Criminal Justice and Immigration Bill

I have an adjacent amendment to this one. Of course, we support the principle of free speech and we try, in Amendment No. 137ZZA, to put it in an appropriate way in the context of the offence that is suggested or promoted by Schedule 26. The offence is not one of criticising people because of their sexual orientation, or of criticising people for their conduct relating to their sexual orientation. The offence is using threatening words and behaviour with the intent of stirring up hatred on the grounds of sexual orientation. That is the burden of this offence. It is not generally saying that you cannot express your views about gay people or what they do. Suppose there were a British National Party meeting and a speaker were to address that meeting saying, ““These gays have it coming to them if they insist on committing sodomy with each other””. It is conceivable that the free-speech amendment put forward by the noble Lord, Lord Waddington, particularly its latter part, would prevent that being a criminal offence, even though it was threatening and used with intent to stir up hatred on the grounds of sexual orientation. Why do I say that? Because it refers to conduct; it refers to sodomy as opposed to being a homosexual. That is the problem with the way in which this exception is drafted. It is about conduct rather than about sexual orientation itself. Taking on board the criticisms of the noble and learned Lord, Lord Mayhew, on the previous amendment, we impress on the Committee that, when a person uses threatening words and behaviour with intent to stir up hatred on the grounds of sexual orientation, it would be better and more appropriate for the Attorney-General to consider whether it is in the public interest—having regard to Article 10 of the European Convention on Human Rights and the right to freedom of expression—that a prosecution should be brought at that point. That is why I support the second amendment.