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2.45 pm

Lord Bach: The Minister did not say that we would return to it in this Session, but she said that we would return to it. Let me carry on with the quotation that the noble Lord, Lord Waddington, mentions in part. My honourable friend the then Parliamentary Under-Secretary of State for Justice said:

"We remain of the view that the amendment is undesirable and unnecessary; it does not add anything to the law as it would stand without its inclusion. However, as ... my right hon. Friend ... has explained, there is an urgent need for the Bill to receive Royal Assent".

She went on to say-and this is what the noble Lord has just quoted-that,

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It was the will of the House to do so and that is what happened by the very large majority of 154 when the Bill was debated in the other House in March. This trumped-up charge of constitutional impropriety is really not worthy of argument. The debate is about something else altogether. It is not about this.

Let us look at what this debate is really about. First, we should look at the threshold for the offence itself. It is a very high threshold indeed. No freedom of expression proviso is needed to clarify the ambit of the offence. It covers only words or behaviour that are threatening and intended to stir up hatred-a very high benchmark indeed. Those terms-"threatening" and "intending to stir up hatred"-have their normal English meaning. If we start to gloss that meaning or explain in more detail what is and is not covered, we perhaps risk making the offence less clear. We do not want to imply that there is ever any justification for threatening behaviour that is intended to stir up hatred, as there is not. The provision purports to be for the avoidance of doubt, but it probably creates doubt where there is none anyway. That is an argument for not accepting the amendment.

When the House discussed this offence during the passage of the Criminal Justice and Immigration Bill, there were legitimate concerns about the possibility of the offence being used in a disproportionate way against people who are merely expressing a dislike of, or distaste for, certain sexual practices. In particular, there was concern about people who are explaining religious doctrine that is against certain sexual activities. There were also concerns that the offence, without a freedom of expression proviso, could stifle comedy or artistic portrayals of homosexual characters. The Government have taken careful note of those concerns, which we know are particularly strongly felt by some noble Lords. We have listened carefully to noble Lords and fully share their concerns about free speech.

Let me be absolutely emphatic: in formulating the offence, we had no intention of stifling debate about sexual orientation, of interfering with the preaching of religious doctrine or of making it more difficult to portray homosexual characters in comedy or drama. On the other hand, we have always intended that the offence should be an effective way of dealing with threatening behaviour intended to stir up hatred on the grounds of sexual orientation. Is there anyone among us who has not seen evidence of that sort of material? It includes rap lyrics that are part of music that sells in huge numbers. We have seen pamphlets from extremist political groups. Also, as we have heard, there are extreme people about who have caused huge concern and upset to the homosexual community, whether gay or lesbian.

Lord Tebbit: Are there any sections of the Koran that would fall foul of the law?

Lord Bach: I am so sorry. I did not hear what the noble Lord said.

Lord Tebbit: Are there any sections of the Koran that, if read out in a public place, would cause an offence under the law?

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Lord Bach: Not for the first time I cannot answer the noble Lord's question. I am not talking about the Koran; I am talking about this legislation. I dare say that some people would be offended by the Koran being read out.

Lord Tebbit: With respect, I asked the noble Lord not whether it would be offensive to read it but whether reading it might constitute an offence under the law, particularly the law without the Waddington amendment.

Lord Thomas of Gresford: Is not the answer to this strange query that it could be if it was read out in a way that intended to threaten violence against the people to whom it was read?

Lord Bach: The noble Lord has his answer.

I hope that I may continue with my remarks, because I think that noble Lords are probably keen to come to a view on this. Noble Lords who oppose the Government's view on this have made many speeches, but I do not think that it will harm the Committee to hear the arguments for a little longer.

