by Stephen Tall on March 25, 2009
Free speech has always posed a liberal dilemma. On the one hand, we hold dear the principle that individuals are free to speak their mind, even when it gives offence. On the other hand, there is Mill’s ‘harm principle’ – what to do about those individuals who incite hatred and violence through their words.
It was this dilemma which was at the heart yesterday’s Commons debate on the Coroners and Justice Bill, which will criminalise incitement to hatred over sexual orientation. An attempt was made group of MPs, led by Labour’s David Taylor, to amend the bill to insert a so-called “free speech” defence. The BBC report gives the background:
The controversy stems from last year’s Criminal Justice and Immigration Act when Tory former home secretary Lord Waddington succeeded in amending the legislation dealing with inciting hatred on grounds of sexual orientation to allow for “discussion or criticism” of sexual practices.
The government was unable to remove the amendment last year due to a lack of parliamentary time but is now using the Coroners and Justice Bill to scrap it. Mr Taylor, MP for Leicestershire North West, said his proposal simply made “clear that discussion or criticism of sexual conduct is not caught by the homophobia law”.
High-profile critics of the government’s approach have included Blackadder star Rowan Atkinson, who claimed it could stifle creativity for writers and comedians.
David Howarth led for the Lib Dems on this, and voiced the party’s opposition to the amendment, and in favour of the bill’s criminalisation of incitement of homophobic bullying and intimidation. You can read extracts from his Commons’ speech explaining his and the party’s position below:
David Howarth: The offence of using threatening words or behaviour with intent to stir up hatred on grounds of sexual orientation was created by the Criminal Justice and Immigration Act 2008. Anyone who knows anything about the lives of gay people in this country knows why the provision was necessary and important.
Homophobic bullying and intimidation are distressingly common occurrences. Recent research shows that one in eight lesbian or gay people have experienced hate crime in the past three years. The problem is not only distressingly common but can have lasting deleterious effects on the lives and well-being of the victims. I hope
that no one in this debate will question the need for the provision; if they do, I hope that they will be honest enough to say so openly.
This debate focuses on a particular aspect of the 2008 Act. Some religious groups have said they are afraid that the new law will catch them because their religion strongly disapproves of homosexuality, and their representatives or preachers want to continue to say so publicly. It is important, however, to stress what the 2008 Act says and what the new crime is. The Act says:
“A person who uses threatening words or behaviour, or displays written material which is threatening, is guilty of an offence if he intends thereby to stir up hatred on the grounds of sexual orientation.”
That means that the words have to be both threatening and intended to stir up hatred. It is not enough for the words to be insulting or offensive; they have to threaten. Nor is it enough that the words may have the effect of stirring up hatred; they have to be specifically intended to do so.
The crime is difficult to prove at the best of times. If a charge was brought against a saintly religious leader whose intention was to save souls, I cannot see how anyone might think that that offence had been committed. … some people are anxious about the possibility that the police and the Crown Prosecution Service will not recognise the difference. I accept that that anxiety exists and that we should do something about it—the question is what.
David then went on to propose a new clause, which he argues 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.