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While I am not going to comment on the specific cases that noble Lords have raised, I reiterate what my noble friends Lord Alli and Lord Smith said: the CPS policy of prosecuting cases of homophobic and transphobic hate crime was revised in November last year. I believe that the cases which noble Lords have raised all predate that guidance. Guidance has much to offer.

The noble Lord, Lord Maginnis, made a fair point about the nature of guidance. Neither the Government nor the Attorney-General would give operational guidance to the police. That would be quite inappropriate for us to do. He took me to task for not producing the draft guidance. Although the proceedings on the Bill seem to have taken a long time, they have moved very swiftly, and any such guidance would need to reflect the debates that have taken place in both Houses. It will need to be carefully considered, but it will cover the purpose and the need for the offence.

Lord Neill of Bladen: My Lords, the amendment that the Minister is backing and asking this House to adopt says that the Secretary of State must issue

7 May 2008 : Column 611

guidance explaining the operation of the offences. That immediately tells us that there is something defective or inadequate about the section as it now stands. How can he simultaneously say that it is unnecessary to have what the noble Lord, Lord Waddington, has drafted in his amendment?

Lord Hunt of Kings Heath: My Lords, if I had produced an amendment that said the Secretary of State “may” produce guidance, noble Lords would have taken me to task. The fact that it is drafted as “must” reflects the fact that the Government have listened carefully to the debates in both Houses and are happy for Parliament to give a clear instruction to my right honourable friend the Lord Chancellor. It is not at all an admission that we think the legislation in itself is defective. I reiterate: the guidance that we will produce will cover the need to ensure the balance between the convention rights on free speech and protecting groups from hatred, and we expect such guidance to coincide with the coming into force of the new offence.

I say again, particularly to the noble Lord, Lord Waddington, that the offence is not about making the holding of certain views or opinions illegal. It concentrates on behaviour. Threatening behaviour that is intended to stir up hatred is a real risk to public order and should be challenged. I do not believe that that offence is in any way a fundamental attack on free speech or undermines it in the way that has been suggested.

Lord Waddington: My Lords, at the beginning of his remarks when we commenced our debate, the Minister posed this question: is the balance right? It is clearly not right; how can it be, when there is a free speech clause in the religious hatred offence but no such clause here? Many spokesmen have mentioned that that is just asking for trouble. We talk about guidance for the police and prosecuting authorities, but what sort of guidance is it when they are encouraged to pay great regard to free speech in the case of religious hatred but to ignore the right to free speech when examining this offence? It is complete and utter nonsense to say that the balance is right.

The noble Lord, Lord Lester of Herne Hill, reminded us that he moved the amendment to the Racial and Religious Hatred Bill. It might be worth reminding ourselves of what that amendment said, because it is of a completely different quality and nature from the amendment that I have moved. His amendment said:

That is a blockbuster for you, isn’t it? By Jove, that is a measure to try to safeguard free speech. How dare he say that there is no need for a free speech clause in this amendment when ours is so moderate in terms?

Lord Lester of Herne Hill: My Lords—

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Lord Waddington: No, my Lords, I will not give way, not at this late stage. Let’s get on with the Division. How dare he say that there is no need for a free speech clause when he was responsible for putting on the statute book a blockbuster of a free speech clause like that?

The noble Lord, Lord Alli, mentioned that I had said that my proposed new clause could not by the greatest stretch of imagination be read as aimed at gays—and, by Jove, I am right. My carefully worded amendment states merely that,

Lord Alli: My Lords—

Lord Waddington: I am not going to give way at this stage of the debate, my Lords; the noble Lord, Lord Alli, has had his say. If we are to give way at this stage, the debate will never end. I am answering the noble Lord’s point.

