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I think it is plain common sense that when people continuously use some of these revolting images it has an impact on their behaviour. That would not surprise me at all. I know that there has been a debate over the years on the impact of violence on television. I know that some research has shown that it has no impact at all. That is obviously baloney; absolute nonsense. I agree with the noble Baroness when she referred to the post-11 o’clock TV. I am afraid that the workload of your Lordships’ House is so great that I can never stay up that late, but I understand what the noble Baroness says. Do I believe that that has a negative impact on people’s behaviour? Yes, I do, and I wish that we did not have to see it. Of course, there is always a balance to be drawn. I am sure that my noble friend Lord McIntosh utterly disagrees with me.

Lord McIntosh of Haringey: I do, my Lords.

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Lord Hunt of Kings Heath: My Lords, my noble friend does. That is why I suspect that, in the end, it comes down to personal conscience and I welcome the opportunity for the noble Baroness to put this to the test.

Lord McIntosh of Haringey: So the Whip is off.

Baroness Howe of Idlicote: My Lords, I was not aware that we were not going to debate this second issue. I was certainly reserving a number of my remarks for the second group of amendments. Does the fact that the Minister has replied mean that there is no opportunity to debate what we have before us rather more fully?

Lord Henley: Yes, my Lords, it does.

Baroness Miller of Chilthorne Domer: My Lords, I regret that the noble Baroness, Lady Howe, has not been able to play her extremely useful part. I know one of the points that she would have made, so, if I may, I will say it for her. We asked in Committee for a far more measured look at these issues, particularly violence, and their effect, perhaps through a Joint Committee of both Houses. We said that this was not something to be stuffed into a Bill in a small way like this. The Minister and I are clearly never going to agree on the fact. It is a matter not of personal conscience but of evidence. If we do not have any evidence to intrude on people’s lives, I do not make an apology. A liberal point of view is that we should not do so unless there is evidence of harm. Common sense tells us that the Minister is on weak ground because his own assessment has not produced any evidence. I could read the conclusions, but your Lordships can read them: it is the weakest summary of conclusions I have ever read anywhere. It makes no final conclusion at all on a link. I do not believe that we are going to agree tonight, so I beg leave to test the opinion of the House.

10.25 pm

On Question, Whether the said amendment (No. 86N) shall be agreed to?

Their Lordships divided: Contents, 30; Not-Contents, 66.

Division No. 5


Addington, L. [Teller]
Alli, L.
Barker, B.
Blaker, L.
Butler-Sloss, B.
Cobbold, L.
Cope of Berkeley, L.
D'Souza, B.
Falkner of Margravine, B.
Faulkner of Worcester, L.
Haworth, L.
Howe of Idlicote, B.
Laird, L.
Lawson of Blaby, L.
Listowel, E.
Lyell, L.
McIntosh of Haringey, L.
Maxton, L.
Miller of Chilthorne Domer, B.
Monson, L.
Onslow, E.
Ramsbotham, L.
Roberts of Llandudno, L.
Rogan, L.
Shutt of Greetland, L. [Teller]
Steel of Aikwood, L.
Thomas of Gresford, L.
Ullswater, V.
Wallace of Tankerness, L.
Williams of Crosby, B.

21 Apr 2008 : Column 1363


Adams of Craigielea, B.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Ilminster, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Ballyedmond, L.
Bassam of Brighton, L.
Bilston, L.
Brookman, L.
Burlison, L.
Carter of Coles, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corston, B.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Ferrers, E.
Foster of Bishop Auckland, L.
Gale, B.
Gould of Potternewton, B.
Grocott, L.
Hastings of Scarisbrick, L.
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jenkin of Roding, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Lofthouse of Pontefract, L.
McIntosh of Hudnall, B.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Mitchell, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan of Drefelin, B.
Newcastle, Bp.
O'Cathain, B.
Palumbo, L.
Pendry, L.
Royall of Blaisdon, B. [Teller]
Sanderson of Bowden, L.
Smith of Finsbury, L.
Snape, L.
Stone of Blackheath, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Turner of Camden, B.
Waddington, L.
Warwick of Undercliffe, B.
West of Spithead, L.
Whitty, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.37 pm

Clause 64 [Exclusion of classified films etc.]:

[Amendment No. 86P not moved.]

Clause 65 [Defence]:

[Amendments Nos. 86PA and 86Q not moved.]

Clause 66 [Penalties etc. for possession of extreme pornographic images]:

[Amendment No. 86R not moved.]