The question before us is whether we need the freedom of speech provision. We have always maintained that we do not. I remind the Committee that the other place discussed the section last year and concluded that we did not need it. The other place voted against it twice, on the last occasion by a majority of 202. Eventually, due to pressure to complete the passage of the Criminal Justice and Immigration Bill, the other place agreed to the amendment which had been originally tabled in this House by the noble Lord, Lord Waddington. Since then, the other place has considered the issue again-in March of this year-and agreed by a pretty wide margin of 154 to support the clause. Of course, we do not have to follow what the elected House of Commons, which is supposed to represent the people of this country, does, but three votes in a comparatively short period, all by large majorities and all to the same effect, is something that the House takes notice of in certain areas and perhaps the Committee ought to, to some extent, here.

But the matter does not end with what the House of Commons has said very clearly on a number of occasions. The Joint Committee on Human Rights has repeated its view that the freedom of expression proviso is unnecessary. It agreed that the balance of the offence was right without any specific provision of this kind. We often take great note of what that Joint Committee says. It represents this House and the other House and contains distinguished Peers and Members of Parliament from all sides of both Houses. What it has to say on this is at least worthy of note.

The Equality and Human Rights Commission has reached the same conclusion. We are even more confident of our view given that we have that body's support. The noble Lord, Lord Lester of Herne Hill, has been a supporter of the concept of freedom throughout his career, whether in the courts, this House or elsewhere. If he is convinced that this amendment is not necessary for freedom of speech, I venture to think that the Committee should take note of that.

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Lord Campbell of Alloway: Having been somewhat concerned with the origins of this religious hatred, perhaps I may say that the Committee is not concerned with what the noble Lord has said about the intentions of government or what the noble Lord, Lord Lester, thinks; we are concerned with the way in which these intentions have been operated by the police.

Lord Bach: I understand that point and I shall come to it shortly.

Apart from the high threshold of the offence, procedural safeguards exist that ensure that the right balance is achieved. I absolutely take on board the point that the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Tebbit, made about this being related to where the police come in. However, the Attorney-General must consent to any prosecution. The Crown Prosecution Service will prosecute only where it is satisfied that a prosecution would be in the public interest. The Human Rights Act ensures that the police, the CPS and the courts must act in a way that is compatible with the convention rights. Therefore, we are satisfied that there are multiple safeguards against this offence being used inappropriately.

Lord Low of Dalston: I wish to put a point to the noble Lord that I hope he finds helpful. One thing that has been made clear to us in the debate is that the Attorney-General's fiat comes much too late and is not a sufficient safeguard, as a lot of the damage to people who wish to practise the right of free speech is done long before the matter comes to the prosecuting authorities or the courts or anything of that kind. The point that has been made is that the guidance is not sufficiently helpful in emphasising to the police the imperatives of free speech and that more weight should be given to that in the guidance. Does the noble Lord agree that it could be helpful to this whole issue if the Government would revisit the guidance on these questions?

Lord Bach: The Government have said that they intend to issue guidance on the new offence, so by its nature that guidance would be new. I am trying to answer the noble Lord's direct question.

The Lord Bishop of Winchester: Would it not be simpler to leave this clause in and to revise the guidance? Would that not be simpler, clearer and more direct?

Lord Bach: I shall come on to the Waddington amendment and what its effect might be in a moment. I shall try to deal head on with the issue of the police.

Lord Kingsland: I am so sorry to interrupt, but I simply make the point that this is not an amendment by the noble Lord, Lord Waddington. It is about whether or not Clause 61 should stand part of the Bill. That is a not unimportant point when-if the noble Lord, Lord Waddington, so wishes-your Lordships vote.

Lord Bach: I am most grateful to the noble Lord for telling me something that I already knew. I did not hear him comment when others described this as the Waddington amendment, but there we are. He is quite

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right: when it comes to the vote, it is a matter of the clause standing part. I thank him for telling the Committee that.

Let me deal with the police. Some of the concerns we heard last year and this year involved examples which were regarded, perhaps not surprisingly, as inappropriate and overzealous action. As I understand it, those examples concerned public order offences in Sections 4A and 5 of the 1986 Act, which relate to harassment, alarm or distress. The crucial point is that those offences have a substantially lower threshold than the offence we are discussing, cover a wider range of behaviour and carry a lesser maximum penalty.

