Coroners and Justice Bill

House of Lords, 9 July 2009.

Committee (6th Day)

Lord Waddington (Conservative)

Before I come to Clause 61, there are one or two general points I should make. The issue is not whether there should be protection for gays against those minded to stir up hatred against them or whether there should be a new offence of stirring up hatred on the grounds of sexual orientation. Last year, the House decided that there should be such an offence, and there was no disagreement about the matter. The issues today are, first, whether there should be a provision to protect free speech, similar to that in the offence of stirring up religious hatred, and, secondly, a quasi-constitutional point about whether it is right that the Government should be using this Bill to repeal a provision they put on the statute book less than a year ago.

As a result of the Government's actions, we are in an interesting position. 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. 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.

I find it impossible to understand the Government's position. Do they say that the words they seek to repeal have no effect and are unnecessary? If so, the words are doing no harm either, and by putting Clause 61 in the Bill, the Government are just wasting our time. Or are they saying that the words would cause mischief? If so, they had better tell us how. As the words are clear enough, and by no stretch of the imagination can be read as licensing threats—a proposition advanced by the Liberal Democrats in the other place, but which, according to all the legal advice we have taken, has not the slightest substance—are we not bound to assume that the Government want to prevent, in the words of the safeguard,

"discussion or criticism of sexual conduct or practices",

even when such discussion or criticism is not threatening or intended to stir up hatred? Surely that is what the police are going to assume, for if the free speech clause is unacceptable to the Government, what possible reason can there be for that opposition, other than that the Government feel that discussion or criticism of sexual conduct is of itself threatening and likely to stir up hatred and had better be stopped?

After that, the Government have a plain duty to tell us why it is right to have a free speech safeguard in the religious hatred offence but no free speech safeguard here. Some have argued that there is a greater need for protecting freedom of expression in the religious hatred offence than in this offence, but how on earth can that be right when none of the cases of the police overstepping the mark has occurred in the area of religion and all have occurred in the area of sex? There can be no substance in that argument.

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.

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".

Rowan Atkinson told us of his worry that, without the safeguard, people would be unsure of what they were allowed to say and fearful of expressing a viewpoint on many matters. He helps us to remember that not only the churches and religious believers fear that revoking the safeguard will be taken as a signal that criticising homosexual behaviour could be a criminal offence. You do not have to be religious to be interested in, and wish to debate freely, whether children from stable heterosexual family backgrounds do better than others, and the merits and demerits of gay adoption.

Many might say that that is absolutely obvious and that such discussion cannot be seen as evidence of hatred any more than jokes with a sexual content can be. It may seem obvious to you and me, but it certainly was not obvious to the police who, after Lynette Burrows had doubted the wisdom of gay adoption on the radio, gave her a lecture on homophobia and noted her behaviour in police records. Nor was it obvious to the police who, after a city councillor had made a tame joke about transgenderism at a police public liaison meeting, interrogated him for two hours before letting him off with a caution.

That brings me to the question of guidance. Some may say that the whole matter can be dealt with by guidance, but I remind your Lordships that these abuses have happened while the police have been furnished with guidance—in particular, the 2007 CPS guidance on prosecuting cases of homophobic crime. Unfortunately, that guidance is so erroneous that one is tempted to conclude that the police acted not in spite of it but because of it. The guidance does not suggest that there may be legitimate comment on sexual practices; instead, it makes the bold assertion that homophobia does not necessarily mean hatred of gays but includes mere dislike of a person's behaviour. After going on to stress that a homophobic incident is any incident that is perceived to be such by any member of the public, not necessarily by anyone who feels victimised, it as good as encourages the police to investigate incidents that amount to no more than a member of the public complaining that someone else has had the temerity to criticise homosexual practices. There is no mystery as to why the Fleetwood couple came to be persecuted; the police followed the guidance—so the last thing on earth we want is more guidance like that.

What is needed is what we have now; a statutory provision that says that one must not assume from mere discussion or criticism of sexual practice that there is an attempt to stir up hatred. One must look at the circumstances and the manner in which the words are spoken to see whether they were threatening and driven by hate. Back in 2007, Ben Summerskill of Stonewall told the committee considering the Criminal Justice and Immigration Bill that Stonewall,

"would have no objections to any indication in the Bill that there was a mindfulness of the importance of free speech".—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 16/10/07; col. 80.]

Our free speech safeguard provides just that.

Finally—I say this in all seriousness and earnestness—if ever there was a time when events required the Government to make clear their commitment to free speech, it is right now when everyday free speech is assailed. They must surely know that if the safeguard is removed it will be taken, as Tom Harris MP said,

"as a green light to all those who believe they can silence anyone who disagrees with them".

Instead of trying to get rid of this safeguard, the Government should declare boldly that letting people express their views, including views that other people may not like, is what a free society is all about. This clause must not stand part of the Bill.

Baroness Turner of Camden (Labour)

I hope that my noble friend on the Front Bench will not agree with the noble Lord, Lord Waddington, and his colleagues that Clause 61 should not stand part of the Bill.

As we have heard, last year Parliament passed a new and important offence of incitement to hatred on the grounds of sexual orientation. That appears in the Criminal Justice and Immigration Act, although it has not yet become operable. It is very important because there has been some evidence of an increase in violent offences against gay and lesbian people. I believe that the police have reported a rise in the number of such offences, including a number of murders of gay men. Statistics for Greater Manchester in particular are extremely worrying.

There is also much homophobic material in circulation that is intended to inflame hatred against people because of their sexual orientation. It may be argued that some songs, for example, do not really mean very much—they are simply songs—but they emerge from a culture, mostly in the Caribbean, that is deeply homophobic and where violence and murders on such grounds are commonplace.

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. We do not want anything in legislation—any sort of loophole—that would encourage this. Last year, as the noble Lord, Lord Waddington, explained, an amendment was added to our legislation, in Section 29JA of the Public Order Act, which could provide such a loophole even though the movers of the amendment may not have intended this—and I am sure they did not. However, 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. In Iraq, for example, which now has a democracy, a leading cleric has called on his supporters to kill homosexuals, and to do so in the most cruel and degrading way possible. In this country, we have moved beyond that; we are humane and compassionate, and we do not want that kind of activity. 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 (Crossbench)

Even the most ardent proponent of freedom of expression will admit to the need for some restrictions under particular circumstances. What is always sought is a balance between competing rights. In this case the balance is between the fundamental and vital right to free speech and the right to remain free from discrimination and, indeed, insult. Even the international instruments themselves reveal contradictions. Thus, for example, Article 19 of the International Covenant on Civil and Political Rights allows for the widest possible interpretation of freedom of expression, while Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination in fact contradicts this. To answer this conundrum one needs to go into rather legalistic arguments, but perhaps the important question to ask here is this: does censorship in any form actually contribute to the reduction of so-called hate speech, or does the limit on free speech condemn hatred to the dangerous underground and perhaps lead to actual violence? This view is based on the belief inherent in democratic societies that ideas, views, perceptions, and indeed insult and hatred, are better dealt with by more, not fewer, words. Inevitable clashes in society can and must be discussed as the first step towards resolution.

Is censorship justified in the interests of equality and dignity of the individual? The answer here must be yes, but I would argue strongly that such restrictions must be very carefully weighed as to their effect on the values underlying free speech. First of all, speech must almost never be restricted on the basis of content alone, but on context.This I think is where the clause as it stands risks infringing legitimate expression. There are already on the statute book several laws that criminalise incitement to religious or gender-based hatred; and encouraging the commission of an offence is in itself an offence. The clause, however, is so worded as to create confusion not only for victims, but for perpetrators and importantly for those who police the law, and it is sufficiently broad to allow only guidance, but, I stress, not a guarantee—that is, a binding obligation—of free speech.

Some distinguished lawyers of first amendment rights have pointed out in landmark judgments that anything which might have a chilling effect on free speech is to be disallowed. Uncertainty as to what the law does or does not allow to be spoken—in this case, legitimate views on homosexuality—because of the fear of false allegations of homophobia undoubtedly exerts what, to my mind, is a chilling effect. To argue that the law should not interfere with anti-social speech or insult does not mean that free speech adherents are indifferent to the rights of minorities. To the contrary, they believe that freedom of expression is a vital right in the struggle to defeat discrimination, bigotry and intolerance.

We 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. 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.

Bishop of Chichester (Bishop)

Last year, we were told that the Waddington amendment was unnecessary, and we are now told that its removal will not affect the threshold required for the offence to be made. In other words, it does not make much difference either way. That may be true, although I think it is arguable. However, the making and unmaking of laws has a symbolic significance going far beyond the strict letter of the law itself. This, after all, was the real justification for the necessary and welcome introduction of a specific criminalisation of incitement to hatred on the ground of sexual orientation. After all, the new offence was not strictly a new offence and it is unlikely to lead to the conviction of anyone who could not perfectly satisfactorily be convicted on the grounds of other laws already in force. The main point of what we did in this House and the other place last year was, importantly, symbolic rather than strictly necessary. However, it was important to send a clear and specific signal, and that is what the amendment to the Public Order Act did.

So, too, the Government's ill judged attempt today to omit the section inserted by your Lordships' House last year 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. 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. It is not always easy to balance freedoms—or indeed rights, as the noble Baroness, Lady D'Souza, said—but that is what is really at stake in the debate.

Lord Lester of Herne Hill (Liberal Democrat)

First, may I say how heartened I am that the Leader of the Conservative Party has apologised on behalf of his party for Clause 28 and the symbolic and other damage it did. It is very encouraging that the main Opposition party has taken that position. Secondly, I do not suppose any of us has to make claims about their commitment to anything in particular, but like the noble Baroness, Lady D'Souza, I can say that I have spent the whole of my professional life fighting for two main values: first, freedom of speech and, secondly, equality, including human dignity. I am in perfect agreement with the right reverend Prelate that whatever we do today will have symbolic significance. Whether it is huge and generates a shudder of fear is perhaps hyperbole, but I agree that symbols matter.

I speak as a member of the Joint Committee on Human Rights, which has looked at this issue not once, but twice, and is composed of members of all parties as well as none. On each occasion it decided that the free speech protection of the law, as it will be if we pass this clause and reject the Motion, is perfectly adequate. Since no one else has yet done so, perhaps I may try to explain the relevant background and why I believe that we should firmly reject the Motion of the noble Lord, Lord Waddington. The law we have now distinguishes between incitement to racial hatred on the one hand and incitement to religious or homophobic hatred on the other. Where race is concerned, it is an offence to use insulting, abusive or threatening language—there is no requirement of specific intent to stir up hatred—if,

"having regard to all the circumstances, racial hatred is likely to be stirred up".

That is wrong. I do not like speech offences of any kind. Indeed, my old boss Roy Jenkins and I erred when we allowed the race hate offence to be as wide as that, but it is too late to reverse it these days. So that is incitement to race hate, a broadly drawn criminal offence which does not even require specific intent.

The offence is much narrower in relation to religious and homophobic hatred. The language used has to be threatening, not merely insulting or abusive, and there has to be an intention to stir up religious or homophobic hatred. In addition, both religious and homophobic hatred have, at the moment, a savings clause, which I shall come to. The reason why this House and the other place made a distinction between race and religion in the Racial and Religious Hatred Act—with the support of the Bishops, as I recall, for which we were most grateful—is that a verbal attack on members of a racial group is an attack on their common humanity, their inheritance and their birthright, which are fixed and immutable. But a verbal attack on a member of a religious group—not because of their group identity but expressing intemperate criticism of, or hostility to, the beliefs, teachings or practices of their religion—is not an attack on their common humanity unless in reality it involves an attack on their ethnicity, their origin and their biology, as so often happens with British Muslims, who are really being attacked for ethnic reasons in disguise.

Religion and belief are concepts that defy precise legal definition. They concern matters of faith and philosophy and are strongly influenced by history and politics and by tradition and culture. The line separating religious beliefs from political beliefs is often blurred, not least because religion is often used and misused for political purposes. The distinction between stirring up hatred of someone because of his religious beliefs and expressing hatred of those beliefs or practices in the abstract is quite subtle. So this House has decided, as has the other House, that the law protects religious believers against deliberate intimidation, threats of violence and intimidation, but it does not protect the actual beliefs and practices from abusive and insulting criticism.

The need for writers and artists to be able to criticise and ridicule religious beliefs and practices is the reason why I drafted what is referred to as the "English PEN clause", which prevents thin-skinned people from trying to use the criminal law to stop an attack on religious beliefs and practices which does not amount to the use of threatening language against individuals. I was responsible for that and the House overwhelmingly supported it.

The question is: where should homophobic hatred be placed on this scale? Should it be more like race or more like religion? Even though, in my view, sexual orientation, being an immutable characteristic, is more like race, I am 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. Because the offence is crafted so narrowly and already leaves fully adequate protection for free speech, there is no need for any additional savings clause. Discussion of sexual orientation, however unpleasant and offensive, does not entail the same controversy as religion where, as I have said, there is a need for an express free speech clause.

There have been some controversial police actions in relation to the other harassment provisions of the Public Order Act in which the police, trying to shake off their old homophobic image perhaps, have been overzealous in investigating claims of homophobia—for example, in relation to comments by Sir Iqbal Sacranie, the former secretary-general of the Muslim Council of Britain, or the evangelical Christian literature distributed by a retired Lancashire couple. However, it is clear that the specific homophobic hate speech offence does not criminalise such words, behaviour or writing unless they are threatening and intended to stir up hate.

The unanimous view—a unanimous view taken not once but twice—of the Select Committee, with its legal advisers and including, for example, the noble Earl, Lord Onslow, and two Conservative Members of Parliament, so it is not a party matter, is that there are adequate free speech safeguards. I fully agree with the principles referred to by the noble Baroness, Lady D'Souza; the question is how they are to be applied in practice. The removal of Section 29JA would not result in jokes involving gay people being outlawed or prevent the expression of opposition to same-sex relationships where the discussion does not amount to threatening language with intent to stir up hate. It would categorically not impede genuine freedom of expression.

However, 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.

I hope that the Committee will accept the view of the Joint Committee. For what it is worth, my own view is that if the speech crime were to be interpreted over-broadly, I have no doubt whatever that the courts, looking at the Human Rights Act which requires them to interpret every statute, including this one, in accordance with Article 10 of the European Convention on Human Rights, would again ensure that a case was not brought.

