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Gay rights supporters are divided. Matthew Parris has already been cited by the noble Lord, Lord Waddington. The only major pressure appears to come from Stonewall. That organisation has done some significant work to enhance the dignity of gay people, but surely the Government are not bound to accept its entire agenda. In fact, there must be little of that agenda left now. It is but a lobby, and the Government should have a wider perspective. In passing, I consider the malign effects of accepting Stonewall's view on Christian adoption agencies. It was predictable, and it was predicted, that it would have those malign effects on some of the most caring adoption agencies in the country. The effect of the Equality Act (Sexual Orientation) Regulations 2007 has been that most of the 14 agencies, mostly Roman Catholic, have been forced either to withdraw from adoption services entirely or to abandon their religious ethos to continue. The result has been a victory for political correctness and defeat for vulnerable children and common sense.

The Waddington amendment, in my judgment, is moderately drafted, avoids doubt and in no way raises the threshold. The real problem of the repeal of this protection is that it will stifle honest expression of opinion-the so-called "chilling effect". Official guidance will not solve the problem; it does not have the force of law. The protection should be in the Bill. Guidance can be modified or withdrawn, and the current guidance is extremely weak. The noble Lord, Lord Waddington, has already cited paragraph 3.10 of the CPS guidance on prosecution, dated July 2007.

Some will say that there is no real problem; after all, there is a longstop in the fiat of the Attorney-General, who must sanction any prosecution. It is said that that is a powerful protection. The certainty, though, is that it will take time for any investigation to reach the Attorney-General, from the complaint to the police investigation to consideration by the Crown Prosecution Service. In the mean time-there are many examples of this-decent, law-abiding citizens will be in fear and dread as a result of that perhaps quite protracted investigation.

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There is no doubt, from experience, that oversensitive zealots will make complaints about, at the very least, provocation. In April this year, for example, a gentleman, Mr Kwabena Peat, was suspended from his senior teaching job for complaining that the staff INSET day was used to promote homosexual lifestyles. In 2006 a Member of the Scottish Parliament complained after a sermon by the Roman Catholic Archbishop of Glasgow, who had stood in favour of the institution of marriage and against civil partnerships.

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In a more recent example, on Monday 6 July the Independent reported that since the right reverend Prelate the Bishop of Rochester made his statement, with which some may or may not agree, he has been accused of pandering to hate and homophobia after calling on homosexuals to repent:

"Sharon Ferguson, of the Lesbian and Gay Christian Movement, condemned Dr Nazir-Ali for making comments that she said would encourage hatred".

That is the problem: she has made the allegation that what he said would encourage hatred. No doubt, if she were to pass that to a sympathetic police officer, it would shortly be investigated. Ultimately, of course, it would not proceed because either the CPS or the Attorney-General would stop it. I am confident that the right reverend Prelate is sufficiently robust to withstand the anxiety during any possible period of investigation; I am less confident about ordinary law-abiding citizens who will have to suffer the trauma of that period of investigation.

In my judgment, the clause provides clear and necessary guidance. It follows the precedent of the religious hatred law, and it should be retained if, as the noble Baroness has said, we value and give proper weight to free speech.

Lord Dear: As one of the four Members of the Committee opposing the Question that Clause 61 stand part of the Bill, I accordingly support the continuation of what is now generally referred to as the Waddington amendment, which was agreed by your Lordships about 12 months ago. I need to make a number of points immediately.

Like probably everyone in your Lordships' House, I do not hold anti-homosexual views, nor do I advance them; in fact, I abhor homophobia. I fervently believe in a tolerant society but I also agree with freedom of expression within the law, and it is that phrase "within the law" that concerns much of what we are dealing with today.

There is no direct case law to help us. Yet if one examines the long line of cases that start with Beatty v Gilbanks in 1882-I will give the Hansard writers the references later-which was the Salvation Army case, all the way through to the great review of the law in this area, Redmond-Bate v DPP in 1999, one sees a consistent guide that where the right of public expression of view has been challenged in the courts, the issue of reasonableness has been at the forefront of the minds of the judges.

