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The trouble is that on the first occasion Parliament was of a different view. It may be that in the House of Lords the noble Lord, Lord Lester, might convince the court of his very subtle distinction and, therefore, get it not to make the presumption. I do not question that. But the fact remains that on the face of these recent Acts on a similar topic one does not want to have this vast distinction. I would say to the noble Lord, Lord Alli, who appears to think that there is real mischief in this that the Government do not say that. All that Parliament says is that it is unnecessary. It does not say that it is undesirable or causes trouble. It says that it is unnecessary because it is clear on the words themselves, which it might be if you did not have the contrasting Act.
Baroness Knight of Collingtree: My Lords, it is very important that all of us keep our eye on the main point of this amendment. I feel very strongly that the noble Lords, Lord Alli and Lord Lester, have made
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Lord Harrison: My Lords, I, like many colleagues, was written to about that incident in Manchester. Through intermediaries, I undertook to find out the truth of that matter. I am given to understand that it was nothing to do with homophobia or any accusation, but that the people who set up the trestle table to give out the information about church services were blocking the way for disabled people to enter a local bank. It was that which was taken up by the police.
Baroness Knight of Collingtree: My Lords, the case that I had referred to me was an allegation of having made a homophobic remark. It sounds to me as if it was not the same case as that referred to by the noble Lord. My simple point is that we truly must understand in this House that we have to be very careful if we lay a duty on the police to harry, question and keep on at someone who has done no wrong. That is the point we should be addressing today.
Lord Smith of Finsbury: My Lords, when I came into the House today, I did not originally intend to speak, but I have been listening very carefully to the discussion and I want to make two brief points. First, I can absolutely understand the wish on the part of the noble Lord, Lord Waddington, and his supporters to prevent a situation where people are unnecessarily interrogated, arrested, or questioned by the police or other authorities. I can absolutely understand the wish to ensure that that does not happen. My very strong belief is that the Government’s legislation does not lead to that mischief. However, I would simply ask the House to understand that for many people who happen to be gay or lesbian in this country, it is not just a case of being interrogated, questioned or harassed; it is a question of being kicked, bruised, injured and, in some cases, killed because of their sexual orientation. I simply ask the House: which is the greater evil?
Secondly, the House really should be careful about being seen by the world outside as if it were speaking in code. There is a danger that if we pass this amendment, it will be taken as a signal by those who wish for their own purposes—something that I know the noble Lord would not wish to endorse—to stir up
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Lord Clarke of Hampstead: My Lords, I have spoken a number of times on the terms of this amendment. I shall make one comment on the Minister’s reference to the “alleged” evidence of heavy-handed police. There is no allegation about the couple in Fleetwood. It was a fact that these two lovely old people, who described themselves as Christian pensioners, suffered 80 minutes of interrogation by two six-foot policemen. That was not an allegation, it is a fact, because within 12 months—only 12 months—they got the apology that they deserved. They had committed no crime. There was no reason for what went on. But someone did not understand.
That is my worry about guidelines. If we mean that we are to maintain the principle of free speech, we should make sure that it is in this Bill and not leave it to the interpretation of guidelines, which would become another lawyers’ paradise. I say that with great respect to the noble and learned Lords in this House. I cannot speak as a lawyer, but I get very concerned when I hear all these angels on top of a pin being counted. The right of free speech is at stake here.
My mind goes back to the years I have spent in my party. I have sat here thinking about what we would be doing in the Hampstead Labour Party if a Conservative Government were publicly denying a clause allowing free speech. Every constituency in the country that I have had any experience with would come to the same conclusion. If we believe in free speech, we do not need guidelines, we need to write it in—as has been said about other Acts of Parliament.
I said that I would be brief. I have said that this is not necessary and that it is over-provided for. I support the noble Lord, Lord Waddington, in his desire to pass a necessary amendment and I shall follow him and others through the Lobbies to support this amendment, even if we are here until tomorrow morning.
Baroness Howe of Idlicote: My Lords, unlike those who were in the other place yesterday, and who were pretty few in number as I understand it, I have sat through most of our deliberations on this criminal justice legislation. We have heard today some extremely forceful and deeply felt arguments on both sides, and the one thing that unites us all is that none of us is in favour of homophobia. When I listened to the previous debates, I have to say that I was impressed by the comments of the right reverend Prelate the Bishop of Newcastle. He spelt out a number of the issues that we have already gone through in some detail today, and his conclusion, with which at the time I was in agreement, was that what the amendment proposes is a useful addition but would be better in guidance rather than in the Bill.
Today I have had the advantage of listening to another of those whom I would call my gurus, the noble Lord, Lord Lester. On many occasions on equal
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Clearly, the two sides of this matter are going to bounce between the Houses, but as of this moment I wish to support the Government’s side of the argument. Equally, I do not believe that any of the speeches, and particularly the amendment being proposed, are in any way meant to be anti-gay. I should make that perfectly clear because one or two comments have perhaps implied the contrary.
