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I do not like mentioning the case of the right reverend Prelate the Bishop of Chester because I know that he finds it extremely embarrassing, but it is necessary to mention the matter because of what the police said in a formal statement at the end of the obviously lengthy police inquiry. The statement issued by the Cheshire constabulary was truly astonishing. First, it said:
I remind the House that it was consulted because the right reverend Prelate had had the effrontery to make some comments to his local paper about American
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The police were not saying for one moment that there was never anything in the complaint made against the right reverend Prelate. They were saying—were they not?—that, if at that time this new offence had been on the statute book, the right reverend Prelate might well have been for the high jump.
There may be some—although I have never met them—who think that it would be no bad thing if people such as the right reverend Prelate the Bishop of Chester were discouraged from expressing their opinions on sexual matters, but that is not supposed to be the view of this Government. My understanding is that the Government do not wish to see discussion stifled and people harassed, bullied, interrogated and sometimes arrested for expressing their views. However, if that is so, it really is time that they did something about it.
I now turn to the Government’s undertaking to issue guidance. Let us be plain: the Government can issue guidance at any time they want and they do not have to get permission from Parliament to do so, but they cannot say that guidance will avoid a repetition of the scandals that we have often referred to, such as the Lytham couple being interrogated and bullied for daring to question the council’s gay rights policy.
When we last debated this matter, I pointed out that for years guidance has been available to help the police. It was there to help them to apply the present Public Order Act, which, I remind the House, already contains provisions not altogether dissimilar from the provisions in this Bill. For some time, it has been unlawful to use threatening, abusive and insulting words or behaviour, particularly when there is hostility on grounds of sexual orientation. That is the present law. Therefore, for a long time there has been guidance to help the police in circumstances not at all dissimilar from those envisaged by the present offence. There was already a pretty high threshold for the offence—and a lot of good that guidance has done! Does anyone in his right mind think that the right reverend Prelate the Bishop of Chester, when commenting to his local paper on the matters that I have referred to, was using,
I am quoting from the Public Order Act. Yet off rushed the police, in spite of guidance, to consult the CPS, which, disturbingly, did not have the sense to send them packing. I do not understand how the Minister can keep on talking about the efficacy of guidance when the present guidance issued by the CPS is seriously defective, as I pointed out in our previous debate, when the Government have not done us the courtesy of showing us a draft of the guidance that they have in mind and when they have not told us how, if at all, it would differ from, on the one hand, existing guidance or, on the other, my amendment.
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There is another important matter. How can the Minister overlook the obvious danger of having a free speech clause in relation to the religious hatred offence but not here? It is not playing straight with the House to say that the inconsistency can be overlooked because the Government never wanted a free speech clause in relation to the religious hatred offence in the first place. The other day they were saying, “Well, you mustn’t think anything about that because it was forced on us against our wishes”. If that is right, surely their duty must be either to accept our amendment or to set out to repeal the religious hatred free speech clause. Instead, they are content to be responsible for a glaring and dangerous inconsistency.
I ought to finish with the argument advanced last time by the noble Lord, Lord Thomas of Gresford, which is that it is clear what the prosecution has to prove and that a properly directed jury would have no difficulty applying the clause correctly. That is right but it misses the point entirely. When people are harassed, interrogated and arrested as a result of wrongful action by the police as they follow up what is often a malevolent complaint—such as the one against Mr Hurst, who was handing out leaflets inviting people to his church’s Easter service—it is little comfort to know that it is very unlikely that a conviction would have followed.
We on this side of the House are aware of the evils of homophobia and understand why the Government wish to put this new offence on the statute book. Let it go on the statute book but let us also be sure that, as a society that values free speech, we are not unwittingly licensing those who wish to suppress it. I beg to move.
Moved, as an amendment to Motion J, to leave out from “House” to end and insert “do insist on its Amendment No. 285”.—(Lord Waddington.)
Lord Lester of Herne Hill: My Lords, I have a particular interest in this subject not only as a member of the Joint Committee on Human Rights but because I suppose I was the architect of the amendments that the House made when considering religious hate speech. I drew the teeth of the Bill; we defeated the Government and the other place by one vote, as we all remember, and upheld the draft for which I was responsible, and which is now the law of the land.
I have spent most of my life dealing with two main issues: free speech and equal protection of the law—equality. When I was a special adviser to Roy Jenkins we extended the race hate speech provisions very broadly indeed—perhaps too broadly. The Race Relations Act 1976 made it a crime to stir up racial hatred not only where there was a deliberate intent to do so but objectively where it was likely in all the circumstances that race hate would be stirred up. That was a serious encroachment on free speech, which we did for reasons that no longer need to be thought about in this debate.
The view taken by this House and by one vote in the other place on religious hate was that the Government had gone too far in mimicking the race
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It seemed to me—and, luckily for me, to the great majority in this House and a narrow majority in the other House—that it was right to narrow this speech crime dealing with religion so that there was a need to prove specific intent and a freedom to insult or abuse, but not to use threatening language. That is why, if one compares the crimes of religious hate and racial hate, one finds two safeguards built into the religious hate crime: first, the need for specific intent; and secondly, the freedom, although it is not an obligation, to insult—but not to threaten, because threatening speech obviously seriously affects public order.
