sexual practices; instead, it makes the bold assertion that homophobia does not necessarily mean hatred of gays but includes mere dislike of a person's behaviour. After going on to stress that a homophobic incident is any incident that is perceived to be such by any member of the public, not necessarily by anyone who feels victimised, it as good as encourages the police to investigate incidents that amount to no more than a member of the public complaining that someone else has had the temerity to criticise homosexual practices. There is no mystery as to why the Fleetwood couple came to be persecuted; the police followed the guidance-so the last thing on earth we want is more guidance like that.

1.15 pm

What is needed is what we have now; a statutory provision that says that one must not assume from mere discussion or criticism of sexual practice that there is an attempt to stir up hatred. One must look at the circumstances and the manner in which the words are spoken to see whether they were threatening and driven by hate. Back in 2007, Ben Summerskill of Stonewall told the committee considering the Criminal Justice and Immigration Bill that Stonewall,

Our free speech safeguard provides just that.

Finally-I say this in all seriousness and earnestness-if ever there was a time when events required the Government to make clear their commitment to free speech, it is right now when everyday free speech is assailed. They must surely know that if the safeguard is removed it will be taken, as Tom Harris MP said,

Instead of trying to get rid of this safeguard, the Government should declare boldly that letting people express their views, including views that other people may not like, is what a free society is all about. This clause must not stand part of the Bill.

Baroness Turner of Camden: I hope that my noble friend on the Front Bench will not agree with the noble Lord, Lord Waddington, and his colleagues that Clause 61 should not stand part of the Bill.

As we have heard, last year Parliament passed a new and important offence of incitement to hatred on the grounds of sexual orientation. That appears in the

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Criminal Justice and Immigration Act, although it has not yet become operable. It is very important because there has been some evidence of an increase in violent offences against gay and lesbian people. I believe that the police have reported a rise in the number of such offences, including a number of murders of gay men. Statistics for Greater Manchester in particular are extremely worrying.

There is also much homophobic material in circulation that is intended to inflame hatred against people because of their sexual orientation. It may be argued that some songs, for example, do not really mean very much-they are simply songs-but they emerge from a culture, mostly in the Caribbean, that is deeply homophobic and where violence and murders on such grounds are commonplace.

We have made considerable advances in recent years in our tolerance of sexual differences in orientation-with improvements in the law, civil partnerships and so on-but violent minorities still exist in our society. We do not want anything in legislation-any sort of loophole-that would encourage this. Last year, as the noble Lord, Lord Waddington, explained, an amendment was added to our legislation, in Section 29JA of the Public Order Act, which could provide such a loophole even though the movers of the amendment may not have intended this-and I am sure they did not. However, it could have a detrimental effect on gay people and it certainly stigmatises them. Moreover, it is quite unnecessary as the law we already have is meant to deal with incitement to violence. It does not prohibit the genuine expression of religious opinions or freedom of expression, to which the noble Lord, Lord Waddington, referred.

Clause 61, which had a substantial majority across all political parties in the other place, is meant to remove this because it is felt to stigmatise gay people and thereby provide incitement for some of the more extreme elements in our society. We do not want a society in which gay and lesbian people fear for their lives, as unfortunately occurs in some societies in other countries. In Iraq, for example, which now has a democracy, a leading cleric has called on his supporters to kill homosexuals, and to do so in the most cruel and degrading way possible. In this country, we have moved beyond that; we are humane and compassionate, and we do not want that kind of activity. We should not put forward anything that could give encouragement to the nastiest in our society who want that kind of extremism here. Therefore we should support Clause 61 and resist efforts to delete it from the Bill.