Lord Armstrong of Ilminster: My Lords, I should like briefly to say why I support the Motion proposed by the noble Lord, Lord Waddington. It was argued at an earlier stage that the amendment is unnecessary because the Bill defines the offence with sufficient clarity and there is therefore no doubt to be avoided. That is the reason given for the disagreement in another place. Looking at it from a purely legal point of view, I understand the argument. The definitions of the offence of incitement to hatred and of “threatening” are clear enough.
Some have argued that this amendment would water down the offence. It would do nothing of the kind. The definition of the offence is unchanged and unimpaired. But that does not mean that the amendment is unnecessary. We should be looking at this matter not just from a legal point of view, but from a human point of view as well. That there is need for the avoidance of doubt is evident from the letters that I, like many other noble Lords, I am sure, have received. There are many people who have no intention or desire to threaten or to incite to hatred, but who think that they should be able to feel free to enter into discussion of and express views about these matters without rancour or incitement to hatred and without fear of over-zealous pursuit by the police. This is a freedom which in our society they should be able to enjoy without doubt or fear. The amendment would reassure such people and would discourage over-zealous pursuit by the police without in any sense diminishing, affecting or watering down the offence as defined in the Bill.
In fact, a number of people who are strong supporters of the main proposal have expressed concerns about the “free speech” aspects of the provision in the Bill, and have even said that they would like to see the protection of free speech go further than this amendment. At this stage, I am not looking to propose an amendment in different terms which would go further than the amendment before us, though I stand almost aghast at my own moderation in failing to do so. But I would argue that this amendment is not unnecessary. There is a need for it, and for the assurance that it provides of the preservation of the right of people to enjoy freedom of speech when it can be enjoyed without rancour and without incitement to hatred.
So, if the noble Lord, Lord Waddington, decides to seek the opinion of the House, I urge your Lordships to support his Motion, and if the Motion is passed, I
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Baroness Falkner of Margravine: My Lords, I would not normally have spoken to this particular part of the criminal justice Bill, having spoken to just about every other part, but there are several points to be made. My noble friend Lord Lester has drawn, I believe, too clear a distinction between race and religion on the one hand and sexuality on the other. The problem with the area of sexual orientation is that it enters into faith and belief. Many noble Lords, including the noble Lord, Lord Alli, have spoken eloquently about the very high threshold. I probably accept that point, and that the threshold here is significantly higher than that being used by the police under public order legislation. But we know that religious beliefs are deeply held and that ultimately they are predicated on faith. We know also that faith is just that: it is faith. My concern has to do with the chilling effect of leaving the clause as it stands.
I absolutely support this clause but I subscribe to the view just outlined by the noble Lord, Lord Armstrong, that no one is talking about touching the clause itself, but about building in an additional protection. In the other place yesterday the Minister repeated over and over again that the additional protection was unnecessary and that it was otiose. It may well be unnecessary in terms of the threshold needed to bring a prosecution. That is accepted, but the point is that in terms of freedom of expression, the lack of this additional protection may well have a chilling effect.
Those noble Lords who know me know also that I am not religious. I am a Muslim, but on the whole I describe myself as a secular Muslim. My Muslim co-religionists often tell me that that is a contradiction in terms, and it may well be, but I think that what I am trying to say is that it must be accepted by those of us who do not have deeply held religious convictions that other people perhaps do have them. It may be that other people, following their religious convictions, may speak of things that we may not share but which are deeply held by them. However, they have the right to hold those religious convictions, and it is that right which I seek to uphold.
I do not say that I support absolutely the amendment proposed by the noble Lord, Lord Waddington. In fact I do not think I could ever support some of the policy directions emanating from where the noble Lord comes, but at this stage I am minded to abstain rather than vote for either case.
We have to be very mindful of this chilling effect.
The noble Lord, Lord Smith of Finsbury, again mentioned the violence used against gay people. We all understand where he is coming from; he is absolutely right to draw our attention to those concerns. But we cannot make good law on the basis of individual cases. We on these Benches have argued that point in relation to extreme pornography. We
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Lord Mackay of Clashfern: My Lords, it is important to have in mind that the noble Lord, Lord Waddington, and I have no intention whatever of altering the clause that the Government have provided in the Bill. That should answer the difficulties raised by the noble Lord, Lord Smith, because the matters to which he referred—and we all deplore such things—are dealt with adequately in the clause proposed by the Government, to which no one has objected.
The amendment seeks to clarify the position with regard to discussion or criticism of sexual conduct or practices. The noble Lord, Lord Lester of Herne Hill, gave his account of the history of the Bill, but he also told us at an earlier sitting in connection with the Northern Irish provisions that sexual orientation could well require action to be taken to deal with conduct. The amendment deals only with discussion or criticism of sexual conduct or practices. The Government and the House of Commons have said so far that the amendment is unnecessary. Does that mean that there is no doubt that the discussion or criticism of sexual conduct or practices, or the urging of persons to refrain from or modify such conduct or practices, is not of itself to be taken as threatening or intended to stir up hatred?
