That is particularly relevant when we think—as we have heard already—that drugs have a variable impact on individuals and that they can show at different levels in blood or urine. There are a number of issues to be addressed here as well as on the testing. Currently, testing for impairment from drugs is subjective—the Minister will recognise that that is acknowledged in the impact assessment as well—and non-scientific. It involves individuals being asked to perform certain physical tasks, and that does not indicate the level of substance in the bloodstream.

I am told that the equivalent of the breathalyser is the “drugalyser”. I am not sure if this is in the English dictionary but it may be after the legislation goes through. The Home Office has been trying to develop this since I was first at the Home Office over a decade ago. I am not criticising the Government, but they had a target date of 2011 for the rollout of the “drugalyser”. They have not achieved that. That is not by way of criticism but it shows the difficulties in achieving that and getting the equipment that is fit for purpose.

Roadside saliva tests or sweat tests can be done. They are now used for screening a limited number of drugs, but are expensive. Also, blood tests and urine tests are intensive, personal and intrusive. They have to be conducted for many drugs. As I understand it, there is no drug test yet that can identify if the drug in the bloodstream is legal or illegal. The whole rigmarole of someone having to produce their prescription and give evidence that they had taken the drug according to the manufacturer’s instructions is quite difficult.

I apologise to the Minister but I have a number of questions. If we want this clause to succeed we have to address them. We are trying to achieve the same ends. The Government must have an idea of how many controlled substances they expect to be covered by the new offence and how many, if any, they expect to take a zero-tolerance approach to. On what basis will the limits be set for drugs where it is impossible to determine the average level of impairment? How will the Government ensure that individuals on long-term medication are not unduly impacted by this offence?

I can envisage a scenario where someone is out for the day or for the weekend and have the medication with them but not the prescription. They may be in another part of the country. Will they have to go to a police station and have tests? Will they have to produce their documents to show they are taking prescription medicine? Will they carry a card with them from their doctor? There is a bureaucracy that goes with this that will protect those on prescribed medication, particularly pain medication. We have to make sure we get that right and address issues for those people.

Do we know what the cost of the new “drugalyser” equipment could be? Every police force would have to have it. They would not just have one—they would have several—so there would need to be cost assessments on that. One of the reasons for one of my amendments,

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or the main reason, is that I cannot work out how the Government propose to determine whether or not an individual has followed the manufacturer’s instructions in relation to taking the drug. That is very much reliant on the individual saying, “This is what I did”, or trying to check how it has affected their bloodstream.

On the development of the new “drugalyser” equipment or saliva testing, how many controlled drugs can the roadside tester identify? Presumably it is not all of them, so for how many drugs would people need to have blood or urine tests to identify them? The legislation refers to a specified limit. There is a difficulty here which is identified in the impact assessment. To specify a limit would be difficult. There would have to be secondary legislation identifying the specified limit for each individual drug and each police force. We would have to be aware of all of those.

At what point would the police accept evidence of the drug being lawful? Would they accept a prescription or would they have to go through identity checks and go back to the police station for urine and blood checks? There has to be a process and before the legislation goes through we have to understand what that process is to protect people on prescription medication.

Within the testing regime that has been looked at, is there the ability to detect the difference between legal and illegal drugs? I know that sometimes the same drug can be both legal and illegal, depending on how it is prescribed and used. There is a difficulty in that area. Someone who has taken legal drugs will obviously not be prosecuted but, if the system cannot differentiate, what police resources will have to be used in checking this? Will standard drug tests be carried out at the scene of an accident? Will the “innocent party” or victim in a road traffic incident also have to be tested, and will they then have to prove that any drugs they were taking were prescribed, legal and being taken according to the manufacturer’s and prescriber’s instructions?

I also ask the noble Lord what discussions there have been with other European countries. I recall, as I am sure will the noble Lord, Lord Mawhinney, ongoing discussions over many years between the Republic of Ireland and the UK about the common border and having parity of offences and penalties. There is a wider European issue as well, so what discussions have there been with the Northern Ireland Administration, the other devolved Governments, the Irish Government and European Governments?