The Government faced a difficult policy choice on what do to on homophobic speech. Is it more like race and ethnicity, or more like religion? Does the stirring up of hatred against someone because of their sexuality attack their common humanity—what they are born with, or are as a human being—or is it an attack on ideas and beliefs akin to religion? The Government could have chosen the unwise course of doing what they first tried to do with religious hate speech; that is to say, they could have devised a broad offence that applied not only to threatening speech but to abusive and insulting speech, and they could have used the same objective test of intent as they attempted for religious hate speech.
I had nothing to do with it but—in my view wisely—the Government chose instead a much larger measure of freedom of expression. As has been said by the Minister and others, they chose to criminalise only that which is deliberately stirring up and using threatening language, leaving a person free, however unpleasant and evil it may be, to insult somebody because they disapprove of homosexuality. They were right to do that, and this House should support the narrow homophobic hate speech offence.
I devised what came to be called the “English pen” clause—the free speech clause when dealing with religion—which the Government did not wish to have; I was quite surprised it got through both Houses. I invented it because I felt that religion, and controversy about it, is all about expression and it was therefore vital for writers, novelists, playwrights and broadcasters to know that, in the turmoil that religious controversy always creates, there should be the widest possible free speech. It is not necessary to do that for homophobic hate speech. That is why I support the position of the other place and the Government.
If a prosecution were launched that seriously threatened free speech in a way that violated the Human Rights Act and Article 10 of the European Convention on Human Rights, that would be a most serious matter that would have to be dealt with by the
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Baroness Butler-Sloss: My Lords, having listened with great interest to the noble Lord, Lord Lester, I do not think we can distinguish as clearly as he has sought to do between that which is religious and that which is not. We are talking about homophobia, which I, like, I assume, everyone in this House, abhor, but there are religious groups, not only Christians, not only bishops, but many Jews and Muslims, which share strong views that they gain from the Bible, the Old Testament in particular, or the Koran. Those people are potentially at risk. It is very unlikely that they are at risk of prosecution, but in the speech that the noble Lord, Lord Waddington, made today and on a previous occasion, he set out that his area of concern is the people who say what is understood incorrectly to be within this proposed clause. It is those people who will potentially be intimidated; they will certainly be bothered and may go through an extremely unfortunate experience before calmer heads point out that under the new clause, as under older clauses, they have not committed any offence. It is those people whom the noble Lord, Lord Waddington, has spoken about who, despite everybody’s objection to homophobia, none the less need some help. I do not believe that guidance, even better guidance than is provided at the moment—the case of the right reverend Prelate the Bishop of Chester is a pretty good indication that the police guidance cannot be much good—will do what is needed to look after people who genuinely have ideas that are unacceptable to many of us, but who hold them for strong religious views from various religions. That is why this amendment tabled by the noble Lord, Lord Waddington, is not, as the other place said, unnecessary.
Lord Alli: My Lords, I listened with great care to the debate on the noble Lord's amendment on Report. I listened to the speeches of the noble Lord, Lord Waddington, and those who supported him. My objective was to understand what mischief his amendment was trying to resolve. The noble Lord's argument seems to hinge on the proposition that this provision, left unamended, would stop good, decent law-abiding citizens expressing the deeply held views, as the noble and learned Baroness has just said, that homosexuality is wrong and sinful. It would also have stopped those, particularly in the faith communities, who want to express their deep and heartfelt concerns that homosexuality, no matter how much they respect an individual, is wrong and is a sin.
I do not fear legitimate argument, and I do not support any provision that would outlaw a person's right to have and to hold these beliefs and to express them freely. I do not fear people who think homosexuality is a sin. I do not fear an open and frank discussion of homosexuality. It is that right which this House tries to uphold. I, along with a whole host of noble Lords,
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If I believed that this provision would prevent good men and women up and down this country discussing their views openly, I would join the plea of the noble Lord, Lord Waddington, but it is not about curbing freedom of expression—it is about extending the existing offence of incitement to hatred on the grounds of race and religion equally to sexual orientation. That means, in relation to prosecutions, that the CPS will require two significant tests to be met: first, that the words were threatening; and, secondly, that those words were intended to stir up hatred.
I can put it no better than the noble Lord, Lord Thomas of Gresford, did at Report. He said:
“The prosecution has to prove, first, that certain words or behaviour used by the defendant were threatening. I suppose that that could be seen as an objective test. Would the jury or the magistrates consider it to be threatening if those words were used about them? The second ingredient of intent to ‘stir up ... hatred’ requires the jury or magistrates to be satisfied about the state of mind of the defendant and that he intended to stir up hatred. Those are strong words. It throws a considerable burden on the prosecution to satisfy the jury that there was an intent to stir up hatred”.—[Official Report, 21/4/08; col.1372.]