If I may be allowed a reminiscence just for a moment to make a point, I recall a time in the late 1970s-perhaps it was the late 1980s-when, as a fairly senior police officer, I was often involved with the policing of large demonstrations and marches, some of them in those days very large indeed. I remember sitting at home watching the evening television news which showed yet another march wending its way slowly through some street or other in yet another city, the marchers flanked intermittently by uniformed police officers. My young daughter, watching this, turned to me and asked, "Daddy, why are policemen always demonstrating?". I had then to explain in simple terms, as we shall explore later on, what concerns us today-that

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there is a right within the law to demonstrate beliefs and views within reasonable bounds, and that it is the duty of the police to allow that to happen.

As I said previously, we are dealing with finely balanced judgments of what might or might not cause offence. The circumstances of Redmond-Bate in 1999 are particularly interesting and bear closely on the circumstances at which we are looking today. In 1997, three women were preaching from the steps of Wakefield Cathedral. They were described as fundamentalist Christians. They attracted a crowd of around 100, some of whom took exception to the views being expressed and became hostile. A police constable asked the women to stop preaching and, when they refused, he arrested them for breach of the peace and subsequently charged one of them further with police obstruction. The appellant, one of the three women arrested, was convicted by the magistrates and her appeal to the Crown Court was dismissed.

But in 1999, two years later, at the Queen's Bench Division, Lord Justice Sedley and his fellow judge took a very different view and allowed the appeal, holding that the women had not acted unlawfully. The judgment in that case is interesting because it reviewed the whole scope of the law at that time and not much has changed since.

Lord Justice Sedley made a number of particularly relevant points in his judgment. He cited Articles 9 and 10 of the European Convention on Human Rights, especially Article 9.2, which states:

"Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law"-

I ask noble Lords to note what comes next-

In other words, mere annoyance or disagreement with those views is not enough.

Article 10.1 states:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority".

Continuing to review the case law in that case, and the arguments adduced by counsel, the judge said this-and it is particularly telling:

"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers' Corner ... demonstrates is the tolerance ... extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modem writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power".

What a long way we seem to have come since those words were spoken 10 years ago.

Many Members of your Lordships' House are better experienced and better qualified than me to develop an argument from case law, and I fully appreciate that nothing that I have said can ignore the fact the Parliament can legislate pretty much as it likes and that the material that I have quoted is only persuasive-

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Lord Lester of Herne Hill: I wonder whether the noble Lord appreciates that the whole of what Sir Stephen Sedley said is something which I, certainly, and, I am sure, others like me completely endorse. That, I think, is common ground.

Lord Dear: I am grateful to the noble Lord.

As my young daughter noticed all those years ago, the police are always likely to be present in those circumstances and to be drawn willy-nilly into the arguments. I brought in that reminiscence to ask where the police stand in this.

Prior to your Lordships' House approving the Waddington amendment a year ago, the police and the prosecuting authorities were, frankly, between a rock and a hard place. There was never any question then, nor is there now or will be in the future, that behaviour would be tolerated if it was offensive, aggressive, threatening or demeaning, and that the police would, should and will act accordingly to uphold the law. However, prior to the Waddington amendment, the police regularly received complaints from homosexual groups that exception was taken to remarks that homosexuality was deplored on religious grounds. The police were forced to act. They operated, as we have already heard alluded to, against a background of the Home Office's guidance notes on how to handle hate crime under the Public Order Act 1986, to which the issue of sexual orientation was added by the Criminal Justice and Immigration Act 2008. The so-called guidance notes in fact required rigid adherence. Any complaint of hate crime, by whomsoever made, even a bystander, had to be recorded as such and fully investigated. No exercise of discretion was countenanced. Accordingly, the police, and later the CPS, when faced with a complaint concerning remarks about sexual orientation, would follow the Home Office's guidance notes, go through the whole procedure of interview, sometimes following arrest-fingerprinting, taking DNA samples, police bail, sometimes charge-even though pretty well everyone in the official process knew that there was little or no chance of a prosecution, much less a conviction, following.

What a waste of time, what a waste of money and resources, and what a terrible burden to place on the person being arrested or interviewed, often waiting months for an outcome that was obvious to everyone except them. In many cases, the tactics were obvious: a complaint from a pressure group, police pressured into action with an implied threat of a complaint against them for neglect if a full investigation was not carried out and the inevitable chilling effect, about which we have heard already, on others who might be tempted to protest similarly in the future. In short, it was a very successful tactic to limit freedom of speech and freedom of expression.