We want to be assured that the cost is proportionate to the issue. There is an issue that must be addressed but my concern is that we do not unnecessarily penalise those who need to take drugs, have been prescribed medicines and are in great pain. They might either not drive and limit their lifestyle or not take the medication that they need. The Minister probably shares my concern but I seek an assurance that these issues are being looked into, that answers will be forthcoming and that when we come to Report stage, after the Recess, these issues will have been ironed out. I hope that by then there will be enough information to satisfy those of us who want this legislation, particularly this clause, to succeed, but also want to be reassured that we are not damaging the interests of those who are not committing any offence and should not be seen to be doing so.

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Lord Henley: My Lords, the noble Baroness is an eternal optimist if she thinks that we will have everything ironed out by Report stage but I am grateful for that optimism. I am also grateful to her for giving me a list of the various questions that she wanted to ask and then putting forward another list of slightly more detailed questions, not all of which I can begin to answer. It will become clear why it is neither possible nor necessary to answer them now. This is probably just the first stage in quite a long discussion that will take place in this House and the other House so that we can get these matters absolutely right.

I am very grateful that the noble Baroness, Lady Meacher, made it in time. At one point I thought that her amendment would not even be moved. It is very important that we have the first discussion—it is only a first discussion—on this clause. I agree with her that this is a road safety issue. It has nothing to do with other drugs issues. She and I will discuss those in other arenas on other occasions. The important point to remember is that anyone who is impaired as a result of using drugs, whether controlled or uncontrolled, can commit an offence under Section 4 of the Road Traffic Act 1988.

In responding, I shall try to keep a very complicated issue as simple as possible. For that reason, those who are old enough—even in this House, that does not necessarily mean everyone—should remember what it was like pre-breathalyser in relation to one drug, namely alcohol. The noble Lord, Lord Dear, was probably a young policeman at the time. There was an offence of driving while impaired by alcohol but it was very difficult to prove. There were all sorts of methods by which one could try to do so. We probably have to go back to the Wilson Government of 1964 when Barbara Castle was Secretary of State for Transport and, as a result of legislation, the breathalyser was introduced. The idea was that you did not have to show that you were impaired; you were deemed to be impaired if you were over a certain limit—that is, if there was so much alcohol in your blood. That has proved very effective over the years.

I do not have the figures in front of me for the number of deaths, other casualties and accidents over the years. However, we have seen not only a massive decline in those but quite a big cultural shift in people’s attitudes to drink-driving. People take much greater care about not being over the limit, as they put it, even though they might think that they are still capable of driving. In other words, people accept that being at the limit means that they are impaired.

In Clause 27 we are trying to do something similar with drugs. However, as I said, on an issue that we want to keep very simple, this is going to be very difficult indeed. All noble Lords who have spoken in this debate—and, I imagine, all those listening as well—will accept that we are dealing with a whole range of different drugs. There are controlled drugs and uncontrolled drugs—a vast array of over-the-counter drugs, which people take for colds or whatever, that we all know can impair driving, and people should be careful whether they take them. I have even seen on a bottle of cough mixture for my children when they were very small, “Do not drive heavy vehicles after

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using this”. I am not sure why my children were likely to be driving heavy vehicles or heavy machinery after taking some cough mixture, but there is often such advice with medicine. Whether a drug is controlled or uncontrolled, it will still be covered by Section 4 of the Road Traffic Act 1988.

Clause 27 is trying to deal with the controlled drugs at this stage, and we need expert advice on that. Noble Lords who have spoken will also be fully aware that we have set up an expert panel to look at this. I do not have the list of names in front of me, but everyone will know that the people dealing with this matter are very eminent in their field. They will have to work very hard to find ways of defining the appropriate drugs and the appropriate limits. Because of the way we have drafted the Bill at the moment, there might have to be zero tolerance with some drugs, but I note the points that the noble Baroness made, particularly about cannabis and other drugs and how long they stay in the bloodstream. I accept that it is difficult, but we want to wait and hear the advice from the panel. I very much hope that we will have some initial advice before we get to Report. As I said, we are in this lucky position of having Report delayed somewhat until, I imagine, late in October or the beginning of November, so it does give us time to see what comes out, to listen to what the panel has to say and to have further discussions.

