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I can draw only one conclusion from the insertion of Clause 61-a conclusion that for me is sadly reinforced by the behaviour of your Lordships' House and the Government over sexual orientation regulations, as the noble Lord, Lord Anderson, graphically described. I will not go into that except to say that Parliament was unnecessarily and aggressively pursuing Roman Catholic adoption agencies. That kind of experience leads me to read Clause 61 with considerable anxiety. That is all the more so when I read the Equality Bill now before the other place. It seems that the Government believe that others' rights trump those of people of faith when there appears to be some tension between the two.

If that is the case, it would be curious in the present day that a range of individuals and groups in this country, Christians among them, rather than the Government and the lobby groups, are seeking to defend a free market in religious and other ideas and the publishing of a range of scientific research. Again, as the noble Lord, Lord Anderson, suggested, it begins to look as if, curiously, at the beginning of the 21st century, Stonewall is being permitted to become the Archbishop Laud of our time. I hope that the House will recognise the implications of Clause 61 and vote with the noble Lord, Lord Waddington, for its removal.

2.15 pm

Lord Davies of Coity: It was not my intention to speak, but I have been encouraged by my two noble friends Lady Turner and Lady Massey. I shall be going through the Lobby with the noble Lord, Lord Waddington, because I believe that his approach is to reinforce freedom of speech and not to encourage murder and the incitement of hatred. The cornerstone of our democracy is freedom of speech. I am reminded

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of what an eminent politician said years and years ago. I paraphrase: "I may be bitterly opposed to what someone says, but I will fight ferociously for him to have the right to say it". I believe that to be true today.

Baroness Howarth of Breckland: I do not have a carefully constructed speech as I was not sure that I would speak at all today. The one group which will find this debate chilling is the gay community. Let us just take our arguments one at a time. I had not intended to speak so I take them steadily.

We are not talking about anything that would result in jokes involving gay people or that a gay person might consider offensive being outlawed. This would certainly not impede genuine freedom of religious expression. As a woman of faith, I would gladly engage in a theological discussion with the Church about the basis of the present discussion on the background of homosexuality. If we took that theological discussion to its extreme, we would stone adulterers in the streets and carry on all the practices in the Old Testament. Christ said, "You may say in law an eye and a tooth for a tooth, but I say unto you love the Lord your God and your neighbour as yourself". We are talking about some of our neighbours.

I am a great advocate of free speech. I believe in free speech and I stand up for free speech. That is why it is good that we have this debate on record, because the police have to be absolutely clear that gay people may be upset by what is said. They may challenge what is said, and the police have to get it right. I know that professionals do not get it right all the time-after all, I am a social worker and we get it wrong, as we see in the press, most of the time. Social workers, lawyers and the police will get it wrong from time to time and we should understand that. It is then up to the Crown Prosecution Service and other services to oversee us, and we know that they do that substantially in other areas. We heard that in the debate about assisted dying this week. We know that considerations are made all along the road, so we have to make sure that we get that right. We have it now in Hansard that we do not expect jokes and bits of free speech to result in prosecution.

However, this is about something quite different. It is about the incitement to do damage to people who are gay or lesbian. During the past few days, there have been a number of debates on the Floor of this House reflecting our thinking about public behaviour. I agree absolutely with the Bishops' Bench that this will send a message to the community. It will send a message to the gay community that it is not valued, because we are prepared to have, on the face of the Bill, something that it finds deeply offensive and which would not stop free speech.

Would noble Lords include in the Bill something that said it was all right to use threatening language intended to stir up hatred against black people? That would be called racism, but it is exactly what noble Lords are suggesting happens here. On the face of this Bill you have something that is called free speech, but is in fact prepared to allow incitement to hatred.

I say all this because it is not really understood how deeply gay people feel this in terms of the offensiveness involved and the way it demeans their lives. They may

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well not be acceptable to many people in this House: you may not believe that people who feel that they are gay or lesbian are real human beings-are men and women; you may believe that they may have some sort of disease that could be cured and that research may show that. That is a deeply offensive position to take against gay and lesbian people, just as this clause stands on the statute book. I therefore stand with the Government and reject the Waddington amendment.

Lord Monson: Is the noble Baroness aware that Peter Tatchell, Matthew Parris and other prominent homosexuals oppose Clause 61?