Schedule 16 [Hatred on the grounds of sexual orientation]:

Lord Thomas of Gresford moved Amendment No. 87:

The noble Lord said: My Lords, this was an amendment that I moved in Committee. Its purpose is to extend the meaning of “threatening” in subsection (1) to,

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There is considerable disquiet among the public about child sex offences. It is a disquiet that everybody shares. It can give rise to strong emotions that can, in some situations, turn into violence against an individual. That is the basis upon which I draw your Lordships’ attention to the fact that the general public’s distaste for—indeed, hatred of—child sex offences is sometimes used as a weapon by people who have strong views about homosexuality. It does happen in our society that in order to stir up hatred against someone who is homosexual, an allegation is made that they are nothing more than a paedophile. I have experience of that causing great violence, harm and hurt to individuals who are homosexual.

It could be said that “threatening” already includes an association between sexual orientation and a propensity to commit child sex offences, but we believe that it is necessary to spell this out so that people who seek to attack individuals because of their homosexuality should beware of what they say and what associations they make between the sexual orientation of the person they are talking about and the crime of paedophilia. I beg to move.

Lord Hunt of Kings Heath: My Lords, I thank the noble Lord, Lord Thomas of Gresford, for raising this important point. I have great sympathy with what lies behind it. I agree that allegations that gay people are prone to being paedophiles are particularly damaging and distasteful and that such allegations should be challenged vigorously. I also agree that in many instances those allegations will be threatening and intended to stir up hatred. Where we have a slight disagreement regarding the Bill is our belief that when such allegations are threatening and intended to stir up hatred, they will be covered by the offence. Where they are made in a way which is not threatening, they will not be covered. We think that that is right.

I understand that the noble Lord has moved his amendment in order to send a signal. Allegations of paedophilia will always be damaging and invidious in the context of stirring up hatred; it is a matter which we hear and read about too often. But we see a risk of extending the offence in a way which will stretch the meaning of “threatening”. It could make the offence less clear if we do not stick to the normal meaning.

There are many allegations we may find distasteful, but that does not mean that there are grounds for making all such allegations criminal offences. In the debate on the amendment tabled by the noble Lord, Lord Waddington, we will discuss the question of freedom of speech and the balance to be drawn. Allegations that are threatening or that raise public order concerns can justify some restrictions on free speech, but the same cannot be said of all allegations that are simply distasteful.

We are not persuaded that this amendment will make the offence more effective. We know that there are individuals and organisations that are ready to equate homosexuality with being a paedophile, but if we make such allegations specifically illegal it will be easy for those organisations and individuals to shift their allegations and perhaps take up some other line of attack. For example, as I mentioned in Committee,

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they may say that all gay people have AIDS. We do not think the proposed amendment provides much additional protection. We think that we should rely on the protection in the Bill as it stands. However, I assure the noble Lord, Lord Thomas, that I am sympathetic with the intention behind his amendment.

Lord Thomas of Gresford: My Lords, the Minister says that he is sympathetic, and he rightly says that we are seeking to send out a signal, but what I was waiting to hear from him was what signal the Government would send on this issue. His response at the moment is simply to say that something may be threatening or it may not be, and that if it is threatening it is already covered. He recognises the problem and the danger, but he fails to give any signal that would dissuade people from drawing this parallel in their conduct.

Lord Hunt of Kings Heath: My Lords, the signal that I have given is to echo the noble Lord’s concern about such allegations. However, we do not need to go further than the Bill to deal with the issue. I hope that the signal that I would send would be as powerful as the noble Lord’s.

Lord Thomas of Gresford: My Lords, I shall not trouble your Lordships by dividing the House at this stage. I will reflect on what the Minister has said. I am not sure whether I could bring this issue back at Third Reading, but it may be useful to have further discussions on the topic. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 pm

Lord Waddington moved Amendment No. 87A:

The noble Lord said: My Lords, it is highly unsatisfactory to be embarking on the amendment at this hour of the night in breach of the normal rules of the House. I will not, however, waste the time of the House by voicing my indignation, and I will go straight to the meat of the matter.

This morning, I received a very moving letter from the mother of a young man whom she believes was brutally murdered because he was gay. I can well understand such a person being desperately anxious that nothing should be done to weaken the protection which they hope may be afforded to gays by this new hate crime offence. I therefore start by making it plain that I did not in Committee, and do not now, seek to weaken the protection that the Government’s proposal is designed to give gay people. I have never set out to narrow the scope of the provision. My intention has been absolutely clear: to make clear what both the Government and I agree is outside the scope of the provision. By so doing, I hope to prevent any repetition of the scandals of recent years.

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In our debate in Committee, a number of noble Lords expressed their general support for a free speech provision, but they also voiced criticisms of the then amendment. With the help of colleagues, to whom I am immensely indebted, we set out to meet all the concerns that were expressed in Committee and to find a form of words that were neutral and that could not by the greatest stretch of imagination be thought to be aimed at gays and calculated to encourage homophobic attitudes and behaviour towards them. I hope noble Lords will agree that, in seeking common ground and consensus, we observed the best traditions of this House. That is what it should be all about.

