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Criminal Justice and Immigration Bill

moved Amendment No. 87A: 87A: Schedule 16, page 220, line 2, at end insert— ““After section 29J insert— ““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.”””” The noble Lord said: My Lords, it is highly unsatisfactory to be embarking on the amendment at this hour of the night in breach of the normal rules of the House. I will not, however, waste the time of the House by voicing my indignation, and I will go straight to the meat of the matter. This morning, I received a very moving letter from the mother of a young man whom she believes was brutally murdered because he was gay. I can well understand such a person being desperately anxious that nothing should be done to weaken the protection which they hope may be afforded to gays by this new hate crime offence. I therefore start by making 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. By so doing, I hope to prevent any repetition of the scandals of recent years. In our debate in Committee, a number of noble Lords expressed their general support for a free speech provision, but they also voiced criticisms of the then amendment. With the help of colleagues, to whom I am immensely indebted, we set out to meet all the concerns that were expressed in Committee and to find a form of words that were neutral and that could not by the greatest stretch of imagination be thought to be aimed at gays and calculated to encourage homophobic attitudes and behaviour towards them. I hope noble Lords will agree that, in seeking common ground and consensus, we observed the best traditions of this House. That is what it should be all about. Some might say that the amendment is now so moderate in its terms that it merely states the obvious and is therefore unnecessary, but those who say that are, I fear, closing their eyes to what has really happened in recent years. The scandals to which we have often referred could not have occurred unless the police and sometimes the prosecution authorities had thought that threatening, abusive and insulting behaviour—the requisites for prosecution under the present Public Order Act—could be inferred from mere comment or criticism. How else can one explain the prosecution to conviction of the Bournemouth preacher, the investigation of the right reverend Prelate the Bishop of Chester, the arrest of Robin Page for a tasteless joke at a country fair, and the arrest and prosecution to conviction of the Oxford student for his jest about a gay horse? How else can one explain the interrogation of Lynette Burrows following comments about gay adoption, and the thoroughly disgraceful interrogation of the Fleetwood couple after they had complained about their council’s gay rights policy? If the police under the old law assumed that words about sexual matters must have been threatening and likely to cause distress without any supporting evidence to that effect, why should it be assumed that they would not infer threats and intention to stir up hatred under the new law? In Committee, the Minister suggested that all our concerns might be met by guidance. But if guidance can be clear, so can the words of a statute. Surely our words are clear enough. Furthermore, guidance was in existence when all the abuses to which I have referred occurred, and which it entirely failed to prevent. Perhaps that was in part because the guidance was erroneous. When I read Policy for Prosecuting Cases with a Homophobic Element, published by the Crown Prosecution Service, I was astonished to find that it contained a definition of homophobia which does not correspond with that in any of the dictionaries that I have consulted. By my book, homophobia is hatred or fear of homosexuality or homosexuals. But the Crown Prosecution Service has invented its own definition and says that it embraces dislike, not hatred, of a person’s lifestyle. I must make another point. The noble Lord, Lord Hunt, did not really address the undesirability of there being a free speech clause in the religious hatred offence but no free speech clause here. The noble Lord said that the free speech clause in the religious hatred offence had been added against the wishes of the Government, who had not thought that it was necessary. But the Government have accepted the position and have not chosen, for instance, to remove the provision during the passage of this Bill. I cannot believe that the noble Lord really thinks that it is desirable that there should be a free speech clause in the religious hatred offence but no free speech provision here. The dangers are obvious of the police being led to believe that preservation of free speech is an important consideration in the one case, but not in the other. It is no good to say that there is no free speech clause in the racial hatred offence and that its absence has not caused trouble. When it comes to language touching on matters of sexual orientation, there has already been a load of trouble with the police misapplying the existing Public Order Act. It is our plain duty to try to prevent this continuing to happen. Finally, the Minister referred to rap lyrics urging the killing of gay men and the hanging of lesbians. His comments seem somewhat irrelevant, for I doubt whether he thinks that his new offence will do much, if anything, to stop the use of such lyrics. I cannot believe that he thinks that a free speech amendment would license them. Instead of raising such irrelevances, it would be helpful if he would make plain that encouragement of violence against gays, or for that matter anyone else, is now already an offence under the Serious Crime Act 2007, which makes criminal the encouragement of crime—for example, the encouragement of violence against a person or a class of persons. Plainly, my amendment will not weaken the protection sought to be given to gays. It is a sensible provision to prevent the repetition of abuses which have occurred all too often under the Public Order Act and to secure free speech. I commend it to the House and beg to move.