There may indeed be a considerable case for giving the police more detailed guidance about those particular public order offences. But I have to say that I am not aware of similar concerns in respect of the offence of inciting religious hatred, which has a similarly high threshold.

3 pm

The noble Lord, Lord Dear, talked about changes in the police approach. I am afraid that I have to say to him and to the Committee that any changes in the police approach over the past year, if indeed there has been a change at all, actually have nothing to do with what was formerly described as the Waddington amendment, for the simple reason that the offences of inciting hatred on grounds of sexual orientation are not yet in force-they are not yet in force at all-and there has been a supposition in this debate that somehow they have already been in force. They have not been. We are not aware that ACPO has expressed any view either way on Clause 61. My experience, and perhaps that of other noble Lords, is that ACPO is not slow in coming forward with its views on matters of this kind.

Lord Dear:I-

Noble Lords: Order!

Lord Tunnicliffe: On a matter of order, I remind the Committee that frequent and lengthy interruptions are not appropriate and that it may be sensible for the Minister to get to the end of his speech. I also remind the Committee that we are in Committee, and anybody who has a need to answer points raised in the Minister's speech may speak as many times as they choose to.

Lord Dear: I thank the Minister for giving way. I referred in my speech to the fact that ACPO had not given an official view-which is, I think, true. I am assured by those who are closely in contact with this issue that ACPO had not given an unofficial view-by which I was trying to say in code-within government as well. But ACPO has said in clear terms to me that it would prefer the Waddington amendment to stay, because it has made life easier. I make that point in shorthand, but I make it nevertheless.

Lord Bach: The Waddington amendment and the Bill to which it was attached are not in force at present. They are not there. That is not the law of the land as it stands. I must move on.

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In response to the noble Lord, Lord Low, the Government have said that we intend to issue guidance on the new offence. The Ministry of Justice intends to issue short explanatory guidance about the offence. The Crown Prosecution Service, in its turn, will issue guidance to prosecutors. We understand that the Association of Chief Police Officers is currently revising its hate crime manual, which will offer operational advice about the offences of stirring up hatred. This will be in addition to current guidance, covering topics such as the Human Rights Act. The Government's case is that that, coupled with the high threshold of the offence, makes us believe that the safeguards are adequate-indeed, more than adequate-without the freedom of expression clause.

What I describe as a lawyer's point has been made about whether the Government are saying, on the one hand, that this is unnecessary, or on the other, that it will do harm. Life is not quite as simple as that. It is correct, of course, on a literal interpretation, that this section is unnecessary, because it states a proposition that any court would be able to deduce for itself. It does not, of course, in any way alter the range of behaviour or material which is caught by the offence. But it does not follow that it is thus, necessarily, harmless. Unnecessary material in legislation has a potential to go septic.

If he will forgive me, I should like to remind the Committee that my noble friend Lord Smith of Finsbury said on the Report stage of the 2008 Bill that the section brings a danger that those who do wish to incite hatred may seek to take refuge in this amendment to justify their behaviour. That was true then. It is as true today. That is the real point behind the Government's opposition to what the noble Lord, Lord Waddington, is suggesting. The section is unnecessary, of course, but there will be those outside-no one in this House or this Committee-who will take advantage and thus do their best to make the lives of those who this offence is supposed to protect more difficult.

It is for those reasons that the Government invite the Committee to say that Clause 61 should stand, and that noble Lords should vote Content.

Lord Waddington: I am quite sure that a long speech from me would not be welcomed for one moment. I thank all those who have taken part in what has been a very important exchange. I wish to make only two or three simple points. We are not talking about the terrible threat that is faced by many gays, because that threat can be dealt with-and often is dealt with-under the present law. Nobody is suggesting today that this free speech clause opens the gates to incitement to violence against gays. I am sorry, but I am inaccurate in that remark, because that seemed to be suggested by the noble Baroness, Lady Howarth of Breckland; but of course it is simply not the case. The Government themselves, in their notes on clauses, say that this free speech clause does not raise the threshold for the offence or make prosecutions more difficult.

