Clause 58 is now Clause 61

But the issues remain.

The Coroners and Justice Bill returned to the floor of the Commons this week and the debate over the removal of the free speech clause in the Criminal Justice Act continued. The discussion on Tuesday afternoon (the 24th) was on a new clause 11 which would clarify the legal position. The clause, as proposed by David Howarth (Lib Dem for Cambridge) read as follows:

Guidance on offences that involve hatred on grounds of sexual orientation‘(1) The Director of Public Prosecutions, in consultation with the Attorney General, must issue guidance to prosecutors 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) Chief constables must ensure that the contents of the guidance to prosecutors issued under subsection (1) are made known, in an appropriate form, to officers in their force.

(3) 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.’.— (David Howarth.)

This was to be discussed at the same time as this amendment:

New clause 37— Incitement to hatred on grounds of sexual orientation: association with child sex offences

‘(1) The Public Order Act 1986 is amended as follows.

(2) After subsection 29B (1) insert—

“(1A) “Threatening” in subsection (1) extends to words, behaviour or written material which asserts or implies an association between sexual orientation and a propensity to commit child sex offences under Part 1 of the Sexual Offences Act 2003 (c. 42).”’.

Amendment 1, in page 34, line 5, leave out Clause 58.

Howarth’s point was really simple:

The problem is not what the law says, but the fact that some rather odd investigations have been started—not under the provisions that I have mentioned, which are not yet in force, but under different ones. That has given rise to a great deal of anxiety and I am sure that we will hear about the cases in the course of the debate. However, it is important to realise that those cases are brought under entirely different provisions. It is right to say that people should not have to suffer unreasonable and unfounded investigation.

That is why it is very important that we have specific legislation to give guidance to the authorities about how they implement the new laws. The offence that is usually referred to, as in the cases of Miguel Hayworth and Stephen Green, concerns section 5 of the Public Order Act 1986, whereby it is a crime to use threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. In my view, that provision is in itself a violation of freedom of speech. It seems to allow prosecution merely for insults, and for insults that are merely likely to cause distress but have not necessarily done so.

…

New clause 11 would meet head-on the problem of mistaken interpretations that lead to fruitless and distressing investigations. It would do so by requiring the Director of Public Prosecutions to issue guidance to prosecutors on the meaning of the offence, and crucially, it would require chief constables to make the content—or for those Members who were here yesterday, the gist—of that guidance known to police officers. New clause 11 would also introduce a real free speech element by requiring the Attorney-General, whose consent is necessary for any prosecutions to go ahead, to have regard to all the relevant rights and freedoms in the Human Rights Act before giving that permission.

I think Howarth’s clause 11 was a good start, but doubts were raised about what the guidance from the CPS would look like. Dominic Grieve from the opposition front bench opposed it on grounds of a lack of necessary clarity, and that there was no need to remove Lord Waddington’s amendment from last year. Bridget Prentice responded for the Government by saying that they thought that the law without Lord Waddington’s amendment was fine, and as the Government had promised to return to the issue it was now so doing.

Ann Widdecombe had some interesting stuff to say:

In the Lancashire case, a couple were questioned by the police for an hour and 20 minutes. They had asked the local council whether they could distribute Christian literature alongside the council’s literature on civil partnerships. There was an outcry, and Lancashire police stood their ground and said it was a proper intervention. The local council also stood its ground and said that it was a proper intervention under the law—not under this Bill—that it was then invoking. It was only when the couple sued—or commenced suing; there was a settlement—that the police and local council decided that they had got it wrong. When that is the attitude of senior police and authorities, who are responsible for implementing the law that this place passes, we sometimes need very simple, straightforward clarifications that almost hit them on the nose, so that they actually understand what Parliament intends?

…

Out there in the country, in case Ministers are completely oblivious to it, there is a swelling unease about freedom of speech. Certain sections of the community believe that they would have to overcome a higher threshold before they would be protected from the sorts of allegations that are frequently made. The religious hatred and sexual orientation laws, and myriad other laws that seek to bring equality, have an oppressive heart. The face may be liberalism, but the heart is oppression. We need amendment 1 to ensure that the Bill contains the clearest possible explanation—hammered home and spelled out—so that there can be no doubt in the mind of anyone responsible for interpreting and implementing the law that the ordinary exercise of free speech is not caught by it.

We have free speech in this House that is not commonly enjoyed by many of the people on whom we pass laws. We enjoy a protected position, but people out there—teachers in faith schools, priests in pulpits, ordinary people expressing a particular opinion—now feel afraid to speak freely. There can be no possible objection to Parliament stressing that free speech is not at risk from this Bill. That is all that amendment 1 seeks to do and I commend it to the House.

Eventually David Howarth withdrew his new clause 11. The House then voted on removing Clause 58, but the motion failed, so Clause 58 remained in the Bill. Given the number of amendments and new clauses proposed, it is now Clause 61.

The next stage is the second reading in the Lords, not due till the 27th of April. It is very likely that Lord Waddington will move an amendment to strike Clause 61.