Clause 61 of the Coroners and Justice Bill - an overview
Introduction:
The Coroners and Justice Bill is credited as encompassing 28 topics, and contains provisions in relation to coroners, criminal offences including murder, infanticide, suicide and images of children, criminal evidence, investigations and procedure, sentencing, legal aid, criminal memoirs and the Data Protection Act 1998. It amends around 56 different acts.
Clause 61 (formerly Clause 58) was a late addition to the Bill. The legal distinction between 'discussion' and the 'stirring up' of 'hatred' on the grounds of sexual orientation (which carries a maximum seven year prison sentence) would potentially not be adequately clarified in primary legislation. This would have a chilling effect on the discussion of even constitutionally important belief texts in relation to lifestyle, changes in society, and cultural diversity.
A final House of Lords vote on whether Clause 61 should be retained in the Bill took place at the close of the Committee Stage sixth sitting on Thursday 9 July 2009. Her Majesty's Government was defeated by 186 votes to 133.
However the Coroners and Justice Bill will return to the House of Commons in October or early November, when HMG may yet seek to overturn the Lords' decision.
Clause 61 reads:
Clause 61 Hatred against persons on grounds of sexual orientation
‘In Part 3A of the Public Order Act 1986 (c. 64)(hatred against persons on grounds of sexual orientation etc), omit section 29JA (protection for discussion or criticism of sexual conduct etc)’
Section 29JA of the Public Order Act 1986 to be abolished provides:
‘For the purposes of the offence of stirring up hatred on the grounds of sexual orientation, discussion or criticism of sexual conduct or practices or urging persons to refrain from or modify such conduct is not, in itself, to be taken to be threatening or intended to stir up hatred.’
Background:
A Free Speech Clause was originally secured in the Racial and Religious Hatred Act of 2006 clarifying that religious hatred law could not be used to thwart free speech as well as freedom of religion. The specific safeguards to freedom of opinion and expression in the Act were commended by Asma Jahangir at the Tenth Session of the UN Human Rights Council.
The relevant clause in the 2006 Act reads: ‘Section 29J -Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practicising their religion or belief system.’
The Criminal Justice and Immigration Act of 2008 created a new offence prohibiting any words or behaviour which are intended to incite hatred on the grounds of sexual orientation. This was worded in the same way as the religious hatred offence, so the law would only cover words or behaviour which is threatening, and situations where there had to be an intent to incite hatred. The 2008 Act states:
'A person who uses threatening words or behaviour, or displays written material which is threatening, is guilty of an offence if he intends thereby to stir up hatred on the grounds of sexual orientation.'
When HMG did not include a similar clause in the 2008 Act to the one contained in the religious hatred law, in order to safeguard against confusions of interpretation, an amendment was tabled by Lord David Waddington QC (Cons), Lord Anthony Clarke of Hampstead (Lab) and Lord Bishop of Winchester Rt Rev'd Michael Scott-Joynt, to update Section 29JA of The Public Order Act 1986, which read:
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.”
This was subsequently modified during the associated Committee Stage of the 2008 Act to read:
Clause 29JA Protection of freedom of expression (sexual orientation)
In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.
Government claims free speech clause is “superfluous”:
HMG maintains that a free speech clarification would not be necessary as the Crown Prosecution Service will have its own guidance, and will advise police accordingly.
Bridget Prentice, The Parliamentary Under-Secretary of State for Justice informed MPs in March “There is a clear need for guidance, as there always is when any new offence is introduced. The Ministry of Justice will provide short explanatory guidance about the offence. The Crown Prosecution Service will issue guidance for prosecutors, and the Association of Chief Police Officers will revise its hate crime manual to include guidance on all incitement to hatred offences. All the guidance will be available before the offence comes into force.” The Under-Secretary also said she was open to considering “whether it would be appropriate to make the guidance statutory.” (CRS2 24.03 col 201)
Preceding secondary guidance has set low threshold for offence:
The CPS has defined LGBT offences for example, in a very broad manner. This can even cover simply perceived dislike, and CPS guidance can extend to a considerable volume of page matter. There may therefore be substantial scope for the law of unintended consequences.
Lord Waddington QC (Cons) commented during the Lords Second Reading debate in May “It has been suggested that any possible difficulties can be dealt with by guidance and that that is better than legislation. That, I suggest, is plain wrong. Guidance is not binding, so it can be ignored. Not only is a simple, short, pithy free speech clause more likely to be read than reams of guidance, but it is much more likely to be heeded. Furthermore, there is already guidance available in the shape of the 2007 CPS Guidance on Prosecuting Cases of Homophobic and Transphobic Crime, which, far from inspiring confidence, seems to make the case for the free speech clause. Somewhat surprisingly, the document says that homophobia does not necessarily mean hatred of gays but covers mere dislike of their practices. Basing their reasoning on the Stephen Lawrence definition of a racial incident, the authors go on to say that a homophobic incident is any incident perceived to be such,
“ “by the victim or any other person” ”. (LSR 18.05 col 1224)
Gerald Howarth, Conservative MP for Aldershot elaborated on the November 2007 guidance in more detail.