Baroness D'Souza: Even the most ardent proponent of freedom of expression will admit to the need for some restrictions under particular circumstances. What is always sought is a balance between competing rights. In this case the balance is between the fundamental and vital right to free speech and the right to remain free from discrimination and, indeed, insult. Even the international instruments themselves reveal contradictions. Thus, for example, Article 19 of the International Covenant on Civil and Political Rights allows for the widest possible interpretation of freedom of expression, while Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination in

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fact contradicts this. To answer this conundrum one needs to go into rather legalistic arguments, but perhaps the important question to ask here is this: does censorship in any form actually contribute to the reduction of so-called hate speech, or does the limit on free speech condemn hatred to the dangerous underground and perhaps lead to actual violence? This view is based on the belief inherent in democratic societies that ideas, views, perceptions, and indeed insult and hatred, are better dealt with by more, not fewer, words. Inevitable clashes in society can and must be discussed as the first step towards resolution.

Is censorship justified in the interests of equality and dignity of the individual? The answer here must be yes, but I would argue strongly that such restrictions must be very carefully weighed as to their effect on the values underlying free speech. First of all, speech must almost never be restricted on the basis of content alone, but on context.This I think is where the clause as it stands risks infringing legitimate expression. There are already on the statute book several laws that criminalise incitement to religious or gender-based hatred; and encouraging the commission of an offence is in itself an offence. The clause, however, is so worded as to create confusion not only for victims, but for perpetrators and importantly for those who police the law, and it is sufficiently broad to allow only guidance, but, I stress, not a guarantee-that is, a binding obligation-of free speech.

Some distinguished lawyers of first amendment rights have pointed out in landmark judgments that anything which might have a chilling effect on free speech is to be disallowed. Uncertainty as to what the law does or does not allow to be spoken-in this case, legitimate views on homosexuality-because of the fear of false allegations of homophobia undoubtedly exerts what, to my mind, is a chilling effect. To argue that the law should not interfere with anti-social speech or insult does not mean that free speech adherents are indifferent to the rights of minorities. To the contrary, they believe that freedom of expression is a vital right in the struggle to defeat discrimination, bigotry and intolerance.

We impose restrictions on free speech at our peril. We in this evolved democracy must be aware that individual rights are fragile and need constant vigilance for their protection. We would not be doing our duty in this House if we do not continue to insist on a free speech clause on the face of this Bill.

The Lord Bishop of Chichester: Last year, we were told that the Waddington amendment was unnecessary, and we are now told that its removal will not affect the threshold required for the offence to be made. In other words, it does not make much difference either way. That may be true, although I think it is arguable. However, the making and unmaking of laws has a symbolic significance going far beyond the strict letter of the law itself. This, after all, was the real justification for the necessary and welcome introduction of a specific criminalisation of incitement to hatred on the ground of sexual orientation. After all, the new offence was not strictly a new offence and it is unlikely to lead to the conviction of anyone who could not perfectly satisfactorily be convicted on the grounds of other

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laws already in force. The main point of what we did in this House and the other place last year was, importantly, symbolic rather than strictly necessary. However, it was important to send a clear and specific signal, and that is what the amendment to the Public Order Act did.

So, too, the Government's ill judged attempt today to omit the section inserted by your Lordships' House last year is primarily symbolic. Whatever the strictly logical position, and regardless of whether last year's amendment was strictly necessary, its removal now would be of huge symbolic significance. It would correctly be seen as lowering the level of protection afforded for legitimate debate about matters of profound social as well as personal importance. This is especially so when we see it alongside the continuing protection offered by the law in respect of freedom of discussion about religion. The parallel is bound to be drawn and people will ask why there is a difference.

Noble Lords will have their own take on the strictly legal case to be made for or against this amendment, but I do not think that we should be in any doubt but that its defeat would cause a shudder of fear in everyone who values freedom of speech and open discussion. It is not always easy to balance freedoms-or indeed rights, as the noble Baroness, Lady D'Souza, said-but that is what is really at stake in the debate.

1.30 pm

Lord Lester of Herne Hill: First, may I say how heartened I am that the Leader of the Conservative Party has apologised on behalf of his party for Clause 28 and the symbolic and other damage it did? It is very encouraging that the main Opposition party has taken that position. Secondly, I do not suppose any of us has to make claims about their commitment to anything in particular, but like the noble Baroness, Lady D'Souza, I can say that I have spent the whole of my professional life fighting for two main values: first, freedom of speech and, secondly, equality, including human dignity. I am in perfect agreement with the right reverend Prelate that whatever we do today will have symbolic significance. Whether it is huge and generates a shudder of fear is perhaps hyperbole, but I agree that symbols matter.

