Lord Waddington defends freedom of speech amendment to gay hate law

July 10, 2009 at 2:57 pm Leave a comment

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A former Home Secretary has convinced the House of Lords to reject an attempt to remove his amendment to a law protecting gay people.

Tory peer Lord Waddington, who served in Cabinet under Margaret Thatcher, amended the offence of using threatening language with intent to stir up hatred on grounds of sexual orientation.

Urging someone to change their sexuality should not count “of itself” as threatening or as intended to stir up hatred, he argued.

The government opposes the Waddington amendment, which became law as part of last year’s Criminal Justice and Immigration Act.

It created an offence of incitement to hatred on the grounds of sexual orientation.

The government have added a clause to the Coroner’s and Criminal Justice Bill, which is in committee stage in the House of Lords, to remove the amendment.

“When I spoke a year ago, my job was to satisfy the House that we should attach to the new offence a provision safeguarding free speech,” Lord Waddington said.

“Now the boot is on the other foot, and it is for the Government to try to show what conceivable public benefit will flow from the repeal of that provision.

“It is up to the Government to show why there is this urgency to scrap the free speech safeguard without waiting to see whether in practice it causes prosecutors or anyone else the slightest difficulty.

“Some have gone on to argue that this offence is more like that of race hatred than the offence of religious hatred. Religion, they say, is a matter of choice, but sexual orientation, like race, is wished on one.

“Many Muslims who talk of punishment for apostasy would deny that religion is a matter of choice, but even if it were, the assertion would get us precisely nowhere.

“What possible relevance does the alleged immutability of sexual orientation have to the question of whether the discussion of sexual behaviour should be allowed under the law or banned on pain of seven years’ imprisonment?

“The answer, of course, is none.”

Baroness Turner of Camden backed the government’s position.

“We have made considerable advances in recent years in our tolerance of sexual differences in orientation—with improvements in the law, civil partnerships and so on—but violent minorities still exist in our society,” she said.

“We do not want anything in legislation—any sort of loophole—that would encourage this.

“It could have a detrimental effect on gay people and it certainly stigmatises them. Moreover, it is quite unnecessary as the law we already have is meant to deal with incitement to violence.

“It does not prohibit the genuine expression of religious opinions or freedom of expression, to which the noble Lord, Lord Waddington, referred.

“Clause 61, which had a substantial majority across all political parties in the other place, is meant to remove this because it is felt to stigmatise gay people and thereby provide incitement for some of the more extreme elements in our society.

“We do not want a society in which gay and lesbian people fear for their lives, as unfortunately occurs in some societies in other countries.

“We should not put forward anything that could give encouragement to the nastiest in our society who want that kind of extremism here.

“Therefore we should support Clause 61 and resist efforts to delete it from the Bill.”

Baroness D’Souza, a crossbench peer, said legislators impose restrictions on free speech “at our peril.”

“We in this evolved democracy must be aware that individual rights are fragile and need constant vigilance for their protection,” she said.

“We would not be doing our duty in this House if we do not continue to insist on a free speech clause on the face of this Bill.”

The Bishop of Chichester said the entire debate about the Waddington clause is “primarily symbolic.”

“Whatever the strictly logical position, and regardless of whether last year’s amendment was strictly necessary, its removal now would be of huge symbolic significance,” he said.

“It would correctly be seen as lowering the level of protection afforded for legitimate debate about matters of profound social as well as personal importance.

“This is especially so when we see it alongside the continuing protection offered by the law in respect of freedom of discussion about religion.

“The parallel is bound to be drawn and people will ask why there is a difference.

“Noble Lords will have their own take on the strictly legal case to be made for or against this amendment, but I do not think that we should be in any doubt but that its defeat would cause a shudder of fear in everyone who values freedom of speech and open discussion.”

Lord Lester of Herne Hill began by welcoming David Cameron’s apology to the gay community last week for Section 28.

“I am in perfect agreement with the right reverend Prelate that whatever we do today will have symbolic significance,” he said.

“Whether it is huge and generates a shudder of fear is perhaps hyperbole, but I agree that symbols matter.

“There is real concern among the vulnerable gay and lesbian community that Section 29JA creates a legal loophole which could enable extremists to stir up hatred and attempt to avoid prosecution for words or actions that were deliberately meant to foment hatred.

“That concern is at least as great as the fear referred to by the right reverend Prelate.”

Lord Lester said he was pleased that the Government “chose to put homophobic hatred in the same place as religion, leaving a large space for free speech.

“They chose to criminalise only that which deliberately stirs up hate and only that which uses threatening language—not insulting or abusive language—leaving a person completely free, however unpleasant and evil it may be, to insult someone because they disapprove of homosexuality. ”

Lord Anderson of Swansea said “gay rights supporters” are split on the issue.

“The only major pressure appears to come from Stonewall,” he told the House.

“That organisation has done some significant work to enhance the dignity of gay people, but surely the Government are not bound to accept its entire agenda.

“In fact, there must be little of that agenda left now.

“The Waddington amendment, in my judgment, is moderately drafted, avoids doubt and in no way raises the threshold.

“The real problem of the repeal of this protection is that it will stifle honest expression of opinion—the so-called “chilling effect”.

“Official guidance will not solve the problem; it does not have the force of law. The protection should be in the Bill.

“Guidance can be modified or withdrawn, and the current guidance is extremely weak.”

Baroness Massey of Darwen said she opposes the Waddington amendment and examined the arguments in its favour.