Baroness Howarth of Breckland: I am speaking not for them but for myself and the people I know.

Lord Low of Dalston: I apologise to my noble friend Lord Dear; I did not intend to come between your Lordships and the extremely authoritative speech that he treated us to.

I do not intend, particularly at this late hour, to intervene at any length, but I have a question and I wonder whether the noble Lord, Lord Lester, might be able to help me with it. It seems clear to me that all of us in this Committee share a presumption in favour of free speech. The noble Lord, Lord Lester of Herne Hill, made it clear that he shared that presumption and in particular that he endorsed entirely the remarks of Sir Stephen Sedley, which were cited. In his exceptionally helpful speech, the noble Lord sought to show us that the present law struck the right balance between the rights of free speech and the protection of gay people, because the offence was sufficiently narrowly targeted to leave space for people to express even disagreeable opinions about gay and lesbian people. The noble Baroness, Lady Howarth, failed to appreciate that distinction when she said that remarks that would be regarded as incitement to racial hatred should be treated in exactly the same way with respect to-

Baroness Howarth of Breckland: That is exactly the distinction that I made. I clearly said that many people may find it offensive to hear some of the issues, but that does not necessarily make it an offence.

Lord Low of Dalston: I apologise if I did not hear the noble Baroness correctly. I shall proceed with my question. The noble Lord, Lord Lester, helpfully tried to show us how the law struck the right balance. He was a little undercut by the noble Baroness, Lady Massey, who supported his position, but who I thought showed fairly convincingly that the law was not actually protecting gay people in the way that the noble Lord, Lord Lester, sought to show us it was perfectly adequate to do.

I wish to deal with the characterisation of the current legal position given by the noble Lord, Lord Lester. The noble Lord sought to assure us that the present law was perfectly adequate to protect gay and lesbian people and that the problem with the Waddington amendment was that it would leave lesbian and gay people feeling fearful for their position because people would use the Waddington amendment to conduct all

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sorts of scurrilous and abusive attacks on lesbian and gay people, such as were calculated to incite hatred, and they would do that under the cover of the Waddington amendment.

I have two questions that I should like the noble Lord to help me with in relation to that, if I have characterised his presentation of the situation correctly. My first question is whether there is any evidence that the Waddington amendment-I know that we have not had a great length of time-has had that effect in the past year. Does it appear to have given rise to a rash of the kind of attacks that the noble Lord told us lesbian and gay people might be fearful of? My more fundamental question is: if it is the case that the present law gives lesbian and gay people perfectly adequate protection, what can they possibly have to fear from the Waddington amendment? If the present law is adequate, how can their fear that the amendment will act as a cloak and cover for scurrilous attacks that have a tendency to incite hatred possibly be justified?

Lord Lester of Herne Hill: The noble Lord, Lord Low, asks extremely difficult questions and I am not able to give an answer that he would find satisfactory. Before I try to answer them, I must say that I am a liberal with a small "l", and therefore I fully understand that the spirit of liberty is one which respects the views of everybody else and I only interfere with free speech where it is absolutely necessary and in very narrow circumstances. I believe that to be true of almost everybody who has spoken today. We are then talking entirely about the balance to be struck and the symbols that will be sent out by whichever way the vote goes this afternoon.

The noble Lord asks me whether there is evidence to show that what is called the Waddington amendment has done harm. I cannot answer that question, but the question I can answer is whether there have been many homophobic physical and other attacks in recent years and months, and the answer is yes there have, but whether they are causally related to the Waddington amendment I would not dare to try to guess, because I do not know how one would be able to prove that one way or the other. The second question is whether gay people have adequate protection under the law as it now stands. They do. They have protection under the civil law against discrimination and harassment, just as people have protection under the law against religious harassment and discrimination. They have protection under the criminal law against threatening words. They have less protection under criminal law than black people do, because black people are protected on a very broad basis; gay people are protected on a much narrower basis, but it is enough. I am not suggesting that any greater protection be given.

The real debate is about symbols. What message will be given if we go one way or the other? The message that will be given by those in favour of the Waddington amendment-we are dealing with irrational matters on both sides-will be that the House has reverted to a position it took 15 years ago and is somewhat homophobic. That may be quite unfair, but that will be the message. The message the other way, equally unfair, may be that the House is taking a different view.

