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I shall comment briefly on the chilling effect that these kinds of clauses have. To paraphrase the noble Lord, Lord Smith, he implied that legislation has a totemic effect on society whereby lessons are drawn from it without it having had to be applied. It also has the reverse effect; namely, that the existence of something in a statute makes one think and think again. That is an impingement on a person's freedom. So when we make law, we have to be extremely careful not to bring about unintentional effects. The number of plays that are withdrawn, exhibitions cancelled, writers threatened or academics unable to publish are too numerous for me to mention, but I know full well that this chilling effect exists.

Finally, speaking as a member of multiple minorities-of a religions minority, an ethnic minority and, in this House, a gender minority-I say that we look to the law for protection probably more than most others. We look to the law for protection, but not at the cost of impinging on the freedoms of all.

7.30 pm

Lord Clarke of Hampstead: My Lords, I do not intend at this hour to repeat what I said in previous debates. I support the amendment of the noble Lord, Lord Waddington. I thought that we had done sufficient, in the education of the other end of the building, to see that this would not come back. I will not go into the highways and byways, but will deal with two things. The first is the question of signals. If this House were to reject an amendment that calls for freedom of speech in our nation, that signal will be misrepresented and used against politicians of all parties for a long time.

Secondly, today is an appropriate day for this debate. We have seen a magnificent service in Westminster Abbey, following the tremendous display of support

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for our Armed Forces and veterans on Remembrance Sunday. On Saturday evening, I and others were privileged to hear a Member of this House, the most reverend Primate the Archbishop of Canterbury, deliver his homily to the gathered ranks in the Albert Hall. We heard him use the word "freedom". The freedom that he referred to was also the freedom that those gallant people who were represented at the weekend fought for over many generations. It is the same freedom that Her Majesty the Queen honoured when she showed her support for civilians and servicemen who have been through dreadful times. The word that keeps coming through is "freedom". In my book, the basic freedom that should always be included is freedom of speech. I support the amendment.

Lord Henley: My Lords, I intervene briefly, first to make it clear, as the late Lord Kingsland did in Committee, that on these Benches this is a matter for a free vote. It will be entirely up to each Member on these Benches to decide how to vote. I shall support my noble friend in due course.

Secondly, I will pick up the point made by the Minister about this matter being debated four times, and sent back to us four times by another place. This was very well dealt with by my noble and learned friend Lord Mackay of Clashfern. My late friend Lord Kingsland made the same point in June or July when he said that the Government chose not to oppose the decision taken in your Lordships' House last year to support,

My late friend continued:

"It is, in my view, an abuse of parliamentary procedure to bring this matter back to Parliament without any evidence that Parliament had made bad law, especially when the same Government are in power. Indeed, the Government say, in terms, that Section 29JA is not bad law. Their case is that it is unnecessary law because the definition of the offence of incitement implies, in terms, the contents of my noble friend Lord Waddington's amendment ... In these circumstances, it cannot be good constitutional practice for a Government to compel Parliament, the law-maker"-

and this is what they are doing-

With that and with the speeches that we have heard this evening, we should invite the Minister to comment and then invite the House to come to a decision on the issue.

Lord Bach: My Lords, I thank all noble Lords who have spoken in the debate on both sides of the issue-starting with the noble Lord, Lord Waddington. I will deal with a couple of preliminaries. I was interested that the noble Lord reaffirmed that, in this House at least, his party is on a free vote. That was not the case in the Commons the other day. The honourable Mr Dominic Grieve said:

"We on the Opposition Front Bench will vote to support Lord Waddington's amendment".-[Official Report, Commons, 9/11/09; col. 109.]

If that is not a Whip, I do not know what is, but I am delighted that there is not one today-but perhaps noble Lords would tell me what it is.

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Lord Henley: My Lords, I fail to see the relevance of the noble Lord's point. We are talking about what goes on in this House. I made it clear that we on these Benches have a free vote. Will he confirm that the same is true on his Benches?