I speak as a member of the Joint Committee on Human Rights, which has looked at this issue not once, but twice, and is composed of members of all parties as well as none. On each occasion it decided that the free speech protection of the law, as it will be if we pass this clause and reject the Motion, is perfectly adequate. Since no one else has yet done so, perhaps I may try to explain the relevant background and why I believe that we should firmly reject the Motion of the noble Lord, Lord Waddington. The law we have now distinguishes between incitement to racial hatred on the one hand and incitement to religious or homophobic hatred on the other. Where race is concerned, it is an offence to use insulting, abusive or threatening language-there is no requirement of specific intent to stir up hatred-if,

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That is wrong. I do not like speech offences of any kind. Indeed, my old boss Roy Jenkins and I erred when we allowed the race hate offence to be as wide as that, but it is too late to reverse it these days. So that is incitement to race hate, a broadly drawn criminal offence which does not even require specific intent.

The offence is much narrower in relation to religious and homophobic hatred. The language used has to be threatening, not merely insulting or abusive, and there has to be an intention to stir up religious or homophobic hatred. In addition, both religious and homophobic hatred have, at the moment, a savings clause, which I shall come to. The reason why this House and the other place made a distinction between race and religion in the Racial and Religious Hatred Act-with the support of the Bishops, as I recall, for which we were most grateful-is that a verbal attack on members of a racial group is an attack on their common humanity, their inheritance and their birthright, which are fixed and immutable. But a verbal attack on a member of a religious group-not because of their group identity but expressing intemperate criticism of, or hostility to, the beliefs, teachings or practices of their religion-is not an attack on their common humanity unless in reality it involves an attack on their ethnicity, their origin and their biology, as so often happens with British Muslims, who are really being attacked for ethnic reasons in disguise.

Religion and belief are concepts that defy precise legal definition. They concern matters of faith and philosophy and are strongly influenced by history and politics and by tradition and culture. The line separating religious beliefs from political beliefs is often blurred, not least because religion is often used and misused for political purposes. The distinction between stirring up hatred of someone because of his religious beliefs and expressing hatred of those beliefs or practices in the abstract is quite subtle. So this House has decided, as has the other House, that the law protects religious believers against deliberate intimidation, threats of violence and intimidation, but it does not protect the actual beliefs and practices from abusive and insulting criticism.

The need for writers and artists to be able to criticise and ridicule religious beliefs and practices is the reason why I drafted what is referred to as the "English PEN clause", which prevents thin-skinned people from trying to use the criminal law to stop an attack on religious beliefs and practices which does not amount to the use of threatening language against individuals. I was responsible for that and the House overwhelmingly supported it.

The question is: where should homophobic hatred be placed on this scale? Should it be more like race or more like religion? Even though, in my view, sexual orientation, being an immutable characteristic, is more like race, I am pleased that the Government chose to put homophobic hatred in the same place as religion, leaving a large space for free speech. They chose to criminalise only that which deliberately stirs up hate and only that which uses threatening language-not insulting or abusive language-leaving a person completely free, however unpleasant and evil it may be, to insult someone because they disapprove of homosexuality.

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Because the offence is crafted so narrowly and already leaves fully adequate protection for free speech, there is no need for any additional savings clause. Discussion of sexual orientation, however unpleasant and offensive, does not entail the same controversy as religion where, as I have said, there is a need for an express free speech clause.

There have been some controversial police actions in relation to the other harassment provisions of the Public Order Act in which the police, trying to shake off their old homophobic image perhaps, have been overzealous in investigating claims of homophobia-for example, in relation to comments by Sir Iqbal Sacranie, the former secretary-general of the Muslim Council of Britain, or the evangelical Christian literature distributed by a retired Lancashire couple. However, it is clear that the specific homophobic hate speech offence does not criminalise such words, behaviour or writing unless they are threatening and intended to stir up hate.