Perhaps the most important question of all is what has happened since the Waddington amendment a year ago. Despite intensive research, I cannot trace a single instance of police intervention during that time in these circumstances. So what is the official response from the Association of Chief Police Officers? Well, there is no official response, a stance that I applaud because noble Lords will remember, as I do, ACPO a

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few years ago having its fingers burned when it intervened publicly in two separate debates concerning proposed legislation. Since then it has sensibly kept its head below the legislative parapet. However, my recent discussions privately with senior ACPO figures, including those most closely involved with issues of this nature, reveal two facts critical to our debate today: first, not only has ACPO not declared an official stance but it has not given an unofficial view in any quarter; secondly, it would much prefer to see the defeat of Clause 61 and the continuation of the Waddington amendment. The reasons given to me for this are simple and perhaps obvious. With the Waddington amendment in place, the police are released from the virtual straitjacket imposed on them previously; they can exercise common sense and good judgment on the day; and they can police with the light touch which is so often sought and required by society.

I have said enough perhaps. This clause denies any exercise of common sense, balance or discretion; it seeks to prevent reasonable expression; it is legally and jurisprudentially stifling; and it will serve no purpose but to return us to the wholly unsatisfactory state of affairs that existed a little over 12 months ago.

2 pm

Baroness Massey of Darwen: I have been somewhat intimidated by the Bill. It has tremendous scope, covering many emotive issues. I am not a policeman or a lawyer; I am not interested in political correctness; but I am interested in the welfare of society at large. The amendment to remove Clause 61 seems so fraught with unintended consequences that I feel moved to speak. Some have talked of symbolic significance; I want to talk about unintended consequences. I cannot believe that the movers of the amendment would wish to see unintended consequences or any section of society punished by anything that they may support.

Let me set out very briefly what I think the dangers are. The proposal opens the door to the possibility of discrimination, bullying and mistreatment of lesbians and gay men. That may not be the intention, but that is what it may do. We need to retain Clause 61. The issue is not the protection of free speech; this is not in jeopardy, nor is the issue of the rights and wrongs of an offence of incitement to hatred on the grounds of sexual orientation, which was agreed by both Houses last year. The question is whether the retention of the exemption brought forward last year is appropriate. I suggest that it is not.

Two arguments have been put forward-first, that the section is necessary to protect religious expression and, secondly, that the section has no real effect but cannot do any harm. The first argument is just not so. No person of faith, in a temperate expression of their beliefs, could be deemed to be intentionally stirring up hatred. The Crown Prosecution Service or a magistrates' court would simply not accept this. The second argument is very odd. It is suggested that the section which was added to the law simply sends a reassuring message to certain people that something never caught by this law and that they have never been prevented from doing may continue.

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The exemption would have an effect. It would have a stigmatising effect on lesbian and gay people in this country. It offers extremists who would stir up hatred against lesbian and gay people a defence for their actions. This is what I mean by unintended consequences, and I hope that noble Lords proposing the amendment will consider this effect. Lesbians and gay men are also law-abiding citizens, and they say that legal niceties can be twisted to harm them. I have read and know of excruciating stories from young men and women who are homosexual. Some have been driven to suicide by taunts; many have suffered depression; and many are afraid to go to school because of homophobic bullying. Many are living in fear and dread.

I am a patron of an organisation called Families and Friends of Lesbians and Gays, founded by and for parents of children who are lesbian or gay. Many of these parents have openly said that they had never thought about sexual orientation or had actually been prejudiced against homosexuality until their son or daughter declared that they were lesbian or gay. These parents are now aware of the difficulties that their sons or daughters face, and of how brave they, as families, have to be to combat hatred and discrimination.

People do suffer; there are unintended consequences of what we do. Clause 61 provides some defence for people. It must not be removed. Any unintended consequences of an amendment about sexual conduct and practices that could result in threat and misery must be resisted. This House should not send out this kind of message. I support Clause 61 and will vote against attempts to remove it. I beg those who oppose the clause standing part of the Bill to consider what I have said about unintended consequences, and I beg the House to reject the proposal and support the retention of Clause 61.

Lord Williamson of Horton: I support the proposal of the noble Lord, Lord Waddington. I shall be very brief in view of the hour, but I shall make three points. First, we are not discussing the basic protection that the law rightly provides for our citizens against harassment, danger or stirring up hatred on grounds of race, religion or sexual preference. That is right and is unchanged. We are discussing the Government's proposal to remove one article-the free speech clause-from the Public Order Act, which states that certain actions are not to be taken as threatening or intended to stir up hatred.

