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Criminal Justice and Immigration Bill

My Lords, I listened with great care to the debate on the noble Lord's amendment on Report. I listened to the speeches of the noble Lord, Lord Waddington, and those who supported him. My objective was to understand what mischief his amendment was trying to resolve. The noble Lord's argument seems to hinge on the proposition that this provision, left unamended, would stop good, decent law-abiding citizens expressing the deeply held views, as the noble and learned Baroness has just said, that homosexuality is wrong and sinful. It would also have stopped those, particularly in the faith communities, who want to express their deep and heartfelt concerns that homosexuality, no matter how much they respect an individual, is wrong and is a sin. I do not fear legitimate argument, and I do not support any provision that would outlaw a person's right to have and to hold these beliefs and to express them freely. I do not fear people who think homosexuality is a sin. I do not fear an open and frank discussion of homosexuality. It is that right which this House tries to uphold. I, along with a whole host of noble Lords, have argued not for special treatment for gay men and lesbians under the law, but for equal treatment. I have argued our case with, I believe, love, compassion and, most of all, equality. I have no quarrel with those who have a different view from mine; a view that I do not share. If I believed that this provision would prevent good men and women up and owned this country discussing their views openly, I would join the plea of the noble Lord, Lord Waddington, but it is not about curbing freedom of expression—it is about extending the existing offence of incitement to hatred on the grounds of race and religion equally to sexual orientation. That means, in relation to prosecutions, that the CPS will require two significant tests to be met: first, that the words were threatening; and, secondly, that those words were intended to stir up hatred. I can put it no better than the noble Lord, Lord Thomas of Gresford, did at Report. He said: "““The prosecution has to prove, first, that certain words or behaviour used by the defendant were threatening. I suppose that that could be seen as an objective test. Would the jury or the magistrates consider it to be threatening if those words were used about them? The second ingredient of intent to ‘stir up ... hatred’ requires the jury or magistrates to be satisfied about the state of mind of the defendant and that he intended to stir up hatred. Those are strong words. It throws a considerable burden on the prosecution to satisfy the jury that there was an intent to stir up hatred””.—[Official Report, 21/4/08; col.1372.]" I cannot see how that burden of proof could possibly apply to the types of examples that the noble Lord, Lord Waddington, cited in his speech on 21 April. Incidentally, because of a number of those cases, we know that the Crown Prosecution Service changed its advice in November 2007. Since then, not a single case has been taken up unjustly. I also agree with what was said by my noble friend Lord Smith of Finsbury. He said: "““For all the moderation and the consensual way in which””—" the noble Lord, Lord Waddington, "““quite rightly introduced it, my worry is that it””—" the amendment, "““will drive a coach and horses through the intention of the clause and it will allow those who stand up and incite hatred to take refuge in this clause, if it is amended””.—[Official Report, 21/4/08; col. 1371.]" It was amended. That amendment undermines the very heart of the clause. It provides a safe hiding place for those who want to stoke up hatred. It provides a fig leaf for the bigots and homophobes who would use violence and intimidation as their stock in trade. It is an amendment that uses freedom of expression as a disguise to reopen a debate.