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But there is another factor that comes into play, which is that certain basic standards should apply across the nation as a whole. Those are what we tend to call human rights standards. The reason that the Government under the right honourable Tony Blair extended civil partnerships, a highly controversial matter,
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The problem about the law of blasphemy, as the Joint Committee on Human Rights indicated, is that in modern times, were it challenged, it is strongly arguable that it is not compatible with the convention rights, in particular the rights conferred by Article 10 of the convention. Why not? Because it is bad: it is too vague; it lacks legal certainty; and it sweeps too broadly. Unlike the 1987 order I have described, which is a statute, the common law offence suffers from the twin vices of overbreadth and vagueness. If that is right it means that, at present, those living within Northern Ireland are being subjected to an arcane, archaic, unenforceable and outdated law, which has been eclipsed, in any case, by a statutory provision, which therefore makes it lack any necessity.
When the Northern Ireland Act, the Scotland Act and the Government of Wales of Act were passed, the convention rights were written into those statutes to make sure there could not be breaches of those basic rights as a result of devolution. Therefore, although it may be decided in the end to leave it to the Assembly, there will be difficult questions that the Speaker of the Assembly will have to deal with-unfortunately, the noble Lord, Lord Alderdice, a former Speaker, is not in his place today-and tricky wider questions if we leave it as it now is.
If I were a unionist in Northern Ireland-
Lord Lloyd of Berwick: I thought the noble Lord advanced all these arguments under Amendment 75A at an earlier stage. Do we have to have the arguments all over again? If he wishes to divide the House, let him do so.
Lord Lester of Herne Hill: I am grateful for the noble and learned Lord's rebuke, but if he cares to read Hansard tomorrow he will find that nothing I have just said was said in the previous general debate. I would bet him a Bank of England to a blood orange that he will not find any of those arguments in the earlier debate. It is my fault because, clearly, what I said at the beginning was so poorly expressed that the noble and learned Lord did not understand that that was so. I promise that what I am saying now is new.
I am saying it because these are further considerations which need to be taken into account when the Government consult further before Third Reading, as they have undertaken to do. I welcome what the Minister has said. I shall do what he suggested-I realise he has taken no position on the merits at all-and I hope that
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The Deputy Speaker (Baroness Gould of Potternewton): The procedure is that I have to put the Question as the noble Lord has spoken to the amendment. The amendment proposed is to "Insert the following new Clause" in the words as printed in the Marshalled List.
Lord Lester of Herne Hill: I begged to move my amendment purely to see whether anyone else wished to speak to it. I now beg leave to withdraw it.
75B: After Clause 64, insert the following new Clause-
"Causing harassment, alarm and distress: restriction of scope
(1) The Public Order Act 1986 (c. 64) is amended as follows.
(2) In section 5(1)(a) and (b) for "abusive or insulting" substitute "or abusive"."
Lord Lester of Herne Hill: This is on a completely separate matter. I move this amendment on behalf of the Joint Committee on Human Rights, of which I am a member. In its report, Demonstrating Respect for Human Rights? A Human Rights Approach to Policing Protest, HL Paper 47-1, particularly at paragraphs 80 and following, the committee expressed concern about the position under the Public Order Act. A number of witnesses drew the committee's attention to Section 5 of the Public Order Act, which criminalises threatening, abusive or insulting words and behaviour in certain circumstances. The report says:
"Some witnesses said that this section 'can be used in a way which ... illegitimately stifles protest' or has a chilling effect on free speech".
Liberty provided an example of the police citing Section 5 of the Act when a young man demonstrating outside the Church of Scientology's London headquarters was issued with a summons by the police for refusing to take down his sign, which read, "Scientology is not a religion, it is a dangerous cult". The police alleged that the use of the word "cult" violated Section 5, although they did not subsequently proceed with a prosecution.
The Metropolitan Police gave an example of the arrest under Section 5 of a protester at a free-speech rally for wearing a picture of a cartoon depicting the prophet Mohammed that had been published in the Danish press, explaining:
"That was during a very tense period ... we chose to wait until somebody came forward to us and said 'I fear that that will cause a breach of the peace; I am offended by that' and then we took action against the individuals".