My amendment could not be more moderate in words, because it is different from that which was moved initially. It was deliberately changed to meet every objection made in Committee. Now it contains no reference whatever to homophobia; it contains no reference at all which anybody could say is aimed at gays. It states that for discussion of sexual practices, whether homosexual or heterosexual, there should be the same protection. The noble Lord, Lord Alli, asked what mischief the amendment would avoid. There is a very simple answer to that: it would avoid the inferring of intent from mere words, in the way that the police inferred that the right reverend Prelate’s words were threatening, abusive and insulting. That was something to infer, was it not? We must make absolutely sure that the police and prosecution authorities do not in future infer intent, threats, abuse and insults from mere words, but have to look at the context and the way in which they are spoken. That is plain common sense.

And then there was all the business referred to, quite inaccurately, by the Minister in his closing words. The CPS did not change its advice in any meaningful fashion. I have read its new advice, which contains the same glaring error as was contained in the original advice; namely, a completely false definition of homophobia which cannot be found in a single dictionary that I have consulted. It is not true that no cases have occurred since the new advice was issued. One of the worst occurred after the new advice was issued and concerned the questioning for more than an hour of a street preacher. He was taken into a police van and was apparently questioned for more than an hour for preaching religion before being eventually released. As my noble friend Lady Knight said, it is no consolation to tell people after the event, “Of course the police behaved really rather stupidly and reacted too quickly to a complaint, and of course you’d never have been convicted if you’d eventually been put before a jury”. That is really not the point.

I do not want to go on any longer, save to pay tribute to all those who have taken part in this debate and raised some interesting points. The noble Lord,

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Lord Smith of Finsbury, referred quite rightly to the appalling crimes which from time to time have been committed against gays. I repeat what I said at Second Reading and in Committee: a specific offence of inciting the commission of an offence, particularly violence, is on the statute book. To talk about the violence done to gays in the context of this amendment is to diminish the importance of that violence, because it can be dealt with by a very much more serious offence; namely, incitement to the commission of an offence of violence under the 2006 Act.

I thank all who have taken part in this debate. We really must press this amendment and see that free speech in this country is safeguarded.

6.46 pm

On Question, Whether the said Motion (J1) shall be agreed to?

Their Lordships divided: Contents, 178; Not-Contents, 164.

Division No. 2


Ahmed, L.
Allenby of Megiddo, V.
Ampthill, L.
Anderson of Swansea, L.
Anelay of St Johns, B.
Armstrong of Ilminster, L.
Ashcroft, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Bell, L.
Bew, L.
Blackwell, L.
Blaker, L.
Bledisloe, V.
Boothroyd, B.
Bottomley of Nettlestone, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Carnegy of Lour, B.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Chichester, Bp.
Clarke of Hampstead, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Crathorne, L.
Crickhowell, L.
Croham, L.
De Mauley, L.
Dean of Harptree, L.
Dear, L.
Denham, L.
Dixon, L.
Dixon-Smith, L.
Donoughue, L.
D'Souza, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Emerton, B.
Evans of Parkside, L.
Feldman, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fraser of Carmyllie, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Gordon of Strathblane, L.
Goschen, V.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hanham, B.
Hastings of Scarisbrick, L.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howe of Aberavon, L.
Howell of Guildford, L.
Howie of Troon, L.
Hunt of Wirral, L.
Hylton, L.
Inglewood, L.
James of Blackheath, L.
James of Holland Park, B.
Janvrin, L.
Jenkin of Roding, L.
Jopling, L.
Kilclooney, L.