Lord Bach: My Lords, I will not. This is government policy and we expect Members on our Benches to support the Government-I make no bones about it. It is not we who are ambiguous about this, but the noble Lord's party. In the Commons, their Front Bench spokesman said that their Front Bench would vote to support the amendment of the noble Lord, Lord Waddington. That did not sound to me like a free vote, but a hint to those behind him and a message to those sitting on the Front Bench with him. Is it a free vote or not? I recall that the last time that we debated this, in Committee, there was a so-called free vote-the noble Lord used the same expression.

Baroness Trumpington: My Lords, I wonder whether I would be right in saying that 99 per cent of the Members in this Chamber have already made up their minds which way they are going to vote. Will the Minister cut the cackle and let us get on with it?

Noble Lords: Hear hear.

Lord Bach: My Lords, there is no answer to that. I will cut the cackle, but it will be interesting to see whether there will be a repeat of what happened last time there was a "free vote", when about 109 out of 111 of the party opposite voted in one Lobby and their Whips were seen in the Lobby during the vote. We will see tonight whether that changes.

My second point is that the noble Lord, Lord Waddington, talked about the settled will of the other place. He made the point that one government Back-Bencher got up to support the Government the other day. I will tell him what the settled will of the other place is.

Lord Waddington: My Lords, no member of the Labour Party supported the Government. The only member of the Labour Party who spoke, spoke in favour of my amendment.

Lord Bach: My Lords, the honourable Claire Ward, a member of the Labour Party in the House of Commons, spoke very well on that occasion. The noble Lord says there is no settled will of the other place. The settled will was expressed in the majorities of 169, 202, 154 and 197. That seems to me to represent conclusively the settled will of the other place. It is perhaps time, on this issue, that this House realises that it not the elected House.

The noble and learned Baroness, Lady Butler-Sloss, made the point that there is great strength of feeling in this House. Of course there is-I accept that and respect it, even though I disagree with many noble Lords. The noble and learned Baroness contrasted that with the strength of feeling in the other place. There is great strength of feeling on this issue in both places. The difference is that the other place is the elected place-this House is not elected. I am sorry to

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repeat the proposition, but it is normal and constitutionally proper, when the other place has voted on as many occasions as it has with such huge majorities on an issue such as this, to support the views of the elected Chamber.

The issue is not really freedom of expression. No-one here is against freedom of expression. I have already tried to point out that freedom of expression is preserved by this legislation, first, by the fact that the Attorney-General has to approve of all prosecutions and she is bound to follow the European Convention on Human Rights. Secondly, two very distinguished groups-the Joint Committee on Human Rights and the Equality and Human Rights Commission-have looked at this matter carefully and concluded that there are no freedom-of-expression issues.

If you are to have freedom-of-expression clauses in the Bill, why not have them in every Bill? Why do you not always have a freedom-of-expression clause?

Lord Tebbit: The Minister is on an important point. Perhaps he can give us a guarantee that the Government will not seek to remove the similar provision concerning religious discrimination.

Lord Bach: My Lords, I cannot give guarantees about any future Government. That provision was passed by a majority of one vote in the House of Commons and became the law. Of course I understand that completely. However, the noble Lord may hope that his party will come to power in a few months; if that is to be the case, how can I possibly give any guarantee as to what it may or may not do? This is not at all about freedom of expression. We all agree that there should be maximum freedom of expression.

I turn to the case of Mrs Howe. I understand the comments that have been made about her and that she is a personal friend of the noble Baroness, Lady Paisley. However, given that the case has been also raised by the noble Lord, Lord Dear, I should tell the House what this middle-class lady said in her letter to Norwich City Council. She referred to homosexuals as "sodomites" and blamed, "their perverted sexual practice" for sexually transmitting diseases and for the "downfall of every Empire". She is, of course, absolutely entitled to make those remarks. The chief executive of Stonewall himself said that the police response had been disproportionate, so the very suggestion that she would somehow fall foul of this legislation, if there were no freedom-of-expression clause in it, is absolute nonsense. Whatever view you take of what she did, it was hardly threatening, nor was it intended to stir up hatred on the grounds of sexual orientation. This lady was entitled to make her remarks; she did so, and the police have been criticised. What has it got to do with this particular issue?

