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It would be a misconception to say that surely it is wrong that there should be justification for killing a man or woman on account of what that man or woman has said-mere words. If we were to say that, we would be falling into exactly the same misconception as is at the very root of the Government's attitude in this matter. It is not the fact of infidelity that justifies the taking of a life; it is the situation-it is a matter not for the defence to prove but for the prosecution to expunge-where the jury cannot expunge the fact that there could have been a loss of self-control of such magnitude as to reduce the case from murder to manslaughter.

In that context, bearing in mind that the law of provocation is some 300 years old, as the noble Lord, Lord Thomas of Gresford, reminded us, that it was codified in Section 3 of the Homicide Act 1957 and that it has never made any reference to infidelity or any other specific condition, it has allowed the law to have as broad as perimeter as necessary, bearing in mind the myriad situations that could be relevant to this issue. In those circumstances, what one has to look at is not the trigger condition-I appreciate that there is a trigger provision in Clause 45-but what the jury has to decide, which is whether what has happened has so unhinged, disintegrated or destroyed the control of the defendant as to render his act less than murder, but rather manslaughter.

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The very fact that the public have a misconception about this matter does not justify this measure. I believe that the Government have looked upon it very sincerely and have come to the wrong conclusion because they have asked the wrong question. If this matter is not dealt with now, in the creative way that this House suggested, it could prove to the disadvantage of women. I have profound respect, as has the House, for the noble Baroness, Lady Gould of Potternewton, and I appreciate the strong, sincere feelings that are abroad on this matter, but it does not help the situation to pander to those misconceptions, to use legislation to fuel them and to do so in such a way as to do a disservice to the administration of justice.

Lord Pannick: My Lords, can the Minister reassure me on one matter? I entirely understand the Government's arguments if the defendant lost self-control as a result of infidelity, but supposing the defendant lost self-control not just because of sexual infidelity but because of the other grave circumstances surrounding the sexual infidelity. Suppose, for example, in a very grave case, the sexual infidelity involved the couple's own children. Would it then be open to the defendant to rely upon those circumstances in order to seek to persuade the jury that the offence of murder should be reduced to manslaughter?

Lord Bach: My Lords, I am grateful to noble Lords who have spoken, not least the noble Lord, Lord Thomas of Gresford; although I have to say to him that in his learned speech I was waiting for him to put his amendment, and I waited a long time. He seemed to be opposing root and branch the Government's amendment, which we are seeking to get back into the Bill, quite understandably given his attitude to it on Report. Then, almost as an afterthought, which did not fit in logically with his opposition to the government amendment, he spoke in a very few minutes, without going into any detail, to his amendment, which in many ways seemed to speak against the principle of opposing any legislation that talked about sexual jealousy or sexual infidelity. With the greatest respect to him, I thought that there was a mismatch between his overall opposition to what we are trying to bring back and the amendment that we are debating.

If I may say so, I take his amendment rather more seriously than perhaps he does. I shall argue against it on the grounds that it is, if I may use the expression, a damn good try to sort this out but, when compared to our original clause, it is not quite as good. I shall try to explain why. I do not want to take up too much of the House's time, as I know that there are other matters that noble Lords are keen to get on to, but I feel obliged to do this. I shall do it in as short a time as I can. In the course of that, I hope I shall answer the proper question asked by the noble Lord, Lord Pannick.

We cannot accept the amendment before the House, which was tabled by the noble Lord, Lord Thomas, because it risks ruling out cases where we want defendants to be able to make out the defence and it opens up a loophole that could be abused in the very cases that we are trying to put beyond doubt. We think his amendment is both too narrow and too wide. Take the example of the case mentioned by the noble Lord, Lord Pannick, in which a woman discovers her husband sexually

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abusing their young daughter. This is the sort of case that both Houses quite rightly sought reassurance about when scrutinising the government clauses. The Liberal Democrat amendment risks excluding such a case. I shall try to explain why.