I am surprised to find this proposal in this Bill. Parliament decided very recently, after a full discussion in this House and with the agreement of the House of Commons to put this article in the law. The Government can always propose to amend legislation, but in my view very strong reasons are needed to propose the selective change of legislation of such recent date. I do not see those reasons; on the contrary, it is clear that some of our citizens, particularly those who are Christians and in Christian groups, believe that the article offers them some protection against harassment. The public, the police and the courts are entitled to look for some stability in legislation.

Over the past week, the Minister has frequently criticised amendments as inappropriate to the Bill or to its twin brother, the Policing and Crime Bill. That

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argument goes both ways; the Clause 61 proposal is simply slipped in among clauses on the coroner's services and issues such as assisted suicide, the law of murder, the defence of provocation, infanticide, pornography, prostitution, conspiracy and terrorist offences. There it is, all by itself. We do not deal with finance in this House, so I know nothing about stealth taxes, but this looks a little like stealth legislation.

Even with no account taken of Brussels, we are none the less bombarded with home-baked legislation-some of it half-baked, of course-that is difficult enough to understand. It really is surprising that in these circumstances the Government have decided to seek to remove this one article on free speech. Clause 61 is not necessary and should be dropped. Yesterday, we discussed the Independent Parliamentary Standards Authority. The Government proposed Clause 10, which would have restricted free speech in the other House; the other House voted against it and struck it out. This seems to be the week of the Government against free speech and, in those circumstances, we should maintain the free speech provision in the law. I support the proposal of the noble Lord, Lord Waddington.

The Lord Bishop of Winchester: I, too, support the amendment moved by the noble Lord, Lord Waddington. My name is the fourth name to it. I apologise to your Lordships that I was not here for the first few speeches; the time that I was away was the only time that the noble Lord, Lord West, could give me to pursue questions arising from one that I asked in your Lordships' House a few weeks ago. I was unsuccessful in being in two places at once.

The proposal of the noble Lord, Lord Waddington, and the clause that it seems to hold within the law are necessary and proportionate. I must tell the noble Baroness that I have heard nobody responsible for this amendment say either that it will have no real effect or that it cannot do any harm. I am sure that we would not be troubling your Lordships if we held either of those views. I believe that it will have effect if the clause stays and will do some good for precisely the reasons that the noble Lord, Lord Dear, so magisterially laid out. The chilling effect on the way to a decision by the Attorney-General is potentially, and in some cases actually, very substantial.

The clause is modest in its content; yes, it is declaratory, but we have heard from other speeches why it needs to be so. It needs to make it crystal clear that it does not defend any language or behaviour that is intended to stir up hatred or may result in doing so. I believe that it has potentially and, already actually, good effects, and that it does good.

The question that we are facing in this debate is accurately described as one of free speech. What is at stake is whether your Lordships' House and this Parliament intend to outlaw open discussion and teaching, not just among Christians but among others, of views that differ from the currently dominant political orthodoxy, and therefore privilege, in the face of others, that currently dominant orthodoxy. To be explicit, I mean the orthodoxy that sexual preference is as innate and fixed as ethnicity, and that sexual preference or orientation is more akin to ethnicity than to religious belief. That is the current political orthodoxy that lies behind the

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Government's Clause 61. People of all sorts in this country need to be assured, peaceably and quietly, whether on street corners, in churches, mosques, synagogues or wherever, that they are free to express views that others may strongly disagree with but which question the current dominant political orthodoxy.

Lord Lester of Herne Hill: The right reverend Prelate had the good fortune not to hear what I had to say. I first reassure him that I believe everything he just said to be amply protected by the law. Secondly, although he refers to what he calls "current political orthodoxy", surely even a Lord Spiritual would accept that there is scientific evidence to show that the reason why people are gay is innate and not to do with some kind of personal choice.

The Lord Bishop of Winchester: No. My own studies, which I suspect are comparable to that of the noble Lord in these matters, suggest that that is the case for some of those who understand themselves to be gay but for others it may not be. Substantial scientific, psychological and medical research points to the statement that I made a moment ago. That is why I say that this question is by no means settled. To pass law on the assumption that we can use the language of sexual orientation and believe that we are talking about something that is absolutely fixed and clear, as ethnicity might be thought to be, is a mistaken political orthodoxy.

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