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Criminal Justice and Immigration Bill

My Lords, I have a particular interest in this subject not only as a member of the Joint Committee on Human Rights but because I suppose I was the architect of the amendments that the House made when considering religious hate speech. I drew the teeth of the Bill; we defeated the Government and the other place by one vote, as we all remember, and upheld the draft for which I was responsible, and which is now the law of the land. I have spent most of my life dealing with two main issues: free speech and equal protection of the law—equality. When I was a special adviser to Roy Jenkins we extended the race hate speech provisions very broadly indeed—perhaps too broadly. The Race Relations Act 1976 made it a crime to stir up racial hatred not only where there was a deliberate intent to do so but objectively where it was likely in all the circumstances that race hate would be stirred up. That was a serious encroachment on free speech, which we did for reasons that no longer need to be thought about in this debate. The view taken by this House and by one vote in the other place on religious hate was that the Government had gone too far in mimicking the race hate speech crime that we had devised in 1976 and applying it to the stirring up of religious hatred. We took that view because it was felt that religious hatred is different in kind from racial hatred. If you stir up hatred against someone because of their ethnicity, you do so for something that they were born with, their birthright, that they could not change. You are attacking their common humanity. However, if you stirred up hatred against someone because of their religious belief, or lack of belief, you were immediately involved in the battle of ideas, beliefs and practices. It seemed to me—and, luckily for me, to the great majority in this House and a narrow majority in the other House—that it was right to narrow this speech crime dealing with religion so that there was a need to prove specific intent and a freedom to insult or abuse, but not to use threatening language. That is why, if one compares the crimes of religious hate and racial hate, one finds two safeguards built into the religious hate crime: first, the need for specific intent; and secondly, the freedom, although it is not an obligation, to insult—but not to threaten, because threatening speech obviously seriously affects public order. The Government faced a difficult policy choice on what do to on homophobic speech. Is it more like race and ethnicity, or more like religion? Does the stirring up of hatred against someone because of their sexuality attack their common humanity—what they are born with, or are as a human being—or is it an attack on ideas and beliefs akin to religion? The Government could have chosen the unwise course of doing what they first tried to do with religious hate speech; that is to say, they could have devised a broad offence that applied not only to threatening speech but to abusive and insulting speech, and they could have used the same objective test of intent as they attempted for religious hate speech. I had nothing to do with it but—in my view wisely—the Government chose instead a much larger measure of freedom of expression. As has been said by the Minister and others, they chose to criminalise only that which is deliberately stirring up and using threatening language, leaving a person free, however unpleasant and evil it may be, to insult somebody because they disapprove of homosexuality. They were right to do that, and this House should support the narrow homophobic hate speech offence. I devised what came to be called the ““English pen”” clause—the free speech clause when dealing with religion—which the Government did not wish to have; I was quite surprised it got through both Houses. I invented it because I felt that religion, and controversy about it, is all about expression and it was therefore vital for writers, novelists, playwrights and broadcasters to know that, in the turmoil that religious controversy always creates, there should be the widest possible free speech. It is not necessary to do that for homophobic hate speech. That is why I support the position of the other place and the Government. If a prosecution were launched that seriously threatened free speech in a way that violated the Human Rights Act and Article 10 of the European Convention on Human Rights, that would be a most serious matter that would have to be dealt with by the courts and, if necessary, by the European court. I do not imagine for a moment that that is likely to happen. For all those reasons—I apologise for taking so long to explain them—I hope that this House will speak with the same voice as the other place on this important matter.