Hansard on Second Reading of Coroners Bill
Hansard is now online for yesterday’s second reading. This post catalogues the exchanges over the removal of Clause 29JA from the 1986 Criminal Justice Act (Amended). I have edited Hansard slightly to allow ease of reading for this unfamiliar with its format.
The most interesting submission is that of Alan Beith, who argued that since Clause 29JA had not yet come into force, surely Parliament should wait to see whether it did permit offensive behaviour (as some are suggesting) before seeking to repeal it. Not to do so he argued seemed to be a trampling on the rights of Parliament, which had, after all, passed that amendment to the 1986 Act in the first place.
The Bill also completes unfinished business from the Criminal Justice and Immigration Act 2008 by proposing to remove the so-called freedom of speech amendmentâ€”which was inserted in the Bill in the other place at the last momentâ€”in relation to the offence of inciting hatred on the grounds of sexual orientation. As the House will recall, that provision was defeated overwhelmingly by Members on both sides of the Houseâ€”there was a majority of 200â€”but we had to accept the decision of the other place temporarily, because we had to secure Royal Assent by 8 May.
In the face of much Government opposition, the other place did indeed insert â€œfree speechâ€ clauses in the part of the Bill dealing with the offences of religious and homophobic incitement. Clause 58, the final clause in part 2 of this Bill, seeks only to remove the â€œfree speechâ€ exemption in relation to homophobic incitement. Is that not a rather asymmetrical approach, and is it likely to survive challenges in the other place?
John Bercow: The creation of the offence of homophobic hate crimeâ€”courtesy of the Criminal Justice and Immigration Act 2008, the effect of which was to amend the Public Order Act 1986â€”was very sound, and commanded widespread support. It was designed to catch, among other things, despicable homophobic lyrics in reggae songs, such as â€œHang lesbians with a long piece of ropeâ€ and â€œAll gay men should dieâ€. May I put it to the right hon. Gentleman that the so-called free speech amendment was at best superfluous, and at worst deeply objectionable? Someâ€”although not allâ€”of its supporters would not even know how to spell the word equality, let alone sign up to it. It is right that clause 58 should remove the exemption.
The offence of inciting hatred on the grounds of sexual orientation has a very high threshold. It currently covers only behaviour that is threatening and intended to stir up hatred. We are returning to this issue because we believe there are no circumstances in which the right of alleged freedom of speech should justify such behaviour.
Mr. Grieve: The one thing the Secretary of State has not told the House is why he thinks the proposed saving clause introduced in the other place in any way undermines the intention and ability to prosecute under the main part of the clause, which we support. Unless I can be persuaded that it does so undermine it, I think that, as a saving clause, it has a great deal of merit, particularly in view of past history, which shows that individuals who have sought to express perfectly reasonable criticism have received visits from the police.
Mr. Straw: I simply do not accept that. The movers of that amendment were very clear that the words meant something; they were intended to make a conviction very difficult indeed. That was the purpose.
Sir Paul Beresford: Clauses 52 and 53 relate to images used by paedophiles for their own excitement and for incitement. Clause 58 refers back to an earlier homophobic incitement measure, which can include the written word. Has the Secretary of State ever considered a similar law for paedophiles, in response to the appalling written material they use for similar personal and other incitements? If he has done, or is willing to do so, I will be happy to ask a certain well-known policeman in the Metropolitan police force to send him some copies of this disgusting stuffâ€”and to do so directly, because I do not want to see it.
Mr. Straw: We seek all the time to ensure that what this House and the public regard as obscene, objectionable and extremely pornographic and corrupting is covered by the law, and I am happy to sit down with the hon. Gentleman to see whether this provision and the other provisions cover what he has in mind.
Turning to part 3 of the Bill on criminal evidence, investigations and procedure, in July last year, with agreement from all parts of the House, we acted decisively to allow evidence in criminal trials to be given anonymously, following the Law Lords decision in the Davis case. During the passage of the Criminal Evidence (Witness Anonymity) Act 2008, I said that Parliament would be given a further and fuller opportunity to consider the legislative framework for the use of such evidence. Part 3 fulfils that undertaking by re-enacting that emergency legislation, with some changes. It contains proposals to build on the 2008 Act by way of an â€œinvestigation witness anonymity orderâ€. This new tool will enable the police to provide early reassurance to witnesses that their identity will be protected during and after investigations of gang-related homicide.