I also remind your Lordships that those who declaim rap lyrics can be prosecuted now. They can be convicted and sent to prison for a very long time under the 2007 Act, which makes it a specific offence to encourage

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violence against people. Therefore, rap lyrics have nothing whatever to do with what we are discussing today.

The Minister said that we should not be too worried about all the cases of abuse that have been referred to in which the police have gone hopelessly over the top, because they were only trying to apply the old law, which had a lower threshold. I have to tell the noble Lord that he is wrong on that. I have read very carefully, as I am sure have many noble Lords, about the Roberts case in Fleetwood; they eventually obtained substantial compensation. Although this new law was not in force when they were interviewed by the police, they were told by the police that they were very close to the serious offence of homophobia, punishable by seven years' imprisonment. Therefore, there is not the slightest doubt that at that time the police thought that this law was already in force. I also remind the noble Lord that in my opening speech I referred to the case of the city councillor who made a joke at a police community liaison meeting. That took place after this new law reached the statute book, so I am afraid that the noble Lord is being hopelessly complacent.

There are real abuses that have to be dealt with. I thank the noble Lord, Lord Dear, in particular, for explaining the difficulties with which the police are faced and how they will be helped enormously if this free speech clause remains on the statute book. It will give them proper guidance, which has certainly not been provided in guidance from the CPS. How, in the light of the wording of the existing CPS guidance, the Minister can think that he is giving us comfort when he says that similar guidance will be produced in the near future, I really do not know.

I thank all noble Lords from the bottom of my heart for their contributions to the debate, and I invite them to join me in the Not-Content Lobby.

3.10 pm

Division on Clause 61

Contents 133; Not-Contents 186.

Clause 61 disagreed.

Division No. 1


Adams of Craigielea, B.
Adonis, L.
Archer of Sandwell, L.
Bach, L.
Barker, B.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bernstein of Craigweil, L.
Bilston, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Campbell-Savours, L.
Chidgey, L.
Christopher, L.
Clinton-Davis, L.
Condon, L.
Corbett of Castle Vale, L.
Cotter, L.
Craigavon, V.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Abersoch, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Drayson, L.
Dubs, L.
Dykes, L.
Elder, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.

9 July 2009 : Column 820

Faulkner of Worcester, L.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goodhart, L.
Gould of Potternewton, B.
Grocott, L.
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Joffe, L.
Jones of Cheltenham, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kirkwood of Kirkhope, L.
Lea of Crondall, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Low of Dalston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
McNally, L.
Mandelson, L.
Massey of Darwen, B.
Maxton, L.
Miller of Chilthorne Domer, B.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Manchester, L.
Moser, L.
Myners, L.
Northover, B.
Norton of Louth, L.
O'Neill of Clackmannan, L.
Pitkeathley, B.
Prosser, B.
Ramsay of Cartvale, B.
Razzall, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
St John of Fawsley, L.
Sawyer, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Finsbury, L.
Soley, L.
Steel of Aikwood, L.
Stern, B.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thornton, B.
Tonge, B.
Tordoff, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Tyler, L.
Wallace of Saltaire, L.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Wilkins, B.
Woolmer of Leeds, L.
Young of Hornsey, B.


Ahmed, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Anelay of St Johns, B.
Armstrong of Ilminster, L.
Arran, E.
Attlee, E.
Bagri, L.
Baker of Dorking, L.
Bates, L.
Bew, L.
Bridgeman, V.
Broers, L.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Burnett, L.
Butler of Brockwell, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carey of Clifton, L.
Cathcart, E.
Cavendish of Furness, L.
Chichester, Bp.
Chorley, L.
Clarke of Hampstead, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cox, B.
Craig of Radley, L.
Crathorne, L.
Crickhowell, L.
Cumberlege, B.
Davies of Coity, L.
De Mauley, L.
Dear, L.
Denham, L.
Dixon-Smith, L.
Donoughue, L.
D'Souza, B.
Dundee, E.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Emerton, B.
Evans of Parkside, L.
Exeter, Bp.

9 July 2009 : Column 821

Falkland, V.
Falkner of Margravine, B.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
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