Lord Stoddart of Swindon: The noble Lord said that the police have been criticised. That is not the real point. This lady wrote a private letter to her local authority and it should have been kept confidential. The police would not have been involved unless that local authority-perhaps by breaking the Data Protection Act-had passed on the letter to the police. Have we reached a stage in this country where a council tax

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payer cannot write to their local authority criticising something without that private letter being passed onto the police? That is the real point.

7.45 pm

Lord Bach: The noble Lord makes a fair point.

Lord Brooke of Alverthorpe: Perhaps I may intervene. I did not speak earlier, because we wanted to get through the debate quickly. I live in Brighton where you have complete freedom.

Lord Stoddart of Swindon: My Lords, you cannot have an intervention on an intervention. I should like the Minister to be allowed to answer my intervention.

Lord Bach: I think that I already have done that. The noble Lord made a fair point. The point that I am trying to make is that this lady would not fall foul of this legislation, whether or not there was a freedom-of-expression clause.

Lord Brooke of Alverthorpe: My Lords, I come from a city where there is freedom. You can write to the local newspaper, criticise gay pride, raise issues on the radio and in phone-ins, and no action is taken by the police. Will the Minister clarify the position as regards ACPO, given that we are provided with much evidence, based on confidential discussions with police officers who are not named and which we have no way of checking?

Lord Bach: I am grateful. I was just about to move on to ACPO and what the noble Lord, Lord Dear, told us. He said in July:

"However, my recent discussions privately with senior ACPO figures, including those most closely involved with issues of this nature, reveal two facts critical to our debate today: first, not only has ACPO not declared an official stance but it has not given an unofficial view in any quarter; secondly, it would much prefer to see the defeat of Clause 61 and the continuation of the Waddington amendment".-[Official Report, 9/7/09; col. 803.]

Stephen Otter, the ACPO lead on race and diversity, was so concerned about that statement that he wrote to the Government before we contacted him on the issue. He wanted to clarify that ACPO,

He clearly believed that the views of his organisation had been misrepresented. He said that,

"individual chief officers ... may or may not have expressed a variety of view ... but it is vital these conversations are not taken as representing the view of ACPO in its role of representing the police forces of England and Wales".

Consequently, it is simply wrong to suggest that ACPO is for, or indeed against, the retention of Section 29JA of the Public Order Act. I am entitled to ask from this Dispatch Box why we heard, not just in Committee but tonight, the view that stated, "Hush, hush; secret, secret; police officers are for the Waddington amendment". It seems to me that the noble Lord, Lord Dear, is trying to have it both ways. He is trying to say that ACPO does not have an official policy on this, but I have spoken-

11 Nov 2009 : Column 863

Lord Dear: In another place and, I suspect, in another age, I would be sending my seconds round to the Minister at this point-but I resist that temptation. Perhaps I may read from my speaking notes accurately for a second time. I said:

"The Association of Chief Police Officers (ACPO) has carefully distanced itself from the issue. It has not declared a position either publicly, or so 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, very clearly, that they support the amendment",

because it gives them discretion, and so on. Perhaps I may say that I am probably better placed than most noble Lords in this House to take a straw poll of the opinion at ACPO level, unofficially and on the streets. I stand by what I said.

Lord Bach: I hope that I have answered my noble friend; he knows ACPO's position.

I repeat that these offences relate only to threatening words and behaviour intended to stir up hatred. They were introduced because of the fact that gay men were often subject to attacks of this kind. That is why the legislation was introduced. Those uttering such words or exhibiting such behaviour should not have the cloak of so-called freedom of expression saving to protect them.

This is a moment of truth. Do we really mean it when we say that gay men and lesbian women should be treated as equal, and that we should do all we can to avoid them being discriminated against, threatened and having violence used against them? Or do we think that it does not really matter? Although very distinguished speeches have been made on behalf of the noble Lord, Lord Waddington, not least his own, the claim that he and those who support him make, that this is an issue of freedom of speech, is untrue: it is not about freedom of speech at all. Freedom of speech is guaranteed. People in this country should not be arrested under this section because they have behaved or spoken in the same way, for example, as the lady who was mentioned. We are talking about an extremely serious criminal offence with a very high threshold. Not only is the freedom of expression clause unnecessary but it has the danger that it may lead some of those who attempt to commit this offence to rely on the cloak that it offers. So those who really believe what they say about equality as far as sexual orientation is concerned should support the Government tonight.