The effect of the amendment is that the defence cannot apply if the defendant acts principally out of a desire to punish the victim for any act, where that act is perceived to amount to sexual infidelity. In this scenario, the defendant may well perceive that the act-the abuse of the child by the father-amounts to sexual infidelity, although this is unlikely of course to be her reason for killing. However, the way that the exclusion is formulated in the amendment means that, once an act is perceived to be infidelity, killing principally in order to punish that act, whatever the motive for killing or whatever else the act may be perceived as, will be excluded. So the mother horrified at the abuse of her child, who may well kill out of a desire to punish her partner for abusing their child, but who also feels hurt by the fact that the father sought sexual gratification elsewhere, would put herself outside the defence on account of the perception of infidelity. That is not something that we would want to happen. By contrast, our approach was extremely carefully tailored after long consideration so as to allow the partial defence to still operate in this situation. Sexual infidelity is involved in this situation, and our clauses require that aspect to be disregarded-that is the word we use-but the defence can still stand or fall on the basis of the other aspects of the situation, namely the fact of the child abuse.

The answer to the noble Lord, Lord Pannick, is that the sexual infidelity motive cannot be recognised, but if there are other motives or reasons that constitute circumstances of an extremely grave character under Clause 45(4) and cause the defendant to have a justifiable sense of being seriously wronged, that would allow the defence to be used.

Our conclusion, therefore, is that this amendment quite inadvertently, and with the best of intentions, captures cases where we think-and both Houses have sought reassurance from us on this point-the defence ought to apply. Of course it is not the noble Lord's intention that his amendment should do that but, regrettably, it is the effect. In that case, we think the amendment is too narrow.

The Government are also concerned that this amendment covers only those circumstances where the defendant kills to punish the victim for an act of sexual activity or whose motive is otherwise sexual jealousy or envy. Having a list of motives risks creating loopholes where killers can argue that their motive was something else not on the list; for example: fury, shock, embarrassment or betrayal. They are not mentioned in the amendment, so the man or woman who kills having walked in on their partner having an affair could argue that they lost their self-control and killed out of something other than a desire to punish. Focusing on motive inevitably creates these potential gaps. That is why our amendment, which we seek to put back into the Bill, focuses directly on the thing that has triggered the defendant to lose their self-control and to kill. If that thing is sexual infidelity, that fact

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must be disregarded. Sexual infidelity cannot be relied on as the reason for claiming the partial defence, however the defendant's motive may be described.

I have taken the amendment seriously. It deserves serious consideration, and I know that it was planned with the best of intentions, but I invite noble Lords to take on board our concerns. Given the debate and particularly what my noble friend Lady Gould said, I hope that the noble Lord, Lord Thomas, will not press his amendment to a vote this evening, as in our view it might well make the position even worse.

We have had another substantial debate on this matter tonight, and it is now up to the noble Lord to decide what to do with his amendment.

6.30 pm

Lord Thomas of Gresford: My Lords, I am most grateful to the Minister. In my view, the amendment is wider than the Government's proposal, not narrower. One only has to state the proposition which the Minister advanced-that a person could rely on a defence of provocation because he was embarrassed by sexual infidelity-to see what nonsense that is. Of course there is the question of punishing someone and of jealousy and envy. We have widened the amendment in that regard, so I do not accept the Minister's criticism that our amendment is narrow, although I accept his compliments for the purpose behind it.

I have the greatest respect for the noble Baroness, Lady Gould. I also have the greatest respect and admiration for Vera Baird. I did not misrepresent her point of view; I just wished that she had taken part in the debate in the House of Commons so that one could grapple with real legal argument as opposed to what I quoted from the right honourable Harriet Harman-the contrast to which I was referring. The numerous organisations which the noble Baroness, Lady Gould, represents comprise people who will be on juries-and there are more women than men on most juries these days-and who will put forward the up-to-date position as the public see it. I refuse to have my argument diverted into a suggestion that I am defending husbands against wives.

Baroness Gould of Potternewton: My Lords, I apologise to the noble Lord; I should have intervened a moment or two earlier. Many of the women I represent are lawyers. Some are judges and some are academics. They are not people who might happen to sit on a jury; they have a very strong opinion, based on their expertise and their knowledge, that what the Government are doing is right.