Some might say that the amendment is now so moderate in its terms that it merely states the obvious and is therefore unnecessary, but those who say that are, I fear, closing their eyes to what has really happened in recent years. The scandals to which we have often referred could not have occurred unless the police and sometimes the prosecution authorities had thought that threatening, abusive and insulting behaviour—the requisites for prosecution under the present Public Order Act—could be inferred from mere comment or criticism. How else can one explain the prosecution to conviction of the Bournemouth preacher, the investigation of the right reverend Prelate the Bishop of Chester, the arrest of Robin Page for a tasteless joke at a country fair, and the arrest and prosecution to conviction of the Oxford student for his jest about a gay horse? How else can one explain the interrogation of Lynette Burrows following comments about gay adoption, and the thoroughly disgraceful interrogation of the Fleetwood couple after they had complained about their council’s gay rights policy? If the police under the old law assumed that words about sexual matters must have been threatening and likely to cause distress without any supporting evidence to that effect, why should it be assumed that they would not infer threats and intention to stir up hatred under the new law?

In Committee, the Minister suggested that all our concerns might be met by guidance. But if guidance can be clear, so can the words of a statute. Surely our words are clear enough. Furthermore, guidance was in existence when all the abuses to which I have referred occurred, and which it entirely failed to prevent. Perhaps that was in part because the guidance was erroneous. When I read Policy for Prosecuting Cases with a Homophobic Element, published by the Crown Prosecution Service, I was astonished to find that it contained a definition of homophobia which does not correspond with that in any of the dictionaries that I have consulted. By my book, homophobia is hatred or fear of homosexuality or homosexuals. But the Crown Prosecution Service has invented its own definition and says that it embraces dislike, not hatred, of a person’s lifestyle.

I must make another point. The noble Lord, Lord Hunt, did not really address the undesirability of there being a free speech clause in the religious hatred offence but no free speech clause here. The noble Lord said that the free speech clause in the religious hatred offence had been added against the wishes of the Government, who had not thought that it was

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necessary. But the Government have accepted the position and have not chosen, for instance, to remove the provision during the passage of this Bill. I cannot believe that the noble Lord really thinks that it is desirable that there should be a free speech clause in the religious hatred offence but no free speech provision here.

The dangers are obvious of the police being led to believe that preservation of free speech is an important consideration in the one case, but not in the other. It is no good to say that there is no free speech clause in the racial hatred offence and that its absence has not caused trouble. When it comes to language touching on matters of sexual orientation, there has already been a load of trouble with the police misapplying the existing Public Order Act. It is our plain duty to try to prevent this continuing to happen.

Finally, the Minister referred to rap lyrics urging the killing of gay men and the hanging of lesbians. His comments seem somewhat irrelevant, for I doubt whether he thinks that his new offence will do much, if anything, to stop the use of such lyrics. I cannot believe that he thinks that a free speech amendment would license them. Instead of raising such irrelevances, it would be helpful if he would make plain that encouragement of violence against gays, or for that matter anyone else, is now already an offence under the Serious Crime Act 2007, which makes criminal the encouragement of crime—for example, the encouragement of violence against a person or a class of persons.

Plainly, my amendment will not weaken the protection sought to be given to gays. It is a sensible provision to prevent the repetition of abuses which have occurred all too often under the Public Order Act and to secure free speech. I commend it to the House and beg to move.

Lord Armstrong of Ilminster: My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Waddington. I simply wish to say that he has said all that I could want to say. It seems to me that discussion or criticism of a particular sexual orientation can be expressed without giving rise to incitement to hatred. If it can be, it should be allowed to happen in the interests of free speech. I strongly support this amendment.

Lord Clarke of Hampstead: My Lords, my name is also attached to this amendment, and I am very proud that it is. In supporting the amendment, I cannot add much to what I said on the fifth day in Committee, but since then I have continued to receive letters from people who are worried about this clause. I am now more convinced than ever that the amendment before us is very necessary. If the House agrees with the amendment, it will do much to allay the doubt that troubles many people like me. On 3 March I quoted from one of the letters I had received, and this evening I would like to quote from a letter I have received in the past few days. The noble Lord, Lord Waddington, has already referred to the people who wrote from Fleetwood. Because of the hour, I will not read out the whole of the letter.

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The letter is from two people who describe themselves as pensioners and Christians. They heard that the council where they live wanted to display homosexual leaflets around the area. The couple asked a council officer whether they could distribute Christian leaflets. They were told that no, they could not. The reason given by the official was that homosexuals would find it very offensive. They said that they were not aggressive and did not raise their voices. They went home. Two or three days later they found out that the man they spoke to at the council had alerted the police. Two six-foot tall policemen turned up at their door and they were interrogated in their own front room for 80 minutes. They were accused of making homophobic phone calls to the council. I will not go into the detail, but thank God that common sense prevailed. After a year of worry and stress, the police and the council eventually made a full apology which made the national news. Many noble Lords will know about the case.

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