Commons Committee Discusses Clause 58

The Commons Committee examining the Coroners and Justice Bill has finally got round to discussing Clause 58. You can read their deliberations here, but for ease of perusal, I’ve copied and tidied them up below. I’ll comment on them tomorrow.

Clause 58

Hatred against persons on grounds of sexual orientation

Question proposed, That the clause stand part of the Bill.

The Chairman: With this it will be convenient to discuss new clause 36—Guidance on offences involving hatred on grounds of sexual orientation—

‘(1) The Secretary of State must issue guidance explaining the operation of the offences under Part 3A of the Public Order Act 1986 (c. 64) that involve hatred on the grounds of sexual orientation.

(2) When considering whether to consent to a prosecution for an offence falling within subsection (1), the Attorney General must have particular regard to—

(a) guidance issued under subsection (1), and

(b) the importance of the rights to freedom of expression, freedom of thought, conscience and religion, respect for private and family life and freedom of assembly and association provided by the European Convention on Human Rights.’.

Mr. Garnier: I shall be very brief. I do not want to talk about the substantive law that is revealed by that section of the Public Order Act which the clause seeks to delete. I just want to complain about the way in which this has been introduced. Despite the fact that when published, when discussed on Second Reading and when debated in Committee, the Criminal Justice and Immigration Bill 2008 made no mention of a crime of hatred against persons on grounds of sexual orientation, it was drawn into the Bill on Report. We spent about an hour and a half dealing with matters that had not been in the Bill in Committee, one of which was this provision and another was the extension of the banning of strikes by the Prison Officers Association. They came in and they took up half of the available day for the Report stage.

Nevertheless, we dealt with the new offence of hatred against persons on grounds of sexual orientation as best we could on that occasion. When the Bill went to the other place it was amended to include what I loosely call the Lord Waddington clause, which made express provision for free expression and so on. As I said a moment ago, I am not going to discuss the merits or demerits of the new law itself, but in order to get the Criminal Justice and Immigration Bill through and to achieve Royal Assent by a particular time to allow the Prison Officers Association strike ban provision to come through, the Government entered into a deal. They entered into a deal with our party and with other parties too. One part of that deal to prevent them from being embarrassed in relation to the ban on prison officers’ strikes was to accept the Lord Waddington clause.

As it happens, I do not think that this provision has yet come into force under the Public Order Act 1986. I do, however, think it is pretty shoddy of a Government to put into this Christmas tree, plum duff, compendium Bill, this clause to undo a deal which they entered into to save their own skin last year. We should look with some scepticism upon clause 58, not because I have any views about whether it is a good or a bad thing to have a new law criminalising hatred against persons on the grounds of sexual orientation, but because I think the Government are being underhand and intellectually dishonest. For that reason, we should delete clause 58 from the Bill.

David Howarth: I have a slightly different recollection of the end of the Criminal Justice and Immigration Bill. The outline that the hon. and learned Gentleman gave was in essence correct but he left out a number of points. One is that there was ping-pong between the Lords and the Commons, and the Lords inserted what was known at the time as the Waddington amendment—now section 29JA under the Criminal Justice and Immigration Act 2008—late on in the process. The Government, along with the Liberal Democrats and other hon. Members, initially resisted that provision on the grounds that it was wrong and dangerous to have a blanket exemption. The way in which that clause—now section—was drafted, especially as it refers to urging people to change their sexual behaviour, was in danger of crossing the line between saying and doing things.

I had a further concern that it would be possible for a code to develop where people whose intention was to be threatening would develop an intimidatory language that technically stayed within the words of the clause. I had and still have doubts about the wisdom of inserting a clause that says

“for the avoidance of doubt”

when there was not much doubt about what the law itself was in terms of intention and threat.

As the hon. and learned Gentleman said, the time pressure was largely created by the Government because of the situation in the prisons, and eventually they gave way on the Waddington amendment. My memory of it is that that was unwilling, to say the least, and that from what Ministers said and from the way that they acted at the time, I had no doubt that at some appropriate time Ministers would invite Parliament to revisit that issue, and I am glad that they have, so I am fully in support of clause 58.

