Summary of Commons and Lords debate exchanges pertinent to Clause 61
Abbreviations: CSR = Commons Second Reading (26 Jan 2009), CRS1&2 = Commons Report Stage -First Day (23 March 2009) and Second Day (24 March 2009), CTR = Commons Third Reading (24 March 2009), LSR = Lords Second Reading (18 May 2009)
Colour Code:
House of Commons MPs (& relevant ministerial or shadow ministerial titles at time, where names are first mentioned), House of Lords Peers
Sections Index:
Section One: “Unfinished business” from Justice and Immigration Act
Section Four: Lack of evidence to support repeal of 2008 provision?
Section Six: Perceived wide scope for interpretation of secondary guidance
Section Seven: Ambiguity and the “law of unintended consequences”
Section Eight: A wrong diagnosis (?) and Section 5 of the Public Order Act 1986
Section Ten: “Curate's egg” of a Bill addressing a plethora of topics with inadequate time for scrutiny
Section One: “Unfinished business” from Justice and Immigration Act
Jack Straw, Secretary of State for Justice and MP for Blackburn referred to the Coroners and Justice Bill as completing “unfinished business” (CSR 26.01 col 36) dating back to the Justice and Immigration Act of 2008.
Jack Straw MP (Lab) stated that the Waddington Amendment had been defeated in the Commons by a majority of two hundred, but the Lords decision had been accepted “temporarily, because we had to secure Royal Assent by 8 May.” (CSR 26.01 col 36)
Lord David Waddington QC (Cons) responded during the House of Lords Second Reading debate. “Clause 61 repeals a provision that only last year the Government put on the statute book. That is truly extraordinary behaviour and, so far as I know, behaviour without precedent. It is not right to say that, being up against the clock, the Government had no option but to act as they did.” He continued “there were many hours left for the amendment to be further considered in the Commons and for it to come back to us, but after a short while we were told that the Government were not going to contest the matter further.
It is then said that the Government made it plain that, although accepting the amendment, they would seek the first opportunity to remove it. I have to tell your Lordships—I shall not mince my words—that that is simply untrue. I need only refer your Lordships to what the Minister said in 'the other place' on 7 May last year. She said that,
“ “between now and commencement we will prepare guidance ... explaining the operation of the new offences ... Of course there will be an opportunity—doubtless there will be frequent opportunities—to revisit the issue in due course if it is the will of this House or the other House to do so. On that basis, I would like to propose that we do not disagree with the Lords in their said amendment.” ”—[Official Report, Commons, 7/5/08; col. 808.]
It is ludicrous to suggest that those carefully chosen words were an indication that the Government were going to remove the free speech safeguard in the very next Session without even waiting to see whether in practice it caused any difficulties for prosecutors.” (LSR 18.05 col 1223)
Lord Anthony Lester of Herne Hill QC (Lib Dem), who “was responsible for introducing the religious hate free speech clause—the English PEN clause as it is known,” in marked contrast, agreed with the Government, arguing in 'the other place' that no similar free speech protection was necessary in relation to homophobic hate speech. (LSR 18.05 col 1246)
Lord Lester (Lib Dem) articulated his case as follows. “The question is whether you think that homophobic hate speech is more like race hate speech or religious hate speech. Does homophobic hate speech attack people for the way they are born, for their common humanity, unlike religious hate speech, which attacks people because of their beliefs or their chosen practices? My belief is that it is more like race hate speech than religious hate speech, and therefore the free speech clause that the noble Lord, Lord Waddington, successfully put into the Bill was not necessary. One can see the lack of necessity; Section 29JA of the Public Order Act 1986 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” ”.
