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They are not only the sorts of things Labour supporters are supposed to favour; they are the sorts of things at the core of our democracy, in which we all believe. I trust that we will make that very plain tonight. I beg to move.
Baroness Turner of Camden: My Lords, I oppose the amendment. As the Minister said, this is the fourth time that we have discussed this issue. In July, the noble Lord, Lord Waddington, was successful in gaining the support of a majority of your Lordships. It is before us again tonight because the Government, I am glad to say, oppose it, and this opposition has been supported in the other place.
As I recall, a majority of your Lordships supported the noble Lord, Lord Waddington, on 9 July, believing that the amendment safeguarded the right to freedom of speech. An argument on these lines has been advanced by the noble Lord, Lord Dear, in an article in The House Magazine. In support, the noble Lord quotes Lord Justice Sedley in a judgment in 1999. The judge then ruled:
Those who spoke in support of the amendment last time emphasised that they were not homophobic and did not condone homophobic violence. I, of course, accept that those assurances were given in good faith. We know that there are countries where fundamentalist religions are powerful and it is quite usual there for clerics to advise their followers to attack homosexual people, often in the most gruesome and horrific way. Frequently death awaits those whose sexual orientation becomes known and is disapproved of. We, of course, have established a more humane and tolerant society, of which we are all proud. I am pleased with the way in which, over the years, we have established equal rights so that it is now unlawful to discriminate against people on grounds of their sexual orientation, and we now have provision for civil partnerships.
But that is the law-culture is sometimes different. Sadly, much of our society is quite violent, and there has recently been a growth in violence directed at gay and lesbian people. Some of the worst cases get reported;
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Some groups, whether for cultural or religious reasons, simply do not like gay or lesbian people or what they do. They want to be able to say so-yes-but that does not include the right to bully, harass or threaten. The wording of the amendment opens the door to people who want to feel that they have a right to question relationships that are perfectly legal and do not harm anyone, and they can then go on to make threats with impunity. On the last occasion when we had a debate on this matter in this House, I said that we did not want a society in which gay and lesbian people were afraid to go out at night for fear of an attack. There has been an increase in the number and violence of homophobic attacks. We must ensure that this is not one of the unlooked-for results of legislation passed in your Lordships' House. I urge noble Lords to support the Government's position on this and oppose the amendment.
Baroness Butler-Sloss: My Lords, the amendment, which I support, does not in my view encourage anything with which the noble Baroness, Lady Turner, is concerned. It is not designed to have, nor will it have, the effect that she is understandably worried about. If I may respectfully say so, she has got this wrong.
I have had more letters and e-mails this week than I have had on all previous occasions when this matter has come before this House. I should like the Government to appreciate that there is an equal strength of feeling in this House, which is not whipped in the same way-certainly not with regard to Cross-Benchers-as there was in the other place, if not greater. There is a great strength of feeling among a minority of society and we ought not to ignore that either. As I have expressed on every occasion, I do not support what the minority says, but I support their right to say it, because there is and should be freedom of speech.
The real worry is that the lack of an amendment of the kind moved by the noble Lord, Lord Waddington, would give the message that he has described. It is not the message to the Crown Prosecution Service, because it is unlikely that it will prosecute. The message is at the beginning of the investigation; it is what the police think that they have to do. As the noble Lord, Lord Dear, said, and I hope will say again, the police want some protection from being told that they have to act because something has been said that people do not like-they have been sometimes bullied and got at by members of the public. I do not think that the fears are important here. What matters is freedom of speech, which is what we should be supporting tonight.
Lord Dear: My Lords, in speaking in support of the noble Lord, Lord Waddington, I make a number of points in fairly quick time. Your Lordships addressed this issue in great depth and detail on 9 July this year, when the debate continued for over two hours. I do not believe that we need take that amount of time today. The facts and issues have not changed.