The unanimous view-a unanimous view taken not once but twice-of the Select Committee, with its legal advisers and including, for example, the noble Earl, Lord Onslow, and two Conservative Members of Parliament, so it is not a party matter, is that there are adequate free speech safeguards. I fully agree with the principles referred to by the noble Baroness, Lady D'Souza; the question is how they are to be applied in practice. The removal of Section 29JA would not result in jokes involving gay people being outlawed or prevent the expression of opposition to same-sex relationships where the discussion does not amount to threatening language with intent to stir up hate. It would categorically not impede genuine freedom of expression.

However, there is real concern among the vulnerable gay and lesbian community that Section 29JA creates a legal loophole which could enable extremists to stir up hatred and attempt to avoid prosecution for words or actions that were deliberately meant to foment hatred. That concern is at least as great as the fear referred to by the right reverend Prelate.

I hope that the Committee will accept the view of the Joint Committee. For what it is worth, my own view is that if the speech crime were to be interpreted over-broadly, I have no doubt whatever that the courts, looking at the Human Rights Act which requires them to interpret every statute, including this one, in accordance with Article 10 of the European Convention on Human Rights, would again ensure that a case was not brought.

The problem I have about the specific language we are being asked to keep is that it seems entirely superfluous. Section 29JA states that,

I ask rhetorically: how could any reasonable person possibly believe that the discussion or criticism of sexual conduct or practices, or urging people to refrain from or modify their conduct or practices, could be regarded as threatening or as intended to stir up hatred? Of course they could not. Therefore, this is an otiose provision.

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Lord Tebbit: I am grateful to the noble Lord, but he has already explained that perfectly reasonable police officers have interpreted it in exactly that way and have arrested and detained people for behaving and speaking in a way which the noble Lord says no one could possibly misunderstand. But they did and it has happened.

Lord Lester of Herne Hill: Of course the noble Lord, Lord Tebbit, is right. There are idiots in all quarters. If police officers abuse their discretion in a particular way and interpret the law unlawfully, they will be vulnerable to disciplinary action, legal action and so on. But we cannot legislate on the basis of what some people have done in misunderstanding the law. The law is perfectly clear, as I have said, and there is no need for us to put in something which I regard as an oxymoron, or otiose, or both.

Lord Elton: When the noble Lord read out the passage with which we are all concerned, he should have emphasised the words "of itself". Section 29JA states that,

That surely is the protection that we need. It means that if you say something which is offensive to someone, it is not of itself threatening unless you do it in a manner or under circumstances which make it so. That is all that this is intended to achieve. It is exactly what my noble friend intends it to do and I hope your Lordships will support him.

Lord Lester of Herne Hill: I am grateful to the noble Lord, Lord Elton. It is precisely the words "of itself" that create something completely unnecessary. No sensible person could possibly believe that, of itself, discussion or criticism of sexual conduct or practices could be regarded as threatening. That is why, unlike the English PEN clause in the religious context, neither I nor the Joint Committee regard this as being in any way necessary. On the contrary, it creates confusion rather than certainty.

Lord Anderson of Swansea: The noble Lord has made some rather interesting-

Lord Elton: May I just finish the point? The noble Lord, Lord Lester, said that no reasonable people could interpret it that way. Does he think that the people who wrote the guidance to the police that my noble friend read out were reasonable?

Lord Lester of Herne Hill: I have no idea. I dare say that the guidance can be improved in all kinds of ways. We are concerned not with guidance but with the law of the land.

Lord Anderson of Swansea: As always, the noble Lord has made some interesting distinctions, but in my judgment he has not dealt with the powerful point made by the noble Baroness, Lady D'Souza, about the chilling effect of the removal of the section on the protection of freedom of speech, nor the right reverend Prelate's point about the symbolic effect of removing

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the section. I, too, am rather puzzled by the response of the Government; it is as if there were some urgency to remove the section. I wonder where the pressure is coming from for Clause 61 to repeal the free-speech protection. I detect no sense of burning public anger in favour of this. Certainly, many are concerned about the effect on freedom of speech, many of whom admire the Government's record on freedom of speech in other spheres.

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