Again, we are at that happy stage of the Bill starting in this House and we have the joy of discussing it, but it can go on to another place. Even in another place they sometimes discuss these things seriously and in great detail, as the noble Baroness knows from her great experience there. We have time to get this right and make sure that we have the right procedures in place. In response to the points made by my noble friend Lady Hamwee, we want to make sure that there are appropriate defences for those who have taken over-the-counter medicines inadvertently or incorrectly, or for those who are on prescribed drugs from their doctor—for example, in the case of a statutory offence of someone who takes controlled drugs for medical reasons. We need to look at all these issues.

At the same time, we want to make sure that the expert panel can offer advice about setting appropriate levels for whatever drugs we decide to include in the interests of public safety. I go back to the first point made by the noble Baroness, Lady Meacher—that this is a road safety issue first and foremost. For some drugs, we might have to say that zero is the only safe limit, but we want to wait until we get advice from the experts in this field because, however knowledgeable we are, we are not the experts and we need to listen to that in due course.

I said that I was trying to keep a very complicated issue as simple as possible at this stage, because all I wanted to do was set out what we were trying to do and what the problems are. I hope that between now and Report we can have further discussions about this, and I certainly hope to involve colleagues in the Department for Transport, because I think that they should be involved. This is not a Home Office issue; it just happens to be in a Bill that the Home Office is taking through the House. Others might be involved, and I hope they want to be.

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9.15 pm

Baroness Smith of Basildon: The Minister’s alcohol analogy is a useful one, although the caution that I would place on that is that testing for alcohol is testing for one drug. As he said, there is an almost unlimited number of drugs to be tested in this case. His comments have reassured me that the matter is being taken seriously and that he recognises that it is a work in progress. However, I am always slightly concerned—alarmed is too strong a word—when the Minister refers to matters coming back to this place and says that we do not have to worry if we do not get it completely right because it then goes to the other place as well. I am glad that he is shaking his head. That is not what he meant, but it has happened a couple of times in the course of this Bill. There is an obligation on us to get it as right as we possibly can. I know that we are not experts—I do not think that I am an expert in anything—but we are legislators or we are advising on legislation, and it is incumbent on us to ask the kind of questions that have been raised today. We need assurances that we will have the answers to those questions before the legislation goes to the other place. If we had answers to those questions before we pass legislation through both Houses, and when this House passes its advice to the other House, we could in all confidence say that we know that we have the procedures in place for this offence to protect people as we think it should.

Lord Henley: My Lords, if I put the matter in the terms described by the noble Baroness, I should not have done. We want to get it right and we shall try very hard to do so, but we need that expert advice. That is why I hope that we will have the beginnings of the expert advice from the expert panel before Report stage. At this stage, I was trying to make it clear that it was the beginnings of a discussion on a very simple idea, although it does not sound simple. The noble Baroness is right to say that we have had it very easy with alcohol, because it is just one drug and we have just one limit. We are now talking about lots of drugs—controlled, legal or illegal—and where we put the limits. It is going to be very complicated, so we want to listen to the experts and have further discussions.

Baroness Meacher: I thank the Minister for his response and openness to further discussions. Can he give a commitment that, if at all possible before Report, we could have an opportunity for some feedback from the expert panel and a discussion with it about the implications of its preliminary findings?

Lord Henley: I can never give an absolute commitment in relation to an expert panel discussing these things, because I cannot put a gun to its head about how it should proceed. However, I would very much welcome a chance for some sort of informal seminar among noble Lords interested in these things in the early days of October. That might be a useful way in which to take these things forward. I see a nod from the noble Baroness, Lady Smith, and, no doubt, also from the noble Baroness, Lady Hamwee. I look forward to it. Tea and coffee will be available on that occasion at some time in October.