The Select Committee asked police witnesses whether they considered that existing police powers under Section 5 were too broad or used too often. AAC Allison disagreed, suggesting that,
- "if [people] felt that we were acting inappropriately or making excessive use of our powers then they had the right to challenge us about it".
The Select Committee's report continues:
"As with freedom of assembly, freedom of expression imposes both positive and negative obligations on the state",
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and then sets out more of the evidence. In the recommendation in paragraph 86 the committee expresses the view that Section 5 confers a very wide discretion and that consideration should be given to removing the word "insulting" from the Public Order Act because it can be used inappropriately to suppress the right to free speech. It therefore suggests deleting the reference to language or behaviour that is merely insulting. The committee considers that such an amendment would provide proportionate protection to individuals' right to free speech while continuing to protect people from threatening or abusive speech, and has suggested the amendment that I am moving.
The Government's reply to that report in May 2009 referred to paragraph 85 and said that they had been considering carefully the concerns raised by the committee with the Association of Chief Police Officers and the Ministry of Justice. It said:
"While we consider that the Committee's recommendation has merit in the context of the policing of protest, the implications of the amendment are potentially far reaching for the policing of lower level disorder on the street, and for the racially and religiously aggravated section 5 offences. We shall report back to the Committee, once we have conducted further consultation with stakeholders".
That was in May. The purpose of moving the amendment is to give the Government the opportunity now to give an update. I beg to move.
Lord Monson: My Lords, although I came across the amendment only a short time ago, as a layman I warmly welcome it and believe it to be long overdue. I was never happy when we were debating the inclusion of the word "insulting" in what was soon to become the Public Order Act 1986, and for one simple reason: the word "abusive" can be judged objectively, but "insulting" is totally subjective. What one person finds offensive, the next person may be indifferent to.
It did not matter very much at first, because I think that the public 20-odd years ago were less thin-skinned than they are now. Moreover, the police were not bound by the iniquitous target culture imposed by the Blair Administration, so that what previously might have been dealt with by a brief ticking-off or even no action at all now results all too often in detention and arrest. People are positively encouraged to be touchy, both by the media-whether deliberately or not-and pressure groups. Moreover, there is a temptation in certain circumstances of very large, disproportionate compensation if people can prove themselves to have been insulted. So the time is certainly ripe for the removal of "insulting", leaving of course "abusive".
Lord Pannick: My Lords, I, too, support the amendment. I agree also with my noble friend Lord Monson. I find it very difficult to think of an example of conduct which is neither threatening nor abusive but which it is appropriate for the criminal law to prohibit under existing Section 5 because it is nevertheless insulting, yet one can think of many obvious cases of conduct which may be perceived to be insulting-it is a subjective test, as my noble friend Lord Monson, pointed out-by those to whom it is directed but which it would be entirely inappropriate for the criminal law to prohibit because of the value of freedom of expression.
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Lord Henley: I listened carefully, as I always do, to the noble Lord, Lord Lester, and the others who spoke. We saw the amendment only late on. We would therefore want to consider it very carefully and listen to what the Minister says. I imagine that, in the light of that, the noble Lord, Lord Lester, would not necessarily want to press it today but possibly come back to it at a later stage. I agree with the noble Lords, Lord Monson and Lord Pannick, that it is difficult to imagine occasions when it would appropriate to use "insulting"-which it is suggested should be removed-in the criminal law but not to use "threatening" or "abusive", but no doubt we will have guidance from the Government about that.
Lord Bach: I am grateful to the noble Lord, Lord Lester of Herne Hill, for moving the amendment. We share his concern about undue restrictions on freedom of expression, especially in the context of protests. The Government made it clear in their response-from which he quoted-to the seventh report from the Joint Committee on Human Rights that the starting point in policing protests is a presumption in favour of freedom of expression and freedom of assembly. We are committed to protecting those rights.