A little later in the debate:
Mr. Grieve: Finallyâ€”I disagree with my hon. Friend the Member for Buckingham (John Bercow) hereâ€”this would not be a new Labour justice Bill without some attempt to curtail freedom of speech. The balance between protecting society from incitement to homophobic hated, which I entirely applaud, and preserving legitimate public debate is delicate. I do not recall the Secretary of State, or the Home Secretary, who I believe was responsible, giving the impression that the decision to accept the Lords amendment to the Criminal Justice and Immigration Bill was a mere tactic for returning to the issue later. It appeared to involve an acceptance that the Lords amendment was sufficient to command acceptance.
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): If the hon. and learned Gentleman looks at what was said on that occasionâ€”it was me who said itâ€”he will see that I made it clear that we would return to the matter at a further opportunity as soon as possible.
Mr. Grieve: I thought that the intention to revert to the matter meant coming back with some other proposal that met the concerns that had been expressed about preserving freedom of speech. No case has yet been madeâ€”I wait to hear itâ€”to show why the words that were included in the other place do anything to undermine the ability to prosecute the offence that has been created. If the Secretary of State or the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle) can make that case cogently, we will listen. In the meantime, I simply do not see it.
I perceive the provision as a saving clause, designed to deal with the chilling effect that always arises when restrictions are placed on freedom of speech. We debated it and commented on it previously, when we considered issues such as incitement to religious hatred. I want individuals who incite homophobic hatred to be prosecuted just as much as the Under-Secretary does, but I do not want the circumstances that I am about to outline to be repeated, and I do not believe that the Government want that either. Old age pensioners living in Blackpool wrote to their local authority, as is their right, to say that they did not approve of its giving money to a gay organisation. Instead of getting a reply saying, â€œTerribly sorry. We were voted in, and this is what we believe in. We disagree with you,â€ they got a visit from two police officers telling them that if they wrote such letters again, they mightâ€”even under the old lawâ€”be prosecuted. They recovered damages and got an apology, but only after a time. They received treatment that makes me ashamed of the system that we seem to be creating in this country. We must ensure that such things do not happen. A sensible freedom of speech clause would be helpful, to reassure those who want to continue to express views that are legalâ€”even if I disagree with them.
Mrs. Humble: If I heard the hon. and learned Gentleman correctly, he said that individuals wrote to Blackpool council about that matter. Although the individuals are my constituents, it was not Blackpool council but Conservative-controlled Wyre borough council with which they had a problem.
Mr. Grieve: I am most grateful to the hon. Lady for putting me right, and I apologise for any calumnyâ€”it was unintendedâ€”against Blackpool. However, the hon. Lady reinforces my point. All the evidence shows that when the House legislates about such matters, the manner in which those who have some authority lower down the chain, and have to implement the legislation, interpret or understand it, is often at variance with what is intended. That is why problems have arisen. There was a street preacher in my constituency who said that people should repent and turn to God, and that if they did not repent they risked going to hell. The police came along and said, â€œYou can tell them that they should repent and turn to God, but you shouldnâ€™t give them the other half of the message.â€ [Interruption.] I agree with the Secretary of State that that is absurd, but the House must pay attention to the consequences of its actions in creating absurdities, which may appear amusing to us but are not amusing to those on the receiving end of individuals who take it upon themselves to interpret the law in a way that we did not intend.
David Howarth: Are not the hon. and learned Gentlemanâ€™s comments proof of the point that some of us made when the matter was originally discussed? Surely the right way in which to deal with this matter is by issuing guidance to the police and the prosecution authorities, and procedural protection, rather than including a pointless but potentially dangerous blanket exemption in the Bill.