The problem I have about the specific language we are being asked to keep is that it seems entirely superfluous. Section 29JA states that,

"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".

I ask rhetorically: how could any reasonable person possibly believe that the discussion or criticism of sexual conduct or practices, or urging people to refrain from or modify their conduct or practices, could be regarded as threatening or as intended to stir up hatred? Of course they could not. Therefore, this is an otiose provision.

Lord Tebbit (Conservative)

I am grateful to the noble Lord, but he has already explained that perfectly reasonable police officers have interpreted it in exactly that way and have arrested and detained people for behaving and speaking in a way which the noble Lord says no one could possibly misunderstand. But they did and it has happened.

Lord Lester of Herne Hill (Liberal Democrat)

Of course the noble Lord, Lord Tebbit, is right. There are idiots in all quarters. If police officers abuse their discretion in a particular way and interpret the law unlawfully, they will be vulnerable to disciplinary action, legal action and so on. But we cannot legislate on the basis of what some people have done in misunderstanding the law. The law is perfectly clear, as I have said, and there is no need for us to put in something which I regard as an oxymoron, or otiose, or both.

Lord Elton (Conservative)

When the noble Lord read out the passage with which we are all concerned, he should have emphasised the words "of itself". Section 29JA states that,

"such conduct or practices shall not be taken of itself".

That surely is the protection that we need. It means that if you say something which is offensive to someone, it is not of itself threatening unless you do it in a manner or under circumstances which make it so. That is all that this is intended to achieve. It is exactly what my noble friend intends it to do and I hope your Lordships will support him.

Lord Lester of Herne Hill (Liberal Democrat)

I am grateful to the noble Lord, Lord Elton. It is precisely the words "of itself" that create something completely unnecessary. No sensible person could possibly believe that, of itself, discussion or criticism of sexual conduct or practices could be regarded as threatening. That is why, unlike the English PEN clause in the religious context, neither I nor the Joint Committee regard this as being in any way necessary. On the contrary, it creates confusion rather than certainty.

Lord Anderson of Swansea (Labour)

The noble Lord has made some rather interesting—

Lord Elton (Conservative)

May I just finish the point? The noble Lord, Lord Lester, said that no reasonable people could interpret it that way. Does he think that the people who wrote the guidance to the police that my noble friend read out were reasonable?

Lord Lester of Herne Hill (Liberal Democrat)

I have no idea. I dare say that the guidance can be improved in all kinds of ways. We are concerned not with guidance but with the law of the land.

Lord Anderson of Swansea (Labour)

As always, the noble Lord has made some interesting distinctions, but in my judgment he has not dealt with the powerful point made by the noble Baroness, Lady D'Souza, about the chilling effect of the removal of the section on the protection of freedom of speech, nor the right reverend Prelate's point about the symbolic effect of removing the section. I, too, am rather puzzled by the response of the Government; it is as if there were some urgency to remove the section. I wonder where the pressure is coming from for Clause 61 to repeal the free-speech protection. I detect no sense of burning public anger in favour of this. Certainly, many are concerned about the effect on freedom of speech, many of whom admire the Government's record on freedom of speech in other spheres.

Gay rights supporters are divided. Matthew Parris has already been cited by the noble Lord, Lord Waddington. 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 fact, there must be little of that agenda left now. It is but a lobby, and the Government should have a wider perspective. In passing, I consider the malign effects of accepting Stonewall's view on Christian adoption agencies. It was predictable, and it was predicted, that it would have those malign effects on 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.

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. The noble Lord, Lord Waddington, has already cited paragraph 3.10 of the CPS guidance on prosecution, dated July 2007.

Some will say that there is no real problem; after all, there is a longstop in the fiat of the Attorney-General, who must sanction any prosecution. It is said that that is a powerful protection. The certainty, though, is that it will take time for any investigation to reach the Attorney-General, from the complaint to the police investigation to consideration by the Crown Prosecution Service. In the mean time—there are many examples of this—decent, law-abiding citizens will be in fear and dread as a result of that perhaps quite protracted investigation.

There is no doubt, from experience, that oversensitive zealots will make complaints about, at the very least, provocation. In April this year, for example, a gentleman, Mr Kwabena Peat, was suspended from his senior teaching job for complaining that the staff INSET day was used to promote homosexual lifestyles. In 2006 a Member of the Scottish Parliament complained after a sermon by the Roman Catholic Archbishop of Glasgow, who had stood in favour of the institution of marriage and against civil partnerships.

In a more recent example, on Monday 6 July the Independent reported that since the right reverend Prelate the Bishop of Rochester made his statement, with which some may or may not agree, he has been accused of pandering to hate and homophobia after calling on homosexuals to repent:

"Sharon Ferguson, of the Lesbian and Gay Christian Movement, condemned Dr Nazir-Ali for making comments that she said would encourage hatred".

That is the problem: she has made the allegation that what he said would encourage hatred. No doubt, if she were to pass that to a sympathetic police officer, it would shortly be investigated. Ultimately, of course, it would not proceed because either the CPS or the Attorney-General would stop it. I am confident that the right reverend Prelate is sufficiently robust to withstand the anxiety during any possible period of investigation; I am less confident about ordinary law-abiding citizens who will have to suffer the trauma of that period of investigation.

In my judgment, the clause provides clear and necessary guidance. It follows the precedent of the religious hatred law, and it should be retained if, as the noble Baroness has said, we value and give proper weight to free speech.

Lord Dear (Crossbench)

As one of the four Members of the Committee opposing the Question that Clause 61 stand part of the Bill, I accordingly support the continuation of what is now generally referred to as the Waddington amendment, which was agreed by your Lordships about 12 months ago. I need to make a number of points immediately.

Like probably everyone in your Lordships' House, I do not hold anti-homosexual views, nor do I advance them; in fact, I abhor homophobia. I fervently believe in a tolerant society but I also agree with freedom of expression within the law, and it is that phrase "within the law" that concerns much of what we are dealing with today.

There is no direct case law to help us. Yet if one examines the long line of cases that start with Beatty v Gilbanks in 1882—I will give the Hansard writers the references later—which was the Salvation Army case, all the way through to the great review of the law in this area, Redmond-Bate v DPP in 1999, one sees a consistent guide that where the right of public expression of view has been challenged in the courts, the issue of reasonableness has been at the forefront of the minds of the judges.

If I may be allowed a reminiscence just for a moment to make a point, I recall a time in the late 1970s—perhaps it was the late 1980s—when, as a fairly senior police officer, I was often involved with the policing of large demonstrations and marches, some of them in those days very large indeed. I remember sitting at home watching the evening television news which showed yet another march wending its way slowly through some street or other in yet another city, the marchers flanked intermittently by uniformed police officers. My young daughter, watching this, turned to me and asked, "Daddy, why are policemen always demonstrating?". I had then to explain in simple terms, as we shall explore later on, what concerns us today—that there is a right within the law to demonstrate beliefs and views within reasonable bounds, and that it is the duty of the police to allow that to happen.

As I said previously, we are dealing with finely balanced judgments of what might or might not cause offence. The circumstances of Redmond-Bate in 1999 are particularly interesting and bear closely on the circumstances at which we are looking today. In 1997, three women were preaching from the steps of Wakefield Cathedral. They were described as fundamentalist Christians. They attracted a crowd of around 100, some of whom took exception to the views being expressed and became hostile. A police constable asked the women to stop preaching and, when they refused, he arrested them for breach of the peace and subsequently charged one of them further with police obstruction. The appellant, one of the three women arrested, was convicted by the magistrates and her appeal to the Crown Court was dismissed.

But in 1999, two years later, at the Queen's Bench Division, Lord Justice Sedley and his fellow judge took a very different view and allowed the appeal, holding that the women had not acted unlawfully. The judgment in that case is interesting because it reviewed the whole scope of the law at that time and not much has changed since.

Lord Justice Sedley made a number of particularly relevant points in his judgment. He cited Articles 9 and 10 of the European Convention on Human Rights, especially Article 9.2, which states:

"Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law"—

I ask noble Lords to note what comes next—

"and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others".

In other words, mere annoyance or disagreement with those views is not enough.

Article 10.1 states:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority".

Continuing to review the case law in that case, and the arguments adduced by counsel, the judge said this—and it is particularly telling:

"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. What Speakers' Corner ... demonstrates is the tolerance ... extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modem writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power".

What a long way we seem to have come since those words were spoken 10 years ago.

Many Members of your Lordships' House are better experienced and better qualified than me to develop an argument from case law, and I fully appreciate that nothing that I have said can ignore the fact the Parliament can legislate pretty much as it likes and that the material that I have quoted is only persuasive—

Lord Lester of Herne Hill (Liberal Democrat)

I wonder whether the noble Lord appreciates that the whole of what Sir Stephen Sedley said is something which I, certainly, and, I am sure, others like me completely endorse. That, I think, is common ground.

Lord Dear (Crossbench)

I am grateful to the noble Lord.

As my young daughter noticed all those years ago, the police are always likely to be present in those circumstances and to be drawn willy-nilly into the arguments. I brought in that reminiscence to ask where the police stand in this.

Prior to your Lordships' House approving the Waddington amendment a year ago, the police and the prosecuting authorities were, frankly, between a rock and a hard place. There was never any question then, nor is there now or will be in the future, that behaviour would be tolerated if it was offensive, aggressive, threatening or demeaning, and that the police would, should and will act accordingly to uphold the law. However, 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. They operated, as we have already heard alluded to, against a background of the Home Office's guidance notes on how to handle hate crime under the Public Order Act 1986, to which the issue of sexual orientation was added by the Criminal Justice and Immigration Act 2008. The so-called guidance notes in fact required rigid adherence. 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.

What a waste of time, what a waste of money and resources, and what a terrible burden to place on the person being arrested or interviewed, often waiting months for an outcome that was obvious to everyone except them. In many cases, the tactics were obvious: a complaint from a pressure group, police pressured into action with an implied threat of a complaint against them for neglect if a full investigation was not carried out and the inevitable chilling effect, about which we have heard already, on others who might be tempted to protest similarly in the future. In short, it was a very successful tactic to limit freedom of speech and freedom of expression.

Perhaps the most important question of all is what has happened since the Waddington amendment a year ago. Despite intensive research, I cannot trace a single instance of police intervention during that time in these circumstances. So what is the official response from the Association of Chief Police Officers? Well, there is no official response, a stance that I applaud because noble Lords will remember, as I do, ACPO a few years ago having its fingers burned when it intervened publicly in two separate debates concerning proposed legislation. Since then it has sensibly kept its head below the legislative parapet. However, my recent discussions privately with senior ACPO figures, including those most closely involved with issues of this nature, reveal two facts critical to our debate today: first, not only has ACPO not declared an official stance but it has not given an unofficial view in any quarter; secondly, it would much prefer to see the defeat of Clause 61 and the continuation of the Waddington amendment. The reasons given to me for this are simple and perhaps obvious. With the Waddington amendment in place, the police are released from the virtual straitjacket imposed on them previously; they can exercise common sense and good judgment on the day; and they can police with the light touch which is so often sought and required by society.

I have said enough perhaps. This clause denies any exercise of common sense, balance or discretion; it seeks to prevent reasonable expression; it is legally and jurisprudentially stifling; and it will serve no purpose but to return us to the wholly unsatisfactory state of affairs that existed a little over 12 months ago.

Baroness Massey of Darwen (Labour)

I have been somewhat intimidated by the Bill. It has tremendous scope, covering many emotive issues. I am not a policeman or a lawyer; I am not interested in political correctness; but I am interested in the welfare of society at large. The amendment to remove Clause 61 seems so fraught with unintended consequences that I feel moved to speak. Some have talked of symbolic significance; I want to talk about unintended consequences. I cannot believe that the movers of the amendment would wish to see unintended consequences or any section of society punished by anything that they may support.

Let me set out very briefly what I think the dangers are. The proposal opens the door to the possibility of discrimination, bullying and mistreatment of lesbians and gay men. That may not be the intention, but that is what it may do. We need to retain Clause 61. The issue is not the protection of free speech; this is not in jeopardy, nor is the issue of the rights and wrongs of an offence of incitement to hatred on the grounds of sexual orientation, which was agreed by both Houses last year. The question is whether the retention of the exemption brought forward last year is appropriate. I suggest that it is not.

Two arguments have been put forward—first, that the section is necessary to protect religious expression and, secondly, that the section has no real effect but cannot do any harm. 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.

I am a patron of an organisation called Families and Friends of Lesbians and Gays, founded by and for parents of children who are lesbian or gay. Many of these parents have openly said that they had never thought about sexual orientation or had actually been prejudiced against homosexuality until their son or daughter declared that they were lesbian or gay. These parents are now aware of the difficulties that their sons or daughters face, and of how brave they, as families, have to be to combat hatred and discrimination.

People do suffer; there are unintended consequences of what we do. Clause 61 provides some defence for people. It must not be removed. Any unintended consequences of an amendment about sexual conduct and practices that could result in threat and misery must be resisted. This House should not send out this kind of message. I support Clause 61 and will vote against attempts to remove it. I beg those who oppose the clause standing part of the Bill to consider what I have said about unintended consequences, and I beg the House to reject the proposal and support the retention of Clause 61.

Lord Williamson of Horton (Crossbench)

I support the proposal of the noble Lord, Lord Waddington. I shall be very brief in view of the hour, but I shall make three points. First, we are not discussing the basic protection that the law rightly provides for our citizens against harassment, danger or stirring up hatred on grounds of race, religion or sexual preference. That is right and is unchanged. We are discussing the Government's proposal to remove one article—the free speech clause—from the Public Order Act, which states that certain actions are not to be taken as threatening or intended to stir up hatred.

I am surprised to find this proposal in this Bill. Parliament decided very recently, after a full discussion in this House and with the agreement of the House of Commons to put this article in the law. The Government can always propose to amend legislation, but in my view very strong reasons are needed to propose the selective change of legislation of such recent date. I do not see those reasons; on the contrary, it is clear that some of our citizens, particularly those who are Christians and in Christian groups, believe that the article offers them some protection against harassment. The public, the police and the courts are entitled to look for some stability in legislation.

Over the past week, the Minister has frequently criticised amendments as inappropriate to the Bill or to its twin brother, the Policing and Crime Bill. That argument goes both ways; the Clause 61 proposal is simply slipped in among clauses on the coroner's services and issues such as assisted suicide, the law of murder, the defence of provocation, infanticide, pornography, prostitution, conspiracy and terrorist offences. There it is, all by itself. We do not deal with finance in this House, so I know nothing about stealth taxes, but this looks a little like stealth legislation.