As the noble Lord explained, his amendment would give effect to one of the recommendations of the JCHR's report Demonstrating respect for rights? As the House has heard, we have considered concerns raised by the Joint Committee around the use of Section 5 of the Public Order Act. We announced our intention to consult the police and a range of stakeholders on the proposed amendment to Section 5 over the summer and report back to the Joint Committee in the autumn.
We have now consulted a range of stakeholders and are currently collating the responses that we have received. As set out in the policing Minister's recent letter to the Chair of the JCHR, we will reply to the Committee on all its recommendations, including that on Section 5 of the Public Order Act, by 9 December. I think that I can agree to putting in the Library a copy of that letter of 24 October, which I have shown to the opposition Front Bench this afternoon. This will allow us to take a considered review of the responses received and set them against the HMIC review into policing of protests, due to be published next month. That review will touch on a range of issues, including legislation around public order.
5 pm
We believe that consulting the police and others on the implications of the noble Lord's amendment is important, as Section 5 of the Public Order Act can be used by the police to deal with a range of lower-level disorder. Clearly, it will depend on the circumstances and whether the conduct in any particular case amounts to threatening, abusive or insulting words or behaviour, or alternatively to disorderly behaviour. I can give the House figures about how many times the section has been used in recent years, in court and to give penalty notices, but I cannot give figures that distinguish between the various ways in which the section is made up-whether it was for insulting, abusive or threatening behaviour.
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People hold strong views for and against particular issues and they are likely to want to protest vociferously or display strongly worded banners in support of or against a particular issue. We would not want to stop them doing so unjustifiably. We would be very concerned if there was evidence that Section 5 was being used inappropriately, but there are safeguards, in that the police and CPS have to examine each case individually, looking at the circumstances and context. Among other things, they would consider what was said or done, what the intention behind it was and whether it was said or done within the sight or hearing of another person. The CPS will look at whether there is enough evidence to provide a realistic prospect of a successful prosecution; the second limb of its requirement is to see whether it is in the public interest to prosecute.
The Human Rights Act lays down that all legislation, including Section 5, must be read and given effect in a compatible way. The European Court of Human Rights, as the noble Lord will know better than most, has held that Article 10(1) of the convention applies,
- "not only to ideas that are favourably received, or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb".
That was in the case of Handyside, now many years old. It applies to the right to receive as well as impart information.
We are aware that the JCHR does not think that improving guidance will be sufficient to address its concerns, but we take a different view. Irrespective of whether Section 5 is amended, the police need to have the right guidance and training on these difficult issues, otherwise we risk having exactly the same debate in the future, set against a different legislative framework. In view of the fact that the Government are still in the process of collating responses on the amendment to Section 5, I ask the noble Lord to withdraw his amendment.
Lord Lester of Herne Hill: I thank all noble Lords who have spoken in this short debate. We have removed "insulting" from the religious hatred offence; this debate relates back to the debate about blasphemy and insult. The example given to the Select Committee, which I have not cited so far, is of an Oxford student who was arrested for allegedly calling a police horse gay. When that was put to the Minister at the Home Office, Vernon Coaker MP, he said that he did not think that Section 5 should be used arbitrarily. That seems to be a good example of an arrest that should never have been made.
I have listened carefully to the Minister and he has not given an undertaking to think further before Third Reading. Under the rules, that means that I could not bring this back at Third Reading. In any case, there would not be time before then for the consultations to be completed. Therefore, playing the game strictly according to the rules, I will not divide the House. I very much hope that this debate and wider consultation will soon lead to the removal of the word "insulting" for the reasons given by the noble Lords, Lord Monson and Lord Pannick. On that basis, I beg leave to withdraw the amendment.
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Clause 65 : Qualifying offences
Lord Henley: My Lords, in moving this amendment I will also speak to a number of amendments in the name of the noble Lord, Lord Thomas, in the same group.