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We are dealing with symbols. It is very unsatisfactory that that is so, but it has been symbolised by the right reverend Prelate's speech, with which I respectfully do not agree-but I respect his position utterly, as I respect freedom of religion. I have not really answered the question because I do not think that there is a clear answer.

Baroness Butler-Sloss: I should like to make two very short points. First, thinking about unexpected outcomes, I was interested to hear from the noble Lord, Lord Waddington, that he had discussed the original proposal which became the Waddington amendment with Ben Summerskill of Stonewall.

Lord Waddington: I would not like to give that impression. I was quoting from what Ben Summerskill said when giving evidence before the committee on the Bill in 2007. During that hearing, he said that he would not object to something being in the Bill that made clear the importance of freedom of expression.

2.30 pm

Baroness Butler-Sloss: I apologise to the Committee for my inaccurate understanding of what was said by the noble Lord, Lord Waddington, but his point seems equally valid. So is the recent comment that Matthew Parris and someone else, I think, saw no outcome for homosexuals from the proposed keeping in law-not making new law-of what was the Waddington amendment. Consequently, it does not appear that there is strong opposition from well known gay people to this modest freedom of speech.

The second point seems terribly important. I endorse what the noble Lord, Lord Dear, said about the police being in difficulties. What would be the message to the police from this House if they were in difficulties from the guidance, and from their obligation to take seriously and deal with each possibly malicious or possibly genuine but unneeded application to them to do something? I mean the sort of referral to the police that would not get to the courts, that would not be given the Attorney-General's fiat, and that the courts would knock down. But it is not at the courts that it matters. It matters at the point of reference to the police-the need of the police to deal with it. Because the law was changed and accepted by the House of Commons, in the last year the police have known where they stood. What are they to understand if we then get rid of the Waddington amendment and keep the guidance? Are they then to act, possibly arrest and certainly interview perfectly respectable people who do not agree with what most of us in this Committee agree, I hope-that gay and lesbian people, among whom we all have friends, have equal rights to absolutely everything? The police will have to deal with the issue.

That is the symbolic message that will go beyond symbolism and into a difficult position both for the police and for Christians, Muslims and Jews who follow the Old Testament and speak out about what they feel. It is important that the Committee reflects on that. For that reason, I will support the noble Lord, Lord Waddington.

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Lord Thomas of Gresford: I shall vote with the Government today. I have the greatest respect for the noble Lord, Lord Waddington, and those who have spoken in favour of his amendment. However, my professional experience has led me to realise the dangers of homophobia. I recall many years ago a spate of homophobic attacks in Chester; I was involved in the prosecution of a person who had stabbed a young man simply because he believed that he was homosexual. I have never forgotten what he said to the police about it. He said, "I heard him giggling, so I knew he was a queer", and he killed him. Very much more recently I was involved, on the other side, in a case in which a young man perfectly innocently walking on Clapham Common was attacked by two men and killed.

What lay behind both those incidents was the way people talked among themselves and worked themselves up. When I hear that the opposition to the clause is put forward on the basis of free speech, so that people can criticise such behaviour, I think that it is far removed from the defence of homosexual people that this country needs. I fear that the removal of the section is necessary. Opposing the clause would give a signal; it would be not about enabling people to talk in terms of, "I don't like homosexuals", but about them talking together and working themselves up into attacking and killing people. That is why I shall vote with the Government. However, we are not whipped on this vote, and my colleagues can disagree with me if they wish.

Lord Tebbit: Almost all that was necessary to be said today was said by the noble and learned Baroness, Lady Butler-Sloss. In my own way, I will turn from the generality of what she said to a more specific case. In his original speech, the noble Lord, Lord Lester, made some perhaps less than kind remarks about the intellectual capacity of certain police officers in relation to one incident that had been cited. We have now heard, of course, that a lady has complained-in general, and not to the police-about the words spoken by the right reverend Prelate the Bishop of Rochester. As the law stands at the moment, if that lady were to go to the police, any sensible police officer could say, "Well, yes, my dear, I hear what you say, but it is clear that no offence was committed". However, if the Government succeed and the Waddington amendment is removed, the police officer would be left in a difficult position. He might believe that no offence had been committed; the noble Lord, Lord Lester, would say that no offence had been committed. But suppose that the police officer just told the lady, "No offence was committed. I shall take no action". He might feel that he would come under attack-that he would be accused of homophobic behaviour for not following the matter up.

