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Criminal Justice and Immigration Bill

First, My Lords, the noble Lord, Lord Waddington, has had a long wait before we came to this amendment, and I am sorry that it takes place at so late a point in the evening. None the less, I think that the noble Lord would agree that he has had a good debate, and that the matters discussed have been raised very clearly indeed. I want to say at once that I understand the issues that the noble Lord and others have raised; it is described as a chilling effect, this concern that the passage of this legislation would unnecessarily inhibit the absolute right of freedom of speech. I certainly understand those concerns, but none the less the Government continue to believe strongly that the kind of clarification in the noble Lord’s amendment, which differs from his in Committee, is not necessary. I am very happy to place on the record that it is indeed possible to discuss these topics or to criticise conduct in ways that are neither threatening nor intentionally ““stir up hatred””. In such cases, it would be plain from the meaning of the statute that no offence has been committed. The noble Lord, Lord Thomas of Gresford, made a most important point when he described the process by which a jury would have to come to a decision. The key phrase here involves threatening or intentionally stirring up hatred. I understand that this amendment’s wording differs from those that we have seen previously. It seeks to ensure that discussions or criticisms of sexual practices are not in themselves taken as threatening, or are, "““intended to stir up hatred””," all of which is, "““for the avoidance of doubt””." Yet I do not see how any doubt can arise from the offence, as my noble friend Lord Smith and the noble Lord, Lord Turner, have said. Only words or behaviour that are threatening and, "““intended to stir up hatred””," are covered. That is abundantly clear; it will of course, be for the courts to decide whether, in all the circumstances, the words or behaviour were threatening—and the police and the Crown Prosecution Service will need to make a judgment about the circumstances and whether a prosecution would be likely to succeed. There should be no need to add anything to an offence for the avoidance of doubt if it is well drafted and leaves no room for doubt. I do not believe that the offence, as drafted, leaves any room for doubt whatever. The noble Lord’s intention is to protect free speech, which is an entirely desirable intent. But the proposed new law covers only conduct that is both threatening and intends to stir up hatred on the basis of sexual orientation. We then come to the question raised by the right reverend Prelate, who answered it very effectively. As my noble friend Lord Smith said, any move that was thought to water down what is contained in the Bill as it is might be taken as giving a green light to the sort of conduct that we do not wish to happen. If, as in this case, we seek to clarify rather than change the law, why would that be necessary? I know that, as there is a specific saving for freedom of expression in the religious hatred legislation, the absence of such a provision in the homophobic legislation might suggest to the police and others that they need not worry about freedom of expression in this context. I greatly admire my noble friend and must say to him that, if in my letter I am guilty of arrogance, I apologise. There was no intent on my part. All that I was seeking to suggest is that, although Parliament put that provision into that Bill, the Government did not think that it was necessary and we do not think that it is necessary in relation to this Bill. I hope that that is not arrogance; I am simply expressing the Government’s view. My noble friend knows me. I would hate to be thought of as arrogant and I hope that noble Lords do not think that I am. Noble Lords have raised examples where the police and public authorities have intervened in relation to other such legislation. The noble Baroness, Lady Knight, raised that point, as did others. I cannot comment on individual cases but I can say that it is very important that there should be appropriate guidance to the police on the new legislation. I am confident that perfectly sensible guidance can be produced.