Clause 59 – Free Speech Upheld by Lords

After readings in the Commons and the Lords this week, Clause 59 (previously Clause 58 and 61), which removes the Waddington Amendment to the CJA has been removed in the Bill to be presented to the Commons. You can read the debate here and if you need to remind yourselves as to what the debate is about then this post will help.

Of interest to the Church of England is this contribution from the Bishop of Winchester:

My Lords, I shall say very little because virtually everything I wished to say has been said by the noble Lords, Lord Waddington and Lord Dear, and by the noble and learned Lord, Lord Mackay. Having read Monday’s debate in the other place, as others have said, the case seemed to be asserted but not made. I believe that this element of what, as the noble and learned Lord, Lord Mackay, rightly said, is the law, is necessary. It does not affect the very high threshold, but it makes clear that this element of the law we are talking about keeping is permissible. It protects individuals and society from the chilling and dumbing effect on free speech and debate that the noble Lord, Lord Dear, particularly, in the past, in writing and this evening, has clearly expressed.

I want to take issue with the noble Baroness, Lady Turner, and the noble Lord, Lord Smith. I want to say to the noble Baroness that words do matter, but, as the noble Lord, Lord Waddington, intimated but did not go into detail about, the absence of words matters too. If these words are not on the statute book, it will be harder for the police to be assisted in the ways in which the noble Lord, Lord Dear, has expressed. They need to be assisted to work in a way that uses their intelligence, common sense and judgment, and thus do not waste time investigating people who have not done anything to deserve being investigated, long before the Attorney-General comes into the picture.

I say to the noble Lord, Lord Smith, that signals matter, and they do. I share with him a horror of the fact that people are attacked, beaten up and killed because others believe them to be homosexual or because they are homosexual. That is manifestly wrong and wicked. But, as the noble Lord said, many others live increasingly in anxiety and fear. There is a very strong sense across quite a wide swathe not only of Christian opinion but of other opinion that the rights of those who hold the kind of views that this law would defend are seen as second-class. That is even there in the language of the noble Lord, Lord Smith. He said that it will be taken that it is all right to be intolerant. That is a particular kind of judgment on those who take the view that this amendment in defence of a piece of law seeks to sustain.

Notwithstanding an unargued assumption of the Government that they must carry on in this way, it is most important that people of all sorts can be assured that, whether they are on street corners, in mosques, churches or synagogues, or be they journalists, academics, comedians or whatever, they are free to express views with which others may strongly disagree and which question the currently dominant political orthodoxy in these matters.

The two key issues which came up in defence of maintaining the Waddington Amendment were as follows:

1. Given that the almost identical legislation on incitement to hatred on grounds of religion does include a free speech clause similar to the Waddington Amendment, does the removal of the Waddington Amendment
   1. imply that one crime is worse than the other (i.e. on grounds of sexual orientation versus religious belief)?
   2. in doing so create one right to trump another, especially when it comes to frameworking guidelines for the police in the implementation of the Criminal Justice Act?
2. Why has the Government so far, despite plenty of requests, failed to present the specifics of a particular activity that is wishes to criminalise that would remain legal if the Waddington Amendment was maintained and would be illegal if it was removed?

The Waddington Amendment was reinserted by the Lords, 179 votes to 135 votes. The Bill now returns to the Commons where they can throw out the Lords’ final vote or can try to find a compromise.

Update : Here’s a great video with Lord Waddington, and a link to Cranmer’s thoughts.

Second Update : The Government has conceded defeat. Hurrah!