Lord Thomas of Gresford: My Lords, in that case I hope they will read the record of this debate and what I have said because, if provocation remains as a defence, it is a defence for women who may have killed their partners or husbands, rather than the other way around. That is the important point that I hope my speech has got across. I see that the noble Baroness accepts that that is the thrust of what I have been saying.

This is a very serious issue. It is quite wrong that a bizarre subsection, as the Law Commission put it, should be part of our legislation. As the noble Lord, Lord Elystan-Morgan, said-I am grateful to him for his support-there are huge misconceptions about

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this. If this goes through, judges up and down the country will have the greatest practical difficulty sorting what juries can and cannot consider as provocation. I just wish that this Government, instead of tinkering about at the edges, had had the guts to reform the law on homicide completely, as the Law Lords, the Law Commission and noble Lords have requested. I may not be successful this evening. Nevertheless, I ask your Lordships to agree to the amendment in my name.

6.35 pm

Division on Motion B1

Contents 63; Not-Contents 157.

Motion B1 disagreed.

Division No. 2


Addington, L. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Barker, B.
Blackwell, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Burnett, L.
Buscombe, B.
Chester, Bp.
Chichester, Bp.
Clement-Jones, L.
Cotter, L.
Craigavon, V.
Dholakia, L.
Dykes, L.
Falkner of Margravine, B.
Fraser of Carmyllie, L.
Garden of Frognal, B.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
James of Blackheath, L.
Jones of Cheltenham, L.
Kerr of Kinlochard, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Livsey of Talgarth, L.
Low of Dalston, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Methuen, L.
Miller of Chilthorne Domer, B.
Newby, L.
Nicholson of Winterbourne, B.
Northbourne, L.
Pearson of Rannoch, L.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Shutt of Greetland, L. [Teller]
Skidelsky, L.
Steel of Aikwood, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Tyler, L.
Vinson, L.
Wade of Chorlton, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Williams of Crosby, B.


Aberdare, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bew, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Butler of Brockwell, L.
Butler-Sloss, B.
Campbell of Surbiton, B.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Craig of Radley, L.

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Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Desai, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Grantchester, L.
Greengross, B.
Greenway, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
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.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jones, L.
Kilclooney, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Listowel, E.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mandelson, L.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morrow, L.
Murphy, B.
Norton of Louth, L.
O'Loan, B.
Paisley of St George's, B.
Palmer, L.
Pannick, L.
Patel, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Quin, B.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rees of Ludlow, L.
Rees-Mogg, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stair, E.
Stoddart of Swindon, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Thornton, B.
Tombs, L.
Tomlinson, L.
Tunnicliffe, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williamson of Horton, L.
Winchester, Bp.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Motion B agreed.

6.46 pm

Motion C

Moved by Lord Bach

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Lord Bach: My Lords, we return once again to the offences of inciting hatred on grounds of sexual orientation and, in particular, to the question of whether these offences need to be accompanied by a so-called "freedom of expression" saving. The key point for your Lordships' House is whether, in the light of the clear and unambiguous views of the elected Chamber on many occasions, it is right for this House to insist on these amendments. Members of the other place have said emphatically that a freedom of expression saving is not required. They have now done this not once, not twice, not thrice, but four times.

At the Report stage of the Criminal Justice and Immigration Bill, on 9 January 2008, the other place voted by a majority of 169 to reject the freedom of expression saving. On 6 May 2008, during consideration of this House's amendments to the Criminal Justice and Immigration Bill, the other place rejected the saving by a majority of 202. During the Report stage proceedings on this Bill, the other place voted a third time, by a majority of 154, in favour of the repeal of the saving. And on Monday last, the other place rejected Lords Amendment 59 by a majority of no less than 197. Set against the majorities the Government can normally command in the Commons, these are substantial defeats for the freedom of expression saving.