Lord Waddington: I am bound to say that I have been rather surprised by the Minister's reply. At no time has he sought to address the issue before the House tonight. There is no doubt that there have been abuses in the sense of inappropriate action by the police. My amendment is an attempt to prevent those abuses continuing. The Government have not said one word as to how they propose to deal with this difficulty with which we are faced today. Therefore, one can only describe the Minister's reply as failing completely to meet the object of such a reply; that is, to answer the points made in the debate.

I know that the House wishes to come to a quick conclusion over this matter. I shall say no more except thank all those who have taken part.

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7.53 pm

Division on Motion C1

Contents 179; Not-Contents 135.

Motion C1 agreed.

Division No. 3


Aberdare, L.
Ahmed, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anelay of St Johns, B.
Arran, E.
Bagri, L.
Bates, L.
Bell, L.
Bew, L.
Bilimoria, L.
Blackwell, L.
Boothroyd, B.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Burnett, L.
Buscombe, B.
Butler of Brockwell, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Cameron of Lochbroom, L.
Cathcart, E.
Chester, Bp.
Chichester, Bp.
Chorley, L.
Clarke of Hampstead, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Dear, L.
D'Souza, B.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elton, L.
Evans of Parkside, L.
Falkland, V.
Falkner of Margravine, B.
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.
Gordon of Strathblane, L.
Goschen, V.
Greengross, B.
Greenway, L.
Grenfell, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hanham, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howie of Troon, L.
Hunt of Wirral, L.
Hylton, L.
Inge, L.
Inglewood, L.
James of Blackheath, L.
James of Holland Park, B.
Jenkin of Roding, L.
Kilclooney, L.
King of Bridgwater, L.
Kingsdown, L.
Kirkham, L.
Kirkhill, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Laird, L.
Lang of Monkton, L.
Leach of Fairford, L.
Lewis of Newnham, L.
Listowel, E.
Liverpool, E.
Livsey of Talgarth, L.
Luce, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mackenzie of Framwellgate, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Mancroft, L.
Marlesford, L.
Martin of Springburn, L.
Masham of Ilton, B.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Hendon, B.
Monson, L.
Montgomery of Alamein, V.
Montrose, D.
Moore of Lower Marsh, L.
Moran, L.
Morris of Aberavon, L.
Morris of Bolton, B.
Morrow, L.
Neill of Bladen, L.
Neville-Jones, B.
Noakes, B.
Northbourne, L.
Northbrook, L.
O'Cathain, B. [Teller]
O'Loan, B.
Onslow, E.
Paisley of St George's, B.
Palmer, L.

11 Nov 2009 : Column 865

Palumbo, L.
Pannick, L.
Park of Monmouth, B.
Patten, L.
Pearson of Rannoch, L.
Pendry, L.
Pilkington of Oxenford, L.
Plant of Highfield, L.
Plumb, L.
Rawlings, B.
Reay, L.
Rees-Mogg, L.
Roberts of Conwy, L.
Rogan, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Sainsbury of Preston Candover, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shrewsbury, E.
Skelmersdale, L.
Skidelsky, L.
Slim, V.
Soulsby of Swaffham Prior, L.
Stair, E.
Sterling of Plaistow, L.
Stevens of Ludgate, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taylor of Holbeach, L.
Tebbit, L.
Thomas of Swynnerton, L.
Tombs, L.
Trimble, L.
Trumpington, B.
Verma, B.
Vinson, L.
Waddington, L. [Teller]
Wade of Chorlton, L.
Walker of Aldringham, L.
Walpole, L.
Williamson of Horton, L.
Winchester, Bp.


Adams of Craigielea, B.
Addington, L.
Adonis, L.
Andrews, B.
Archer of Sandwell, L.
Ashdown of Norton-sub-Hamdon, L.
Bach, L.
Barker, B.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Billingham, B.
Bilston, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Desai, L.
Drayson, L.
Dubs, L.
Dykes, L.
Elder, L.
Elystan-Morgan, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L.
Hamwee, B.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jones, L.
Jones of Whitchurch, B.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkwood of Kirkhope, L.
Lea of Crondall, L.
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