When one looks at that, the answer is obvious. Of course, there are no circumstances in which such conduct could be taken to involve threatening or intending to stir up homophobic hatred. Therefore, I do not think the clause is necessary and I classify it as dealing with an attack on someone’s common humanity. For that reason, I believe that the Government are right. I recognise that it is a difficult issue and being a Liberal Democrat, I understand that the spirit of liberty is never being too sure if it is right.” (LSR 18.05 col 1246)
Section Two: Alleged high threshold for offence
Jack Straw MP (Lab) argued that the offence of stirring up hatred on the grounds of sexual orientation has a high threshold and “currently covers only behaviour that is threatening and intended to stir up hatred.” The Government believed “there are no circumstances in which the right of alleged freedom of speech should justify such behaviour.” (CSR 26.01 col 37)
Bridget Prentice, the Parliamentary Under-Secretary of State for Justice and MP for Lewisham East advised that “The Joint Committee on Human Rights, in its report published last week, reaffirmed its view that we have the balance right, as did the Equality and Human Rights Commission at about the same time.” (CRS2 24.03 col 200)
David Howarth, Liberal Democrat MP for Cambridge explained “Some religious groups have said they are afraid that the new law will catch them because their religion strongly disapproves of homosexuality, and their representatives or preachers want to continue to say so publicly. It is important, however, to stress what the 2008 Act says and what the new crime is. The Act says:
“ “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.” ”
That means that the words have to be both threatening and intended to stir up hatred. It is not enough for the words to be insulting or offensive; they have to threaten. Nor is it enough that the words may have the effect of stirring up hatred; they have to be specifically intended to do so.” (CRS2 24.03 col 189)
John Bercow, Conservative MP for Buckingham informed honourable members that the creation of an offence of homophobic hate crime in the Criminal Justice and Immigration Act 2008 had been “designed to catch, among other things, despicable homophobic lyrics in reggae songs such as “ “Hang lesbians with a long piece of rope” ” and “ “All gay men should die.” ”(CSR 26.01 col 36)
Dominic Grieve QC, Shadow Secretary of State for Justice and MP for Beaconsfield responded a little later in the Commons Second Reading debate. “I am the first to accept some of the examples that we have been given, including that of gangsta rap lyrics, which I regard as revolting.” (CSR 26.01 col 54)
David Howarth MP (Lib Dem) pointed out that in fact “homophobic bullying and intimidation are distressingly common occurrences. Recent research shows that one in eight lesbian or gay people have experienced hate crime in the past three years.” (CRS2 24.03 col 188)
Section Three: “Waddington amendment is a wrecking amendment”
John Bercow MP(Cons) stated during the accompanying debate for the Commons Second Reading that the legislation is “aimed at catching words or behaviour that are not merely insulting or abusive but threatening” and “the Waddington amendment is a wrecking amendment, it is a menace, and it has to be defeated.” (CSR 26.01 col 53)
David Howarth MP (Lib Dem) argued “The difficulty with the Waddington amendment is that it can be read as deeming discussion of sexual conduct and so on not to be threatening or intended to stir up hatred even when the words actually were threatening and were intended to stir up hatred.” (CRS2 24.03 col 190)
Dominic Grieve QC (Cons MP) countered “When I listened to the comments of the hon. Member for Cambridge, it prompted me to look again at the saving clause to see whether it contained the mischief of being a deeming provision along the lines that he identified. He has clearly raised a serious issue for the House to consider. I have to say, however, that having looked at the provision and read it over and over again, I do not see that it can have the possible effect that he has suggested. The reason for that is the appearance of the two words “of itself” in its penultimate line which refers to something that
“ “shall not be taken of itself to be threatening or intended to stir up hatred” ”.