I cannot see how that burden of proof could possibly apply to the types of examples that the noble Lord, Lord Waddington, cited in his speech on 21 April. Incidentally, because of a number of those cases, we know that the Crown Prosecution Service changed its advice in November 2007. Since then, not a single case has been taken up unjustly.
I also agree with what was said by my noble friend Lord Smith of Finsbury. He said:
the noble Lord, Lord Waddington,
- “will drive a coach and horses through the intention of the clause and it will allow those who stand up and incite hatred to take refuge in this clause, if it is amended”.—[Official Report, 21/4/08; col. 1371.]
It was amended. That amendment undermines the very heart of the clause. It provides a safe hiding place for those who want to stoke up hatred. It provides a fig leaf for the bigots and homophobes who would use violence and intimidation as their stock in trade. It is an amendment that uses freedom of expression as a disguise to reopen a debate.
Baroness Falkner of Margravine: My Lords, I thank the noble Lord for giving way. He will know a thing or two about the question that I shall pose to him; he will know that I am a Muslim and I know that he is familiar with the faith. From what he just said, does he suggest that a Muslim imam who is being true to his literalist interpretation—we may both disparage a literalist interpretation—and urging people to move away from homosexual behaviour is a bigot? Is that what he would decide?
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Lord Alli: No, my Lords. I am arguing that the offence does not capture the theological argument about homosexuality in Islam, nor would it affect the way that it is literally interpreted by the imams. It would prevent an imam using homosexuality and theology to incite and stir up hatred. That is the issue. It is not the theological discussion with which we are engaged. That is not made illegal under this offence.
The noble Lord, Lord Waddington, said in his opening speech at Report that the amendment,
- “could not by the greatest stretch of imagination be thought to be aimed at gays”.—[Official Report, 21/4/08; col. 1366.]
Gays are all that it is aimed at. Let us see this amendment for what it really is.
The Government have given us the opportunity to restore this provision to its unamended state so that it may help communities that are vulnerable. In the process, the guidance that they will publish will help to clarify any misunderstandings. I support the Government and reject the noble Lord’s Motion.
Viscount Bledisloe: My Lords, I strongly support the Motion of the noble Lord, Lord Waddington. In doing so, perhaps I can be brave enough to remind the House that I have absolutely consistently been a supporter of every piece of legislation in favour of gay rights that has come before the House while I have been here. There is, however, a single legal, but none the less important, point to make. There is serious misapprehension about the Government’s approach to the problem. On Report, the Minister said that although Parliament put into the Racial and Religious Hatred Bill an exemption clause that is very similar to the one that we are considering here,
- “the Government did not think that it was necessary and we do not think that it is necessary in relation to this Bill”.—[Official Report, 21/4/08; col. 1375.]
There are two points to make. First, the Government may well have been right at that stage. Secondly, however—the Minister may not like this—we are concerned with what Parliament did in that Bill and not what the Government would have liked it to have done. What is on the record and what is fact is what was enacted. What the Minister said on Report was the point at which I am afraid he strayed into error; it comes from a totally false premise. The very similar race relations Bill has an express exclusion for freedom of speech that is not in precisely the same words as those of the noble Lord’s Motion but is to much the same effect. What the Government’s argument and, with respect the point taken by the other place, fails to take into account is the absolute principle of law that: first, Parliament is deemed to know what it said last time; secondly, it is deemed to have drafted provisions in a subsequent Bill in the light of what was said before; and, thirdly, if it says something different, it means something different.
Lord Maxwell, on statutory construction, says:
“From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or a series of cognate Acts”,
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“Where the Legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas”.
If this Bill is enacted with no exclusion of any kind similar to the one in the Racial and Religious Hatred Bill, the courts will be bound to presume that Parliament intended a different result. Therefore, in this second Bill—
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Lord Lester of Herne Hill: My Lords, I hope that I did not—I did not mean to—interrupt the noble Viscount in a discourteous way. But, first, is he aware that the Human Rights Act requires all existing and future legislation to be read in accordance with human rights, including free speech. That is now a fundamental principle of interpretation. Secondly, as the architect of the free speech clause, which he now seeks to invoke for homophobic hate speech, is the noble Viscount aware that in the entire range of public order offences, the only one in which the free speech clause is included is for religious hate speech, not for race hate speech and not for any stirring-up use of language? Therefore, when he quotes Maxwell and Lord Tenterden, with respect, it is beside the point. He should be focusing on whether the unique need for a free speech guarantee, which was written into the religious hate speech, really applies to homophobic and, therefore, to race hate speech as well.
Viscount Bledisloe: My Lords, I am most grateful to the noble Lord. I was aware of most of his points. However, the last Act dealing with stirring up hatred on the grounds of ideas, expressions and things that have been said is the religious hatred Act. Presumably, one must assume that that was the model on which this Bill was based. The Minister did not suggest anything different. He suggested that because the Government did not think it was necessary to have it in the religious hatred Bill, they therefore did not think it was necessary here.
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