Coroners and Justice Bill

Clause 61: Hatred against persons on grounds of sexual orientation Debate on whether Clause 61 should stand part of the Bill. Before I come to Clause 61, there are one or two general points I should make. The issue is not whether there should be protection for gays against those minded to stir up hatred against them or whether there should be a new offence of stirring up hatred on the grounds of sexual orientation. Last year, the House decided that there should be such an offence, and there was no disagreement about the matter. The issues today are, first, whether there should be a provision to protect free speech, similar to that in the offence of stirring up religious hatred, and, secondly, a quasi-constitutional point about whether it is right that the Government should be using this Bill to repeal a provision they put on the statute book less than a year ago. As a result of the Government’s actions, we are in an interesting position. When I spoke a year ago, my job was to satisfy the House that we should attach to the new offence a provision safeguarding free speech. Now the boot is on the other foot, and it is for the Government to try to show what conceivable public benefit will flow from the repeal of that provision. It is up to the Government to show why there is this urgency to scrap the free speech safeguard without waiting to see whether in practice it causes prosecutors or anyone else the slightest difficulty. I find it impossible to understand the Government’s position. Do they say that the words they seek to repeal have no effect and are unnecessary? If so, the words are doing no harm either, and by putting Clause 61 in the Bill, the Government are just wasting our time. Or are they saying that the words would cause mischief? If so, they had better tell us how. As the words are clear enough, and by no stretch of the imagination can be read as licensing threats—a proposition advanced by the Liberal Democrats in the other place, but which, according to all the legal advice we have taken, has not the slightest substance—are we not bound to assume that the Government want to prevent, in the words of the safeguard, ""discussion or criticism of sexual conduct or practices"," even when such discussion or criticism is not threatening or intended to stir up hatred? Surely that is what the police are going to assume, for if the free speech clause is unacceptable to the Government, what possible reason can there be for that opposition, other than that the Government feel that discussion or criticism of sexual conduct is of itself threatening and likely to stir up hatred and had better be stopped? After that, the Government have a plain duty to tell us why it is right to have a free speech safeguard in the religious hatred offence but no free speech safeguard here. Some have argued that there is a greater need for protecting freedom of expression in the religious hatred offence than in this offence, but how on earth can that be right when none of the cases of the police overstepping the mark has occurred in the area of religion and all have occurred in the area of sex? There can be no substance in that argument. Some have gone on to argue that this offence is more like that of race hatred than the offence of religious hatred. Religion, they say, is a matter of choice, but sexual orientation, like race, is wished on one. Many Muslims who talk of punishment for apostasy would deny that religion is a matter of choice, but even if it were, the assertion would get us precisely nowhere. What possible relevance does the alleged immutability of sexual orientation have to the question of whether the discussion of sexual behaviour should be allowed under the law or banned on pain of seven years’ imprisonment? The answer, of course, is none. Free speech is a precious commodity—part of the very essence of a civilised society. It demands, says Matthew Parris, ""rough-and-tumble and give-and-take"." It is so precious, says Peter Tatchell, that: ""It should be limited only in exceptional circumstances—when it slips into inciting violence and murder"." Rowan Atkinson told us of his worry that, without the safeguard, people would be unsure of what they were allowed to say and fearful of expressing a viewpoint on many matters. He helps us to remember that not only the churches and religious believers fear that revoking the safeguard will be taken as a signal that criticising homosexual behaviour could be a criminal offence. You do not have to be religious to be interested in, and wish to debate freely, whether children from stable heterosexual family backgrounds do better than others, and the merits and demerits of gay adoption. Many might say that that is absolutely obvious and that such discussion cannot be seen as evidence of hatred any more than jokes with a sexual content can be. It may seem obvious to you and me, but it certainly was not obvious to the police who, after Lynette Burrows had doubted the wisdom of gay adoption on the radio, gave her a lecture on homophobia and noted her behaviour in police records. Nor was it obvious to the police who, after a city councillor had made a tame joke about transgenderism at a police public liaison meeting, interrogated him for two hours before letting him off with a caution. That brings me to the question of guidance. Some may say that the whole matter can be dealt with by guidance, but I remind your Lordships that these abuses have happened while the police have been furnished with guidance—in particular, the 2007 CPS guidance on prosecuting cases of homophobic crime. Unfortunately, that guidance is so erroneous that one is tempted to conclude that the police acted not in spite of it but because of it. The guidance does not suggest that there may be legitimate comment on sexual practices; instead, it makes the bold assertion that homophobia does not necessarily mean hatred of gays but includes mere dislike of a person’s behaviour. After going on to stress that a homophobic incident is any incident that is perceived to be such by any member of the public, not necessarily by anyone who feels victimised, it as good as encourages the police to investigate incidents that amount to no more than a member of the public complaining that someone else has had the temerity to criticise homosexual practices. There is no mystery as to why the Fleetwood couple came to be persecuted; the police followed the guidance—so the last thing on earth we want is more guidance like that. What is needed is what we have now; a statutory provision that says that one must not assume from mere discussion or criticism of sexual practice that there is an attempt to stir up hatred. One must look at the circumstances and the manner in which the words are spoken to see whether they were threatening and driven by hate. Back in 2007, Ben Summerskill of Stonewall told the committee considering the Criminal Justice and Immigration Bill that Stonewall, ""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.]" Our free speech safeguard provides just that. Finally—I say this in all seriousness and earnestness—if ever there was a time when events required the Government to make clear their commitment to free speech, it is right now when everyday free speech is assailed. They must surely know that if the safeguard is removed it will be taken, as Tom Harris MP said, ""as a green light to all those who believe they can silence anyone who disagrees with them"." Instead of trying to get rid of this safeguard, the Government should declare boldly that letting people express their views, including views that other people may not like, is what a free society is all about. This clause must not stand part of the Bill.