It seems to me that those words make it absolutely plain that if a person carries out a discussion or criticism of sexual conduct or practices that is accompanied by threatening language, those words “ “of itself” ” would immediately take that person outside the scope of the saving clause.” (CRS2 24.03 col 197)
Jack Straw MP (Lab) claimed in earlier debate “The movers of that amendment were very clear that the words meant something; they were intended to make a conviction very difficult indeed. That was the purpose.” (CSR 26.01 col 37)
David Taylor, Labour/Co-operative MP for North West Leicestershire proceeded to defend Lord Waddington QC two months later, quoting from the Conservative peer's statement when Lord Waddington moved the 'free speech' amendment in 2008, during which “he wanted to make it plain:
“ “that I did not in Committee, and do not now, seek to weaken the protection that the Government’s proposal is designed to give gay people. I have never set out to narrow the scope of the provision. My intention has been absolutely clear: to make clear what both the Government and I agree is outside the scope of the provision.” ”—[ Official Report, House of Lords, 21 April 2008; Vol. 700, c. 1365.] (CRS2 24.03 Col 195)
Lord David Waddington QC (Cons) responded in person to Mr Straw's allegation during the Lords Second Reading debate, saying “Jack Straw asserted in the Commons that I had always made it plain that my purpose was to make a conviction for stirring up hatred on the grounds of sexual orientation more difficult. Of course, I have never said anything of the sort. What I have said often is that, while not out to weaken the protection that the Government say that they seek to give gays, I want what is outside the scope of the Bill to be made absolutely plain in order to avoid the scandals of the past and to protect freedom of expression. Not only have I said that, but Mr Straw’s own notes on clauses say that the free speech clause does not raise the threshold for the offence or make prosecutions more difficult.” (LSR 18.05 col 1224)
David Taylor MP (Lab/Co-op) highlighted an irony that “The religious hatred free speech clause, for which the House voted in January 2006, goes much further. It protects
“ “expressions of antipathy, dislike, ridicule, insult or abuse” ” against religion.” (CRS2 24.03 col 194)
The Bishop of Southwell and Nottingham, Rt. Rev'd George Cassidy subsequently conveyed the perspective during the Lords Second Reading debate -with reference to Part 3A of the Public Order Act 1986, amended by the Waddington Amendment in 2008, that “It is hard to see any objection to this most modest of provisions. The worst that can be said is that it might be unnecessary, whereas its removal could be damaging to the freedom of expression.” (LSR 18.05 col 1220)
Section Four: Lack of evidence to support repeal of 2008 provision?
Dominic Grieve QC (Cons MP) twice issued a challenge to Mr Straw (Lab) during the Commons Second Reading debate. “No case has yet been made -I wait to hear it- to show why the words that were included in 'the other place' do anything to undermine the ability to prosecute” (CSR 26.01 cols 36 & 52) particularly given “that individuals who have sought to express perfectly reasonable criticism have received visits from the police.” (CSR 26.01 col 37)
David Taylor MP (Lab/Co-op) added his voice “the incitement law itself has not yet come into effect. If the offence had been in operation, and there was evidence that the free speech clause was being abused in the unacceptable way that the Government and the Liberal Democrats claim it could be, their case would be significantly stronger.” (CRS2 24.03 col 193)
David Taylor MP continued “The Ministry of Justice officials who drafted the notes state in paragraph 372:
“ “The removal of the section will not affect the threshold required for the offence to be made out.” ”
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)
The Stonewall briefing notes circulated to all MPs stated that clause 58: “ “could mean that a very small number of people of extreme views attempt to avoid prosecution” ”only, (CRS2 24.03 col 193) leading David Taylor to share the observation “Stonewall does not say that the freedom of speech provision would prevent convictions, thereby contradicting the Justice Secretary.” (CRS2 24.03 col 193)
David Taylor MP (Lab/Co-op) further elaborated “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)
Lord Moran (John Wilson -cross bencher) noted also “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)
Lord Patrick Neill of Bladen QC (cross bencher) again drew attention in 'the other place' to the fact “we have a repeal of a controversial provision adopted about 11 months ago. Whether it is technically unconstitutional to set about repeating it, there seems to be no new evidence of any relevance whatever in relation to it.” (LSR 18.05 col 1259)
Lord Hylton, (Raymond Jolliffe -cross bencher) raised the same sequence of points “After only one year, the Government seek to remove the amendments that your Lordships made on 21 April 2008. Surely it is too soon for it to be known whether the amendment has produced adverse or unintended consequences. I fear that Her Majesty’s Government may have caved in to pressure from the fashionable homosexual lobby. What evidence is there that this important defence, protecting freedom of expression and speech, has done the slightest harm?” (LSR 18.05 col 1279)
Lord Hylton concluded “When words are in fact threatening or intended to stir up hatred, they should be treated as an offence, but, where they express genuine opinion criticising certain behaviour in a reasonable way, they should be given full protection. I urge the House to resist Clause 61 and to leave the Public Order Act 1986 as it is.” (LSR 18.05 col 1279)
Section Five: Search for alternatives
David Howarth MP (Lib Dem) pointed out that the provisions regarding hatred on the grounds of sexual orientation in the Criminal Justice and Immigration Act 2008 were not the same as those for example in section 5 of the Public Order Act 1986, for which it has been argued there is a stronger case for review.