Even with no account taken of Brussels, we are none the less bombarded with home-baked legislation—some of it half-baked, of course—that is difficult enough to understand. It really is surprising that in these circumstances the Government have decided to seek to remove this one article on free speech. Clause 61 is not necessary and should be dropped. Yesterday, we discussed the Independent Parliamentary Standards Authority. The Government proposed Clause 10, which would have restricted free speech in the other House; the other House voted against it and struck it out. This seems to be the week of the Government against free speech and, in those circumstances, we should maintain the free speech provision in the law. I support the proposal of the noble Lord, Lord Waddington.

Bishop of Winchester (Bishop)

I, too, support the amendment moved by the noble Lord, Lord Waddington. My name is the fourth name to it. I apologise to your Lordships that I was not here for the first few speeches; the time that I was away was the only time that the noble Lord, Lord West, could give me to pursue questions arising from one that I asked in your Lordships' House a few weeks ago. I was unsuccessful in being in two places at once.

The proposal of the noble Lord, Lord Waddington, and the clause that it seems to hold within the law are necessary and proportionate. I must tell the noble Baroness that I have heard nobody responsible for this amendment say either that it will have no real effect or that it cannot do any harm. I am sure that we would not be troubling your Lordships if we held either of those views. I believe that it will have effect if the clause stays and will do some good for precisely the reasons that the noble Lord, Lord Dear, so magisterially laid out. The chilling effect on the way to a decision by the Attorney-General is potentially, and in some cases actually, very substantial.

The clause is modest in its content; yes, it is declaratory, but we have heard from other speeches why it needs to be so. It needs to make it crystal clear that it does not defend any language or behaviour that is intended to stir up hatred or may result in doing so. I believe that it has potentially and, already actually, good effects, and that it does good.

The question that we are facing in this debate is accurately described as one of free speech. 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 of Herne Hill (Liberal Democrat)

The right reverend Prelate had the good fortune not to hear what I had to say. I first reassure him that I believe everything he just said to be amply protected by the law. Secondly, although he refers to what he calls "current political orthodoxy", 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.

Bishop of Winchester (Bishop)

No. 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. 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.

I can draw only one conclusion from the insertion of Clause 61—a conclusion that for me is sadly reinforced by the behaviour of your Lordships' House and the Government over sexual orientation regulations, as the noble Lord, Lord Anderson, graphically described. I will not go into that except to say that Parliament was unnecessarily and aggressively pursuing Roman Catholic adoption agencies. That kind of experience leads me to read Clause 61 with considerable anxiety. That is all the more so when I read the Equality Bill now before the other place. It seems that the Government believe that others' rights trump those of people of faith when there appears to be some tension between the two.

If that is the case, it would be curious in the present day that a range of individuals and groups in this country, Christians among them, rather than the Government and the lobby groups, are seeking to defend a free market in religious and other ideas and the publishing of a range of scientific research. Again, as the noble Lord, Lord Anderson, suggested, it begins to look as if, curiously, at the beginning of the 21st century, Stonewall is being permitted to become the Archbishop Laud of our time. I hope that the House will recognise the implications of Clause 61 and vote with the noble Lord, Lord Waddington, for its removal.

Lord Davies of Coity (Labour)

It was not my intention to speak, but I have been encouraged by my two noble friends Lady Turner and Lady Massey. I shall be going through the Lobby with the noble Lord, Lord Waddington, because I believe that his approach is to reinforce freedom of speech and not to encourage murder and the incitement of hatred. The cornerstone of our democracy is freedom of speech. I am reminded of what an eminent politician said years and years ago. I paraphrase: "I may be bitterly opposed to what someone says, but I will fight ferociously for him to have the right to say it". I believe that to be true today.

Baroness Howarth of Breckland (Crossbench)

I do not have a carefully constructed speech as I was not sure that I would speak at all today. The one group which will find this debate chilling is the gay community. Let us just take our arguments one at a time. I had not intended to speak so I take them steadily.

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

I am a great advocate of free speech. I believe in free speech and I stand up for free speech. That is why it is good that we have this debate on record, because the police have to be absolutely clear that gay people may be upset by what is said. They may challenge what is said, and the police have to get it right. I know that professionals do not get it right all the time—after all, I am a social worker and we get it wrong, as we see in the press, most of the time. Social workers, lawyers and the police will get it wrong from time to time and we should understand that. It is then up to the Crown Prosecution Service and other services to oversee us, and we know that they do that substantially in other areas. We heard that in the debate about assisted dying this week. We know that considerations are made all along the road, so we have to make sure that we get that right. We have it now in Hansard that we do not expect jokes and bits of free speech to result in prosecution.

However, this is about something quite different. It is about the incitement to do damage to people who are gay or lesbian. During the past few days, there have been a number of debates on the Floor of this House reflecting our thinking about public behaviour. I agree absolutely with the Bishops' Bench that this will send a message to the community. It will send a message to the gay community that it is not valued, because we are prepared to have, on the face of the Bill, something that it finds deeply offensive and which would not stop free speech.

Would noble Lords include in the Bill something that said it was all right to use threatening language intended to stir up hatred against black people? That would be called racism, but it is exactly what noble Lords are suggesting happens here. On the face of this Bill you have something that is called free speech, but is in fact prepared to allow incitement to hatred.

I say all this because it is not really understood how deeply gay people feel this in terms of the offensiveness involved and the way it demeans their lives. They may well not be acceptable to many people in this House: you may not believe that people who feel that they are gay or lesbian are real human beings—are men and women; you may believe that they may have some sort of disease that could be cured and that research may show that. That is a deeply offensive position to take against gay and lesbian people, just as this clause stands on the statute book. I therefore stand with the Government and reject the Waddington amendment.

Lord Monson (Crossbench)

Is the noble Baroness aware that Peter Tatchell, Matthew Parris and other prominent homosexuals oppose Clause 61?

Baroness Howarth of Breckland (Crossbench)

I am speaking not for them but for myself and the people I know.

Lord Low of Dalston (Crossbench)

I apologise to my noble friend Lord Dear; I did not intend to come between your Lordships and the extremely authoritative speech that he treated us to.

I do not intend, particularly at this late hour, to intervene at any length, but I have a question and I wonder whether the noble Lord, Lord Lester, might be able to help me with it. It seems clear to me that all of us in this Committee share a presumption in favour of free speech. The noble Lord, Lord Lester of Herne Hill, made it clear that he shared that presumption and in particular that he endorsed entirely the remarks of Sir Stephen Sedley, which were cited. In his exceptionally helpful speech, the noble Lord sought to show us that the present law struck the right balance between the rights of free speech and the protection of gay people, because the offence was sufficiently narrowly targeted to leave space for people to express even disagreeable opinions about gay and lesbian people. The noble Baroness, Lady Howarth, failed to appreciate that distinction when she said that remarks that would be regarded as incitement to racial hatred should be treated in exactly the same way with respect to—

Baroness Howarth of Breckland (Crossbench)

That is exactly the distinction that I made. I clearly said that many people may find it offensive to hear some of the issues, but that does not necessarily make it an offence.

Lord Low of Dalston (Crossbench)

I apologise if I did not hear the noble Baroness correctly. I shall proceed with my question. The noble Lord, Lord Lester, helpfully tried to show us how the law struck the right balance. He was a little undercut by the noble Baroness, Lady Massey, who supported his position, but who I thought showed fairly convincingly that the law was not actually protecting gay people in the way that the noble Lord, Lord Lester, sought to show us it was perfectly adequate to do.

I wish to deal with the characterisation of the current legal position given by the noble Lord, Lord Lester. The noble Lord sought to assure us that the present law was perfectly adequate to protect gay and lesbian people and that the problem with the Waddington amendment was that it would leave lesbian and gay people feeling fearful for their position because people would use the Waddington amendment to conduct all sorts of scurrilous and abusive attacks on lesbian and gay people, such as were calculated to incite hatred, and they would do that under the cover of the Waddington amendment.

I have two questions that I should like the noble Lord to help me with in relation to that, if I have characterised his presentation of the situation correctly. My first question is whether there is any evidence that the Waddington amendment—I know that we have not had a great length of time—has had that effect in the past year. Does it appear to have given rise to a rash of the kind of attacks that the noble Lord told us lesbian and gay people might be fearful of? My more fundamental question is: if it is the case that the present law gives lesbian and gay people perfectly adequate protection, what can they possibly have to fear from the Waddington amendment? If the present law is adequate, how can their fear that the amendment will act as a cloak and cover for scurrilous attacks that have a tendency to incite hatred possibly be justified?

Lord Lester of Herne Hill (Liberal Democrat)

The noble Lord, Lord Low, asks extremely difficult questions and I am not able to give an answer that he would find satisfactory. Before I try to answer them, I must say that I am a liberal with a small "l", and therefore I fully understand that the spirit of liberty is one which respects the views of everybody else and I only interfere with free speech where it is absolutely necessary and in very narrow circumstances. I believe that to be true of almost everybody who has spoken today. We are then talking entirely about the balance to be struck and the symbols that will be sent out by whichever way the vote goes this afternoon.

The noble Lord asks me whether there is evidence to show that what is called the Waddington amendment has done harm. I cannot answer that question, but the question I can answer is whether there have been many homophobic physical and other attacks in recent years and months, and the answer is yes there have, but whether they are causally related to the Waddington amendment I would not dare to try to guess, because I do not know how one would be able to prove that one way or the other. The second question is whether gay people have adequate protection under the law as it now stands. They do. They have protection under the civil law against discrimination and harassment, just as people have protection under the law against religious harassment and discrimination. They have protection under the criminal law against threatening words. They have less protection under criminal law than black people do, because black people are protected on a very broad basis; gay people are protected on a much narrower basis, but it is enough. I am not suggesting that any greater protection be given.

The real debate is about symbols. What message will be given if we go one way or the other? The message that will be given by those in favour of the Waddington amendment—we are dealing with irrational matters on both sides—will be that the House has reverted to a position it took 15 years ago and is somewhat homophobic. That may be quite unfair, but that will be the message. The message the other way, equally unfair, may be that the House is taking a different view.

We are dealing with symbols. It is very unsatisfactory that that is so, but it has been symbolised by the right reverend Prelate's speech, with which I respectfully do not agree—but I respect his position utterly, as I respect freedom of religion. I have not really answered the question because I do not think that there is a clear answer.

Baroness Butler-Sloss (Crossbench)

I should like to make two very short points. First, thinking about unexpected outcomes, I was interested to hear from the noble Lord, Lord Waddington, that he had discussed the original proposal which became the Waddington amendment with Ben Summerskill of Stonewall.

Lord Waddington (Conservative)

I would not like to give that impression. I was quoting from what Ben Summerskill said when giving evidence before the committee on the Bill in 2007. During that hearing, he said that he would not object to something being in the Bill that made clear the importance of freedom of expression.

Baroness Butler-Sloss (Crossbench)

I apologise to the Committee for my inaccurate understanding of what was said by the noble Lord, Lord Waddington, but his point seems equally valid. So is the recent comment that Matthew Parris and someone else, I think, saw no outcome for homosexuals from the proposed keeping in law—not making new law—of what was the Waddington amendment. Consequently, it does not appear that there is strong opposition from well known gay people to this modest freedom of speech.

The second point seems terribly important. I endorse what the noble Lord, Lord Dear, said about the police being in difficulties. What would be the message to the police from this House if they were in difficulties from the guidance, and from their obligation to take seriously and deal with each possibly malicious or possibly genuine but unneeded application to them to do something? I mean the sort of referral to the police that would not get to the courts, that would not be given the Attorney-General's fiat, and that the courts would knock down. But it is not at the courts that it matters. It matters at the point of reference to the police—the need of the police to deal with it. Because the law was changed and accepted by the House of Commons, in the last year the police have known where they stood. What are they to understand if we then get rid of the Waddington amendment and keep the guidance? Are they then to act, 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? The police will have to deal with the issue.

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. It is important that the Committee reflects on that. For that reason, I will support the noble Lord, Lord Waddington.

Lord Thomas of Gresford (Liberal Democrat)

I shall vote with the Government today. I have the greatest respect for the noble Lord, Lord Waddington, and those who have spoken in favour of his amendment. However, my professional experience has led me to realise the dangers of homophobia. 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 Tebbit (Conservative)

Almost all that was necessary to be said today was said by the noble and learned Baroness, Lady Butler-Sloss. In my own way, I will turn from the generality of what she said to a more specific case. In his original speech, the noble Lord, Lord Lester, made some perhaps less than kind remarks about the intellectual capacity of certain police officers in relation to one incident that had been cited. We have now heard, of course, that a lady has complained—in general, and not to the police—about the words spoken by the right reverend Prelate the Bishop of Rochester. As the law stands at the moment, if that lady were to go to the police, any sensible police officer could say, "Well, yes, my dear, I hear what you say, but it is clear that no offence was committed". However, if the Government succeed and the Waddington amendment is removed, the police officer would be left in a difficult position. He might believe that no offence had been committed; the noble Lord, Lord Lester, would say that no offence had been committed. But suppose that the police officer just told the lady, "No offence was committed. I shall take no action". He might feel that he would come under attack—that he would be accused of homophobic behaviour for not following the matter up.

We would be creating a most awful pressure on the police, and they would react, naturally enough. They would have to go and interview the right reverend Prelate and discuss the matter with him. As has been said, he is robust enough a man to take care of himself, but that might not be the case with many other people, who would lack the resources to fight the thing through—perhaps even to fight a conviction and take it to appeal. There is no evidence whatever that the amendment has caused any outbreak of homophobic attacks or any of the other nonsenses. The noble Baroness, Lady Turner of Camden, listed all the dreadful offences, which are against the law and which the Waddington amendment did nothing to bring within the law. That serves nothing at all. It is simply an outbreak of emotionalism which obscures the facts. We should stick to the facts and stick to the Waddington amendment.

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 Kingsland (Conservative)

We on this side of the Committee have a free vote on this matter; so it would be inappropriate for me to wind up on behalf of the Opposition. I shall say only that I shall be supporting my noble friend Lord Waddington in voting that Clause 61 should not stand part of the Bill.