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Baroness Hamwee: My Lords, we are being offered caffeine.

It is interesting that those of us who have spoken on this are not opposing the underlying proposition. We are all looking at it as a road safety issue, but we want to get it right. Although I welcome the Minister’s optimism about ironing out the problems, I said to him in the break earlier this evening that the months of the summer recess have a habit of disappearing awfully fast and October will be on us quite quickly. More seriously, I express some concern about being asked to deal with this hugely important and complicated issue while work is still going on.

I do not think it is appropriate to seek to make a lot of points now as I am sure we will come back to this on Report. I had already written down “meeting ?”, but I was thinking that something more than a meeting, such as a roundtable discussion, might be needed so that we can swap ideas and get questions answered. I am sure that there are more questions than have been raised tonight. My noble friend Lord Thomas of Gresford has been muttering to me about evidence and burdens of proof—I did mention burden of proof—and how the prosecution would deal with the issues. Bringing together the medical and the legal would be extremely helpful. I am grateful to the Minister for his suggestion. I will bring the biscuits.

I beg leave to withdraw Amendment 154ZA.

The Deputy Chairman of Committees (Lord Geddes):I understand that the amendment is in the name of the noble Baroness, Lady Meacher, although the noble Baroness, Lady Hamwee, moved it. Does the noble Baroness wish to speak?

Baroness Meacher: My Lords, I am advised that I must withdraw my amendment so I withdraw it.

The Deputy Chairman of Committees: The noble Baroness, Lady Hamwee, if I may say so, has beaten you to the draw.

Amendment 154ZA withdrawn.

Amendments 154ZB to 154DA not moved.

Clause 27 agreed.

Amendment 155

Moved by Lord Mawhinney

155: After Clause 27, insert the following new Clause—

“Public order

Public order offences

(1) Section 5 of the Public Order Act 1986 is amended as follows.

(2) In subsection (1), for “abusive or insulting” in the two places where it occurs there is substituted “or abusive”.”

Lord Mawhinney: My Lords, I have been sitting here contemplating that it falls to me to move the last amendment, at the end of a long day, at the end of

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six days of Committee. I wondered whether it was more appropriate to say “better late than never” or “last but not least”.

At least this amendment has the virtue of simplicity. We have had some fairly heavy and complicated amendments to deal with today. This one is dead easy. It is about freedom of expression. All of us would say that we are supporters of freedom of expression. I stake my latest colours to the mast: I had the privilege of chairing the Joint Committee on the Draft Defamation Bill and one of our very first recommendations said:

“We recommend that the Government has particular regard to the importance of freedom of expression when bringing forward this Bill”.

I think the best definition of freedom of expression falls to a learned opinion given by the noble Lord, Lord Macdonald of River Glaven, who was a distinguished DPP and is a cosignatory to this amendment. He is overseas tonight and not able to take part in this debate. He wrote, in an opinion that I do not think has been seriously challenged legally, about removing the word “insulting” from Section 5 of the Public Order Act 1986:

“Freedom of expression constitutes one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to Article 10 (2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.

Those last words are very important.

This is the second time in just over a year that Parliament has been invited to remove the word “insulting” from Section 5. Edward Leigh MP tabled such an amendment in the other place in May 2011. The Government, in the form of James Brokenshire MP, promised a public consultation, which indeed was launched on 13 October last year and closed on 13 January this year. That, plus the handling of the Bill in the Commons, meant that the other place never got around to pursuing an amendment to Section 5.

As your Lordships will know, the guidance is that the Government should respond within three months to a public consultation. We are now heading towards six months and, as of two days ago, the Government still had not responded. The Minister then promised conclusions “as quickly as possible”. It is probably worth taking a minute to ask ourselves: what is the problem that is constituted by the inclusion of the word “insulting” in Section 5?