“The provisions regarding hatred on the grounds of sexual orientation are not the same—insult is not enough; likelihood of distress is not enough—but some people are anxious about the possibility that the police and the Crown Prosecution Service will not recognise the difference. I accept that that anxiety exists and that we should do something about it—the question is what. There are two proposals on the table.” (CRS2 24.03 col 190)
The first route would be to retain the changes in the Public Order Act 1986 achieved through the Waddington Amendment:
“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.”
David Howarth MP argued in relation to the Waddington Amendment “The problem lies not in the content of the law—a point that it seems to admit itself by using the phrase,
“For the avoidance of doubt”—
but in a possible mistaken interpretation of the law by the police and the CPS.” (CRS2 24.03 col 190)
David Howarth MP (Lib Dem) had earlier suggested as an alternative that “Surely the right way to deal with this matter is by issuing guidance to the police and prosecution authorities, and procedural protection, rather than including a pointless but potentially dangerous blanket exemption in the Bill”(CSR 26.01 col 53)
Two months later, on the second day of the Commons Report Stage, David Howarth MP offered a new Clause 11 as a solution:
“Guidance on offences that involve hatred on grounds of sexual orientation
(1) The Director of Public Prosecutions, in consultation with the Attorney General, must issue guidance to prosecutors explaining the operation of the offences under Part 3A of the Public Order Act 1986 (c. 64) that involve hatred on the grounds of sexual orientation.
(2) Chief constables must ensure that the contents of the guidance to prosecutors issued under subsection (1) are made known, in an appropriate form, to officers in their force.
(3) When considering whether to consent to a prosecution for an offence falling within subsection (1), the Attorney General must have particular regard to—
(a) guidance issued under subsection (1), and
(b) the importance of the rights to freedom of expression, freedom of thought, conscience and religion, respect for private and family life and freedom of assembly and association provided by the European Convention on Human Rights.’.— (David Howarth.) (CRS2 24.03 col 188)
Bridget Prentice, the Parliamentary Under-Secretary of State for Justice briefed the Commons towards the close of the debate on the second day of the Commons Report Stage. She advised that “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. However, I am quite persuaded by the argument put by the hon. Member for Cambridge, and I would like to reflect on it. Therefore, although I ask him to withdraw new clause 11, I invite him to take up the opportunity of meeting the Director of Public Prosecutions to consider whether it would be appropriate to make the guidance statutory.” (CRS2 24.03 col 201)
David Howarth MP (Lib Dem) responded “Given the Government’s generous offer, I beg to ask leave to withdraw new clause 11.” (CRS2 24.03 col 204)
Dr Evan Harris, Liberal Democrat MP for Oxford West and Abingdon suggested “Would not a combination of the production of guidance and reform of section 5 of the Public Order Act 1986 to remove the word “insulting” not only deal with worries about clause 58 but solve those problems?”(CRS2 24.03 col 192)
David Howarth MP (Lib Dem) shared how he would have supported Dr Evan Harris's amendment “which we never reached” the previous day, to remove the word 'insulting' from section 5 of the Public Order Act 1986. (CRS2 24.03 col 190)
Section Six: Perceived wide scope for interpretation of secondary guidance
Gerald Howarth, Conservative MP for Aldershot commented in relation to David Howarth's proposed new Clause 11, “The hon. Gentleman is placing enormous reliance on guidance to be issued by the authorities—the Crown Prosecution Service or the police. I have an extract from the guidance on prosecuting cases of homophobic and transphobic crime, issued by the Crown Prosecution Service in November 2007. 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 MP (Lab/Co-op) argued “Experience has shown that guidance is the problem, not the solution. When two six-foot police officers in body armour interrogated pensioners Joe and Helen Roberts for 80 minutes after they had phoned the council to complain about its gay rights policies, the officers were almost certainly acting in accordance with the guidance 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 (Cons MP) warned “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)
