Criminal Justice and Immigration Bill

moved Amendment No. 137: 137: Schedule 26, page 269, line 19, at end insert— ““13A After section 29J (protection of freedom of expression), insert— ““29JA Protection of freedom of expression (sexual orientation) Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion of, criticism of or expressions of antipathy towards, conduct relating to a particular sexual orientation, or urging persons of a particular sexual orientation to refrain from or modify conduct related to that orientation.”””” The noble Lord said: I ought to start by saying that some of us may doubt whether there is any need for Clause 126 at all. I say that because the Public Order Act as it stands outlaws threatening abusive or insulting words or behaviour likely to cause harassment, alarm or distress with higher penalties when the crime is aggravated by hostility towards the victim because of his sexual orientation. The prosecution of a Mr Harry Hammond—many noble Lords will know the case—shows the law’s potency. I remind the Committee that he was prosecuted to conviction for displaying a placard bearing the following words, ““Stop homosexuality, stop lesbianism. Jesus is Lord””. In the light of that conviction, one wonders what statements or conduct will be caught by this clause that are not caught already. I remind the Committee that where the Public Order Act does not bite because no one who is likely to be caused harassment, alarm or distress is present, prosecutions can be brought under the Serious Crime Act 2007, which replaces the old law on incitement with a new law against, "““the encouragement or assistance of crime””." Surely the encouragement of violence against gays is an offence now and we need no new law to say so. I am sure we all agree on one thing: there is no place in a civilised society for hatred towards gay people. However, surely there is also a wide measure of agreement that, if we are to have this new offence, punishable, I remind the Committee, with up to seven years’ imprisonment, we must ensure that it does not catch people who, honestly believing in the tenets of their religion, be it Christianity, Judaism, Islam, Sikhism or Baha’i, express, for example, the view that, while a homosexual inclination is not wrong, homosexual practice—like, for that matter, adultery or heterosexual sex outside marriage—is. To put it in another way, Clause 126 makes it an offence to use threatening words or behaviour within intent to stir up hatred, but we must ensure that the police do not construe criticism as threats or confuse strong criticism of a person’s conduct with the commission of an offence. That is the purpose of the amendment and there are two very good reasons why the Committee should support it. First, the Government seem to be saying that there is no need for a free speech clause because the clause requires both threats and proof of intent. However, the religious hatred offence, created as recently as 2006, also requires threats and, in addition, requires intent, and Parliament still insisted on a free speech clause. Of course, religion is—at least, to some extent—a matter of choice, whereas sexual orientation is not, but while sexual orientation does not involve choice, sexual behaviour obviously does. The second reason is that even Stonewall, the body that seems to have persuaded the Government to insert Clause 126 in the Bill, can see the case for some words about free speech being added to it. I say that because Ben Summerskill told the Public Bill Committee on 16 October last year: "““We would have no objections to any indication in the Bill that there was a mindfulness of the importance of free speech””.—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 16/10/07; col. 80.]" It seems to me that the real difficulty about the Government’s position is that there is nothing in recent history to show that the police are very good at distinguishing between legitimate comment and language calculated or intended to stir up hatred. Some would say that they did not show themselves very good at spotting the difference between stirring up hatred and legitimate comment in the case of Mr Hammond, to which I have already made reference. They certainly did not do so in the case of the right reverend Prelate the Bishop of Chester. I am sorry to embarrass the right reverend Prelate by mentioning the matter but I think that it is very important for others that what happened should not be forgotten. The right reverend Prelate had commented to his local paper on research showing that some homosexuals reoriented to heterosexuality and, as a result, found himself the subject of investigation by the Cheshire police. He was never questioned by the police but that there was a police investigation is beyond doubt, and it was sufficiently serious to involve discussions with the Crown Prosecution Service. We know that because the Cheshire constabulary issued a statement in these terms: "““The Crown Prosecution Service has been consulted with at length, and Cheshire Police are satisfied that no criminal offences have been committed, as current public order legislation does not provide specific offences based on sexuality””." That seems remarkably like saying that the police thought that if this proposed offence had been on the statute book, the right reverend Prelate could have been for the high jump. I do not see how you could read those words of the Cheshire police in any other way.