There is one other observation that I want to make about the circumstances in which we find ourselves this afternoon. The Government did not choose to oppose the decision taken in your Lordships' House last year to support my noble friend Lord Waddington's amendment, which subsequently became Section 29JA of the Public Order Act 1986.

It is, in my view, an abuse of parliamentary procedure to bring this matter back to Parliament without any evidence that Parliament had made bad law, especially when the same Government are in power. Indeed, the Government say, in terms, that Section 29JA is not bad law. Their case is that it is unnecessary law because the definition of the offence of incitement implies, in terms, the contents of my noble friend Lord Waddington's amendment.

In these circumstances, it cannot be good constitutional practice for a Government to compel Parliament—the law-maker—to spend further time on this matter. Indeed, I would describe it as an abuse of legislative procedure.

Lord Bach (Labour)

Whatever its failings, the Bill has resulted in some passionate and important debates, particularly in the course of the past week's hearings in your Lordships' House. Today's debate has been no exception. Clause 61 will remove from Part 3A of the Public Order Act 1986, which includes offences of stirring up hatred on the grounds of sexual orientation, Section 29JA, which deals with freedom of expression. I say for the avoidance of doubt that that section was agreed by this House in the passage of last Session's Criminal Justice and Immigration Bill.

The Government have always said that there is no doubt about the threshold of this offence; I will come to that in a moment. I will first do my best to answer the criticism that it is somehow constitutionally improper for the Government to come back to the issue at this stage. I do not accept that argument for one moment. As has been indicated and as, I think, noble Lords know, we needed to secure Royal Assent for the Criminal Justice and Immigration Bill by 8 May 2008, so we were unable to ping-pong on the Bill beyond the initial rounds. If we had said nothing about it at that time, I could understand the criticism, but at the time we made it perfectly clear that we would return to this issue.

Lord Kingsland (Conservative)

I am most grateful to the noble Lord for giving way. The fact that the Government had certain constraints at the time was entirely their decision; there was no obligation on Parliament to pass the Bill by early May. The Government had other priorities; that was why they wanted to move quickly. It is quite clear that, by not opposing this matter, the Government accepted the decision of Parliament. For the noble Lord to suggest that it was otherwise is, I say with great respect, not an accurate record of what occurred.

Lord Bach (Labour)

I would be grateful if the noble Lord would listen to what I have to say before coming back to me.

Lord Waddington (Conservative)

If the noble Lord is going to move on to other matters, I must take him to task—

Lord Bach (Labour)

I am not moving on to other matters, but I wonder whether I could make my point. Then the noble Lord can respond to me.

Lord Waddington (Conservative)

I want to return to the point of whether the Government made it perfectly clear that they were going to return to this matter, because, of course, they did nothing of the sort. I have here what the Minister said in the House of Commons on 7 May. What she said was the opposite of what the noble Lord has just suggested. She said that,

"between now and commencement we will prepare guidance ... explaining the operation of the new offences ... Of course there will be an opportunity—doubtless there will be frequent opportunities—to revisit this issue in due course, if it is the will of this House or the other House to do so. On that basis, I would like to propose that we do not disagree with the Lords in their said amendment".—[Official Report, Commons, 7/5/08; col. 808.]

How on earth can the noble Lord have the cheek to say that that was an indication that the Government would return to the matter in the very next Session?

Lord Bach (Labour)

The Minister did not say that we would return to it in this Session, but she said that we would return to it. Let me carry on with the quotation that the noble Lord, Lord Waddington, mentions in part. My honourable friend the then Parliamentary Under-Secretary of State for Justice said:

"We remain of the view that the amendment is undesirable and unnecessary; it does not add anything to the law as it would stand without its inclusion. However, as ... my right hon. Friend ... has explained, there is an urgent need for the Bill to receive Royal Assent".

She went on to say—and this is what the noble Lord has just quoted—that,

"there will be an opportunity—doubtless there will be frequent opportunities—to revisit this issue in due course, if it is the will of this House or the other House to do so".—[Official Report, Commons, 7/5/08; col. 808.]

It was the will of the House to do so and that is what happened by the very large majority of 154 when the Bill was debated in the other House in March. This trumped-up charge of constitutional impropriety is really not worthy of argument. The debate is about something else altogether. It is not about this.

Let us look at what this debate is really about. First, we should look at the threshold for the offence itself. It is a very high threshold indeed. No freedom of expression proviso is needed to clarify the ambit of the offence. It covers only words or behaviour that are threatening and intended to stir up hatred—a very high benchmark indeed. Those terms—"threatening" and "intending to stir up hatred"—have their normal English meaning. If we start to gloss that meaning or explain in more detail what is and is not covered, we perhaps risk making the offence less clear. We do not want to imply that there is ever any justification for threatening behaviour that is intended to stir up hatred, as there is not. The provision purports to be for the avoidance of doubt, but it probably creates doubt where there is none anyway. That is an argument for not accepting the amendment.

When the House discussed this offence during the passage of the Criminal Justice and Immigration Bill, there were legitimate concerns about the possibility of the offence being used in a disproportionate way against people who are merely expressing a dislike of, or distaste for, certain sexual practices. In particular, there was concern about people who are explaining religious doctrine that is against certain sexual activities. There were also concerns that the offence, without a freedom of expression proviso, could stifle comedy or artistic portrayals of homosexual characters. The Government have taken careful note of those concerns, which we know are particularly strongly felt by some noble Lords. We have listened carefully to noble Lords and fully share their concerns about free speech.

Let me be absolutely emphatic: 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.

Lord Tebbit (Conservative)

Are there any sections of the Koran that would fall foul of the law?

Lord Bach (Labour)

I am so sorry. I did not hear what the noble Lord said.

Lord Tebbit (Conservative)

Are there any sections of the Koran that, if read out in a public place, would cause an offence under the law?

Lord Bach (Labour)

Not for the first time I cannot answer the noble Lord's question. I am not talking about the Koran; I am talking about this legislation. I dare say that some people would be offended by the Koran being read out.

Lord Tebbit (Conservative)

With respect, I asked the noble Lord not whether it would be offensive to read it but whether reading it might constitute an offence under the law, particularly the law without the Waddington amendment.

Lord Thomas of Gresford (Liberal Democrat)

Is not the answer to this strange query that it could be if it was read out in a way that intended to threaten violence against the people to whom it was read?

Lord Bach (Labour)

The noble Lord has his answer.

I hope that I may continue with my remarks, because I think that noble Lords are probably keen to come to a view on this. Noble Lords who oppose the Government's view on this have made many speeches, but I do not think that it will harm the Committee to hear the arguments for a little longer.

The question before us is whether we need the freedom of speech provision. We have always maintained that we do not. I remind the Committee that the other place discussed the section last year and concluded that we did not need it. The other place voted against it twice, on the last occasion by a majority of 202. Eventually, due to pressure to complete the passage of the Criminal Justice and Immigration Bill, the other place agreed to the amendment which had been originally tabled in this House by the noble Lord, Lord Waddington. Since then, the other place has considered the issue again—in March of this year—and agreed by a pretty wide margin of 154 to support the clause. Of course, we do not have to follow what the elected House of Commons, which is supposed to represent the people of this country, does, but three votes in a comparatively short period, all by large majorities and all to the same effect, is something that the House takes notice of in certain areas and perhaps the Committee ought to, to some extent, here.

But the matter does not end with what the House of Commons has said very clearly on a number of occasions. The Joint Committee on Human Rights has repeated its view that the freedom of expression proviso is unnecessary. It agreed that the balance of the offence was right without any specific provision of this kind. We often take great note of what that Joint Committee says. It represents this House and the other House and contains distinguished Peers and Members of Parliament from all sides of both Houses. What it has to say on this is at least worthy of note.

The Equality and Human Rights Commission has reached the same conclusion. We are even more confident of our view given that we have that body's support. The noble Lord, Lord Lester of Herne Hill, has been a supporter of the concept of freedom throughout his career, whether in the courts, this House or elsewhere. If he is convinced that this amendment is not necessary for freedom of speech, I venture to think that the Committee should take note of that.

Lord Campbell of Alloway (Conservative)

Having been somewhat concerned with the origins of this religious hatred, perhaps I may say that the Committee is not concerned with what the noble Lord has said about the intentions of government or what the noble Lord, Lord Lester, thinks; we are concerned with the way in which these intentions have been operated by the police.

Lord Bach (Labour)

I understand that point and I shall come to it shortly.

Apart from the high threshold of the offence, procedural safeguards exist that ensure that the right balance is achieved. I absolutely take on board the point that the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Tebbit, made about this being related to where the police come in. However, the Attorney-General must consent to any prosecution. The Crown Prosecution Service will prosecute only where it is satisfied that a prosecution would be in the public interest. The Human Rights Act ensures that the police, the CPS and the courts must act in a way that is compatible with the convention rights. Therefore, we are satisfied that there are multiple safeguards against this offence being used inappropriately.

Lord Low of Dalston (Crossbench)

I wish to put a point to the noble Lord that I hope he finds helpful. One thing that has been made clear to us in the debate is that the Attorney-General's fiat comes much too late and is not a sufficient safeguard, as a lot of the damage to people who wish to practise the right of free speech is done long before the matter comes to the prosecuting authorities or the courts or anything of that kind. The point that has been made is that the guidance is not sufficiently helpful in emphasising to the police the imperatives of free speech and that more weight should be given to that in the guidance. Does the noble Lord agree that it could be helpful to this whole issue if the Government would revisit the guidance on these questions?

Lord Bach (Labour)

The Government have said that they intend to issue guidance on the new offence, so by its nature that guidance would be new. I am trying to answer the noble Lord's direct question.

Bishop of Winchester (Bishop)

Would it not be simpler to leave this clause in and to revise the guidance? Would that not be simpler, clearer and more direct?

Lord Bach (Labour)

I shall come on to the Waddington amendment and what its effect might be in a moment. I shall try to deal head on with the issue of the police.

Lord Kingsland (Conservative)

I am so sorry to interrupt, but I simply make the point that this is not an amendment by the noble Lord, Lord Waddington. It is about whether or not Clause 61 should stand part of the Bill. That is a not unimportant point when—if the noble Lord, Lord Waddington, so wishes—your Lordships vote.

Lord Bach (Labour)

I am most grateful to the noble Lord for telling me something that I already knew. I did not hear him comment when others described this as the Waddington amendment, but there we are. He is quite right: when it comes to the vote, it is a matter of the clause standing part. I thank him for telling the Committee that.

Let me deal with the police. Some of the concerns we heard last year and this year involved examples which were regarded, perhaps not surprisingly, as inappropriate and overzealous action. As I understand it, those examples concerned public order offences in Sections 4A and 5 of the 1986 Act, which relate to harassment, alarm or distress. The crucial point is that those offences have a substantially lower threshold than the offence we are discussing, cover a wider range of behaviour and carry a lesser maximum penalty.

There may indeed be a considerable case for giving the police more detailed guidance about those particular public order offences. But I have to say that I am not aware of similar concerns in respect of the offence of inciting religious hatred, which has a similarly high threshold.

The noble Lord, Lord Dear, talked about changes in the police approach. I am afraid that I have to say to him and to the Committee that any changes in the police approach over the past year, if indeed there has been a change at all, actually have nothing to do with what was formerly described as the Waddington amendment, for the simple reason that the offences of inciting hatred on grounds of sexual orientation are not yet in force—they are not yet in force at all—and there has been a supposition in this debate that somehow they have already been in force. They have not been. We are not aware that ACPO has expressed any view either way on Clause 61. My experience, and perhaps that of other noble Lords, is that ACPO is not slow in coming forward with its views on matters of this kind.

Lord Dear (Crossbench)

I—

Lord Tunnicliffe (Labour)

On a matter of order, I remind the Committee that frequent and lengthy interruptions are not appropriate and that it may be sensible for the Minister to get to the end of his speech. I also remind the Committee that we are in Committee, and anybody who has a need to answer points raised in the Minister's speech may speak as many times as they choose to.

Lord Dear (Crossbench)

I thank the Minister for giving way. I referred in my speech to the fact that ACPO had not given an official view—which is, I think, true. I am assured by those who are closely in contact with this issue that ACPO had not given an unofficial view—by which I was trying to say in code—within government as well. But ACPO has said in clear terms to me that it would prefer the Waddington amendment to stay, because it has made life easier. I make that point in shorthand, but I make it nevertheless.

Lord Bach (Labour)

The Waddington amendment and the Bill to which it was attached are not in force at present. They are not there. That is not the law of the land as it stands. I must move on.

In response to the noble Lord, Lord Low, the Government have said that we intend to issue guidance on the new offence. The Ministry of Justice intends to issue short explanatory guidance about the offence. The Crown Prosecution Service, in its turn, will issue guidance to prosecutors. We understand that the Association of Chief Police Officers is currently revising its hate crime manual, which will open operational advice about the offences of stirring up hatred. This will be in addition to current guidance, covering topics such as the Human Rights Act. The Government's case is that that, coupled with the high threshold of the offence, makes us believe that the safeguards are adequate—indeed, more than adequate—without the freedom of expression clause.

What I describe as a lawyer's point has been made about whether the Government are saying, on the one hand, that this is unnecessary, or on the other, that it will do harm. Life is not quite as simple as that. It is correct, of course, on a literal interpretation, that this section is unnecessary, because it states a proposition that any court would be able to deduce for itself. It does not, of course, in any way alter the range of behaviour or material which is caught by the offence. But it does not follow that it is thus, necessarily, harmless. Unnecessary material in legislation has a potential to go septic.

If he will forgive me, I should like to remind the Committee that my noble friend Lord Smith of Finsbury said on the Report stage of the 2008 Bill that the section brings a danger that those who do wish to incite hatred may seek to take refuge in this amendment to justify their behaviour. That was true then. It is as true today. That is the real point behind the Government's opposition to what the noble Lord, Lord Waddington, is suggesting. The section is unnecessary, of course, but there will be those outside—no one in this House or this Committee—who will take advantage and thus do their best to make the lives of those who this offence is supposed to protect more difficult.

It is for those reasons that the Government invite the Committee to say that Clause 61 should stand, and that noble Lords should vote Content.

