An impassioned debate ensued on 9th July on the question of whether clause 61 should remain a part of the Coroners and Justice Bill, or whether the “Waddington amendment” that protects free speech should instead be retained in the Public Order Act 1986.
The debate was one of the most telling in recent times. Lord Waddington began by reminding the House that this was a debate about freedom of speech, not about the protection of homosexuals from incitement to hatred. He continued:
Free speech is a precious commodity—part of the very essence of a civilised society. It demands, says Matthew Parris,
“rough-and-tumble and give-and-take”.
It is so precious, says Peter Tatchell, that:
“It should be limited only in exceptional circumstances—when it slips into inciting violence and murder”.
(See http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0005.htm#09070982000975).
Baroness D'Souza continued by pointing out the chilling effect that the removal of the free speech clause would have. Lord Lester of Herne Hill made the mistake of reading out the free speech clause in full, which made a mockery of the arguments in relation to extremism that followed. Lord Anderson of Swansea made an excellent speech mentioning Kwabena Peat and the Bishop of Rochester. He made a very good case that the Rt. Revd. Michael Nazir-Ali could have been investigated for his recent comments, even though no prosecution could have been brought. He asked why there was such urgency to remove the free speech clause, given that it was only passed last year. He then furnished his opinion on the matter:
The only major pressure appears to come from Stonewall. 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 passing, I consider the malign effects of accepting Stonewall's view on Christian adoption agencies...some of the most caring adoption agencies in the country. The effect of the Equality Act (Sexual Orientation) Regulations 2007 has been that most of the 14 agencies, mostly Roman Catholic, have been forced either to withdraw from adoption services entirely or to abandon their religious ethos to continue. The result has been a victory for political correctness and defeat for vulnerable children and common sense.
Lord Dear quoted from a judgment by Lord Justice Sedley in 1999:
‘Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having....’
(See http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0007.htm near the end of column 801).
He continued by making a very persuasive case from his own experience regarding the burden on the police and on the public that would result from the retention of clause 61:
...prior to the Waddington amendment, the police regularly received complaints from homosexual groups that exception was taken to remarks that homosexuality was deplored on religious grounds. The police were forced to act.... Any complaint of hate crime, by whomsoever made, even a bystander, had to be recorded as such and fully investigated. No exercise of discretion was countenanced. Accordingly, the police, and later the CPS, when faced with a complaint concerning remarks about sexual orientation, would follow the Home Office’s guidance notes, go through the whole procedure of interview, sometimes following arrest—fingerprinting, taking DNA samples, police bail, sometimes charge—even though pretty well everyone in the official process knew that there was little or no chance of a prosecution, much less a conviction, following.
(See http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0007.htm at column 802).
Lord Williamson of Horton mentioned that “Christians and...Christian groups believe that the article offers them some protection against harassment” and used a key phrase that rang true: “stealth legislation” (Column 804).
The Lord Bishop of Winchester reiterated the chilling effect that removal of the clause would have before a matter can get as far as the Attorney General and made some brave points about homosexuality being a matter of choice and the "currently dominant political orthodoxy" claiming that homosexuality was an innate and immutable characteristic. He disagreed with Lord Lester's claim about scientific evidence to the contrary and then went on to insist it is a matter of choice and called it the "mistaken political orthodoxy". He warned that “Stonewall is being permitted to become the Archbishop Laud of our time.” (See http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0007.htm at columns 805 to 806).
Baroness Butler-Sloss made an excellent speech reminding the House of the confusing situation that the police would find themselves in if the free speech clause were to be removed, (see http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0008.htm at column 810) and Lord Tebbit concluded at column 812:
If, in another year or five years, we find that there has been an outburst—that masses of bishops are making incendiary remarks—of course we might reconsider the matter. For my part, I must say that there are moments when I wish that more bishops made more incendiary remarks rather than less.
Lord Tebbit intervened again near the end of the debate and asked an excellent question about the legality of reading out sections of the Qur'an without the free speech clause, which Lord Bach admitted he was unable to answer and which seemed to take him completely by surprise. (See http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0009.htm at column 815).
The debate concluded with heated exchanges between Lord Kingsland and Lord Bach as to whether clause 61 was an "abuse of the legislative procedure". Lord Kingsland pointed out that the Government had accepted the free speech clause last year and stated that Lord Bach had not given an accurate record of the Government’s statement in Parliament. Lord Waddington's response to Lord Bach was to ask "How on earth can the noble Lord have the cheek" to say that the Government had said they would revisit the issue?
(See http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0008.htm at column 813).
All the opposition could bring out was emotionalism about the murders of homosexuals and the fact that Lord Lester, the Joint Committee on HRs and the EHRC were opposed to the "Waddington amendment". They even claimed that "extremists" would take refuge in the "Waddington amendment" and use it as a defence when charged with the sexual orientation hatred offence. Lord Thomas of Gresford went so far as to say that clause 61 was necessary so that those who recently plotted the murder of two homosexuals would not be able to do so again! All of this must have sounded absurd to an impartial observer, especially when anyone can see that the clause allows only:
...discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices...
Lord Waddington's margin of victory—186 votes to 133—was almost quadruple his previous margin and the increase in margin was similar regarding assisted dying comparing it to the vote on Lord Joffe’s Bill in 2006.
Twenty Labour Peers defied their whip and through the lobbying work of an ally of CCFON, the Liberal Democrat three-line whip was dropped at the last minute.
To see the full debate in Hansard, click here:
http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0005.htm#09070982000975.
To see the vote, broken down by party, click here:
http://services.parliament.uk/LordsDivisionsAnalysis/session/2008_09/division/20090709.