The only thing that I would add is something that I was trying to achieve at the time, which I thought might even achieve some sort of all-party agreement, perhaps not in the Lords but at least in the Commons, which is that statutory guidance could be issued to the Attorney-General on how prosecutions under this provision should proceed. That should be done to give comfort to the many people who in many cases have wrongly been given the impression that there will be a large number of unreasonable prosecutions under this legislation. There were some examples of ludicrous behaviour by certain police officers, not under this legislation, but through legislation that is much easier to prosecute under, such as that relating to general public order. I put forward a serious of proposals for that guidance, and I would have put forward new clause 36 at the end of the ping-pong had I thought about it more. The new clause that I put forward at the end was never selected. At the end of the ping-pong I urged the Government to adopt it as a Government new clause, as that would have meant that it got through.

Mr. Garnier: I cannot remember whether the hon. Gentleman was on the Committee of the Criminal Justice and Immigration Bill. On Report, I tabled a slightly different new clause to his new clause 36, with a view to persuading the Government that questions to do with the European convention and so on should be uppermost in the minds of prosecuting authorities before a prosecution is brought. That was not acceptable to the Government; they wanted to keep the offence simple. I have some sympathy with new clause 36 as a matter of principle, but if the Government are going to behave as they are doing with clause 58, I do not see much chance of new clause 36 being any more attractive to them than my attempt was.

David Howarth: Again, that is not my recollection of what happened. My recollection is that the Government were sympathetic to the notion of guidance but that the time scale was short and it was difficult to reach agreement on how it should have been framed. The hon. and learned Gentleman is correct; he put forward a number of useful and attractive amendments and suggestions, and in new clause 36 I have, in effect, adopted a very broad aspect of what he suggested. The version of new clause 36 that I proposed, which was not selected at the end of the ping-pong on the Criminal Justice and Immigration Bill, was about the importance of the rights of freedom of expression and speech. However, it did not incorporate a number of other important aspects of human rights legislation, as the Conservative party amendments did.

I thought that the Conservative party contribution to the debate was useful in pointing out that freedom of religious expression is protected by human rights legislation, not just in terms of freedom of expression but through other aspects of that legislation as well. That, and the comments from the hon. and learned Gentleman, explains why subsection (2)(b) is the way it is, and not the way it was at the end of debates on the Criminal Justice and Immigration Bill.

The object of the exercise is to provide reassurance to citizens who believe—for the most part wrongly, in my view—that their religious freedom is interfered with in an unacceptable way by the legislation that we passed in that Bill, which I strongly supported. We can offer that reassurance without undermining the force of the legislation in any way. I urge the Government to consider new clause 36 as a supplement to clause 58. I make it clear that I will ask for a vote on new clause 36 only if clause 58 stands part of the Bill.

Mr. Bellingham: I want to add one or two quick points. First, I agree entirely with my hon. and learned Friend that we need laws to protect lesbian, gay, bisexual and transsexual people from threats of violence. However, on the other hand, we also need to protect free speech in this country. I was impressed by the compelling arguments advanced in two articles, one by Matthew Parris and the other by Peter Tatchell, written at the time of the original clause in the previous Bill.

There is a parallel saving clause in the Racial and Religious Hatred Act 2006, section 29J, which says:

“Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents”

and so on. It is similar to the saving clause that became known as the Lord Waddington saving clause. Surely, if we are going to have a saving clause on the statute book for one important Act, we should have one for this Bill, which will become an Act in due course.

I believe strongly in freedom of speech and I pick up on a point made by the hon. Member for Cambridge. In the past, the police have been pretty heavy-handed with various people who have been reported or complained about. We had the case of Joe and Helen Roberts, who were advised by the police that they risked prosecution when they simply expressed public concerns about sexual orientation literature in a council library. The Minister will recall that Sir Iqbal Sacranie, the former head of the Muslim Council of Britain, was investigated by the police after a complaint was passed to the CPS about his expressing concerns, on Radio 4’s flagship “Today programme, about sexual behaviour and civil partnerships. The author Lynette Burrows was interviewed by the police after a complaint was made about remarks that she made, on Radio 5 Live, about same sex couples adopting.

