House of Lords Committee Stage of Coroners and Justice Bill - Sixth Sitting (9.7.2009)

1. -Paradoxes of HMG case: “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.”
2. -HMG conveys impression it seeks to prevent “ “discussion or criticism of sexual conduct or practices” ”. Police would presume the same.
3. -Clause 61 begs question -why then is there a safeguard in religious hatred offence?
4. -LW counters argument for protection to be focused around religious hatred offence, saying police responses have been focused on addressing complaints associated with sexual orientation rather than religion.
5. -Counters argument that offence more like race hate than religious hatred due to lack of orientation choice: “Many Muslims who talk of punishment for apostasy would deny religion is a matter of choice”.
6. -Will affect sociological discussion re children and family backgrounds.
7. -2007 CPS guidance “includes mere dislike of a person's behaviour” -hence statutory provision needed.

1. -Contradictions contained within international instruments. International Covenant on Civil and Political Rights Article 19 “allows for the widest interpretation of freedom of expression, while Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination in fact contradicts this.”
2. -Does censorship drive “so-called hate speech” underground and lead to actual violence?
3. -Censorship justified in interests of equality and dignity of individual where merited by both context and content, but not just content alone.
4. -Clause wording can create confusion for victims, perpetrators and police.
5. -Fears that false homophobic allegations and uncertainty re what can be said will have chilling effect.

1. -If HMG says removal will not affect threshold, “it does not make much difference either way.”
2.  -Removal is “primarily symbolic”; will be perceived as lowering of protection
3. -for “legitimate debate about matters of profound social as well as personal importance”,
4. -and to be in stark contrast to maintenance of high threshold for discussion about religion.

1. -Offence regards sexual orientation as immutable like race, but LL glad HMG “put homophobic hatred in the same place as religion, leaving a large space for free speech. They chose to criminalise only that which deliberately stirs up hate and only which uses threatening language -not insulting or abusive language”.
2. -Narrow definition of offence means no additional savings clause required -jokes unaffected. Believes Section 29JA of Public Order Act 1986 to be “superfluous”.
3. -Joint Committee on Human Rights (of which he is member) twice said free speech provisions of Bill were adequate.
4. -Concern, both that controversial police actions in relation to harassment provisions of Public Order Act in which “police, trying to shake off their old homophobic image perhaps, have been overzealous”,
5. -and, concern amongst gay community that “legal loophole” “could enable extremists to stir up hatred and attempt to avoid prosecution for words or actions that were deliberately meant to forment hatred.”
6. -Courts adhering to Human Right Act (required to interpret every statute in accordance with ECHR Article 10) will not allow trials.
7. -Symbolic significance of Clause 61 decision either way.

1. -“I wonder where the pressure is coming from for Clause 61 to repeal the free-speech protection.”
2. -Argues that chilling effect caused by weak guidance; ascan be subsequently modified or withdrawn eg para 3.10 of CPS guidance on prosecution (July 2007). Lord Anderson highlights that LL has not addressed issue of chilling effect.
3. -Attorney General may be longstop, but often protracted investigation before reaches him.
4. -Warned of “oversensitive zealots”.
5. -Believed Section 29 JA followed precedent of religious hatred law and should be retained.

1. -Police and prosecutors “between a rock and a hard place” prior to LW's amendment. Police operated against backdrop of Home Office's guidance re how to handle hate crime under Public Order Act 1986, to which sexual orientation added by Criminal Justice and Immigration Act 2008. All complaints of hate crime had to be recorded and investigated. Home Office guidance notes: may involve interview after arrest, fingerprinting, DNA samples, police bail.
2. -Waste of time, money and resources.
3. -Tactic to cause chilling effect: “...police pressured into action with an implied threat of a complaint against them for neglect if a full investigation was not carried out”.
4. -Since LW's amendment “I cannot trace a single instance of police intervention during that time in these circumstances.”
5. -Association of Chief Police Officers ACPO expressed neither official or unofficial view. ACPO prefer to see defeat of Clause 61 as “the police are released from the virtual straightjacket imposed on them previously; they can exercise common sense and good judgment on the day; and they can police with the light touch which is so often sought and required by society.”

1. -Stigmatising effect of exemption for members of LGBT community
2. -Unintended consequences: “The proposal opens the door to the possibility of discrimination, bullying and mistreatment of lesbians and gay men.” Already some “driven to suicide by taunts; many have suffered depression; and many are afraid to go to school because of homophobic bullying.”
3. -Offers extremists a defence for their actions.

1. -“very strong reasons are needed to propose the selective change of legislation of such recent date. I do not see those reasons”.
2. -Clause 61 “simply slipped in” “looks a little like stealth legislation.”
3. -“bombarded with home-baked legislation -some of it half-baked”. Other proposed legislation flagged up: HMG's “Clause 10, which would have restricted free speech in the other House” -struck out. Refers to “twin brother” of the Coroners and Justice Bill -the Police and Crime Bill.

1. -Chilling effect on way to a decision by Attorney-General “is potentially, and in some cases actually, very substantial.”
2. -At stake: outlawing any open discussion or teaching which contravenes “the currently dominant political orthodoxy. To be explicit, I mean the orthodoxy that sexual preference is as innate and fixed as ethnicity, and that sexual preference or orientation is more akin to ethnicity than to religious belief.”