Lord Waddington (Conservative)

I am quite sure that a long speech from me would not be welcomed for one moment. I thank all those who have taken part in what has been a very important exchange. I wish to make only two or three simple points. We are not talking about the terrible threat that is faced by many gays, because that threat can be dealt with—and often is dealt with—under the present law. Nobody is suggesting today that this free speech clause opens the gates to incitement to violence against gays. I am sorry, but I am inaccurate in that remark, because that seemed to be suggested by the noble Baroness, Lady Howarth of Breckland; but of course it is simply not the case. The Government themselves, in their notes on clauses, say that this free speech clause does not raise the threshold for the offence or make prosecutions more difficult.

I also remind your Lordships that those who declaim rap lyrics can be prosecuted now. They can be convicted and sent to prison for a very long time under the 2007 Act, which makes it a specific offence to encourage violence against people. Therefore, rap lyrics have nothing whatever to do with what we are discussing today.

The Minister said that we should not be too worried about all the cases of abuse that have been referred to in which the police have gone hopelessly over the top, because they were only trying to apply the old law, which had a lower threshold. I have to tell the noble Lord that he is wrong on that. I have read very carefully, as I am sure have many noble Lords, about the Roberts case in Fleetwood; they eventually obtained substantial compensation. Although this new law was not in force when they were interviewed by the police, they were told by the police that they were very close to the serious offence of homophobia, punishable by seven years' imprisonment. Therefore, there is not the slightest doubt that at that time the police thought that this law was already in force. I also remind the noble Lord that in my opening speech I referred to the case of the city councillor who made a joke at a police community liaison meeting. That took place after this new law reached the statute book, so I am afraid that the noble Lord is being hopelessly complacent.

There are real abuses that have to be dealt with. I thank the noble Lord, Lord Dear, in particular, for explaining the difficulties with which the police are faced and how they will be helped enormously if this free speech clause remains on the statute book. It will give them proper guidance, which has certainly not been provided in guidance from the CPS. How, in the light of the wording of the existing CPS guidance, the Minister can think that he is giving us comfort when he says that similar guidance will be produced in the near future, I really do not know.

I thank all noble Lords from the bottom of my heart for their contributions to the debate, and I invite them to join me in the Not-Content Lobby.

Committee (6th Day)(Continued)

Lord Lester of Herne Hill (Liberal Democrat)

In moving Amendment 178 I shall speak also to Amendment 179 with which it has been grouped. I declare an interest as honorary vice-president of English PEN, a council member of Justice which, together with the Index on Censorship, Article 19, Liberty and the National Union of Journalists, brought forward these amendments. I pay tribute to my colleague Dr Evan Harris, the MP for Oxford West and Abingdon, who introduced the amendments in the other place.

It is my understanding that the right honourable Jack Straw, the Lord Chancellor and Secretary of State for Justice, agrees that there is no basis for keeping the laws of seditious libel and criminal defamation on the statute book and that there would be a benefit in setting an example to oppressive regimes which use similar offences to silence dissent by repealing them. We hope that the Minister will support us.

I shall give a little background to this. The common law of seditious libel prohibits all writings and other utterances which tend to bring about hatred or contempt for the king, the Government or the constitution as by law established. Sedition consists of any act done or word spoken or written and published which has a seditious tendency, and done or spoken or written and published with a seditious intent.

In 1792, Thomas Paine was convicted for seditious libel on the ground that the Rights of Man brought into hatred and contempt the present sovereign, the king and the Parliament and this kingdom, and the constitution, laws and government thereof. In the Satanic Verses case, in which I appeared for Salman Rushdie's publishers, Viking Penguin, an attempt was made to persuade the Divisional Court to do to Salman Rushdie what was done to the publisher of Tom Paine's seditious writings. Happily, it failed.

Sedition was used in British India and elsewhere in the British Empire to suppress and punish political dissent. The most notorious examples were the trials of the Indian nationalist teacher, social reformer and independence fighter, Bal Gangadhar Tilak, convicted and imprisoned for 18 months in 1897 for publishing an article alleged to have been an attempt to bring the Government into hatred and contempt. Tilak was convicted and imprisoned again for sedition at a historic trial in 1908. His last words on the jury's verdict were:

"I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of providence that the cause which I represent may prosper more by my suffering than my remaining free".

Tilak spent six years in the Mandalay prison in Burma and, like Gandhi, shaped the future of India's independence movement.

In one of his great works, Make No Law, Anthony Lewis, the Pulitzer prize-winning journalist and historian of free speech, recalled the history of President John Adams's Sedition Act 1798 which echoed our common law. It made it an offence to,

"write, print, utter or publish ... any false and malicious writing or writings against the government of the United States, or either House of the Congress ... or the President ... with intent to defame ... or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of them, the hatred of the good people of the United States".

The Sedition Act aroused the opposition of Jefferson and Madison. The Virginia Resolutions protested that the Act,

"ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right".

It gave Madison's view that the American system was "altogether different" from the British system,

"because the people, not the government, possess the absolute sovereignty".

Earlier, Madison said in the House that,

"the censorial power is in the people over the Government, and not in the Government over the people".

In 1963, in the landmark case of the New York Times v Sullivan, the American Supreme Court, led by Justice Brennan, decided that the First Amendment protected free speech and had to be read as Madison read it, and held as unconstitutional an Act of Congress that had expired 163 years before, as well as rejecting it for use in libel law. In Justice Brennan's words:

"What a State may not constitutionally bring about by means of criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards ... may be markedly more inhibiting than the fear of prosecution under a criminal statute".

In this country, there have been few efforts in the past century to invoke sedition in our courts. Sedition was used to convict Aldred in 1909 for seditiously printing in the Indian Sociologist an article advocating Indian independence published by Indian students in Britain. It stated that political assassination was not murder and glorified an Indian student who had killed Sir Curzon Wylie as a martyr for Indian rule.

In 1947, the conviction failed to convict James Caunt, the publisher of the Morecambe and Heysham Visitor for writing and publishing a seditious libel concerning Jews. That failure led to the enactment of the first law against racial incitement, Section 6 of the Race Relations Act 1965, which was strengthened in 1968. More recently in the Salman Rushdie case, there was an attempt to punish him and the publishers of the novel Satanic Verses for sedition as well as blasphemy.

Given its uncertain bounds, it is not surprising, as Sir David Williams QC has observed, that the corollary of its decline has been the readiness of Parliament to intervene by statute to combat particular manifestations of what might have been covered by the common law offence.

The Public Order Act has been used repeatedly to add a series of hate-speech crimes, one of which we have just debated—incitement to racial and religious hatred, homophobic hate speech and so on. There are new terrorist offences as well, including that of glorifying terrorism. They amply cover the manifestations covered by this archaic offence.

More than 30 years ago, in 1977, our Law Commission expressed its view that the common law offence of sedition was ill defined and unnecessary. Then, in 2007, the New Zealand Law Commission, whose president was Sir Geoffrey Palmer, the former Prime Minister and distinguished jurist, published a report entitled Reforming the Law of Sedition. Sir Geoffrey explained in his letter to the Minister that the commission had concluded that the width of the offences meant that they were,

"an unjustifiable breach of the right of freedom of expression. Furthermore, the linguistic over-inclusiveness of sedition means the offences lack clarity. They have the potential for misuse. Indeed, they have been inappropriately used in New Zealand in times of political unrest and perceived threats to established authority. They have been used to fetter vehement and unpopular political speech. The time has come to remove the seditious offences from the New Zealand statute book. We recommend repeal".

His letter concluded,

"In a free and democratic society, defaming the government is the right of every citizen. In times beset with threats of terrorism we should not close the open society. To do so would only encourage its enemies. In New Zealand, free speech and public debate must be 'uninhibited, robust and wide open', and it may include 'vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials', as Justice Brennan of the United States Supreme Court once put it".

Sedition was abolished in New Zealand in 2007 by the Crimes (Repeal of Seditious Offences) Amendment Act, and criminal libel, which I will come to, was abolished in 1992 in the Defamation Act. The same is surely as true of our country as it is of New Zealand and the United States. This House has a fine record of protecting freedom of expression, notably by drawing the sting of the offence of incitement to religious hatred and in deciding to abolish the close relative of seditious libel, also developed in the Court of Star Chamber, the common law offence of blasphemous libel.

There is one further important reason for repealing these offences. Across Europe and the Commonwealth, similar offences exist and are used to suppress political criticism and dissent. If our Parliament takes this step, it will be an example elsewhere and might also encourage the European Court of Human Rights to adopt a robust position in reviewing such laws and their operation.

I turn to Amendment 179 on the related subject of criminal libel. I shall take this as briefly as possible. Criminal libel, like seditious libel, is an archaic and outdated offence that unduly restricts free speech. It is all set out in the textbook Gatley on Libel and Slander, and I shall deal with the bare bones of it. The publication of written defamatory words is a common law misdemeanour in England and Wales, punishable on indictment with a fine or imprisonment. The publication of a libel known to be false is a separate statutory offence under Section 4 of the Libel Act 1843, which Amendment 179 would also repeal. Oral defamation is not a crime except for reading aloud a written libel and, by the Theatres Act 1968, for the publication of defamatory words in the course of a play.

What, then, are the differences between the crime of libel and the tort of civil defamation? Broadly speaking, the publications that are the subject of civil and criminal libel are the same. There are some circumstances in which a communication can amount exclusively to criminal libel, and the opposite is also true. When the offence of criminal libel was developed by the Court of Star Chamber early in the 17th century, the rationale was the need to protect social order. Its object was to prevent public disorder through violent retaliation and duelling. More trivial matters were left to be dealt with as civil matters.

These days, however, it need not be shown that criminal libel is likely to disturb the peace or provoke a breach of the peace, so the original rationale no longer applies. I shall not trouble your Lordships with the differences in any detail, but, in the past six decades, the number of trials for criminal libel has fallen sharply. There were four prosecutions from 1948 to 1975. Between 1970 and 1983, there were five committals for trial; between 1984 and 1995, 13 people were found guilty or cautioned; between 1996 and 2001, five were found guilty or cautioned. Five libels were reported to the police from 2002 to 2007. Two were found guilty up to the end of 2006.

In 1985, the Law Commission published a report, concluding that criminal libel should be replaced by limited statutory offences. None of the Law Commission's proposals has been implemented. Since 1985, it has become clear that, because of the rare prosecution of the crime and the lack of any determination to modernise it, it would be better simply to abolish it. This proposal was endorsed by the Calcutt committee and the Supreme Court Procedure Committee's report on practice and procedure in defamation. Gatley notes that, even if there were to be a new offence on the lines originally proposed by the Law Commission, it would still, according to the Privy Council in the Hector case, amount to a,

"grave impediment to the freedom of the press if those who print, or a fortiori those who distribute matter reflecting critically on the subject of public authorities could only do so with impunity, if they could first verify the accuracy of all statements on which the criticism is based".

Other common law jurisdictions have undertaken the reform. Criminal libel is not an offence in Scotland, and it was abolished, as I have said, in New Zealand in 1992 after two controversial cases. The offence survives in Northern Ireland, although there is only one recorded case within living memory. In Canada, the Canadian Law Reform Commission has called for its abolition, and it has been criticised by the judiciary there following the guarantee of freedom of expression in the Canadian charter of rights. The common law version of criminal libel has been largely curtailed in the United States, where concerns have been expressed about the inherent vagueness and breadth of the crime and its compatibility with the First Amendment's demand for free speech. It has been generally accepted that there remains little constitutional vitality to criminal laws.

The New Zealand committee on defamation took account of five reasons for a criminal law of defamation being undesirable. They were: first, conduct ought not to be criminal unless it is the cause or potential cause of significant harm to society or the individual citizen; secondly, the criminal law should not be invoked for trivial problems; thirdly, the limited resources available for control of crime are better directed to serious crime against the person, his property or the maintaining of peace; fourthly, the criminal law has traditionally proscribed serious anti-social activity—except in so far as defamation could lead to a breach of the peace, it is not protecting society but the narrower, individual interest in reputation; and, fifthly, it inhibits freedom of speech and public criticism. That was the view of the New Zealand commission, which was then translated into practice by its Parliament.

One of the major problems with criminal defamation is the possibility of a harsh sanction: up to a year in prison or two years and an unlimited fine where it is proved that the defendant knew the matter published to be false. The threat of such penalties has a severe chilling effect on the right to free speech. The UN special rapporteur on freedom of opinion and expression, the OSCE representative on freedom of the media and the OAS special rapporteur for freedom of expression have all called on states to repeal all criminal defamation laws in favour of civil defamation laws. Similarly, the UN Human Rights Committee has repeatedly expressed concern about the use of custodial sanctions for defamation.

It is well established under human rights law that the guarantee of free speech requires states to use the least restrictive effective remedy to secure the legitimate aim sought. Our civil defamation laws provide adequate protection—some would say too adequate—for defamation.

The original justification for criminal defamation, the need to protect public order, no longer stands. There are other adequate criminal offences, such as the harassment provisions in the Public Order Act, which draw a fair balance between protecting individuals and the right to free speech. Like the international human rights experts, the editors of Gatley are unenthusiastic about any need to retain the outmoded common law offence of criminal libel. I respectfully suggest that we follow the example of New Zealand and elsewhere and set an example to the rest of the world by laying it, as well as seditious libel, to rest. I beg to move.

Baroness D'Souza (Crossbench)

I can add only a few stray details to the full and excellent history that has been given by the noble Lord, Lord Lester of Herne Hill. We know that seditious libel is an ancient crime, which I believe was last used in the UK in 1947. We also know from the noble Lord's history that it was extensively used in the past to silence radical protest. So one may ask why I strongly support this amendment in the names of the noble Lord, Lord Lester, and others. Is it not redundant and not a very good use of your Lordships' time? The reason is, to put it simply, that laws on the statute book exist as hostages to fortune; they can be dredged up and used to restrict entirely legitimate speech.

In the post-World War II years, the efforts have been to have the right to be free from invidious discrimination on the grounds of race, gender or religious belief. In this, the right to freedom of expression has been implicit. Seditious libel, helpfully defined as,

"speech intended to stir up tumult and disorder for the purpose of disturbing constitutional authority",

could well have been an alternative route to deny entry to the UK of Mr Geert Wilders in February this year. As it happened, his failure to enter the UK was cited as due to a significant risk that his,

"presence in the UK would threaten community harmony and therefore public security".