We would be creating a most awful pressure on the police, and they would react, naturally enough. They would have to go and interview the right reverend Prelate and discuss the matter with him. As has been said, he is robust enough a man to take care of himself, but that might not be the case with many other people, who would lack the resources to fight the thing through-perhaps even to fight a conviction and take it to appeal. There is no evidence whatever that the amendment has caused any outbreak of homophobic attacks or any of the other nonsenses.

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The noble Baroness, Lady Turner of Camden, listed all the dreadful offences, which are against the law and which the Waddington amendment did nothing to bring within the law. That serves nothing at all. It is simply an outbreak of emotionalism which obscures the facts. We should stick to the facts and stick to the Waddington amendment.

If, in another year or five years, we find that there has been an outburst-that masses of bishops are making incendiary remarks-of course we might reconsider the matter. For my part, I must say that there are moments when I wish that more bishops made more incendiary remarks rather than less.

Lord Kingsland: We on this side of the Committee have a free vote on this matter; so it would be inappropriate for me to wind up on behalf of the Opposition. I shall say only that I shall be supporting my noble friend Lord Waddington in voting that Clause 61 should not stand part of the Bill.

There is one other observation that I want to make about the circumstances in which we find ourselves this afternoon. The Government did not choose to oppose the decision taken in your Lordships' House last year to support my noble friend Lord Waddington's amendment, which subsequently became Section 29JA of the Public Order Act 1986.

It is, in my view, an abuse of parliamentary procedure to bring this matter back to Parliament without any evidence that Parliament had made bad law, especially when the same Government are in power. Indeed, the Government say, in terms, that Section 29JA is not bad law. Their case is that it is unnecessary law because the definition of the offence of incitement implies, in terms, the contents of my noble friend Lord Waddington's amendment.

In these circumstances, it cannot be good constitutional practice for a Government to compel Parliament-the law-maker-to spend further time on this matter. Indeed, I would describe it as an abuse of legislative procedure.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): Whatever its failings, the Bill has resulted in some passionate and important debates, particularly in the course of the past week's hearings in your Lordships' House. Today's debate has been no exception. Clause 61 will remove from Part 3A of the Public Order Act 1986, which includes offences of stirring up hatred on the grounds of sexual orientation, Section 29JA, which deals with freedom of expression. I say for the avoidance of doubt that that section was agreed by this House in the passage of last Session's Criminal Justice and Immigration Bill.

The Government have always said that there is no doubt about the threshold of this offence; I will come to that in a moment. I will first do my best to answer the criticism that it is somehow constitutionally improper for the Government to come back to the issue at this stage. I do not accept that argument for one moment. As has been indicated and as, I think, noble Lords know, we needed to secure Royal Assent for the Criminal Justice and Immigration Bill by 8 May 2008, so we were unable to ping-pong on the Bill beyond the initial

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rounds. If we had said nothing about it at that time, I could understand the criticism, but at the time we made it perfectly clear that we would return to this issue.

Lord Kingsland: I am most grateful to the noble Lord for giving way. The fact that the Government had certain constraints at the time was entirely their decision; there was no obligation on Parliament to pass the Bill by early May. The Government had other priorities; that was why they wanted to move quickly. It is quite clear that, by not opposing this matter, the Government accepted the decision of Parliament. For the noble Lord to suggest that it was otherwise is, I say with great respect, not an accurate record of what occurred.

Lord Bach: I would be grateful if the noble Lord would listen to what I have to say before coming back to me.

Lord Waddington: If the noble Lord is going to move on to other matters, I must take him to task-

Lord Bach: I am not moving on to other matters, but I wonder whether I could make my point. Then the noble Lord can respond to me.

Lord Waddington: I want to return to the point of whether the Government made it perfectly clear that they were going to return to this matter, because, of course, they did nothing of the sort. I have here what the Minister said in the House of Commons on 7 May. What she said was the opposite of what the noble Lord has just suggested. She said that,

How on earth can the noble Lord have the cheek to say that that was an indication that the Government would return to the matter in the very next Session?

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