Four very brief examples will illustrate the problem. An Oxford student said to a police constable, “Excuse me, do you realise your horse is gay?”. He was arrested and the police tried to fine him £80. A man growled and said, “Woof!” to two Labrador dogs and he was detained by the police and fined by magistrates. A 16 year-old boy held a placard saying, “Scientology is not a religion, it is a dangerous cult”, and he was arrested. An elderly street preacher displayed a sign that said, “Stop immorality. Stop homosexuality. Stop lesbianism. Jesus is Lord”. He was arrested, convicted and wound up being £600 out of pocket. All those stem from the inclusion of the word “insulting” in Section 5 of the Public Order Act 1986.

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Is this a quirk of those of us who actually believe that Jesus is Lord, or does the opposition here have a somewhat broader base? I say particularly to the noble Baroness, Lady Smith, that this is not a party-political issue. Concern about this stretches across the Benches in both Houses, and the fact that I quote one Conservative MP does not mean that I am trying to make it party political; I just think that David Davis MP summed up the issue better than most speeches I have heard from Labour, Conservative and Lib Dem MPs. He said:

“Section 5, amongst other things, makes it illegal to insult somebody. This … law makes other things illegal which should be: incitement to violence is illegal; abusive behaviour is illegal. But an insult? Who should decide who’s insulted? … What this does is actually make the courts, the police, sit in judgment on whether somebody feels insulted or not, which actually has a terrible chilling effect on democracy”.

9.30 pm

Moving from a Conservative MP, I note what Peter Tatchell said:

“Freedom of expression is one of the most important of all liberties and human rights. It should be only restricted in extreme and very limited circumstances … Section 5 of the Public Order Act 1986 is a menace to free speech and the right to protest. It has been repeatedly abused by over-zealous police and prosecutors”.

Going down the spectrum, I alighted on Keith Porteous Wood from the National Secular Society, who said:

“Secularists, in defending free expression, must ensure that the law is fair to everybody and argue equally for the right of religious and non-religious people to freely criticise and exchange opinions without fear of the law—unless they are inciting violence. Free speech is not free if it is available only to some and not others”.

Simon Calvert of the Christian Institute said:

“Britain’s historic civil liberties were often hammered out amidst controversy over freedom to preach without state interference. Christians know first hand why free speech is precious and this is why the Christian Institute is pleased to join people across the political and philosophical spectrum to help bring about this simple but important change”.

My fifth and final quote on who said that Section 5 should go comes from one of the most distinguished public servants this country has had for many years—the noble Lord, Lord Dear, who I am pleased to see in his place. He has been a strong advocate of reform. I do not wish to presume on whether he will make a contribution to this debate or to prescribe what he should or should not say, but I hope he will forgive me if I quote from what he has already said, as it is important. He said:

“No matter what your view, free speech moderately expressed is paramount. There is a clear public interest in protecting the public from threatening or abusive behaviour but criminalising mere insult goes too far”.

There is widespread opposition to the continued inclusion of the word “insulting” in Section 5. It is so widespread that one wonders what is the Government’s problem. It is nearly six months and they still cannot make a decision. We all know that there are sources available who will share information and it appears that some civil servants and some police officers are loath to see change. It is not true of ACPO but it is true, I believe, of at least some in the Police Federation. I deduce that from what the Minister said in the other place:

“It is worth mentioning that section 5 … covers issues such as swearing at police officers”.—[Official Report, Commons, 10/10/11; col. 88.]

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I have to tell your Lordships that I was a Member of Parliament for 26 years and never quite managed to get half of my constituency to vote for me. I do not need any instruction on what it is like to be insulted or sworn at. I was a Minister for 11 and a half years, half of them in Northern Ireland, where I went as a Minister immediately following the signing of the Anglo-Irish agreement. I am probably one of the very few in your Lordships’ House who has been insulted and sworn at by people who are now Members of the Northern Ireland Assembly, the other place and, indeed, your Lordships’ House, although I hasten to add that they were not Members of your Lordships’ House when they were swearing at me and insulting me. It must also be remembered that I was chairman of the Conservative Party for two years. I know about being at the receiving end of insulting and swearing, and I am willing to join those police officers who do not much like it. However, that is not an excuse for curbing freedom of expression.