This has nothing to do with homophobia; the law is, rightly, rigorous enough already. It has everything to do with freedom of speech within the law, a principle that I was happy and proud to uphold in my earlier professional career in the police service. I reflect that upholding that principle of free speech sometimes called for a very delicate judgment, protecting the majority from the minority and almost simultaneously protecting the minority from the majority. I shall return to that police dilemma in a moment.
That principle has been a cornerstone of English law for centuries and, until recently, there has been little cause to defend that principle. So long as the words were not intended to cause violence or gross insult, or likely to do so, they were tolerated. Noble Lords have it in their power tonight to protect that principle.
I must say, as the noble Lord, Lord Waddington, has already said, that it seems to me nonsense that, while there is a free speech clause in the legislation dealing with religious hatred, it is now sought to exclude a similar clause in the homophobic hatred offence. Is it, perhaps, that the Government have bowed to lobby groups that are more vociferous in the one category than in the other?
When I spoke in the debate in July, I highlighted the position and plight of the police and the prosecuting authorities. I shall do so again. Before the introduction of the Waddington amendment in 2008, the police and the prosecuting authorities were in an almost impossible position. There had never been any question that behaviour would be tolerated if it was offensive, aggressive, threatening or demeaning. The police would, and should, uphold the law to curb behaviour of that kind. The current law is robust and adequate on this point. But the police regularly received complaints from homosexual groups that exception was taken to remarks that homosexuality was deplored on religious grounds. The police were forced to act. They operated against a background of Home Office guidance notes on how to handle hate crime under the Public Order Act 1986, to which the issue of sexual orientation was added by the criminal justice Act 2008.
The so-called guidance notes in fact required rigid adherence. Any complaint of hate crime, whoever made it, even if it was made by a bystander, had to be formally recorded and fully investigated in the ensuing procedure. No exercise of discretion was countenanced. The prosecuting authorities were bound to go through the whole rigmarole of interview, arrest, fingerprinting, taking DNA samples, police bail and so on, even though it was clear to all concerned that there was little likelihood of a prosecution or even a conviction.
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I reported in the debate in July that the police support the Waddington amendment and I reassert that today. The Association of Chief Police Officers has carefully distanced itself from the issue; it has not declared a position either publicly or, as far as I know, privately. But individual chief officers, members of ACPO, and junior officers who face this problem in the streets have told me privately, in numbers, very clearly, that they support the amendment proposed, which will allow them to use a discretion and common sense that is often denied them in contemporary society and allow them to deal with these situations with that light touch that so many of us, and them, want to see. They resent the straitjacket that had been imposed on them.
While Parliament debates the pros and cons, patent injustices continue. Speaking in the other place on Monday this week, when the Waddington amendment was removed from the Bill, the Minister, Claire Ward, said in her introductory remarks:
"The House is not attacking free speech. It is clear that people retain their right to freedom of speech. The clause is unnecessary because the threshold of the offence is already set incredibly high ... We believe that we have got the balance right".-[Official Report, Commons, 9/11/09; col. 101.]
I very much doubt whether Mrs Pauline Howe would agree with that. Mrs Howe's experience is by no means the only example that I could cite. Mrs Howe was not a shrill, loud-mouthed demonstrator, shrieking abuse in the streets. She did not carry a placard in public with abusive or insulting words written on it. Mrs Howe is an eminently respectable, highly principled, late-middle-aged, middle-class lady married to a clergyman. She lives in Norwich. In July this year, she wrote a letter to Norfolk County Council. She complained against the holding of a Gay Pride march in Norwich.
The letter, which I have seen, was well constructed and forthright, but it was by no means inflammatory. However, the council officials in their wisdom saw fit to pass it to the police. In September, she was visited and interviewed in her own home by not one but two police officers from Norfolk Constabulary. She was interviewed for writing a letter, not for demonstrating in public. I have spoken to Mrs Howe at length on the telephone and she has authorised me to quote from a letter that she wrote to me. She said:
"I must say, the police officers were professional and polite ... nevertheless, the visit frightened me. Why was I made to feel like a criminal when all I had done was to express an opinion? It was an intimidating experience. For 67 years I have been a law-abiding citizen. I know some people don't like my beliefs. That's fine, it's a free country. But surely I have the right to express my beliefs, particularly to a government body, without fear of a visit from police. This is Britain isn't it?".