7 May 2008 : Column 614

King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkhill, L.
Knight of Collingtree, B.
Laird, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Listowel, E.
Liverpool, E.
Lloyd of Berwick, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maginnis of Drumglass, L.
Mar, C.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Monson, L.
Montgomery of Alamein, V.
Montrose, D.
Moran, L.
Morris of Aberavon, L.
Morris of Bolton, B.
Morrow, L.
Neill of Bladen, L.
Newton of Braintree, L.
Northbrook, L.
Northesk, E.
Norwich, Bp.
O'Cathain, B. [Teller]
Onslow, E.
Oppenheim-Barnes, B.
Palumbo, L.
Park of Monmouth, B.
Patel of Blackburn, L.
Pearson of Rannoch, L.
Pendry, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Quinton, L.
Ramsbotham, L.
Rawlings, B.
Reay, L.
Roberts of Conwy, L.
Rogan, L.
Rotherwick, L.
Ryder of Wensum, L.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Skelmersdale, L.
Skidelsky, L.
Slim, V.
Sterling of Plaistow, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taylor of Holbeach, L.
Tebbit, L.
Thomas of Swynnerton, L.
Trefgarne, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Verma, B.
Waddington, L. [Teller]
Wade of Chorlton, L.
Wakeham, L.
Warnock, B.
Warsi, B.
Williamson of Horton, L.
Willoughby de Broke, L.


Acton, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Afshar, B.
Alli, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bilston, L.
Blood, B.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Carter of Coles, L.
Chidgey, L.
Clark of Windermere, L.
Clement-Jones, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dholakia, L.
Dubs, L.
Dykes, L.
Elder, L.
Elystan-Morgan, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Gale, B.
Garden of Frognal, B.
Gavron, L.
Gilbert, L.
Golding, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L.
Hamwee, B.

7 May 2008 : Column 615

Harries of Pentregarth, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Joffe, L.
Jones, L.
Jones of Birmingham, L.
Jones of Cheltenham, L.
Judd, L.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kinnock, L.
Kirkwood of Kirkhope, L.
Layard, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Lipsey, L.
Livsey of Talgarth, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Malloch-Brown, L.
Mar and Kellie, E.
Massey of Darwen, B.
Maxton, L.
Miller of Chilthorne Domer, B.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Neuberger, B.
Newby, L.
Norton of Louth, L.
Parekh, L.
Patel, L.
Pitkeathley, B.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Razzall, L.
Redesdale, L.
Rees of Ludlow, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Russell-Johnston, L.
Sawyer, L.
Scotland of Asthal, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Finsbury, L.
Snape, L.
Steel of Aikwood, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tordoff, L.
Triesman, L.
Tunnicliffe, L.
Turner of Camden, B.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Woolmer of Leeds, L.
Young of Hornsey, B.

Resolved in the affirmative, and Motion agreed to accordingly.

Drugs: Cannabis

6.57 pm

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement on the classification of cannabis.

“In July 2007, my right honourable friend the Prime Minster announced that we would seek the advice of the Advisory Council on the Misuse of Drugs, as we are obliged to do by statute, on the

7 May 2008 : Column 616

classification of cannabis. I am grateful to the council for its work and have placed a copy of its report in the Library of the House. In reaching my decision, I have also taken into account the views of others, particularly those responsible for enforcing the law, as well as of the public, 58 per cent of whom, according to a survey carried out for the council, favour upgrading cannabis from class C.

“Cannabis use is falling significantly across all age ranges, which is testament to the success of the Government’s drug strategy. However, I am concerned to ensure that the classification of cannabis reflects the alarming fact that a much stronger drug, known as ‘skunk’, now dominates the cannabis market. I want it to be clearly understood that this powerful form of cannabis is an illegal and harmful drug.

“Today I am publishing the results of a study undertaken with 23 police forces across England and Wales. This provides clear evidence that skunk now makes up 80 per cent of street-seized cannabis, compared to 30 per cent in 2002. Furthermore, its potency has increased nearly threefold since 1995.

“The advisory council’s report confirms that cannabis use poses a real threat to health. The council is concerned about its use among young people. It points to growing evidence that suggests a causal link, albeit weak, between cannabis use and psychotic illness. The council acknowledges that use of stronger cannabis may increase the harm to mental health. Young people may be more at risk if they first use it at an early age; the council refers to the average age of first use being 13. It suggests that some young people might ‘binge smoke’ to achieve maximum possible intoxication—in the same way as some treat alcohol—and concludes that, if they do, the consequences,

The council also believes that the evidence of the impact of stronger cannabis may not be clear for some years to come and has recommended that cannabis remains a class C drug.