I suppose that at this point it is probably right that I make a confession. I have some element of collective responsibility for the inclusion of the word “insulting” in Section 5. By that, I mean that I was one of the Government’s youngest and most inexperienced Ministers when the Public Order Act went on to the statute book in November 1986, because I became a Minister in January 1986. I have to be honest and say that I was not paying much attention. I was in Northern Ireland trying to stop the IRA, in particular, killing and maiming, including trying to prevent it killing and maiming me. These days, I enjoy the irony of reflecting on the fact that the closest it came to doing so was when somebody very senior in Londonderry authorised an attempt on my life.

Therefore, I was not paying attention to the Public Order Act, although, in the constitutional position of collective responsibility, my name was attached to it. Therefore, I take this opportunity to say—actually, I am not sure what I am saying. I am not sure whether I am saying sorry or whether I am saying that it was a good introduction at the time but, after 26 years’ experience, we know that it went too far. Whether it was wrong at the time or whether we now know from bitter experience that it does not work and it is time to change it, I will leave the Committee to decide, but change it needs.

I say to the Minister that last year a poll of Members of Parliament showed that 62% were in favour of removing the word “insulting” from Section 5. The Christian Institute, the Peter Tatchell Foundation, the National Secular Society and ACPO are all in favour of it, and—for goodness’ sake—it is even Liberal Democrat policy to take Section 5 without the word “insulting” in it. We wait to hear what the Minister has to say about the public consultation but a little bird in his department tells me that the public view is overwhelming. However, I remember when I was a Minister and how I hated it when one of my colleagues leaked information that was the preserve of the Government, so I will not go any further with that at this stage.

If my noble friend will allow me to use a footballing parallel, I hope he will understand that, with all those people behind him—the public, MPs and all those organisations—he is standing in front of an open goal. Please put the ball in the net, Minister. I beg to move.

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Baroness Hamwee: My Lords, it sounds as though in 1986 mere insults would have been quite a relief. I congratulate the noble Lord on the amendment, to which I put my name along with my noble friend Lord Macdonald of River Glaven, who, in a professional as well as a political capacity, has been quoted. I said at Second Reading that I hoped that the Bill might be a vehicle for this move, but I had little optimism that the Public Bill Office would accept the amendment as being within the scope of the Bill. So my congratulations to the noble Lord are doubled on that score.

I can spot when the House is ready to draw its business to a close and I have no doubt that we will have an opportunity to come to this at Report. When he left earlier today, my noble friend Lord Lester muttered to me that he would speak on it at Report. I leave it to your Lordships to decide whether that is a threat or a promise. The House has already heard that taking the word “insulting” out of Section 5 is Liberal Democrat party policy because, in summary, insults should not be criminalised and because of the essential nature of free speech. Our policy would, indeed, go further and take the word out of Section 4A as well. I, and my colleagues on the Liberal Democrat Benches, very much support the amendment.

Lord Dear: My Lords, I will take up very little time in your Lordships’ House this evening. The noble Lord, Lord Mawhinney, has made a very powerful case, citing a lot of examples of the way in which this word has been abused within the purview of the Public Order Act 1986. We should, in fact, note that the words have been around since they first went on to the statute book in the Public Order Act 1936. However, it is only in the last 10 or 12 years that the word “insulting” has attracted this sort of attention. As many of your Lordships know, I have taken a close interest in this for a very long time. I have spoken on at least half a dozen occasions in your Lordships’ House; I have tabled numerous Questions for Written Answer and written articles in national newspapers, including one in the Daily Mail online today, always pressing for the removal of this word from the Public Order Act. Over the last two or three years that I have been engaged in this campaign, I have watched public opinion switch from either indifference or opposition through to almost complete unanimity in the public domain. One might almost say that the door is swinging wide open—something that the noble Lord, Lord Mawhinney, has noticed for himself.

