The government was roundly defeated last night on its attempt to remove a “free speech” defence from the law banning homophobic hatred.
Since May of last year, it has been an offence to use threatening words or behaviour that are intended to stir up hatred on grounds of sexual orientation.
This provision is to be found in section 29B of the Public Order Act 1986, as inserted by the Racial and Religious Hatred Act 2006 and amended by schedule 16(6) of the Criminal Justice and Immigration Act 2008.
The phrase ”hatred on the grounds of sexual orientation” is to mean “hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both)”.
But schedule 16(14) of the 2008 Act also inserts the following amendment as section 29JA of the Public Order Act:
… for the avoidance of doubt, 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.
The government tried to repeal that section last night. Lord Bach, the Justice Minister, argued that the provision was not only unnecessary but positively harmful:
This provision is simply not needed, given the exceptionally high threshold for the offence, capturing as it does only threatening words and behaviour intended to stir up or incite hatred.
Our submission is not simply that the saving is not necessary but that it is positively harmful as it could sow doubts about the scope of the offence and seek to legitimise the use of threatening words or behaviour which are intended to incite hatred on the grounds of sexual orientation. Those who use such words or behaviour and intend to incite hatred on the grounds of sexual orientation should not have a so-called freedom of expression saving to shield them.
A very high threshold for the offence provides sufficient protection for freedom of speech.
But Lord Waddington, who introduced section 29JA as a Tory amendment last year, stuck to his guns:
The Government say that the words are unnecessary. But they are certainly useful in that, following the precedent set by the religious hatred offence, they provide clear guidance on the statute as regards what is lawful. Their value was well illustrated by the noble Lord, Lord Dear, in July, when he pointed out how the free speech clause was helping the police to resist the pressure put on them to follow up complaints made by people wishing to suppress any criticism of homosexual behaviour…
The question remains: what regard would the police be likely to pay to the right of Christians and others to comment on sexual behaviour if Parliament went out of its way today to say that free speech is important when it comes to comment on religious matters but is of no importance when it comes to comment on matters of sex? We would be giving the clearest signal to the police that they should interfere to prevent any criticism of homosexual behaviour.
Lord Dear, a former chief constable of the West Midlands, gave the example of Pauline Howe:
Mrs Howe was not a shrill, loud-mouthed demonstrator, shrieking abuse in the streets. She did not carry a placard in public with abusive or insulting words written on it. Mrs Howe is an eminently respectable, highly principled, late-middle-aged, middle-class lady married to a clergyman. She lives in Norwich. In July this year, she wrote a letter to [council officials]. She complained against the holding of a Gay Pride march in Norwich.
The letter, which I have seen, was well constructed and forthright, but it was by no means inflammatory. However, the council officials in their wisdom saw fit to pass it to the police. In September, she was visited and interviewed in her own home by not one but two police officers from Norfolk Constabulary. She was interviewed for writing a letter, not for demonstrating in public…
She said: “I must say, the police officers were professional and polite … nevertheless, the visit frightened me. Why was I made to feel like a criminal when all I had done was to express an opinion? It was an intimidating experience. For 67 years I have been a law-abiding citizen. I know some people don’t like my beliefs. That’s fine, it’s a free country. But surely I have the right to express my beliefs, particularly to a government body, without fear of a visit from police. This is Britain isn’t it?”
Lord Bach responded by quoting from Mrs Howe’s letter:
She referred to homosexuals as “sodomites” and blamed, “their perverted sexual practice” for sexually transmitting diseases and for the “downfall of every Empire”. She is, of course, absolutely entitled to make those remarks. The chief executive of Stonewall himself said that the police response had been disproportionate, so the very suggestion that she would somehow fall foul of this legislation, if there were no freedom-of-expression clause in it, is absolute nonsense. Whatever view you take of what she did, it was hardly threatening, nor was it intended to stir up hatred on the grounds of sexual orientation. This lady was entitled to make her remarks; she did so, and the police have been criticised.
But, said Lord Stoddart of Swindon, that was not the point.
This lady wrote a private letter to her local authority and it should have been kept confidential. The police would not have been involved unless that local authority… had passed on the letter to the police. Have we reached a stage in this country where a council tax payer cannot write to their local authority criticising something without that private letter being passed onto the police?
Lord Bach accepted that Lord Stoddart had made a fair point.
On a vote, the government was defeated by 179 votes to 135, a majority against the government of 44.
There is virtually no time left in this parliamentary session so it seems that section 29JA will remain on the statute book – a small but significant victory for free speech and one that in no way undermines the protection now given by law to those at risk of hatred on grounds of sexual orientation.
Update: I have a hazy recollection of telling listeners to BBC Radio Five Live at 10 past six this morning that the Government might not want to jeopardise what is now the Coroners and Justice Act 2009 by seeking to overturn this defeat. That was confirmed by the Government later in the day.