I regret to say that it is by no means inconceivable that the seditious libel law could easily be resuscitated in the present climate of wide-ranging anti-terrorism legislation. Once again, we can look to US courts' rulings on seditious libel and find that as recently as 1989 and 1990 the Supreme Court held that the first amendment protects the right to defile the United States flag to express political protest. It was, as one may imagine, a deeply unpopular ruling, but to my mind a welcome one. The power to express forcefully political discontent is the cornerstone of democracy and lies with the people. Conversely, it is not therefore in the power of government to criminalise this expression. The fundamental rights of UK individuals would be better protected by removing the offence of seditious libel from the statute book.

Lord Kingsland (Conservative)

I find myself in agreeable consonance with the noble Lord, Lord Lester of Herne Hill, and the noble Baroness, Lady D'Souza. I have been influenced in reaching this view by reading the Law Commission's reports on both these matters: the offences of seditious libel and criminal libel.

It is worth reminding the Committee that the offence of seditious libel is a common law offence and, in so far as it is capable of specific definition, it is said by the Law Commission to be the,

"oral or written publication of words with a seditious intention",

and,

"an agreement to further a seditious intention by doing any act".

The Law Commission goes on to quote Sir John Stephen, at Article 114 of Stephen's Digest of the Criminal Law. He seeks to address the definition of a seditious intention and deals with it in the following way:

"A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of His Majesty, his heirs or successors, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty's subjects to attempt otherwise than by lawful means the alteration of any matter in church or state by law established, or to incite any person to commit any crime of disturbance of the peace, or to raise discontent or disaffection amongst His Majesty's subjects, or to promote feelings of ill will and hostility between different classes of such subjects".

On the face of it, therefore, the offence is pretty broad.

However, as the Law Commission goes on to remind us, it has to be proved that in committing this offence there was an intention to cause violence. In defining an intention to cause violence, the Law Commission relies particularly on a Canadian case called Boucher, which concerned a pamphlet issued by a group of Jehovah's Witnesses attacking the police, public officials and the Roman Catholic clergy on the grounds that they persecuted members of the sect and alleging that the clergy unjustifiably influenced the courts and the administration of justice against them. The court in that case held that,

"the seditious intention upon which a prosecution for the seditious libel must be founded is an intention to incite violence or to create public disturbance or disorder against His Majesty or the institutions of Government. Proof of an intention to promote feelings of ill-will and hostility between different classes of subjects does not alone establish a seditious intention. Not only must there be proof of incitement to violence in this connection, but it must be violence or defiance for the purpose of disturbing constituted authority".

As the Law Commission went on to say in its report and as the noble Lord, Lord Lester, has underlined, the definition of the intention to cause violence is amply covered by a range of offences already on our statute book with respect to incitement or conspiracy to cause violence in the context of the law against inflicting injury on a person or property—or indeed, the law relating to public order disturbances. In other words, there is nothing in the definition of seditious libel that is not covered by other law.

When it came to removing the offence of blasphemy from our statute book last year, I voted against doing so because I believed that the Christian culture that was encapsulated in the offence of blasphemy had an important historical resonance for our constitution. I feel no such emotion in respect of the offence of seditious libel. Therefore, I am most happy to support the promoters of the amendment. I have nothing to add to what the noble Lord, Lord Lester, or the noble Baroness, Lady D'Souza, said about the offence of criminal libel, but I am equally happy to see it struck from our criminal law.

Lord Thomas of Gresford (Liberal Democrat)

We on these Benches support the amendment in the name of my noble friend. It is interesting that, having gone through the lengthy debate on the last amendment, we should be here promoting freedom of speech as the touchstone of democracy, which undoubtedly it is. The ability of individuals to criticise the state is crucial to maintaining freedom. In this day and age, when we have so many journalists, bloggers and so forth who give us their views all the time, we should get rid of anything that may in any way curb their criticisms of the state. We need a vigorous culture of free speech in order to keep government up to the mark.

It is not just the use of these laws but the threat that they might be used that has a chilling effect. Even Peter Hain, in his Young Liberal days in 1974, when he was a bit of a protester—as those who are following the Test in Cardiff at the moment may remember—was threatened with imprisonment for criminal libel. It has been used in this country to intimidate writers and campaigners without any prosecution ever having taken place.

Of course, the laws of seditious and criminal libel are very active in other countries. Some of them look at us and say, "You have them, so why shouldn't we have them? It is up to us whether we should use them". Turkey, which is applying to become a member of the European Union, presents our laws as a reason for retaining its notorious Article 301, which forbids denigrating Turkishness. The murdered journalist Hrant Dink and the Nobel Prize winner Orhan Pamuk were prosecuted under that provision.

Elsewhere, Iran, has a poor record. Uzbekistan has prosecuted many—one in particular in 2006. Saidjahon Zaynobiddinov—I am sure that your Lordships will forgive my Uzbek accent—was prosecuted and sentenced to seven years' imprisonment for defamation and anti-government activities. What had he done? He had provided the international media with eyewitness accounts of the Andijan massacre in 2005. We can see how, in the absence of a free press and the freedom to criticise, liberties can be curtailed.

If Britain is seen as a beacon of parliamentary democracy, even after the Governments that we have had in recent years, the laws created here have a profound influence. It is time that these antique and out-of-date laws were repealed.

Lord Bach (Labour)

I can be brief. As the noble Lord, Lord Lester, explained, the amendments would abolish the common law offences of sedition and defamatory forms of criminal libel. The Committee will be grateful to him for his explanation of his amendments. We have listened carefully to this short debate. From what we have heard, there seems to be a broad consensus that these are arcane offences that no longer have a place in our legal system. They stem from a bygone age when freedom of expression was not seen as the right that it is today. We agree.

As the noble Lord, Lord Lester, said, any behaviour that should remain criminal is amply covered by other, more modern offences. The noble Lord, Lord Kingsland, made the same point. Taking the initiative to abolish those offences would be a positive step in helping this country, the United Kingdom, to take a lead in challenging similar laws in other countries, where they are used to suppress free speech. The noble Lord, Lord Thomas of Gresford, referred to that.

The Government are content to accept the amendments in principle. If the noble Lord, Lord Lester, is kind enough to withdraw them today, I can undertake to propose similar amendments in time for Report. Those amendments would, among other things, extend abolition of the offences to Northern Ireland and pick up some consequential amendments and repeals to various linked statutory provisions. We also intend to take the opportunity to abolish the obsolete offence of obscene libel. I hope that noble Lords will see this in some small way, especially after our earlier debate, as proof—if proof were needed—that the Government are in favour of freedom of speech.

Lord Lester of Herne Hill (Liberal Democrat)

First, let me say how grateful I am to everyone who has spoken. Secondly, this is something of a family reunion, after the quarrel that we had just before on another free speech issue. We have now come together from all sides of the family in this House.

Thirdly, I cannot resist saying that there is something hilariously ironic about this debate, compared with what is happening across the Irish Sea at the moment. In the De Valera written constitution of 1937, there is an unfortunate passage that states something about the need for seditious libel and blasphemous libel to be preserved. The Supreme Court of Ireland held that, because it protected only the Anglican faith and was too vague, there was no crime of blasphemy in Ireland. The Attorney-General of the Irish Republic has now apparently advised the Irish Government that, in order to comply with the written constitution, he must invent a new crime of blasphemous libel, including sedition; otherwise, he will have to have a referendum to amend the constitution. The Minister has said that, although the new crime will be unenforceable, he has to introduce it because of the constitution. As we on this side of the Irish Sea are clearing away the relics of the Star Chamber, by that curious route across the Irish Sea the Star Chamber is coming back into force for the moment. Therefore, what we do today and what will be done hereafter will be read with great interest by those who care for free speech, not only across the rest of the world but also in our close ally, the Irish Republic.

I am very grateful to the Government as well as to the Opposition for the way in which they have considered this. It is very good that we are giving effect to two Law Commission reports at long last. Of course, the way in which we do it is a matter that the Government and their advisers will deal with at the next stage. I therefore beg leave to withdraw the amendment.

Amendment 178 withdrawn.

Amendments 179 to 181 not moved.

Amendment 182

Moved by Baroness Young of Hornsey

182: After Clause 61, insert the following new Clause—

"CHAPTER 4Servitude and forced or compulsory labour

Servitude

(1) A person commits an offence if he or she holds another person in servitude.

(2) For the purposes of this section, a person (A) holds another person (B) in servitude if A severely restricts B's freedom of movement and choice of residence and subjects B to forced or compulsory labour.

(3) In this section, subjecting a person to forced or compulsory labour has the same meaning as in section (Forced or compulsory labour).

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years."

Baroness Young of Hornsey (Crossbench)

I shall speak also to Amendment 183. We tend to think that we have seen the back of such things, but contemporary forms of forced servitude and forced labour—what some identify as modern-day slavery—continue throughout the world, including, sadly, in the UK. However, no one specific criminal offence deals with this issue. Although many of us are loath to introduce yet another new offence, it is important to recognise why these amendments are being proposed.

The necessity for these amendments arises largely from what is specifically a late 20th/early 21st century phenomenon; namely, the consequences of globalisation and the movement of peoples around the world. This modern form of oppression often involves young migrant women who are forced to work to pay off debts, whose passports are taken from them and who are physically and emotionally abused by their employer. Anti-Slavery International estimates that aside from the 5,000 people trafficked at any given time, hundreds of people in the UK today are being held in servitude or subjected to false or compulsory labour. The evidence contains recorded cases of domestic servitude as well as ad hoc cases from other industries. A study has been launched to try to discover the real figures.

Many of these people face physical and psychological abuse, including sexual abuse, are given no holidays and have their freedom of movement severely restricted. As I have said, none of us wants to create unnecessary legislation, but there is a real gap here. One might think that anti-trafficking criminal laws would apply. But while trafficking has been criminalised, that covers only the entry of people into the UK or subsequent travel in the UK. It does not apply where a person is subjected to forced labour conditions within the UK without having been trafficked.

Some common law offences may apply, such as false imprisonment. But that is particularly difficult to prove as the test for false imprisonment is so high. In fact, it is usually linked to kidnapping, which is rather different from the situation we are describing here. In many of these cases, the victim is not always physically prevented from leaving the workplace, but they are effectively prevented from doing so because of a myriad of reasons. For example, their passport may have be taken from them; they will be made homeless in a strange country if they leave and they may not know the language very well; they know that their family will suffer financial consequences if they leave; and they fear repercussions from their employer, the police or the immigration authorities and so on. In such circumstances, the common law offence of false imprisonment will not be effective.

The Human Rights Act 1998, in incorporating the European Convention on Human Rights, provides that no one is to be held in slavery or servitude and no one must be subjected to forced or compulsory labour. But the Act extends only to public authorities. In 2005, the European Court of Human Rights held that France was in breach of the European convention for not having criminalised servitude and forced labour, even though it had some other criminal offences which criminalised aspects of forced labour.

Liberty and Anti-Slavery International, which have very helpfully jointly provided information and briefings on this matter, have pointed out that the situation in the UK is almost identical to that in France, making it clear that the UK is highly likely to be in breach of the European convention. I quote from the independent legal advice given by Sir Ken Macdonald, a former Director of Public Prosecutions and Helen Mountfield of Matrix Chambers:

"In our view the existing criminal law offences pertaining to trafficking, the slave trade, false imprisonment and kidnapping are not apt to cover all offences of servitude. In order for the United Kingdom to comply with its obligations under Article 4 ECHR and the ILO, clear, dissuasive and directly applicable statutory criminal offences of forced labour and servitude are needed which penalise and permit effective prosecution of those who subject others to abuse and oppression. Without them, the United Kingdom is vulnerable to successful challenges in the European Court of Human Rights. We are aware of two such challenges in the pipeline".

Of course, aside from our legal obligations there is also a clear moral obligation to try to protect victims of such horrendous crimes. Liberty and Anti-Slavery International cite the case of Zari, who came to the UK as a domestic worker from east Africa with her employer. When her employer died, she was taken on by the employer's cousin. The cousin asked for her passport to renew her visa, but it was never returned to her. Zari had to work seven days a week with no time off or breaks. She was ostensibly paid £100 per week, but after deductions for food and board—which comprised a mattress on the kitchen floor—she had barely £40 left. She was not allowed out of the house unaccompanied; she was insulted, beaten and sexually abused by the employer's husband. She managed to run away and tried to complain to the police, but they did not pursue an investigation. Getting the police to prosecute those who forcibly hold people in this way seems to be extremely difficult—a situation which is not helped by the lack of a clear offence criminalising this specific conduct.

We had a very helpful meeting with the Minister last week. He and his team argued that existing laws cover the kind of maltreatment of which there is evidence. The problem is that in order to bring a successful prosecution for some of these offences, it is necessary to put together a package of charges, which the police are not always in a position to do because of the lack of a clear legal steer regarding the exact offences committed. Again, I refer to the legal briefing with which we were provided:

"In our view, there is no offence known to English law of subjecting another to servitude or forced labour which:

a. clearly criminalises imposition of forced labour or servitude, in all the circumstances in which Article 4 requires signatory states to provide a remedy; or

b. is sufficiently clear and robust to have dissuasive effect".

This is why we feel it is essential that Parliament now makes it a criminal offence to hold another person in servitude or subject them to forced or compulsory labour, which the proposed amendments seek to do.

The first amendment would make it a criminal offence—punishable by up to 14 years' imprisonment, which is the same penalty as exists for trafficking—to hold someone in servitude. This requires that a person subjects another to forced labour and severely restricts their movements and where they can live. The second offence to be criminalised makes it an offence for a person to subject another to forced or compulsory labour where they know, or should know, that the person is not consenting voluntarily to performing the work, and the victim has been threatened with harm if she or he does not perform the work. What constitutes harm will be left to the courts to decide on a case-by-case basis, but a list of indicators, based on those set out by the ILO, has been set out in the amendments. This will serve as a guide to the courts.

We believe that there is an urgent need to create these offences to ensure that victims of these abhorrent practices are clearly and explicitly protected by law. In conclusion, I quote again from the independent briefing from Sir Ken Macdonald and Helen Mountfield:

"we do not consider that the existing provisions of the English criminal law provide effective protection and penalties for servitude and forced labour. The introduction of such offences is necessary, both to protect the victims of serious abusive crime, and in order to avoid findings by the ECtHR against the United Kingdom of violations of Article 4".

I beg to move.

Baroness Butler-Sloss (Crossbench)

My name is on the first of the two amendments in this group. I failed to attach it to the second through an oversight, but I support that amendment equally.