I appreciate that the Minister will say in her response that there is a high threshold for this new offence, and I am sure that she will explain that to us. However, I still believe that without a saving clause, we will have an attack on free speech. I deplore, as does my hon. and learned Friend, any threatening or abusive behaviour that is likely to stir up any form of hatred against the class of people under discussion. However, the Minister should look carefully at Peter Tatchell’s comments in his article a year ago. I support my hon. and learned Friend’s comments.

Maria Eagle: Needless to say, my recollection of what happened last year in that last great law Committee on which we served, is a little closer to the hon. Member for Cambridge’s recollection than to that of the hon. and learned Member for Harborough.

The clause completes what I would refer to as unfinished business from last Session’s Criminal Justice and Immigration Act 2008. I made clear at the time of the denouement that it was unfinished business that would be returned to. I agree with the hon. Member for Cambridge that the Committee ought not to be that surprised that we are returning to the matter at a suitable opportunity, which this is.

The Committee should remember that the Commons had a majority of 202 for removing the Waddington amendment—or the saving clause, as Opposition Members have referred to it—and saw no case for having such a provision attached to an offence with an extremely high threshold. The hon. Member for North-West Norfolk suspected that I might deal with the threshold of the offence, and I want to remind the Committee that the incitement to hatred offence under discussion has a very high threshold. It only captures words or behaviour that are threatening and intended to stir up hatred—not that are likely to, or that might, if someone takes them the wrong way, stir up hatred. That is the highest threshold that one could think of for this kind of offence.

On that basis, we believe that the offence is clear, without any saving clause, and the balance is correct for freedom of expression. It is important that we preserve freedom of expression, but it has never been absolute in this country. Offences of speech should be clear, and that is one reason why we wish to remove the Waddington amendment from the statute book. We want to ensure that it does not create the sort of loopholes about which the hon. Member for Cambridge has expressed concern.

Mr. Gray: I am sure that the Minister is right to say that the threshold for the offence is quite high, and therefore that the chance of a successful prosecution is relatively slight. Indeed, there have been none in the past, and there are unlikely to be any in future. That will not stop complaints being made against certain people, particularly street preachers and fundamentalist Christians of a certain kind, who make remarks about homosexuality—remarks with which I disagree—that could be interpreted by some as inciting hatred. That could result in arrest and police interrogation, which has happened on a number of occasions, even if it does not result in a successful prosecution. That in itself is extremely worrying, as these people believe that they are expressing the views of their Churches as well as of themselves.

Maria Eagle: The offence has a high threshold intentionally. We want to reassure people that it will not prevent them from saying what they think about their religious beliefs, which are protected under our laws. It captures only words or behaviour that are threatening and that are intended to stir up hatred. The person using the words or behaviour has to have the intention of stirring up hatred against a particular group on the grounds of their sexuality. The offence will capture only the most extreme behaviour. Having a clear and high threshold provides the right balance between protecting freedom of expression, which is tremendously important, and signalling the proper protection of those groups that have been vulnerable to such attacks in the past.

Mr. Bellingham: The Minister is arguing her case cogently and eloquently. Does she agree that the Association of Chief Police Officers has a low threshold when it comes to investigating complaints? What discussions will she be having with her Home Office counterpart? Should the clause reach the statute book, we do not want endless complaints being made and police time being wasted investigating various imams, Christian preachers and people such as Sir Iqbal Sacranie, who may get a bit carried away on the “Today” programme. Surely, we need a higher threshold for such complaints.

Maria Eagle: I shall comment further on that question. I said last year, as I have done today, that there is a role for proper guidance. We must ensure that guidance is produced by the right people at the right time to deal with the sort of concerns expressed by the hon. Gentleman and the examples that he used earlier.