Well, Mrs Howe, this is Britain in 2009 and I dare bet that George Orwell on this particular point would have been hard pressed to envisage such a state of affairs when he was writing his celebrated novel in the 1940s.
The noble Baroness, Lady Turner of Camden, has already referred to the case that I referred to in July-that of Redmond-Bate and the DPP in 1999. She quoted at some speed from it. I want to take noble Lords rather more slowly over those same words, because they bear heavily on what we are looking at tonight. I quoted that judgment at length before and I will not do that tonight-I will not explore the same ground-but the case still provides the best and surest signpost to us in our deliberations.
In that case, allowing the appeal of a woman who was described as a fundamentalist Christian and who had been arrested for addressing a crowd from the steps of Wakefield Cathedral, Lord Justice Sedley in the Queen's Bench Divisional Court defined free speech, saying in his judgment:
"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having".
Lord Smith of Finsbury: My Lords, I rise to plead with your Lordships' House to reject the amendment and agree with the House of Commons. I do so because it is important for us to recognise the signal that legislation sometimes sends to the world outside. The problem is that we are faced with a clash of competing profound values. No one could possibly argue against the principle of free speech and the need of this House and this Parliament to uphold free speech.
I happen to be gay. I happen also to be a Christian. I like to believe that I am robust enough to be able to be criticised and have offensive things sometimes said to me because of my sexual orientation and sometimes to be abused because of my sexual orientation. Many other lesbians and gay men face the same sort of offence and difficulty week in, week out. The freedom of people to express criticism is something that I defend to the hilt.
However, we also know that the level of violence against lesbians and gay men because of their sexual orientation is increasing. Very recently, we had the case of someone who was first shouted at, then abused and then assaulted in the heart of our capital city; he subsequently died. The attack happened because of his sexual orientation. We can support the expression of intolerance, but the problem comes when intolerance spills over into physical violence.
Lord Smith of Finsbury: I am afraid that it does. The point that I was about to make is that legislation, in the signals that it sends to the world outside, can have an impact on behaviour way beyond the actual meaning of the words in the legislation. There is already a huge amount of anxiety and fear among the gay community about the increasing level of attacks. If the signal that the House sends is that it is all right to be intolerant, I fear that we will end up seeing more violence and more attacks and more difficulty for people simply because of their sexual orientation. That is why I feel so passionately. If this House stands up for free speech, as it so often has to, on this particular matter, it is at risk of sending the wrong signal to the wrong people outside.
Lord Mackay of Clashfern: My Lords, first, the only reason that the House of Commons has given for rejecting the amendment agreed by your Lordships is that it is unnecessary. Secondly, it has been said a great many times that the House of Commons has voted on this from time to time, but there is one important omission from that little category; namely, the time when it became part of a statute. The House of Commons at that stage must have agreed to it because it is on the statute book. It is not a question of still being an amendment proposed by the noble Lord, Lord Waddington. Unless and until an Act of Parliament is passed to change it, it is on the statute book by agreement of the Lords Spiritual and Temporal. I know that the Government said when they accepted the amendment as part of the statute that they would return to this matter, but that is aside from the point that they allowed it on to the statute book at that time.
As far as I am concerned, the main thrust of the clause that is in the Bill and remains in the Bill is against any kind of violence against those with a sexual orientation that is in question. The provision is very strong against that. Nothing in the amendment proposed by the noble Lord, Lord Waddington, detracts from that in the slightest. Over the years, this House has had the responsibility of maintaining the freedoms that have been hard won in our country. I believe that we should not flinch from doing that just because they happen to be attacked more than once, twice, three or four times.
"It is important that we make it clear to the public and to those who have strong religious and moral views that we are in no way fettering their freedom of speech".-[Official Report, Commons, 9/11/09; col. 122.]
