Clause 61 – The Bishops Wade In

The Observer is reporting that Church of England Bishops have begun a parliamentary campaign to oppose Clause 61 in the Coroners and Justice Bill, that would remove the Waddington amendment to the Criminal Justice Bill. Here’s the jist of the piece:

In what is being portrayed in some parliamentary quarters as a battle for free speech, a coalition of Anglican bishops, Conservative peers, Labour malcontents and leading crossbenchers have united to block the proposals.

“No reasonable person supports the stirring up of hatred of any kind,” said Andrea Williams, director of Christian Concern For Our Nation, which is helping co-ordinate opposition to the plan. “However, in 21st-century Britain we must find a way of being able to live peaceably alongside one another allowing for free and robust debate around every aspect of life, including reasonable criticism and discussion of all forms of sexual behaviour.”

Last year’s Criminal Justice and Immigration Act created the criminal offence of “incitement to hatred on the grounds of sexual orientation”. But a group of peers, led by the Tory Lord Waddington, forced the government to accept an amendment stipulating that people should not be taken to court for stating that homosexual sex is wrong or for trying to persuade gay people to remain celibate. The clause read: “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.”

Now a new clause inserted in the Coroners and Justice Bill would see this defence dropped. The majority of the Church of England’s bishops are believed to oppose dropping the defence, although there have been dissenters. “Our view is, if it isn’t broke don’t mend it,” a church spokesman said. “This is about freedom of speech and avoiding unnecessary police investigations.”

The Bishop of Southwell and Nottingham spoke on the matter during it’s second reading in the Lords:

Thirdly, Clause 61 reopens last year’s argument about incitement to hatred on the ground of sexual orientation, by removing the provision “for the avoidance of doubt” which was added to the definition of the offence through the efforts of the noble Lord, Lord Waddington. The change has become symbolic, perhaps even totemic, for people on both sides of the argument, but it is worth reminding ourselves that the basis of disagreement is relatively narrow.

We on these Benches have no problem with the principle that people should be protected from inflammatory and intimidating behaviour towards them on the basis of their sexual orientation. Nor, indeed, do we quarrel with the definition of the offence, which provides a high threshold by requiring both the intention to stir up hatred, and words, actions or material of a threatening character.

Our concern is with the potential application of the law to restrict legitimate discussion and expression of opinion about sexual ethics and sexual behaviour—bearing in mind that existing public order legislation has sometimes been used to warrant over-zealous police investigations against people with conservative views on homosexuality. It is generally agreed that this should not be so. The question is, how is it best avoided? Your Lordships’ House voted in favour of a statutory statement that discussion or criticism of sexual conduct would not of itself constitute an offence. It is hard to see any objection to this most modest of provisions. The worst that can be said is that it might be unnecessary, whereas its removal could be damaging to the freedom of expression. It therefore seems to me that the case for Clause 61 is weak, and I hope that in due course your Lordships will not approve it.

Be very clear on this readers. Clause 61 will in effect make it illegal to criticise homosexual practice, unless a clear legal distinction is made between homosexual orientation and practice. Is that what we really want?