The Joint Committee on Human Rights agrees that the balance in respect of the threshold for the offence is right, as does the Equality and Human Rights Commission. Apart from the high threshold, procedural safeguards ensure that the right balance is achieved. The CPS will prosecute only if it is satisfied that a prosecution is in the public interest, and the Human Rights Act 1998 specifies that the police, the CPS and the court must act in a way that is compatible with convention rights. For those reasons and others, we concluded that no further provision was needed in order to protect freedom of expression. Indeed, we believe that the savings provision inserted into the Criminal Justice and Immigration Act 2008 in the other place does the opposite of clarifying the situation; it muddies it. That is why we said that we would come back to it, which is what we are doing.

I realise that there are strongly held views across the House and the Committee. No doubt, we will hear them being rehearsed again in later stages of the Bill, both here and in the other place. We heard some examples from the hon. Member for North-West Norfolk of what might be described as over-zealous police investigatory action in particular instances. We intend to issue short explanatory guidance about the offence, which I gave an undertaking to do during the passage of previous legislation. The CPS will issue guidance to prosecutors, and we understand that ACPO is currently revising its hate crime manual, which will include operational advice about the offence of stirring up hatred. With the procedures in the proposed guidance, there is even more reason to believe that the section on freedom of expression is not necessary.

The hon. Member for Cambridge has tabled in new clause 36 another formulation of what we ought to be looking at in order to make sure that there is full understanding of the offence. It is not for us to issue operational guidance on the offence as a Department; it

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is, properly, a matter for the police and the CPS. I will, as I have said previously, make sure that I consult them properly on how to deal with those matters, because we want to prevent—

David Howarth: I can see what the Minister is saying about the police. Operationally, the police are independent of political authorities, although the increasing role of ACPO needs to be looked at. The same situation is not true to the same degree with the CPS—at least that is the Government’s usual position. Does she see the distinction between the two?

Maria Eagle: The CPS issues guidance to prosecutors, and there are certainly arrangements within the Ministry of Justice, the Home Department and the Attorney-General’s office, on a tripartite basis, to make sure that we consult properly on the best way of doing those things. We will be talking directly to the CPS about precisely what the guidance should say, and we will also talk about that via the Home Department. I hope that I assured the Committee that there will be useful guidance.

I do not wish to accept new clause 36 at this point, but I accept the motivation behind it—it is important to have a proper understanding of new laws as they come into force. Where there is evidence of a lack of understanding, we should seek to address it at the earliest possible stage. I ask the hon. Gentleman not to press his new clause, but I take his point on board and value the support that he has expressed for the clause.

David Howarth: I thank the Minister very much for what she has said and assure her that I will not seek to press new clause 36 at this stage.

Maria Eagle: I hope that the Opposition can find it within themselves to support clause 58.

Mr. Garnier: Let me make my position clear. The way in which clause 58 has arrived in the Bill is, for the reasons that I have already explained, reprehensible—I will not go over that again. As the Minister will recall, when the matter was voted on, on Report and in the various Lord’s amendments—[Interruption.]

The Chairman: Order. If members of the Committee wish to have private conversations please go to the benches outside.

Mr. Garnier: The Minister will recall that when the issue was serially discussed on the ping-pong, it was a free vote issue for my party—I do not think it was for her party, but it certainly was for ours—and I am not going to press my resistance to clause 58 today.

Mr. Gray: I am.

Mr. Garnier: What my hon. Friend does is entirely a matter for him. The Minister should realise that, simply because I am not going personally to demand a vote on clause 58 stand part, does not mean to say that we are not deeply disappointed by how the Government havereneged on the deal to save their anti-strike clause. I know the hon. Member for Cambridge takes a different view, but that is politics.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 11, Noes 3.

[Division No. 6]

AYES

Brown, Mr. Russell

Eagle, Maria

Hesford, Stephen

Howarth, David

Howarth, rh Mr. George

Kidney, Mr. David

Lucas, Ian

Michael, rh Alun

Moon, Mrs. Madeleine

Prentice, Bridget

Willott, Jenny

NOES

Bellingham, Mr. Henry

Gray, Mr. James

Wright, Jeremy

Question accordingly agreed to.

Clause 58 ordered to stand part of the Bill.