Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill House of Lords - Committee February and March 2008

Parliamentary Briefing Clause 126 & Schedule 26 (Incitement to hatred on grounds of sexual orientation)

For information, please contact Finola Kelly Tel: 020 3117 0318 [email protected] Denise Morrisroe Tel: 0203117 0314 [email protected] Criminal Justice and Immigration Bill - Clause 126 (Incitement to hatred on grounds of sexual orientation) 1. Introduction 2. The Equality and Human Rights Commission ("The Commission") is a statutory body established by the Equality Act 2006. The Commission has duties to:  promote understanding of and good practice in equality and diversity  promote equality of opportunity  promote understanding of equality rights  enforce equality legislation  work towards the elimination of unlawful discrimination and harassment;  promote understanding, awareness and protection of human rights; and  encourage good practice in relation to human rights.

3. In addition, the Commission is required when exercising its powers under the Equality Act to, amongst other things:

 promote understanding of the importance of good relations between members of different groups and between members of groups and others; and  work towards the elimination of prejudice against, hatred of and hostility toward members of groups (protected by equality legislation).

4. The Commission fully supports Clause 126 and schedule 6 in the Criminal Justice and Immigration Bill. We believe these new provisions, agreed in another place, strikes the right balance between the need to protect freedom of expression and the need to protect - especially minority - groups from hatred. 5. The need for these new provisions

6. It is estimated that 6% of the population are either lesbian or gay.1 Lesbian, gay and bisexual (LGB) people often face public denigration, physical and verbal abuse and harassment. In the past three years, the level of violent crime against members of LGB groups has escalated. In 2005 - 2006 there were 1359 recorded incidents of homophobic hate crime.2 From 2005 - 2007, the number of convictions for homophobic related offences increased by 167%. There has been at least three murders in the gay community in the last year.3

7. Some parts of the music industry actively promote homophobic sentiments through song lyrics. For example, one of Jamaica's well known reggae artist, Beenie Man, performs a song which includes the lyrics 'execute all the gays' and goes on to incite the killing of gay DJs.

8. There is an increase in the use of internet websites used to diffuse pejorative and hateful views about homosexuals. Religious and far right groups publicly talk about homosexuality being synonymous with paedophilia and the spread of disease.

9. Incitement to hatred leads to hostility towards, suspicion of and fear in and of the target group. In turn, this damages relations between members of the target group and the rest of the community and could give rise to public disorder.

10. The Commission believes that in a progressive society no group should be subjected to expressions of a threatening nature. We therefore believe it is necessary and timely to send a message to

1 DTI (2005) Amendment to Employment Equality (Sexual Orientation) Regulations 2003 - Full Regulatory Impact Assessment available at www.berr.gov.uk/files/file24232.pdf

2 See Home Office website www.homeoffice.gov.co.uk/crime-victims/reducing-crime/hate-crime

3 Stonewall (2007) Parliamentary briefing - Criminal Justice and Immigration Bill Commons Committee 29 November 2007 available at www.stonewall.org.uk society that behaviour which incites hatred against a vulnerable section of the community, causing them to feel fear for their safety, is intolerable. It is incumbent on the Commission to support action which aims to eliminate prejudice or hatred against members of groups on grounds of sexual orientation.

11. Human rights

12. The Commission has a duty to promote the protection of human rights. We recognise that the proposed amendment would have implications for freedom of speech. We also recognise that some religious groups see the amendment as a potential threat to their right to speak out against homosexuality as part of the established principles of their religion: a restriction on the right to manifest religion.

13. The Commission would not sanction capricious attempts to abridge fundamental rights and freedoms. However, we recognise there are times when limits on free speech may be necessary in a democratic society for the protection of others. What is important here is that any restriction serves a legitimate aim and the means chosen to achieve the aim are proportionate and necessary. We therefore want to ensure, as far as possible, that the right balance is struck between the protection of LGB groups from hatred and the right of others to freely express and debate views on any desired subject, no matter how insulting, abusive or offensive.

14. Clause 126 - Schedule 26

15. Clause 126 amends Part 3A of the Public Order Act 1986 (c.64) (hatred against persons on religious grounds). Schedule 26 amends the heading of Part 3A by inserting at the end, the words "or grounds of sexual orientation." Thereafter, it makes consequential amendments, making references to sexual orientation as relevant. 16. The offence would be as defined in section 29B of the Racial and Religious Hatred Act 2006 (RRHA) (Part 3A Public Order Act):

"a person who uses threatening words or behaviour or displays any written material which is threatening, is guilty of an offence if he intends to stir up hatred on grounds of sexual orientation."