The Lord Bishop of Winchester: My Lords, I shall say very little because virtually everything I wished to say has been said by the noble Lords, Lord Waddington and Lord Dear, and by the noble and learned Lord, Lord Mackay. Having read Monday's debate in the other place, as others have said, the case seemed to be asserted but not made. I believe that this element of what, as the noble and learned Lord, Lord Mackay, rightly said, is the law, is necessary. It does not affect the very high threshold, but it makes clear that this element of the law we are talking about keeping is
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I want to take issue with the noble Baroness, Lady Turner, and the noble Lord, Lord Smith. I want to say to the noble Baroness that words do matter, but, as the noble Lord, Lord Waddington, intimated but did not go into detail about, the absence of words matters too. If these words are not on the statute book, it will be harder for the police to be assisted in the ways in which the noble Lord, Lord Dear, has expressed. They need to be assisted to work in a way that uses their intelligence, common sense and judgment, and thus do not waste time investigating people who have not done anything to deserve being investigated, long before the Attorney-General comes into the picture.
I say to the noble Lord, Lord Smith, that signals matter, and they do. I share with him a horror of the fact that people are attacked, beaten up and killed because others believe them to be homosexual or because they are homosexual. That is manifestly wrong and wicked. But, as the noble Lord said, many others live increasingly in anxiety and fear. There is a very strong sense across quite a wide swathe not only of Christian opinion but of other opinion that the rights of those who hold the kind of views that this law would defend are seen as second-class. That is even there in the language of the noble Lord, Lord Smith. He said that it will be taken that it is all right to be intolerant. That is a particular kind of judgment on those who take the view that this amendment in defence of a piece of law seeks to sustain.
Notwithstanding an unargued assumption of the Government that they must carry on in this way, it is most important that people of all sorts can be assured that, whether they are on street corners, in mosques, churches or synagogues, or be they journalists, academics, comedians or whatever, they are free to express views with which others may strongly disagree and which question the currently dominant political orthodoxy in these matters.
Baroness Paisley of St George's: My Lords, with regard to Mrs Howe, whose name was mentioned, she and her husband are personal friends of mine and I want to support all that my noble friend Lord Dear said on Mrs Howe's behalf. I have no hard feelings against anyone because of their sexual orientation or any orientation, whether it is religious, political, ethnic or anything else, but I do not think that it has been mentioned tonight that people taking part in gay pride marches can offend those who do not agree with them, even though they do not say a word. I never go to see the gay pride marches, but as a born-again Bible-believing Christian, I have been offended when people have carried placards and shouted out that Jesus Christ is a fag. That has offended not only me; it has offended thousands of Christians. It has offended even people who are not practising Christians to think that others have been offended in this manner. I believe in free speech for all and it would be totally wrong to support the Government tonight. I support the noble Lord, Lord Waddington, 100 per cent.
Baroness Falkner of Margravine: Let me start by making it clear that on these Benches, as with issues of conscience-we consider this Motion to be an issue of conscience-we have a free vote. My remarks, from the position on which I stand, are mine and mine alone, and I accept responsibility for that. However, I speak as a Liberal. In a democracy, free speech is a fundamental prerequisite that allows for all people, but particularly for minorities, however off the wall their views might be, to find expression of those views. The Minister told us that where incitement is concerned we need his clause. If it is incitement, statute exists to cover those crimes.
Those minorities who have views on the basis of prejudice or, as the noble Lord, Lord Smith, said, ignorance or-I speak from a certain perspective with which the House is familiar-from a religious perspective, where those views do not impinge on the rights of others, they should be given expression in a tolerant and just society. It is for the rest of us in this kind of society to help those who hold entrenched religious views to cast their objections to our behaviour in respect of the values that prevail today. Therefore, it is our duty-I speak as a Muslim-to help others from among our ranks who for religious reasons do not go along with certain freedoms and to work with them so that they can see that our values might, in another instance, protect their values.
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