“First, that the section is necessary to protect religious expression and, secondly, that the section has no real effect but cannot do any harm,” she said.

“The first argument is just not so. No person of faith, in a temperate expression of their beliefs, could be deemed to be intentionally stirring up hatred.

“The Crown Prosecution Service or a magistrates’ court would simply not accept this. The second argument is very odd.

“It is suggested that the section which was added to the law simply sends a reassuring message to certain people that something never caught by this law and that they have never been prevented from doing may continue.

“The exemption would have an effect.

“It would have a stigmatising effect on lesbian and gay people in this country. It offers extremists who would stir up hatred against lesbian and gay people a defence for their actions.

“This is what I mean by unintended consequences, and I hope that noble Lords proposing the amendment will consider this effect.

“Lesbians and gay men are also law-abiding citizens, and they say that legal niceties can be twisted to harm them.

“I have read and know of excruciating stories from young men and women who are homosexual.

“Some have been driven to suicide by taunts; many have suffered depression; and many are afraid to go to school because of homophobic bullying.

“Many are living in fear and dread.”

The Bishop of Winchester said he backed the amendment and questioned if gay people are a creation of the “dominant political orthodoxy.”

“The question that we are facing in this debate is accurately described as one of free speech,” he said.

“What is at stake is whether your Lordships’ House and this Parliament intend to outlaw open discussion and teaching, not just among Christians but among others, of views that differ from the currently dominant political orthodoxy, and therefore privilege, in the face of others, that currently dominant orthodoxy.

“To be explicit, I mean the orthodoxy that sexual preference is as innate and fixed as ethnicity, and that sexual preference or orientation is more akin to ethnicity than to religious belief.

“That is the current political orthodoxy that lies behind the Government’s Clause 61.

“People of all sorts in this country need to be assured, peaceably and quietly, whether on street corners, in churches, mosques, synagogues or wherever, that they are free to express views that others may strongly disagree with but which question the current dominant political orthodoxy.”

Lord Lester rose to say that “surely even a Lord Spiritual would accept that there is scientific evidence to show that the reason why people are gay is innate and not to do with some kind of personal choice.”

The Bishop of Winchester disagreed.

“My own studies, which I suspect are comparable to that of the noble Lord in these matters, suggest that that is the case for some of those who understand themselves to be gay but for others it may not be,” he said.

“Substantial scientific, psychological and medical research points to the statement that I made a moment ago.

“That is why I say that this question is by no means settled.

“To pass law on the assumption that we can use the language of sexual orientation and believe that we are talking about something that is absolutely fixed and clear, as ethnicity might be thought to be, is a mistaken political orthodoxy.”

Baroness Howarth of Breckland said the chilling effect would be felt by the gay community.

“We are not talking about anything that would result in jokes involving gay people or that a gay person might consider offensive being outlawed,” she said.

“This would certainly not impede genuine freedom of religious expression.

“As a woman of faith, I would gladly engage in a theological discussion with the Church about the basis of the present discussion on the background of homosexuality.

“If we took that theological discussion to its extreme, we would stone adulterers in the streets and carry on all the practices in the Old Testament.

“Christ said, “You may say in law an eye and a tooth for a tooth, but I say unto you love the Lord your God and your neighbour as yourself”. We are talking about some of our neighbours.”

Baroness Butler-Sloss said she will support the amendment for fear the police would “possibly arrest and certainly interview perfectly respectable people who do not agree with what most of us in this Committee agree, I hope—that gay and lesbian people, among whom we all have friends, have equal rights to absolutely everything.”

“That is the symbolic message that will go beyond symbolism and into a difficult position both for the police and for Christians, Muslims and Jews who follow the Old Testament and speak out about what they feel.”

Lord Thomas of Gresford said he will back the government.

“My professional experience has led me to realise the dangers of homophobia,” he told the House.

“I recall many years ago a spate of homophobic attacks in Chester; I was involved in the prosecution of a person who had stabbed a young man simply because he believed that he was homosexual.

“I have never forgotten what he said to the police about it. He said, “I heard him giggling, so I knew he was a queer”, and he killed him.

“Very much more recently I was involved, on the other side, in a case in which a young man perfectly innocently walking on Clapham Common was attacked by two men and killed.

“What lay behind both those incidents was the way people talked among themselves and worked themselves up.

“When I hear that the opposition to the clause is put forward on the basis of free speech, so that people can criticise such behaviour, I think that it is far removed from the defence of homosexual people that this country needs.

“I fear that the removal of the section is necessary.

“Opposing the clause would give a signal; it would be not about enabling people to talk in terms of, “I don’t like homosexuals”, but about them talking together and working themselves up into attacking and killing people.

“That is why I shall vote with the Government. However, we are not whipped on this vote, and my colleagues can disagree with me if they wish.”

Lord Bach, Parliamentary Under-Secretary of State at the Ministry of Justice, said:

“In formulating the offence, we had no intention of stifling debate about sexual orientation, of interfering with the preaching of religious doctrine or of making it more difficult to portray homosexual characters in comedy or drama.

“On the other hand, we have always intended that the offence should be an effective way of dealing with threatening behaviour intended to stir up hatred on the grounds of sexual orientation.

“Is there anyone among us who has not seen evidence of that sort of material? It includes rap lyrics that are part of music that sells in huge numbers. We have seen pamphlets from extremist political groups.

“Also, as we have heard, there are extreme people about who have caused huge concern and upset to the homosexual community, whether gay or lesbian.”

The Lords approved voted down the government amendment – Contents 133; Not-Contents 186.

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