I congratulate the Government on the very welcome legislation that they have introduced on trafficking. As I have said previously in the House, I am a vice-chair of the All-Party Parliamentary Group on Trafficking. The Government are much to be congratulated on the work they have done in that regard. However, there is a gap. Article 4 of the ECHR is not replicated in English law, which represents a serious gap. The problem is relatively small but it is real. Some people come into this country entirely lawfully and cannot be said to be trafficked. They are not being trafficked within the United Kingdom but they are being detained, sometimes against their will. As the noble Baroness, Lady Young, has just said, they are kept in situations where they are unable to leave. As she also said, there are various reasons why they cannot leave, one of which is debt bondage. Their families may have paid for them to come to this country and they are paying off the debt but working all hours, seven days a week with no time off and no opportunity to leave. It seems to me a stain on our legal system that we are in a similar position to France, which has been rightly castigated by the European Court of Human Rights at Strasbourg.

I have a copy of the opinion to which the noble Baroness, Lady Young, referred. I apologise for not having been able to attend the obviously very useful meeting with the Minister. The opinion of the former Director of Public Prosecutions is powerful. It says that the existing law does not cover the problems to which the noble Baroness and I refer. I take that opinion very seriously. With my eye set on trafficking, I have to confess that I had not looked at this problem until I received all the information. I have investigated it as far as I can and it seems to me that Sir Ken Macdonald's opinion covers all these points and that there is a gap. It is this country's duty to fill that gap. For that reason I support both these amendments.

Lord Lester of Herne Hill (Liberal Democrat)

Since, unlike the noble Baroness, Lady Young, the noble and learned Baroness, Lady Butler-Sloss, is a very distinguished jurist, I wish to ask her a question about this. She and I worked together on forced marriage and dealt with it by using civil protection rather than a criminal sanction. I fully understand why we need a criminal sanction and agree with it but does she think that there also needs to be—not in this Bill as it is outside its scope—civil protection for victims, or potential victims, of forced labour rather like that for forced marriage?

Baroness Butler-Sloss (Crossbench)

I have not considered that. The noble Lord raises a very interesting point. However, a woman who is held in servitude or in some form of forced labour might face greater difficulties as regards knowing anyone who could help her. As regards forced marriages, usually there are other people around; for example people the girl has been at school with or people she may know because she usually, though not always, has contacts outside the family. However, I should have thought that most of the girls we are discussing are likely to be foreign, speak little English and have no access to their passports. They would be unable to find someone they could ask to help them to access civil proceedings. This situation seems to me very analogous to trafficking. It is accurately called a modern form of slavery. It ought to be seen as such and, unlike forced marriage, where there are good social reasons for not making that a criminal offence, this ought to be nailed as a criminal offence in the same way that trafficking is.

Lord Alton of Liverpool (Crossbench)

I very much support the amendment standing in the name of my noble friend Lady Young of Hornsey. I have signed the amendment and was able to accompany her to our extremely helpful meeting with the noble Lord, Lord Bach, who went out of his way—as did his officials—to try to meet the very reasonable points that my noble friend has made today, which have been endorsed by the noble and learned Baroness, Lady Butler-Sloss.

The two organisations referred to by my noble friend—Anti-Slavery International and Liberty, whose policy officer Anita Coles joined us at our meeting with the Minister—provided excellent briefing material. As the Minister himself pointed out during our meeting, organisations such as Liberty do not usually campaign for additions to be made to the law; they spend a lot of their time campaigning about things that the law does that they do not approve of. Indeed, the noble and learned Baroness, Lady Butler-Sloss, regularly says to us that we overlegislate. On an occasion such as this, the Committee should, therefore, listen very carefully when she says that there is a gap in the criminal law, and it is the criminal law that needs to be used.

In answer to the intervention that was properly made by the noble Lord, Lord Lester of Herne Hill, it is precisely because the police have been unable to intervene in the kind of cases that my noble friend referred to that there is a gap which is required to be filled for the police to be properly empowered to take the action that is needed.

The purpose of my noble friend's amendment is to target with new offences those involved in enticing or keeping migrants in forced labour or in servitude. No doubt many people will greet with incredulity the claim that servitude can be imposed in the United Kingdom without prosecution. However, the claims are as true as the impunity gaps in our law.

Although international jurisprudence outlaws slavery and forced labour, it is estimated that worldwide some 12.3 million people are in forced labour. Most notoriously, in countries like Burma and North Korea, vast numbers of people are used as industrial conscripts. However, even in industrial countries and democracies such as our own, many people—often migrants—are forced into economic servitude, often wholly unremunerated or paid paltry wages. It is thought that in industrialised nations some 360,000 people work in such exploitative conditions.

Although trafficking and outright slavery are outwith the law, there is no clear stand-alone statutory offence under United Kingdom law of holding a person in servitude or subjecting a person to forced or compulsory labour. By failing to place such an offence into statute, we are in breach of our obligations under international treaties to which we are a signatory—especially our obligations under the European Convention on Human Rights. Although legal redress may be possible via the common law, that is a route which the police will rarely use and, in any event, the offence of false imprisonment does not accurately reflect the nature of economic servitude—which is why my noble friend Lady Young is trying to amend this Bill.

Although this matter is not on a par with the transatlantic slave trade, Anti-Slavery International and Liberty point out that the Slavery Abolition Act 1833 officially abolished the slave trade throughout the British Empire, and trading in slaves remains an offence under the provisions of the Slave Trade Acts of 1824, 1843 and 1873. The only other statutory offence which specifically criminalises an aspect of modern-day slavery is contained in Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. The section, as my noble and learned friend said, creates an offence of "Trafficking people for exploitation" and provides that a person commits an offence if he or she,

"arranges or facilitates the arrival in the United Kingdom of an individual",

or subsequent travel within the UK of an individual, and intends to exploit the individual or believes that another person is likely to do so.

Exploitation is defined as including behaviour which contravenes Article 4 of the European Convention on Human Rights, as well as subjecting someone to force, or using threats or deception designed to induce him or her to provide or acquire services or benefits of any kind. However, while persons who subject others to slavery or forced labour are likely to be in breach of a number of different criminal offences—a point made to us by the Minister—and perhaps of licensing or employment laws, there is no free-standing statutory offence of subjecting a person to forced or compulsory labour, despite recent court rulings requiring criminalisation.

In 2005, the European Court of Human Rights ruled that the case of a Togolese girl forced to work as an unpaid servant in France—a case to which my noble friend referred—required France and other member states to criminalise such acts. France was said to be in breach of Article 4 as it had failed to provide specific and effective protection to the victim. UK criminal law is vulnerable to the same criticism. That point was made in counsel's opinion and was referred to by my two noble friends.

Liberty also recently highlighted the case of a woman whose passport had been confiscated by her employer. She became a virtual prisoner and was physically abused. It required the instigation of a judicial review before the police accepted that there was a breach of Article 4 and that charges should be brought against her employer.

Anti-Slavery International says that it knows of United Kingdom cases where persons were subject to forced labour, many of them in domestic servitude, including children. The Parliamentary Assembly of the Council of Europe gives further weight to these claims, making the point that this is not therefore an isolated example but that such servitude is systematic and taking place all over Europe in many developed nations. That is why there is no sense of criticism that the Government have failed to act; this is something quite new on our radar screens which now requires us to take this issue seriously. The Council of Europe said:

"In the last few years a new form of slavery has appeared in Europe, namely domestic slavery".

It set out the common features of domestic slavery as including the confiscation of passports, blackmail concerning immigration status, and virtual imprisonment. One particularly shocking case, to which my noble friend referred, involved Zari, a woman from east Africa who came to the United Kingdom as a domestic worker. I shall not repeat the details of the case but the most significant thing is that, after running away, she went to the police but, again, they failed to carry out an investigation. Zari is one of many in the UK.

I was particularly struck by some questions asked by a London charity which I drew to the Minister's attention during our meeting. It questioned men and women caught up in domestic servitude and discovered that 26 per cent had been physically abused, 72 per cent had suffered psychological abuse, 70 per cent had no time off and 62 per cent were not permitted to leave the house. The agencies campaigning on these issues say they also have evidence of servitude in other sectors, including agriculture, factory work, food processing, cleaning and hospitality.

The evidence clearly points to a glaring hole in our law and to the need to create a statutory offence criminalising the holding of a person in servitude and subjecting a person to forced or compulsory labour. Closing this hole would also remove the immunity from punishment that too many currently believe they enjoy. The Minister has told us that existing law provides adequate opportunity for the police to act.

This is an issue on which we now have counsel's opinion. A copy was sent to the Minister yesterday, so it will not have taken him by surprise. I have also placed a copy in the Library. It was delivered by Sir Ken Macdonald QC, the former Director of Public Prosecutions, and Helen Mountfield, both of Matrix Chambers. Perhaps I may place their opinion on the record. At paragraph 3, they say:

"In our view, the existing criminal law offences pertaining to trafficking, the slave trade, false imprisonment and kidnapping are not apt to cover all offences of servitude. In order for the United Kingdom to comply with its obligations under Article 4 ECHR and the ILO, ... dissuasive and directly applicable statutory criminal offences of forced labour and servitude are needed which penalise and permit effective prosecution of those who subject others to abuse and oppression. Without them, the United Kingdom is vulnerable to successful challenges in the European Court of Human Rights. We are aware of two such challenges in the pipeline".

The opinion goes on to look at a number of detailed questions. For example, paragraph 18 of the judgment says:

"These technical problems make it particularly difficult to prosecute all perpetrators of servitude or forced labour, in circumstances where long sub-contracting chains and informal economic sectors are structural factors which play a 'major role in the exploitative employment relationship'. They also make the offence almost impossible to prove".

On pages 3 and 4 of the opinion the question is asked:

"Does English law contain criminal offences which penalise enforced labour or servitude? ... In our view, there is no offence known to English law of subjecting another to servitude or forced labour which: a. clearly criminalises imposition of forced labour or servitude, in all the circumstances in which Article 4 requires signatory states to provide a remedy; or b. is sufficiently clear and robust to have dissuasive effect".

Without wearying the Committee—I am conscious of the time—let me end by quoting the conclusion from counsel's opinion:

"We do not imagine that any politician, of any party, would consider it unnecessary to have in place penal legislation which complies with the United Kingdom's obligations under Article 4 ECHR, and which provides redress to victims, and penalties for perpetrators of so grave a crime of abuse and oppression. The issue is only whether it is necessary for such an offence to be specifically created, or whether existing provisions of the criminal law already cover all circumstances of servitude and forced labour.

For the reasons set out above, we do not consider that the existing provisions of the English criminal law provide effective protection and penalties for servitude and forced labour. The introduction of such offences is necessary, both to protect the victims of serious abusive crime, and in order to avoid findings by the ECtHR against the United Kingdom of violations of Article 4 ECHR".

My noble friend's admirable amendment seeks to plug that gap. I hope that the Minister will feel able to respond positively to the persuasive arguments which he has already heard and which no doubt other noble Lords will wish to add to.

Lord Thomas of Gresford (Liberal Democrat)

Listening to the debate, I was taken back over 20 years to Hong Kong, where I was involved with problems arising with the Philippine amahs, or maids, who were and still are numerous in that territory, which was then a colony. The Hong Kong Government introduced regulations which made it impossible for Philippine amahs to move from one job to another within Hong Kong; they had to go back to the Philippines. That put a weapon in the hands of employers, which was exploited.

We brought the cases of six of them, who were abused in the same sort of ways that we have heard quoted by previous speakers, to the Privy Council and, although we were not able to set aside the regulations which had been introduced, simply bringing the matters forward, bringing them to court and into the light of day caused a significant amelioration of the conditions under which Philippine maids were employed. Of course, they had a number of advantages. First, most if not all of them spoke English; secondly, they were so numerous—anyone who has been in Hong Kong on a Sunday will no doubt confirm that—that there was a great deal of support all round; and, thirdly, they had a trade union. Therefore, it was possible for them to take these steps.

I contrast that with the problems that have been outlined today. As has been said, it is a fairly new phenomenon for underpaid, exploited people in conditions of virtual servitude to be brought to this country, but it is happening. It is happening to people who do not have a large community of fellow nationals to whom they can turn. Many of them do not speak English; they are certainly not unionised; and it is difficult to imagine that they would have ready access to the necessary legal remedies that might be open to them. It is distressing to learn that, if these people go to the police, they are turned away as there are no specific offences which cover their situation.

False imprisonment is such a rare criminal offence that not many police forces are going to get involved in that sort of investigation, even if they can understand precisely what the claims are about. Therefore, I wholly support these amendments and the organisations behind them—Anti-Slavery International and Liberty—and I commend the noble Baroness, Lady Young, for outlining these problems so fully. I assure her that we on these Benches will give full support to these amendments.

Lord Lester of Herne Hill (Liberal Democrat)

Perhaps I may make it quite clear, since I might be misunderstood, that when I asked the question I did of the noble and learned Baroness, Lady Butler-Sloss, it was not because I was in any way not enthusiastic about creating these new offences—I am. However, I also think that it will be necessary to use the civil law in aid of the criminal law. Although I entirely understand the problem that if people are in slavery, they will not be in a position themselves to invoke the civil law protection, there are already statutes such as the one on protection against harassment, the common law on false imprisonment and so on. We have found with female genital mutilation that we created the crime but there has not been a single prosecution, for reasons that are fairly obvious. I hope that we will create new offences here. However, in order that we can translate those into something that gives effective protection, it cannot just be left to the police service to do the enforcement. We will need to do something; not the same as with forced marriage—of course not, it is a different problem. But there will be a need to think about employing civil protection and not just relying on criminal sanctions, with the criminal burden of proof and all the difficulty about doing so. I am enthusiastic about the amendment tabled by the noble Baroness, Lady Young, but I think that we may have to go further if we are to make it more than simply another crime on the statue book.

Lord Mackay of Clashfern (Conservative)

I, too, support these amendments. They are sufficiently clearly stated for it to be likely that where anything of the kind is brought to the attention of the police, the police will take action. It is also true that if these are made statutory offences, there will be a power in the court to give statutory compensation under the criminal law. That might be an effective remedy because I can see that these people might not wish to involve themselves in civil litigation, but if they can be compensated immediately on the offence being established to a sufficient extent, that might meet the case. I add my congratulations to the noble Baronesses. This is extremely important, and fortunately it is relatively easy to give effect to what they propose.