1. -“that is the case for some of those who understand themselves to be gay but for others it may not be.” The bishop claims there is “substantial scientific, psychological and medical research”.
2. -“Parliament was unnecessarily and aggressively pursuing Roman Catholic adoption agencies. That kind of experience leads me to read Clause 61 with considerable anxiety. That is all the more so when I read the Equality Bill now before the other place.” “Stonewall is being permitted to become the Archbishop Laud of our time.”

1. -“Christ said, “ “You may say in law an eye and a tooth for a tooth, but I say unto you love the Lord your God and your neighbour as yourself” ”. We are talking about some of our neighbours.”
2. If Clause 61 not carried “It will send a message to the gay community that it is not valued”.
3. -“It is not really understood how deeply gay people feel this in terms of the offensiveness involved and the way it demeans their lives.”
4. -“you may believe that they may have some sort of disease that could be cured and that research may show that. That is a deeply offensive position to take against gay and lesbian people.”

1. -Has the Waddington Amendement led to “a rash of” attacks?
2. -Re LGBT community “If the present law is adequate, how can their fear that the amendment will act as a cloak and cover for scurrilous attacks that have a tendency to incite hatred possibly be justified?”

1. -Re evidence “I cannot answer the question”.
2. -“...whether gay people have adequate protection under the law as it now stands. They do. They have protection under the civil law against discrimination and harassment, just as people have protection under the law against religious harassment and discrimination. They have protection under the criminal law against threatening words.” “I am not suggesting that any greater protection be given.”

1. -“it does not appear that there is strong opposition from well known gay people to this modest freedom of speech.”
2. -“it is not at the courts that it matters. It matters at the point of reference to the police” with reference to allegations which would not make it as far as the Attorney General.
3. -Re police “What are they to understand if we then get rid of the Waddington amendment and keep the guidance? Are they then to act, possibly arrest and certainly interview perfectly respectable people who do not agree with what most of us in this Committee agree...”
4. -“That is the symbolic message that will go beyond symbolism and into a difficult position both for the police and for Christians, Muslims and Jews who follow the Old Testament and speak out about what they feel.”

1. -Re complaints about comments to The Sunday Telegraph ed July 5 2009(please refer to 2 hyperlinks below) by the Lord Bishop of Rochester Rt Revd Dr Nazir-Ali(Lords1999): If the Waddington amendment was removed police might fear being “accused of homophobic behaviour for not following the matter up. New paraWe would be creating a most awful pressure on the police...” even if no criminal offence had actually been committed.
2. -“There is no evidence whatever that the amendment has caused any outbreak of homophobic attacks...”

1. -“The Minister did not say that we would return to it in this Session, but she said that we would return to it.”
2. -Referring to “this trumped-up charge of constitutional impropriety” he argued that the Commons Majority for Clause 58 (now 61) in March was 154.
3. -Re the offence: “When the House discussed this offence during the passage of the Criminal Justice and Immigration Bill, there were legitimate concerns about the possibility of the offence being used in a disproportionate way against people who are merely expressing a dislike of, or distaste for, certain sexual practices.”
4. -“In particular, there was concern about people who are explaining religious doctrine that is against certain sexual activities.”
5. -“There were also concerns that the offence, without a freedom of expression proviso, could stifle comedy or artistic portrayals of homosexual characters. The Government have taken careful note of those concerns...”
6. -“It covers only words or behaviour that are threatening and intended to stir up hatred—a very high benchmark indeed.”
7. -“Let me be absolutely emphatic: in formulating the offence, we had no intention of stifling debate about sexual orientation, of interfering with the preaching of religious doctrine o rof making it more difficult to portray homosexual characters in comedy or drama.”
8. -Aim of the offence is to be an effective way of dealing with: rap lyrics, pamphlets from extremist political groups and extreme people who/which promote “threatening behaviour intended to stir up hatred on the grounds of sexual orientation.”

1. -Re need for free speech provision: “The other place voted against it twice, on the last occasion by a majority of 202.” “Since then, the other place has considered the issue again—in March of this year—and agreed by a pretty wide margin of 154 to support the clause.” (Clause 61)

1. -“The Crown Prosecution Service will prosecute only where it is satisfied that a prosecution would be in the public interest.”
2. -“The Human Rights Act ensures that the police, the CPS and the courts must act in a way that is compatible with the convention rights.

1. -“the Attorney-General’s fiat comes much too late and is not a sufficient safeguard, as a lot of the damage to people who wish to practise the right of free speech is done long before the matter comes to the prosecuting authorities or the courts or anything of that kind.”
2. - “The point that has been made is that the guidance is not sufficiently helpful in emphasising to the police the imperatives of free speech and that more weight should be given to that in the guidance.”

1. -The examples of inappropriate and overzealous action outlined in debates of 2008 “concerned public order offences in Sections 4A and 5 of the 1986 Act, which relate to harassment, alarm or distress.”
2. -“The crucial point is that those offences have a substantially lower threshold than the offence we are discussing, cover a wider range of behaviour and carry a lesser maximum penalty.”
3. -“There may indeed be a considerable case for giving the police more detailed guidance about those particular public order offences.”
4. -LB claims any changes in police approach are not down to Waddington amendment “for the simple reason that the offences of inciting hatred on grounds of sexual orientation are not yet in force...”
5. -Not aware ACPO has not expressed an official view either way on Clause 61.

1. -“The Government themselves, in their notes on clauses, say that this free speech clause does not raise the threshold for the offence or make prosecutions more difficult.”