Lord Patrick Mayhew of Twysden QC (Cons) echoed the point in 'the other place' when he said “I come briefly to an opportunity unfortunately taken. It is to be found in Clause 61, in which the Government propose to flout the wise principle that there must be an end to litigation.” (LSR 18.05 col 1264)
David Taylor MP (Lab/Co-op) further remarked with regard to the Government “I still do not understand why they oppose so vehemently the inclusion of a simple free speech clause, which is much more likely to be read and followed by police and prosecutors than page after page of guidance.”(CRS2 24.03 col 192)
Lord Waddington QC (Cons) commented in 'the other place' “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)
Lord Waddington QC (Cons) argued that it was under the above auspices that Lynette Burrows, “who dared to question the desirability of gay adoption on the radio” was interviewed by police. (LSR 18.05 col 1224)
Miss Ann Widdecombe, Conservative MP for Maidstone and the Weald commented on the case of a Lancashire couple questioned by police when they asked the local council whether they could distribute Christian literature alongside the council’s literature on civil partnerships. “It was only when the couple sued—or commenced suing; there was a settlement—that the police and local council decided that they had got it wrong. When that is the attitude of (CRS2 24.03 col 202) senior police and authorities, who are responsible for implementing the law that this place passes, we sometimes need very simple, straightforward clarifications that almost hit them on the nose, so that they actually understand what Parliament intends.”(CRS2 24.03 col 203)
Section Seven: Ambiguity and the law of unintended consequences
Dominic Grieve QC (Cons MP) pointed out that “The balance between protecting (CSR 26.01 col 51) society from incitement to homophobic hatred, which I entirely applaud, and preserving legitimate public debate is delicate.”(CSR 26.01 col 52)
Baroness Shirley Williams of Crosby (Lib Dem) commented in 'the other place' “It is a difficult balance. It is one that I fear we may be getting quite badly wrong.” (LSR 18.05 col 1226)
Dominic Grieve QC (Cons MP) referred to two pensioners paid damages after being threatened with prosecution by police for writing to their local (Conservative) authority Wyre Borough Council to say “they did not approve of its giving money to a gay organisation.” (CSR 26.01 col 52)
Dominic Grieve QC (Cons MP) cited another example, of a street preacher in his constituency who was warned by police that “ “You can tell them that they should repent and turn to God, but you shouldn't give them the other half of the message” ” (“if they did not repent they risked going to hell”). (CSR 26.01 col 53)
Dominic Grieve QC (Cons MP) advised “All the evidence shows that when the House legislates about such matters, the manner in which those who have some authority lower down the (CSR 26.01 col 52) chain, and have to implement the legislation, interpret or understand it, is often at variance with what is intended.” (CSR 26.01 col 53) While some stories may sound amusing and ridiculous when shared with the House, he assured them it was “not amusing to those on the receiving end of individuals who take it upon themselves to interpret the law in a way that we did not intend.” (CSR 26.01 col 53) Mr Grieve echoed this perspective on Day Two of the Commons Report Stage (CRS2 24.03 col 189) warning “when Parliament enacts legislation in this way, groups and individuals will undoubtedly attribute to it meanings that Parliament may not have intended.” (CRS2 24.03 col 198)
Dominic Grieve QC (Cons MP) added that retention of the modification in the Public Order Act achieved via the Waddington Amendment might not be the only available solution in this instance, “but I believe that it is important for there to be safeguards. If there are none, the law of unintended consequences will lead to people who express views that are perfectly legitimate -even if they are views with which we disagree -feeling as if they are being persecuted.” (CSR 26.01 col 53)
David Taylor MP (Lab/Co-op) remarked “We need free speech about sexual conduct to be put beyond doubt. Joe and Helen Roberts, the Bishop of Chester, Iqbal Sacranie, the Roman Catholic Archbishop of Glasgow, and Lynette Burrows—I could go on—are all names synonymous with vexatious complaints to the police and with heavy-handed police intervention against people whose actions were not inciting hatred against anyone.