Earl of Sandwich (Crossbench)

I add my two minutes' worth of support for my noble friend's amendment as a former council member of Anti-Slavery International and having seen the legal opinion of Matrix Chambers. I thank my noble friend Lord Alton—who, coming from Liverpool, always sets the debate in a historical context—for setting out the case so clearly and powerfully. That saves me from having to speak for very long.

We are discussing the domestic migrant worker whose passport is taken, who is certainly under financial pressure, who is kept for long hours indoors and who may be subjected to considerable violence. We know from the expert voluntary organisations that there is substantial evidence that these practices are still going on in the UK, and may even be condoned by the vagueness of our present law. It seems astonishing that, according to the opinion we have had, the present law is insufficiently robust to protect the victims of the crime. The widespread public condemnation of trafficking following the mass arrest of young women and children from eastern Europe and the terrible Morecambe Bay disaster led to a spate of legislation in which many of us played a part, and the Government have responded. Some of the cases that we hear of forced labour and debt-bonded labour in this country remind me of conditions in north-east Brazil and come very close to modern slavery.

We have to thank the Parliamentary Assembly of the Council of Europe for making two recommendations on domestic slavery that have already been mentioned. In a case that was brought to the European Court, France was held to be in breach of Article 4 in failing to provide specific protection to a young Togolese girl. This leaves the UK very exposed. It seems clear that, in the terms of the ECHR and the rulings of the European Court, there is no specific legislation here to look after these people.

I draw only one example from the opinion of Matrix Chambers, which my noble friend has mentioned. Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 makes trafficking unlawful, but the Act merely establishes the facts; it does not enable the prosecution to prove the elements of the offence to be beyond reasonable doubt. I hope the Minister will address this point, because the complexities of trafficking make the offence almost impossible to prove. I know that the Minister, with his experience, has had time to study this opinion, and I recognise that the Bill may not be the best vehicle for these amendments, but will the Government at least accept that there is a weakness in the present law that will have to be addressed if these criminals are to be caught?

Lord Kingsland (Conservative)

The noble Baroness is confident that she has identified loopholes in the law that allow people to be exploited in ways that amount to slavery or forced labour, and she has spoken movingly and eloquently about the consequences. The campaign group Liberty has produced a brief in support of her contentions and has obtained an opinion from Matrix Chambers, as we have learnt, which indicates that the current laws are deficient.

At this stage, our position is to support the principle behind the noble Baroness's amendments and to examine in detail the Government's response. The Minister and his team in the department will undoubtedly have brought their considerable bank of expertise to bear on this matter, and we will listen to what the Minister says with great interest.

We prefer, where possible, to make proper use of existing laws rather than push for the creation of new ones. However, if it becomes clear that there needs to be new legislation to protect those who are currently failed by the law, we would support such a measure or measures. For that reason, I urge the noble Baroness, Lady Young, and her supporters not to push for a Division at this stage but to allow us to reflect, having heard the Minister, and return to this matter on Report.

Lord Bach (Labour)

The Committee is very grateful to the noble Baroness, Lady Young of Hornsey, and her supporters for raising this issue in this way in Committee. It has been a very interesting debate and some very interesting points have been made, leaving the Government with much to think about. It would be asking a little too much of the Government to say today that we are persuaded, because the truth is that we are not yet. However, the body of supporters from around the Committee, not least the noble and learned Lord, Lord Mackay of Clashfern, is impressive by any standards. The issues that have been raised are very serious, as the noble Lord, Lord Kingsland, was just saying. Knowing what to do about them may be a little more difficult.

Of course we all agree that servitude and forced labour have no place in our society. It has been more than 200 years since the abolition of the slave trade and more than 170 years since the abolition of slavery in the British Empire. But, sadly, that does not mean that the world is free of slavery in all its ghastly modern manifestations. The inhumane treatment of certain individuals occurs and it is right that we should take this matter seriously. These amendments are not limited to any specific group, but one of the main causes for concern is in respect of migrant workers who may be particularly vulnerable to exploitation. As populations become more mobile, the prevalence of these offences may well increase, which is a matter of concern.

However, we are not convinced that the suggested new offences are necessary. We have extensive laws that we believe already provide everyone with practical protections and which cover all the behaviour that these amendments seek to make criminal. Trafficking people for exploitation is already a serious criminal offence under Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and here I should say that I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for what she said about the Government's actions in this field. Exploitation for the purposes of the Section 4 offence explicitly includes behaviour that contravenes Article 4. Similarly, trafficking for sexual exploitation under the Sexual Offences Act 2003 is a serious criminal offence. Anyone found to be exploiting a person who has been trafficked may also be complicit in that trafficking offence. Moreover, we should not forget the common law offence of false imprisonment for those offenders who prevent a victim's freedom of movement.

Some individuals may face sexual or other violence, or threats of violence, but there are already comprehensive measures under the current law for dealing with such threats and violence in a wide range of circumstances. Not least, an employer who causes a migrant worker to suffer psychological harm could be open to an assault charge in the same way as he could be for physical violence. The maximum sentence depends on the nature of the violence or threats, but it can be severe if the level of violence is severe. Of course, it follows that if an employer confiscates a passport or uses deception, he or she may well have committed theft or fraud. There are also sentencing guidelines which lay down clearly that the court must take into account aggravating factors. Such factors include the vulnerability of the victim and the fact that the offender is in a position of trust. If the offender is operating in a group or a gang, as he might often be in cases of trafficking, that in itself is an aggravating factor. I mention also employment legislation designed to protect all workers, including migrant workers. As the Committee knows, the legislation covers maximum working hours, minimum wages, minimum age limits for children in employment and health and safety. All these may well be contravened if a person is held in servitude or required to undertake forced or compulsory labour.

The amendments rightly seek to provide serious penalties for these serious crimes, but our argument remains that the existing criminal law already allows for appropriate charges to be brought and appropriate penalties to be imposed for this behaviour.

Lord Lester of Herne Hill (Liberal Democrat)

I wonder whether, as a way of informing noble Lords between now and Report, it would be possible to look at Ken MacDonald's opinion where he goes through with great care all the reasons why he and Helen Mountfield consider that the existing criminal law is not sufficient. Between now and October, could the noble Lord respond to that opinion in a letter to the noble Baroness, Lady Young, and others who have taken part in the debate in order that we can see whether, as he suggests, the law is sufficient or not? It is a question of fact in the end, but what is now being said by the Minister does not, for perfectly understandable reasons, actually meet the points Ken MacDonald is making. Perhaps this would be a sensible way of informing the House before we come back to the issue, or am I being premature in making the suggestion?

Lord Bach (Labour)

As always, the noble Lord has come up with a good suggestion. This opinion, which has yesterday's date on it, was kindly sent to my officials and I shall say something about it. Of course, it deserves a longer consideration and a response and I shall do my best to make sure that that happens. It will obviously be an important part of the debate from now on.

I do not need to go through the maximum sentences for assaults and other criminal offences, but we know that offences of false imprisonment can carry a maximum penalty of life and often attract sentences of eight years or more. I remind the Committee that trafficking for exploitation carries a maximum penalty of 14 years.

I come now to one of the main parts of this problem. Whether to prosecute in each case, and what charges are most appropriate, are rightly matters for the police and the CPS. We have taken informal soundings from the Association of Chief Police Officers to see if it is aware of any difficulties in charging individuals who are involved in exploiting the vulnerable in this way. We understand that the North Yorkshire Police has commissioned Project Acumen, overseen by its chief constable, which will review and analyse the victims of sexual and labour exploitation. It will also analyse the scope and nature of offenders and criminal groups involved in organised immigration crime and trafficking in human beings. This will include, first, identification of the main market sectors affected; secondly, an initial appraisal of the likely significance of the main ethnicities and nationalities involved as victims and offenders; and, thirdly, the identification of any key regional variances in either markets, victims or offenders. The final report is due to be published by the end of February next year and we believe the findings will be helpful.

We shall continue, of course, a dialogue with the police to explore what measures might be useful in tackling this problem. I venture to think that one of the issues behind the amendment is a concern that in practice, even though offences may have been committed, the police, for whatever reason—and there may be good reasons as well as bad reasons—do not feel able always to bring a prosecution. We certainly need to look at that more closely during the summer.

I now say a word about our obligations under Article 4, which provides that no one shall be held in slavery or servitude or be required to perform forced or compulsory labour. It is implicit from the case law that if existing criminal laws provide practical and effective protection for the rights set out in Article 4, then the state concerned will have discharged its obligations. As a Government, we would of course have serious concerns if we thought that we were not discharging our obligations under an instrument as important as the ECHR. We enacted the Human Rights Act to give further effect to convention rights in the UK and to ensure that those rights could be enforced in our domestic courts. I hope the Committee will accept that we take our international obligations seriously. We feel that we have discharged our obligations under the ECHR

Let me offer an initial thought on the important opinion of the two counsel referred to. It has been suggested that a new offence is necessary in order to satisfy our Article 4 obligations but, at present and on first reading, we do not agree. Neither the ECHR, nor the ILO conventions, nor case law interpreting the ECHR, to which the two distinguished barristers referred in their advice, requires a specific forced labour or servitude offence. Rather, what is required is for the state to provide "practical and effective protection" of a claimant's rights by ensuring, for example, that there is effective deterrence by way of criminal law. As I have already argued, we think that there is effective deterrence through a range of existing criminal offences. Deterrence may also, of course, be in the form of successful prosecutions, which we have, with sufficient penalties, which there are. If we were to enact a bespoke offence as the amendment seeks, it does not follow that any prosecution for such an offence would be successful. Alternatively, of course, a prosecution might not be brought, in which case claimants' rights are still not protected.

That is all that I want to say today on this subject. I make it clear that I cannot make any promise, or even a hint of one, that if the matter is withdrawn today, which I invite the noble Baroness to do, I will be able to say anything very different if it is raised again on Report.

Baroness Butler-Sloss (Crossbench)

Will the Minister take into account who has written this opinion—that is, the former Director of Public Prosecutions, who is more likely than most to know what the law is, in the sense of what could be prosecuted? Would he consider it appropriate to show that opinion to the present Director of Public Prosecutions, Mr Keir Starmer, to see whether he shares the view of his predecessor?

Lord Bach (Labour)

I am very conscious of the author of the opinion, for whom I personally have a high regard, as no doubt the noble and learned Baroness does too. I see no reason why—having first asked permission of my noble and learned friend the Attorney-General, as she would expect me to do—the opinion should not be shown to the Director of Public Prosecutions.

I appreciate that my answer will not be satisfactory to the supporters of the noble Baroness's amendments. I do not hold out great hopes that, if we come back to this in the autumn, I will be able to give any ground, let alone major ground. I will just say that during the next few months we will consider carefully everything that has been said in this debate, the opinion and other matters that come to our attention, particularly with regard to police activity and behaviour in this field. If we do come back to this in the autumn, I look forward to that debate as well. I thank the noble Baroness, Lady Young, and her supporters for the meeting that we had last week during which I, certainly, learnt a lot.

Lord Alton of Liverpool (Crossbench)

I wonder if could press the Minister about the consultation that he says he will have over the summer. He gave the example of the actions of the chief constable of Yorkshire in promoting a project there to look at the problems of people who might be caught up in servitude. Will he extend that consultation to speak to some of the other chief constables as well to find out what their feelings are so that, when we come back to consider this matter again on Report, we will be comprehensively advised of the views not only of the former Director of Public Prosecutions and maybe the current one—an eminently sensible idea—but also of police officers? Can the Minister's own officials also look at an evaluation of the number of times that cases have brought forward or considered and not taken forward for prosecution because the law has what we believe are these gaps in it at present?

Lord Bach (Labour)

I will do as much of that as I can. I cannot promise that there will be an overall full-scale review of this issue between now and then, but I will certainly continue the work that we are doing on it.

Another argument that was touched on during the debate on this amendment is that we are often criticised for introducing new criminal legislation, particularly serious legislation that has prison as a consequence of someone being convicted. It is right that the Government should be wary of introducing new legislation, and we have to be persuaded of the case. I know, though, that there are many in the Committee today who are persuaded that this should be an exception.

Lord Kingsland (Conservative)

I suppose that, in principle, I should welcome what the Minister has just said, since a great deal of legislation has been introduced in recent years that has not yet been implemented.

In any case, I am most grateful for his reply. It would be useful for the Opposition if, over the summer, the Minister, not in any elaborate way but in a way that indicated the direction in which his mind was working, could let us know the Government's view about the merits of the noble Baroness's amendments because, naturally, we will, at least in part, be influenced by it.

Lord Bach (Labour)

Perhaps when we surface again in September, I can agree to write a letter in which I set out the Government's position at that stage and circulate it to all those who have spoken in the debate today.

Lord Kingsland (Conservative)

I am most grateful to the Minister. That would be extremely helpful.

Baroness Young of Hornsey (Crossbench)

I thank noble Lords for supporting the amendments and for doing so rigorously with lots of evidence. I also thank again the Minister both for meeting us the other week and for his consideration of the many points that have been made.

As he said, he could anticipate that I would not be satisfied by his response in so far as many of us have responded to his points and given good reasons for another law being needed. None of us wants extra laws for the sake of them, but we should acknowledge that times change and that we encounter situations which need new responses.

The Minister mentioned that existing offences could be used to deal, for example, with the case that we cited earlier. However, theft, fraud, sexual assault and employment legislation are a whole bundle of different bits of the law, which is where the problem lies. It is not that there are not bits of the law that are capable of dealing with those specific instances of oppression, but putting them together to make a coherent case then becomes difficult and acts as a disincentive to the police to pursue them.

I agree that it is essential that the police are absolutely clear about the nature of the law were it to be introduced and are given specific guidelines on how to make sure that prosecutions are brought about, because we have all acknowledged that there is a problem. On trafficking, we acknowledge that pieces of that legislation are appropriate, but not everybody who we are talking about has been trafficked—that is a very important point.

I thank the Minister for agreeing to a number of suggestions made by other noble Lords. I shall think about what has been said and decide whether to pursue the matter to a Division on Report. I shall look carefully at Hansard. I will be waiting to hear from the Minister on ACPO and on the other points that he has agreed to take up during the summer break. Bearing that in mind, I beg leave to withdraw the amendment.

Amendment 182 withdrawn.

Amendment 183 not moved.

House resumed.

Sitting suspended.