17. The clause mirrors the provision of incitement to hatred on grounds of religion. The Racial and Religious Hatred Bill was carefully scrutinised and debated by both Houses. It went through significant changes before enactment. It was considered by Parliament to be a fair balance between protecting freedom of speech and protection from religious hatred. The Lords during the debates of the RRHA were keen to ensure that there were safeguards to "increase legal certainty, to prevent the new offences from sweeping too broadly and to deal with chilling of free expression."4

18. Safeguards

19. The Criminal Justice and Immigration Bill contains the same safeguards as those for religious hatred:

 The offence requires the use of threatening words or behaviour: it does not catch expressions which are insulting or abusive. Those who are critical, insulting or abusive about sexual orientation will not be silenced by the Bill as long as their expressions are not threatening. This is important for religious groups who are concerned that the Bill would prevent them preaching about homosexual practices and behaviour in a manner which may be deemed insulting, abusive or critical.

4 Lord Lester of Herne Hill 2005 Lords Hansard text 25 October 2005 (51025-05) column 1075 available at http://www.publications.parliament.uk/pa/Id200405/ldhansard/pdvn/Ids05/text/51025-0...  A requirement on the prosecution to prove criminal intent as distinct from the defence having to prove the absence of a criminal intent.5 This would limit the numbers in prosecutions, since the burden of proving the offence is clearly with the prosecution. If we consider that the number of prosecutions for racial hatred is very low6 notwithstanding its wide sweep, then there is little to fear that this Bill would lead to prosecutions which are unmerited. This serves to protect free exchanges of ideas, debates and views on homosexuality, which free speech proponents are concerned would be sacrificed by the Bill.

 The consent of the Attorney General is required to prosecutions for the offence. The Attorney General is a public authority for the purposes of the Human Rights Act 1998. Any decision to prosecute would have to be made in a manner compatible with the HRA.7

20. Arguments against the Bill

21. Opponents to the Bill argue that:

 extending the criminal law to incitement to hatred on grounds of sexual orientation would affect expressions of antipathy, dislike, ridicule, insult or abuse of homosexuality;

 The Bill would have a 'chilling effect' on speech, particularly for members of religious groups who believe it is necessary to condemn homosexuality as

5 Public Order Act 1986 - sections 18 (5), 19(2) and 23(3)

6 Approximately, 79 prosecutions in total since the provisions were introduced - The Attorney General (Lord Goldsmith) 31 January 2005 Hansard - Incitement to Racial Hatred: Prosecutions Column WA5, The United Kingdom Parliament

7 Section 6 Human Rights Act 1998 part of their right to manifest their religion through evangelising and teaching about the faith;

 that homosexuality is not an immutable characteristic and therefore homophobic hatred should not be treated in the same way as racial hatred; and

 the existing law adequately protects homosexual groups from violence

22. The Commission considers that the first two concerns are allayed by the safeguards built into the Bill (see above). As to the third point, sexual orientation is an innate characteristic: people do not choose their sexual orientation. Therefore, incitement to hatred on grounds of sexual orientation should be treated very seriously. Finally, while it is true that they are existing laws which can be invoked to deal with certain forms of offences motivated by sexual orientation none are wholly adequate for dealing with incitement to hatred on grounds of sexual orientation. 23. Free speech clause

24. The Commission considers it necessary to comment on the omission in the Bill of a freedom of speech clause such as that contained in section 29J of the RRHA.

25. Section 29J states: "Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system."

26. The free speech provision was inserted into the RRHA because it was deemed necessary to protect freedom of speech expressly in the Act. The purpose was to tackle any potential chill effect on freedom of speech.

27. One of the main arguments offered at the time for the provision was that religion "reaches into matters of belief and practice" which may be different for believers and non-believers. Without a provision protecting freedom of speech, it was argued the Act would allow prosecutions for expressions of antipathy, dislike, insult or abuse against a religion or practice instead of expressions against adherents.

28. It is likely that some religious and faith groups would argue that a free speech provision is necessary to protect utterances about the practice of homosexuality, as distinct from utterances about members of LGB group. However, it is difficult to see how it is possible to separate the person from their sexual orientation. We live in a society where people are defined by their sexual orientation whether or not they practice it. We are all very much aware that discussions about homosexuality rarely make a distinction between the individual and the practice.

29. The Commission considers that because sexual orientation is an innate characteristic, being part and parcel of the identity of the individual, that the law does not need to expressly protect expressions which are insulting or abusive or which aim to ridicule a person on grounds of sexual orientation. To allow this, the law would fail in its core objective of protecting the group which is the subject matter of such expressions. Furthermore, such a clause might be superfluous given that the offence could only be committed where expressions are of a threatening nature as distinct from insulting, abusive, critical or mere dislike.

30. A free speech clause in this Bill would significantly weaken the protection it seeks to offer and undermine the message that inciting hatred on grounds of sexual orientation is intolerable.

31. Conclusion

32. The Commission welcomes the provision in the Criminal Justice and Immigration Bill to introduce an offence of incitement to hatred on the grounds of sexual orientation. We consider that the narrow wording of the offence (use of threatening words/behaviour); the high threshold test (the need for the prosecution to prove intent); and the additional safeguards (Attorney General consent to prosecution) strikes the right balance between freedom of speech and protection from hatred on grounds of sexual orientation

33. The Commission encourages the Lords to support the amendment , which we consider strikes the right balance between free speech and the protection of others from hatred on grounds of sexual orientation.