Of course, as a revising Chamber, it is perfectly legitimate for this House to ask the other place to think again. What is, I would argue, of questionable legitimacy is to ask the elected House to think again, and again, and again, and again. There must come a point where this House, with all its great virtues and its importance, gives way to the House that has been elected by the people of this country. The Government would argue that this is the time when, with reluctance, that is what this House should do, the House of Commons having voted so substantially for opposing the freedom of expression saving.

This House has made its position clear. We recognise the strongly held views of those who argue that Section 29JA of the Public Order Act should remain on the statute book. I reiterate our view that this provision is simply not needed, given the exceptionally high threshold for the offence, capturing as it does only threatening words and behaviour intended to stir up or incite hatred. Our submission is not simply that the saving is not necessary but that it is positively harmful as it could sow doubts about the scope of the offence and seek to legitimise the use of threatening words or behaviour which are intended to incite hatred on the grounds of sexual orientation. Those who use such words or behaviour and intend to incite hatred on the grounds of sexual orientation should not have a so-called freedom of expression saving to shield them.

A very high threshold for the offence provides sufficient protection for freedom of speech. If that were not the case, the Joint Committee on Human Rights and the Equality and Human Rights Commission would no doubt have been the first to point that out. Both bodies gave careful consideration to the offence and each concluded that freedom of speech is sufficiently protected without any need for Section 29JA.

Noble Lords will also recall that the offence may only be prosecuted with the consent of my noble and learned friend the Attorney-General. As public authorities,

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both the Crown Prosecution Service and the Attorney-General are bound by the Human Rights Act and must therefore act compatibly with the European Convention on Human Rights on freedom of expression.

I know that other noble Lords will wish to speak in this debate, so I shall be short. Our submission is that the time has now come for this House to recognise and respect the will, expressed four times by large majorities, of the democratically elected Chamber, and not seek to insist on its amendments. I beg to move.

Amendment to the Motion

Moved by Lord Waddington

Lord Waddington: My Lords, on Monday, in the other place, the Minister said that it was the settled will of the elected House that the free speech safeguard be removed from the statute book. But what sort of settled will is it when not a single Labour Member supported the Government's case? Indeed, almost the only person on the Labour Benches throughout the debate was the honourable David Taylor who, in spite of the Government having refused to allow a free vote on this matter of conscience, stuck to his guns and voted for free speech.

The issue remains as it was in July: there is no dispute over whether there should be a new offence of stirring up hatred on the grounds of sexual orientation; and no one says that this safeguard weakens the offence or alters the threshold for the offence. The question is: what conceivable benefit will accrue from the repeal of a safeguard for free speech which parallels that in the religious hatred offence-and repealing it without even waiting to see whether, in practice, it interferes in any way with proper enforcement of the law?

The Government say that the words are unnecessary. But they are certainly useful in that, following the precedent set by the religious hatred offence, they provide clear guidance on the statute as regards what is lawful. Their value was well illustrated by the noble Lord, Lord Dear, in July, when he pointed out how the free speech clause was helping the police to resist the pressure put on them to follow up complaints made by people wishing to suppress any criticism of homosexual behaviour. After the noble Lord's speech, I expected that the Government would go away and think seriously about how this problem might be dealt with; how there might be no repetition of the obvious abuses which have occurred; and how the police might be discouraged from following up trivial complaints. But the Government have done nothing. In our last debate, the CPS guidance was exposed as not only hopelessly defective but calculated to cause mischief. The Government have not yet got down to issuing proper guidance themselves. They have done nothing while abuses have continued.

One other respect in which the Government have clearly failed in their duty is that, after months and months, we are still waiting for them to address the obvious point that, if we are to finish up with a free- speech clause in the religious hatred offence but no

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such clause here, we are simply asking for trouble. On Monday, the Minister in the other place said that the Government did not approve of the free speech clause in the religious hatred offence. However, they have not lifted a finger to remove it. The question remains: what regard would the police be likely to pay to the right of Christians and others to comment on sexual behaviour if Parliament went out of its way today to say that free speech is important when it comes to comment on religious matters but is of no importance when it comes to comment on matters of sex? We would be giving the clearest signal to the police that they should interfere to prevent any criticism of homosexual behaviour.

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