“It describes homophobia and transphobia as
“ “terms used to describe a dislike of LGBT people or aspects of their perceived lifestyle. In other words, homophobia and transphobia are not restricted to a dislike of individuals; the dislike can be based on any sexual act or characteristic that the person associates with an LGBT person, whether or not any specific LGBT person does that act or has that characteristic. That dislike does not have to be as severe as hatred. It is enough that people do something or abstain from doing something because they do not like LGBT people.” ”
Surely that is hugely wide-ranging. Parliament has no say in this matter, and we could be faced with a situation where such an interpretation means that anyone who expresses a dislike of this kind of behaviour would be caught by the CPS under its interpretation of the law.” (CRS2 24.03 col 190)
David Taylor Labour/Co-operative MP for North West Leicestershire drew attention to earlier guidelines issued in March 2005 by the Association of Chief Police Officers and the Home Office. “The guidance is called “ “Hate Crime: Delivering a Quality Service” ” and in paragraph 2.2.6 it tells officers:
“ “The perception of the victim or any other person is the defining factor in determining a hate incident. The apparent lack of motivation as the cause of an incident is not relevant as it is the perception of the victim or any other person that counts.” ” (CRS2 24.03 col 196)
Dominic Grieve QC, Shadow Secretary of State for Justice and MP for Beaconsfield warned MPs in March “I accept that guidelines may be of some utility, but the fact of the matter is that if guidelines are disregarded and a legal process against an individual starts to get ratcheted up, there is nothing to stop it until the matter gets into the courts; and by then, as we know, a great deal of damage has been done in many cases to the individuals concerned in terms of stress, their reputation and the anxiety they are placed under—all quite needlessly.” (CRS2 24.03 col 197)
Driving force for legislation?:
David Taylor MP informed the Chamber that Ministry of Justice officials who drafted relevant accompanying notes stated in paragraph 372:
“ “The removal of the section will not affect the threshold required for the offence to be made out.” ”
He continued “clearly, if removal of the free speech clause will not affect the threshold of the offence, its inclusion will not affect the threshold, either.” (CRS2 24.03 col 194)
Equally, overt pressure for Clause 61 has not come from civil rights bodies such as Liberty or noted LGBT spokespersons.
David Taylor MP (Lab/Co-op) supplied clarification. “Stonewall’s director, Ben Summerskill, said in evidence to the Public Bill Committee that considered the Criminal Justice and Immigration Act 2008:
“ “We would have no difficulties if the provisions as drafted indicated the mindfulness of those who created them for the importance of free speech.” ” ——[ Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 80, Q179.] (CRS2 24.03 col 193)
During the Lords Second Reading debate Lord Moran (John Wilson -cross bencher) echoed this line of defence. “It is interesting that leading homosexuals such as Peter Tatchell and Matthew Parris should support a free speech clause.” “Liberty, an organisation which seeks to protect civil liberties and promote human rights for everyone, reportedly opposes the Government’s approach on free speech grounds.” (LSR 18.05 col 1274)
Given that nothing appears to have changed since Parliament last reached a solution on the issue, it is widely assumed within Westminster that “this move is motivated by party politics, rather than any genuine concern for protecting minorities.”
What is the Established Church's position?:
David Taylor MP (Lab/Co-op) read from The Church of England's briefing during the Commons Report Stage second day debate.
“ “If it is argued that it is necessary for the effective operation of the law that the amendment should be removed, the implication would be that such discussion or criticism could in itself constitute an offence, and to this we would be strongly opposed.” ” (CRS2 24.03 col 195)
Detentions -a second culprit? Section 5 of the Public Order Act 1986:
A number of examples of police intervention cited by parliamentarians in defence of the Waddington amendment, were technically unrelated.
David Howarth MP (Lib Dem) drew attention to “section 5 of the Public Order Act 1986, whereby it is a crime to use threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. In my view, that provision is in itself a violation of freedom of speech. It seems to allow prosecution merely for insults, and for insults that are merely likely to cause distress but have not necessarily done so.” (CRS2 24.03 col 189)
Moderate discussion muzzled:
Dominic Grieve QC (Cons MP) observed ironically “One of the things we are experiencing at the moment in this country is that people of moderate views on any (CRS2 24.03 col 197) side of an argument are increasingly deterred from expressing their views at all, but those who are full of extreme opinion, whether they be at one end of the spectrum or the other, are not deterred in any way by the law and, in fact, have a free field for themselves.” (CRS2 24.03 col 198)
Key to Abbreviations: CRS2 = Commons Report Stage -second day (24 March 2009), LSR = Lords Second Reading (18 May 2009)
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