I will quickly cite two examples. I spoke on exactly this point at Second Reading during the passage of the Protection of Freedoms Act last November, and again on the fourth day of the debate on the Queen’s Speech on 15 May this year, and reflected that—but for the three-month consultation period which had produced something of a logjam in the process—I would be tabling the amendment myself. On 15 May, the noble Lord, Lord Henley, from the government Front Bench said in reply:

“As for the noble Lord's particular remarks about Section 5 of the Public Order Act, I ask again that he be patient for a little longer. It is a complex issue, and we have to give careful consideration to the views expressed in the 2,500 responses that we have had to the consultation”.—[Official Report, 15/5/12; col. 376]

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As has been said, we are still waiting and patience is perhaps being stretched a little but I, for one, am prepared to wait, particularly since we have the prospect of the summer recess in which the Home Office can come to a conclusion on this. I am a little surprised that the noble Lord, Lord Mawhinney, has tabled the amendment now, because it presses exactly the same point that has been pressed before and we are still waiting for the opportunity to get the consultation out of the way and then have a clear run at the issue.

My response is fairly self-evident. I will continue to advocate the removal of “insulting” from the Public Order Act and, to that end, I shall exert all the pressure I can in due course. This is not an amendment that I would have tabled today and I hope that it will be withdrawn at this stage. It would be helpful if the Minister could again signal an urgency in the Home Office to deal with the consultation so that we can properly address the issue at Report.

9.45 pm

Lord Rosser: My Lords, as has been said, the amendment removes the word “insulting” from Section 5 of the Public Order Act 1986. The noble Lord, Lord Mawhinney, has explained the reasoning behind the amendment. We will need to be satisfied as to its justification, the evidence advanced as to why it is needed and the extent to which that evidence reveals a problem that can only really be addressed by a change to the legislation. We will also want to be satisfied that removing “insulting” will not mean that people using such words or behaviour cannot be prosecuted when there is every justification and reason for doing so.

The consultation on this issue closed in January. The Government have not, as far as I am aware, published the replies to that consultation or their own response. Despite this, the Deputy Prime Minister, presumably in his official capacity, has apparently made comments supportive of the approach in the amendment. Bearing that in mind, and the distinguished noble Lords whose names adorn the amendment, I suspect that the Government, at worst, are not going to reject its intentions.

For our part, we will listen to whatever points the Minister has to make, as well as the points made by noble Lords in the debate, to which we will want to pay regard. We also want to consider the replies to the consultation when they are published, along with the Government’s response, before coming to a firm conclusion.

Lord Henley: My Lords, I hope that I can be relatively brief in responding to the speech of my noble friend in moving the amendment, and the remarks that other noble Lords have made. My noble friend need not apologise for the fact that he was a member of the Government and was a signatory to the Public Order Act 1986, which included the word “insulting”. As the noble Lord, Lord Dear, has reminded us, “insulting” goes back to the Public Order Act 1936, introduced by the then National Liberal Home Secretary, Sir John Simon. That was very much borne out of the fascist marches of the 1930s. Section 5 of that Act referred to any,

“person who, in a public place or at a public meeting, uses threatening, abusive or insulting words”.

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That is much the same as the 1986 Act which my noble friend now feels embarrassed about having signed up to.

To take the history lessons back a bit further, I take my noble friend back to the Metropolitan Act of 1839. That was under a Whig Government—the forebears of the Liberal Democrats—who, again, introduced the word “insulting”, but which applied only in London and not in other parts of the country. I make this point to say that this has been going on for some time.