Mr. Grieve: If the hon. Gentleman feels that the exemption is too wide and would therefore do damage, I encourage him to ascertain whether there is another way in which it can be drafted to meet my point; that might be possible. We have been content with such a provision in other cases where we have imposed restrictions on freedom of speech. I simply ask the House to consider the matter carefully, because I think that there is a genuine problem, which past experience has demonstrated. I hope that the Secretary of State will bear that in mind.
John Bercow: As my hon. and learned Friend knows, I yield to none in my admiration for his parliamentary and other talents. I have to say to him, however, that in this particular matter his memory serves him ill, and that the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle) is entirely correct in her recollection of the sequence of events. The Government made it clear that they intended to bring back this provision in a later measure; there was no question of their backing down or qualifying their position. The point about the Governmentâ€™s policy on this matter, as encapsulated in the legislation, is that it is aimed at catching words or behaviour that are not merely insulting or abusive but threatening. The fact is that the Waddington amendment is a wrecking amendment; it is a menace, and it has to be defeated.
Mr. Grieve: I am afraid that I do not agree with my hon. Friend that the amendment was intended as a wrecking amendment. Indeed, reading it, as I did at the time, and re-reading it, as I have done more recently, I do not believe that it would have that effect at all. If he wishes to discuss this with me in greater detail, I would be only too happy to do so. That said, I have made it clear that that proposal might not be the only available solution, but I believe that it is important for there to be safeguards. If there are none, the law of unintended consequences will lead to people who express views that are perfectly legitimateâ€”even if they are views with which we disagreeâ€”feeling as if they are being persecuted. That is not something that the House should embark on lightly.
Mr. Geoffrey Cox (Torridge and West Devon) (Con): Does my hon. and learned Friend consider, as I do, that there is something anomalous in the Governmentâ€™s proposal to remove the clause that protects free speech in relation to the discussion of homosexuality, given that they are not proposing its removal in the case of religion?
Mr. Grieve: There are indeed anomalies, and they were discussed at some length when this matter appeared previously, if rather bizarrely, in another piece of legislation. I very much hope that we will be able to look at those matters sensibly. There are no easy solutions, and I am the first to accept some of the examples that we have been given, including that of gangsta rap lyrics, which I regard as revolting. I have no difficulty at all in wishing to see them criminalised and stoppedâ€”absolutely none. Nor is this the pillar of some religious viewpoint; I do not think that it should be. I want to see a right for people to express their views, including views that other people might not like. That is what a free society is about, and the House must ensure that that can still happen, even when we have ensured that expressions of rabid hatred and incitement to hatred can be curbed. That must be the aim that we seek to achieve.
Alan Beith added this later on:
Sir Alan Beith: I want to make one last point, which is personal and not a Committee point at all, or even a party one. It relates to clause 58, which removes the free speech protection that was added to the homophobic hatred provisions in the Criminal Justice and Immigration Act 2008. I simply put it this way: given that that legislation has not yet been brought into effect and we therefore have no experience of what its effect will be, we have no evidence that what was intended to be a free speech protection will in any way undermine the ability to prosecute the crime and the evil against which that part of the original legislation was directed.
If there were such evidence, or even clear indications that the ability to prosecute would be undermined, we ought to look at the provision again and word it better, but I believe deeply in free speech and I want to ensure that people who express views that are not threats or threatening are not caught by the legislation or by mistaken assumptions about what it does. I voted for the free speech provision in the first place. Nothing has happened in the meantime to make me change my view that there were indications of inappropriate actions potentially arising from the original wording and we have no evidence on which I should change my mind in that regard. Therefore, I will not support clause 58. We should see what the experience is before trying to change legislation that Parliament has already passed.
James Grey said this:
Mr. James Gray (North Wiltshire) (Con): Equally, I shall not deal at length with the excessively emotional topic of freedom of speech and the way we are seeking to stop homophobic hatred. Of course we all want to stop homophobic hatred. At the same time, however, I have some sympathy with Rowan Atkinson and certain Christian groups, for example, who feel that unless the Waddington amendment remains in the original Bill, they will be prevented from doing and saying perfectly legitimate and sensible things that in no sense incite people to murder or commit violence against homosexuals or others. I very much sympathise with such views and, like the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), I have seen no change since the original Act to suggest that we ought to amend it further now.