“I have given the council’s report careful consideration. Of the council’s 21 recommendations, I accept all bar those relating to classification. I have decided to reclassify cannabis to a class B drug, subject to parliamentary approval.

“My decision takes into account issues such as public perception and the needs and consequences for policing priorities. There is a compelling case for us to act now, rather than risk the future health of young people. Where there is a clear and serious problem but doubt about the potential harm that will be caused, we must err on the side of caution and protect the public. I make no apology for that. I am not prepared to wait and see.

“To reflect the more serious status of cannabis as class B, I am clear that a strengthened enforcement approach for possession is required. The Association of Chief Police Officers said last week:

7 May 2008 : Column 617

“I firmly believe that, while our response must remain proportionate and offer discretion to police officers, a system of escalation is necessary. I have therefore written to ACPO today, seeking its views on a clear and workable system of escalation that is consistent with reducing police bureaucracy and maintaining discretion. This will include looking at cannabis warnings, introduced by ACPO in 2004 to ensure that action is taken when someone is found in possession of cannabis. Prior to this, the police had to choose whether to make an arrest or to take no action. I am not against cannabis warnings, but I believe that it is unacceptable for someone to receive more than one warning and for that warning not to be properly recorded.

“I am fully aware that the system that we adopt will be delivered by those at the front line and I have asked ACPO to involve other police organisations and criminal justice partners in developing its proposals. This new approach to enforcement will not, of course, preclude officers from immediately effecting arrest.

“For those under 18 caught in possession, I am content that the current procedure, which uses a reprimand, final warning and charge, provides an appropriate escalation mechanism.

“In the past few years, we have seen a massive growth in the commercial cultivation of cannabis in the United Kingdom. This cannot be tolerated. We know that these cannabis farms are controlled by organised criminals who stand to make large profits and who, as the Child Exploitation and Online Protection Centre has found, will stoop to using trafficked children on these premises. Reclassifying cannabis will help to drive enforcement priorities in shutting these farms down.

“ACPO and the Serious Organised Crime Agency are responding to this threat. There is a dedicated ACPO lead on cannabis cultivation and it is working with SOCA on a co-ordinated, targeted and robust approach to cannabis farms. This involves building a national profile of these criminal activities, using forensic and other intelligence to make the links between individual farms and organised criminal gangs.

“We must also focus on other ways to combat the problem. Energy suppliers are currently losing significant revenue through abstraction by organised gangs running cannabis farms. I have today written to the chief executives of the six largest energy suppliers, asking them to work with us to identify abuse and to target these groups.

“We have already introduced statutory aggravating factors where supply is made on or in the vicinity of school premises and where a courier under the age of 18 is used. I accept the advisory council’s recommendation for additional aggravating factors to be introduced concerning the supply of drugs in the vicinity of colleges and universities, mental health institutions and prisons.

“I also accept the council’s recommendation for more effective regulation of the trade in cannabis paraphernalia. It is unacceptable that cannabis use

7 May 2008 : Column 618

is glamorised in any way. We will work with ACPO to look at how existing legislation and powers can be used by the police, local authorities and other partners to curtail the sale and promotion of these items.

“As the council makes clear, this is an important public health issue and one that solely a change in classification will not resolve. Through campaigns such as FRANK, we will continue to make the public aware of the health harms associated with cannabis use. The Department of Health will also update our messages on the harms caused by cannabis; look at providing more advice on the health risks and where to get help through NHS Direct, NHS Choices, the smoking helpline, Drinkline and other public information points; publish a report on the health risks associated with smoking cannabis and tobacco and, where appropriate, include advice on cannabis misuse in NHS smoking cessation services; and seek the advice of the four UK chief medical officers on what more needs to be done to reduce the risks to public health.

“My decision to reclassify cannabis is part of the relentless drive to tackle drugs and the harm that they bring to families and communities and I will seek to do so by the end of the year. This is the right action to protect the public, particularly the future health of young people and the most vulnerable”.

My Lords, that concludes the Statement.

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