Now that the free speech provision is on the statute book, I wonder whether we should not look at things the other way round. Will removing it send the signal that discussion or criticism of sexual conduct is caught by the new offence? The Church of England—my own Church—seems to fear that it might. Its briefing says:
“ “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)
The Bishop of Southwell and Nottingham, Rt. Rev'd George Cassidy made clear “Our concern is with the potential application of the law to restrict legitimate discussion and expression of opinion about sexual ethics and sexual behaviour—bearing in mind that existing public order legislation has sometimes been used to warrant over-zealous police investigations against people with conservative views on homosexuality.”(LSR 18.05 col 1220)
Lord Waddington QC (Cons) shared the opinion that the Government “could not pick a worse time to behave in this way. There is, right now in this country, an intolerance of Christians of a sort that I never thought I would see. Street preachers are threatened and Christians expressing mainstream orthodox views on sexual behaviour are harassed and abused. A marriage registrar is bullied at work for asking to be excused from civil partnership duties; a housing charity worker is suspended for discussing with a colleague his beliefs about same-sex relationships.” (LSR 18.05 col 1225)
Section Eight: Wrong diagnosis (?) -and Section 5 of the Public Order Act 1986
Dr Evan Harris, Liberal Democrat MP for Oxford West and Abingdon responded to Ann Widdecombe's comments from the Commons Report Stage about a Lancashire couple questioned by police when they asked the local council whether they could distribute Christian literature alongside the council’s literature on civil partnerships: (quoted in the last paragraph of section six above CRS2 24.03 col 202-203).
“I agree with the hon. Lady and I would point out that taking the word “ “insulting” ” out of section 5 of the Public Order Act 1986, which covers causing harassment, distress and alarm through words or behaviour that are threatening, abusive or insulting, will achieve exactly what she wants. That is the change in the law that she rightly requests, because that is the provision under which the couple were wrongly pursued. It is not a surprise that the police would not give way, because the statute includes the word “insulting”. (CRS2 24.03 col 203)
David Howarth MP (Lib Dem) put forward the view that “some rather odd investigations have been started—not under the provisions that I have mentioned, which are not yet in force, but under different ones. That has given rise to a great deal of anxiety”. (CRS2 24.03 col 189)
David Howarth MP (Lib Dem) illustrated the point by referring to the cases of Miguel Hayworth and Stephen Green and “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)
Dr Evan Harris MP (Lib Dem) asked Dominic Grieve if he agreed that “if we are to solve these problems, we must make it clear, in statute and in the minds of the police, that there is no right not to be offended? We need to get rid of the idea of insult, especially unintentional insult—as in section 5 of the Public Order Act 1986—from our statute book, and also to ensure that guidance throughout makes it clear to the police that they cannot take seriously complaints of insult which is not direct abuse.” (CRS2 24.03 col 199)
Dominic Grieve QC (Cons MP) responded that the issue of insulting behaviour was an important one which should be revisited, but that “In some cases, insult, particularly if it takes place in a public arena, can reach a point at which it becomes incitement to a breach of the peace” and this needed to be guarded against. (CRS2 24.03 col 199)
Section Nine: Concern over “chilling effect”
Dominic Grieve QC (Cons MP) referred to the Waddington provision “as a saving clause, designed to deal with the chilling effect” on freedom of speech. He reminded MPs that “we debated and commented on it previously, when we considered issues such as incitement to religious hatred,” (CSR 26.01 col 52) and have “been content with such a provision in other cases where we have imposed restrictions on freedom of speech.” (CSR 26.01 col 53)
Dominic Grieve QC (Cons MP) observed “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)
Ann Widdecombe MP (Cons) warned fellow MPs “We enjoy a protected position, but people out there—teachers in faith schools, priests in pulpits, ordinary people expressing a particular opinion—now feel afraid to speak freely.” (CRS2 24.03 col 203)
David Taylor MP (Lab/Co-op) drew attention to the fact that “Someone else who has spoken out is the actor Rowan Atkinson, who just a few days ago addressed a Committee Room packed with Members of the House of Lords about the chilling effect of the law. He said that he did not think that he would be prosecuted because of jokes or drama about sexual orientation, but he also said:
“ “I dread something almost as bad—a culture of censoriousness, a questioning, negative and leaden attitude that is encouraged by legislation of this nature but is considerably and meaningfully alleviated by the free speech clause.” ”
He said that it
“ “would provide succour and reassurance to those of us in the creative world.” ”
(CRS2 24.03 col 195)
Section Ten: “Curate's egg” of a Bill addressing a plethora of topics with inadequate time for scrutiny
Dominic Grieve QC (Cons MP) concurred that “there are indeed anomalies” in the Bill (CSR 26.01 col 54) after Geoffrey Cox Conservative MP for Torridge and West Devon remarked “there is something anomalous in the Government's proposal to remove the clause that protects free speech in relation to the discussion of homosexuality, given that they are not proposing its removal in the case of religion?”(CSR 26.01 col 54)
David Howarth MP (Lib Dem) proposed that “it is a hotch-potch of a Bill” adding “it is not clear how a Bill such as this, which at a conservative estimate deals with 28 different topics and amends 56 different Acts of Parliament can have any single principle at all, apart from being a sort of Christmas tree Bill, on to which the Government can hang (CSR 26.01 col 60) any topic they think useful to debate...” (CSR 26.01 col 61)
Dr Evan Harris MP (Lib Dem) flagged up a Point of Order, saying “we have conducted inadequate scrutiny of the Bill. There are tens of Government amendments and new clauses that have not been scrutinised in most of the groups that you selected.” (CRS1 23.03 col 139)
Edward Garnier QC, Conservative MP for Harborough similarly observed “Yesterday, the Government's timetable motion allowed only the clause 11 discussion to take place. All the other stuff on homicide, assisted suicide and other aspects of the coronial system had to fall by the wayside, and that is not a good way to construct legislation. Today, we were not able to complete all the timetabled business. Is that because the Government did not want those issues discussed?” “...We are left with a duff bit of plum duff, a curate's egg.” (CTR 24.03 col 266)
Lord Waddington QC (Cons) said of the Bill in 'the other place' “it is made up of a collection of unrelated measures, some of such importance that most would take the view that they should have been the subject of separate Bills. Some in this category, such as the changes to the law of murder, were scarcely considered in the Commons because of an absurdly restricted timetable.” (LSR 18.05 col 1223)
Baroness Shirley Williams of Crosby (Lib Dem) commented on “the difficulty that the flood of legislation we now have provides for those of us who are attempting to scrutinise in detail very complex and often very important pieces of legislation. The Bill that we have before us now is one that has the greatest repercussions for civil liberties, for freedom of speech, for issues concerning the rights of prisoners, and for issues concerning the rights of those who live here as asylum seekers or are in other ways detained in this country.
It is very difficult, in a situation where, at Second Reading, there is precisely one minute for every 20 clauses of the Bill, actually to deal with it in the way that Parliament should.” (LSR 18.05 col 1225)
Lord Patrick Neill of Bladen QC (cross-bencher) was also prompted to “address the mixture in one Bill of so many different and conflicting topics, which are incompatible and make it hard to deal with on Second Reading.” “A Bill like this that makes proposals covering large areas of human conduct, from murder to suicide and many other topics, could do with prior consideration by a Joint Committee of both Houses.” “But the most serious issue, which affects not just this Bill but two or three others of which I am conscious, is that we are supposed to be a reviewing Chamber. We are supposed to be reviewing something that has been considered properly in another (LSR 18.05 col 1259) place.” (LSR 18.05 col 1260)
“Here we are having to consider provisions that have not been properly dealt with.” (LSR 18.05 col 1260)
“As I said, the most important point in all this is that the Lords is not truly a reviewing Chamber, because it is asked to undertake the initial task of looking at the legislation. That is wrong: on some other occasion we need to look at it and see where things have got to in the relationship between the two Houses.” (LSR 18.05 col 1260)
Section Eleven: Bill of rights may replace Human Rights Act
In answer to a direct question during the Commons Third Reading debate from Jack Straw MP (Lab) “is the Conservative party committed to keeping the Human Rights Act on the statute book?” Mr Garnier QC (Cons MP) replied “Our Bill of rights will replace it.” (CTR 24.03 col 266)
| 