Similarly, I apologise to my noble friend for the fact that our consultation ended in January and we have not responded within the appropriate three months; however, it did cover a number of other issues. Obviously, it is now six months since that consultation ended. As has been made clear by a number of noble Lords who spoke, we had some 2,500 responses to that consultation and we want to consider them carefully. It is clear that there are a number of different and passionately held views on the subject. Given the complexity of the issues raised, we in the Home Office, as Ministers and officials, are still considering the balance of all those representations. So, I say to the Committee—and to the noble Lord, Lord Rosser—that I am not in a position today to set out the Government’s position on the amendment.

This is a timely debate, which will help to inform the Government’s further deliberations. I would have been grateful if it could have happened at a time when more noble Lords were here in Committee. Although I appreciate that the names on the amendment of those who support it come from different parts of the House and they all seemed to be on the same side, there are strong believers in other views. We have heard a number of cases indicating the weakness of having “insulting” in the provision. Different noble Lords have cited a number of different cases.

We also have to accept that freedom of expression is never an absolute right. It needs to be balanced with other competing rights. It was made quite clear in the case of Percy and the DPP that Section 5 is proportionate and contains that necessary balance between the right of freedom of expression and the right of others to go about their business without being harassed, alarmed or distressed.

I do not want to go into details at this stage because we are debating this at too late an hour with too empty a Chamber. All that I am saying is that we have had a consultation. That has ended and we have had 2,500 responses. Those need to be considered carefully and all of us need in time to take a view. I hope that all noble Lords will accept that there are arguments on both sides, as the noble Lord, Lord Rosser, put it. Those need to be considered very carefully. I am pretty sure that I can say to my noble friend Lord Mawhinney that we are likely to come back to this issue at a later stage in the Bill.

As I have said on other occasions, we have some considerable time before we get to Report. That might make it easier to come to that considered view. I hope at that point we will be able to put forward the

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Government’s considered view to the House. Therefore, I hope that my noble friend will, on this occasion, feel able to withdraw his amendment.

Lord Mawhinney: My Lords, I am grateful to the Minister for his response and to other colleagues who have spoken. None of us who spoke is responsible for the fact that the debate is on very late and the House has well below the number of noble Lords who might normally have considered the matter. That is not our fault. I hear what the Minister said about the lateness of the hour tonight. If we come back to this at Report, I am not sure that that argument will carry much water were it to be tried a second time around.

The Minister will have heard that those who have spoken have all spoken with one voice. I would like to pick up the point that the noble Lord, Lord Dear, made about the timing of this. Having been privileged to spend 26 years at the other end of this Corridor and a mere seven at this end, I understand why Governments and Parliament issue guidance. They issue guidance to constrain the power of the Executive to put stuff in the long grass and let it lie there. Guidance is designed to say to Ministers, “You can have reasonable time, but there comes a point when Parliament must be accorded the rights and privileges that go with the name Parliament”.

My noble friend pointed out that there were 2,500 replies, and six months later they are still studying them. Okay, but the guidance was that they should have replied in three months, so at the very least we should have had a message from the Executive two months ago saying, “This is really taking us longer than we thought. We hope Parliament won’t mind if we take a little longer”. Do you know what? I am guessing that Parliament would have said, “Okay, take a little longer”, but here we are after six months. I say to my noble friend, “Take a little longer”. However, I also say that the mood of the House and the mood of the other place would be that, well before Report stage, we would wish to be encouraged to believe that not only had the Government formed a view, which they were willing to share, but that they had done something politically quite sensible and aligned themselves with the vast majority of people who want to see “insulting” removed from Section 5.

As my noble friend goes away to sit at his desk over the summer pondering things, I offer him a reflection from former US President Harry Truman, who had only two frames on his desk. One frame held a picture of his wife, and in the other was a saying from Mark Twain. Every day, Harry Truman read these words:

“Always do right. This will gratify some people and astonish the rest”.

I offer that encouraging thought to the Minister as he contemplates those 2,500 responses and the content of this short debate. I beg leave to withdraw the amendment.

Amendment 155 withdrawn.

Schedule 15 agreed.

House resumed.

House adjourned at 9.57 pm.