We now reach Part 3, Chapter 1 "anonymity in investigations"-yet another new subject in this Bill-so it is worth repeating yet again the advice that I offered to the Government at Second Reading. In future, they might find it easier to introduce Bills to this House on individual subjects, or at least not too many subjects at once. That might not only be useful for the drafting of the Bills but quite good politically and in terms of business management. When we look at the size of this Bill-its number of parts and the different subjects that it covers-the Government should be reminded of that more than once.
We now come to anonymity in investigations and investigation anonymity orders. These are a new form of anonymity order that are aimed, we are told, very precisely at combating gang-related violence. Indeed, they are so precise that they relate to the offences of murder and manslaughter committed with a gun or a knife and involving gangs the majority of whom are between 11 and 30. That is the precision that we are talking about. In other words, the orders are designed to be very specific indeed.
In Committee, we probed the limits that have been set down as to why the age of 30 was chosen and not 31, and we listened with interest and care to the responses of the noble Lord, Lord Tunnicliffe. The noble Lord made the case that gang-related homicides are a particularly difficult category of cases because the level of witness intimidation is likely to be high. We are prepared to accept that argument because the clauses in the Bill are about granting anonymity to witnesses. The principles of open justice and transparency are put on to the table. We accept that there are circumstances in which the interests of justice require there to be orders made of the sort that we are debating. Gang-related violence can be a real problem, and we agree that the justice system must have the appropriate tools at its disposal to deal with that problem. I am sure that the Minister will try to convince us that the Government have struck exactly the right balance. I presume that that is why the investigation anonymity orders apply to such a narrow set of circumstances.
All I can say at this stage is that we are nearly convinced. Amendment 76 would remove Clause 65(4), which allows the Secretary of State to amend-which we suspect really means widen-the conditions governing the orders. We expressed unhappiness in Committee that the Secretary of State should have the power to be able to widen something of this sort. Although we have almost been convinced that the Government are serious about keeping these orders restricted to a narrow category of offence, subsection (4) to some extent undermines that assurance. The Government knew this from the Committee stage, and I trust that
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To go further, in a spirit of helpfulness, we have given the Government another option-that is, Amendment 76CA. Very simply, it allows Parliament to have its say on a report, which must be prepared by the Secretary of State, on how well-or not, as the case may be-investigation anonymity orders are working after two years. We have accepted that there may be a case for having such orders, which is, sadly, why I cannot support the noble Lord, Lord Thomas, who has taken a more robust approach than ours to having so many Bills in one Bill, and suggested deleting large chunks of it. We are certainly looking for assurances from the Government that they have taken due note of a need for proper parliamentary scrutiny of any changes that they seek to make. I do not think that that is too burdensome a requirement.
Having said that, and to go back to my first amendment, we would prefer it if the Government could at least drop subsection (4) and remove from themselves the power to widen this proposal. I beg to move.
Lord Thomas of Gresford: My Lords, if the principle of anonymity in investigations is accepted, as it is by the noble Lord, Lord Henley, there is great merit in his amendment which would leave out subsection (4), preventing the Government arbitrarily widening the class of case for which and person for whom such anonymity orders can be made. Indeed, there is much sense in seeking a review of these investigation anonymity orders.
However, I am opposed to the matter in principle because it is very easy to encourage witnesses to come forward who may not be telling the truth. It is the case that, prior to the introduction of the Criminal Evidence (Witness Anonymity) Act 2008, which we debated at length last summer, the Metropolitan Police in particular had got into the habit of going around promising anonymity not only to witnesses who gave it information, but anonymity at trial. That went well beyond its powers. For that reason, although we had some reservations, we welcomed the introduction of a Bill that put a framework to the giving of evidence in court in anonymous conditions.
Looking at anonymity in investigations, I noted what the Minister said in response last time-that it may be necessary to apply for such orders before much is known about an offence. There is not necessarily any pressing need for these orders at the beginning of the investigation. The Government propose that the police or the DPP can make such applications right at the beginning. That is the most dangerous aspect of it. That is why, if this matter goes forward, I have tabled Amendment 76E, which would add to Clause 67(9) the provision that it is not enough that a witness should say that he will withhold information, or that he is to be encouraged to withhold information, but that he must indicate that he will not give any information and that he,
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