Lord Lester of Herne Hill: My Lords, it is a terrifying thing to interrupt a former Lord Chancellor and a noble and learned Lord, but surely the answer to the question he has just posed is obvious. Provided that there is no deliberate intention to stir up hatred on grounds of sexuality, no crime can possibly be committed. I cannot imagine that there is any ambiguity. I am sure that if the noble and learned Lord was sitting as a judge or I as an advocate, neither of us would have the slightest difficulty.
Lord Mackay of Clashfern: My Lords, if the noble Lord, Lord Lester, was sitting as a judge, he might not have difficulty, but this law is administered at a stage where the people involved do not have the benefit of his long experience of this kind of discussion. I have a little experience of it. Even though I am older than the noble Lord, Lord Lester, I have nothing like his experience of it, but I have dealt with other things as well. This is an area where the relationship between sexual orientation and conduct involves a difficult distinction for many people to take. It is easy for a lawyer of long experience in this area to make the distinction, but many people, including well-intentioned people in the police force and elsewhere, would find it difficult. The amendment is necessary. The government position, apparently, is that it does no harm. I hope that your Lordships will adhere to it.
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Lord Maginnis of Drumglass: My Lords, it is with some trepidation that a simple old village schoolmaster rises in the midst of such noble and learned Lords as we have heard today. I have one point that I want to put directly to the Secretary of State. As I support the amendment of the noble Lord, Lord Waddington, I wonder how the Government can put the argument that guidance by the Secretary of State will be more learned, more perceptive and more reflective of what the public require than decisions made in this House. To substitute guidance for firm law strikes me as peculiar.
I hope the Secretary of State will see fit to tell us the extent to which his department will be able to interfere daily with the interpretation that the police put on the law as he would wish to see it. In pursuance of his guidance, will his department be able to interfere with police operations? If we know the safeguards for free speech that we want to achieve, as the noble Lord, Lord Waddington, has illustrated in his amendment, then there should be no requirement to leave the matter in limbo at the discretion of this Secretary of State or succeeding Secretaries of State.
The amendment has clarity and contains nothing that in any way supports those who are homophobic. I would not add my vote to that of the noble Lord, Lord Waddington, and others if I thought it would. However, there is a need to protect those who have principles that they want to express, regardless of whether those principles concern capitalism, homosexual activity or whatever. We have the right of freedom of speech and it should not be left to the will and pleasure of this Secretary of State, his department or any succeeding Secretaries of State.
Lord Hunt of Kings Heath: My Lords, I think there is a sense that I should respond at this stage. There has been general agreement with the principle behind the Bill and that is to be welcomed. I believe in free speech. If I thought that the clauses which the Government are presenting today would in any way undermine free speech, I would not be standing at the Dispatch Box now. I say that in particular to my noble friend Lord Clarke. Nor do I think they will have a chilling effect on debate.
The answer to the question on the necessity of the amendment of the noble Lord, Lord Waddington, is that the Government believe it is unnecessary. One of the themes throughout the debate on the Bill has been the need to avoid unnecessary legislation. On a literal reading, it is true that the amendment is otiose; it has effect only for the avoidance of doubt and because it says only that discussion is not of itself enough to constitute an offence. That is right. I say to the noble and learned Lord that it is not the opinion that counts. The parameters of the offence remain: it is the use of threatening words or behaviour with the intention of stirring up homophobic hatred that is the test.
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Some noble Lords have expressed reservations about the use of guidance, but I would argue that where the law is clear—and the way it is drafted makes it absolutely
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Lord Elton: My Lords, does the Minister not accept that the number of individual cases quoted shows that the law is extremely difficult for the police to understand? Does he recognise that since 1984, when I took the PACE Act through this House, at least 50 and probably 54 criminal justice Bills have come through, almost every one of which has implications for police training and many of which are legislation by reference? Is it not time that we took the opportunity to clarify this small point? Will the Government take away an urgent message to stop new legislation on criminal justice and consolidate what they have?
Lord Hunt of Kings Heath: My Lords, I wish the noble Lord had taken part in our earlier debate. We have discussed the number of criminal justice Bills taken through by my Government and his. My reckoning is that his Government took more through than we have, but I accept the substantive point that we need to be sparing with legislation in the future. I accept that one of our considerations must be that people in the field, whether in the courts, in the Probation Service or among the police, are able to understand as clearly as possible what is meant by new legal provisions.
Where I would disagree with the noble Lord is that I believe the provisions we have put forward are absolutely clear—but that must be followed up with guidance, hence my amendment which instructs the Secretary of State to produce appropriate guidance, and which I have already said will take account of a number of the matters that noble Lords have raised in our debate.
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