A small victory for free speech - and more about hate crimes and policing

This is almost two weeks old, but, for the sake of completeness, I’m writing about it anyway. On July 9th, the House of Lords debated Clause 61 of the Coroners and Justice Bill. Clause 61 of the Bill proposed the deletion of Section 29JA of the Criminal Justice and Immigration Act 2008, which reads: “In this Part, 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.”

Section 29 had been inserted into the Act by the former Conservative Home Secretary, Lord Waddington, in order to protect freedom of speech, and the government has been determined to remove it - hence Clause 61. Lord Waddington could hardly be classed as a libertarian, but he is concerned about freedom of speech. Their Lordships agreed with him on this occasion, and voted, by 186 to 133 to reject Clause 61. (The story has been covered by the Independent and the Christian Institute, and full details of the debate are in Hansard.)

To their credit, there are Labour members of Parliament who have voted against the government on this measure, such as Lord Anderson of Swansea, and, in the Commons, Mr. Tom Harris.

One aspect of this that particularly interests me is way that it is policed, as readers of this blog will realise. Lord Dear, who was Chief Constable of the West Midlands from 1985 to 1990, (and who successfully lead opposition in the House of Lords to the Government's proposal to extend from 28 to 42 days the length of time that suspected terrorists could be held without charge), speaking in the debate in support of retaining Section 29, addressed this subject, and said:

“ . . . 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.”

He added the following comment:

“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."

(Some people seem to like to do this!)

And he went on to say,

“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.”

Lord Dear also comments on the roll of ACPO:

“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.”

(So if Lord Dear is correct, it seems that some of my previous comments about ACPO were too harsh, and the Home Office - and governments - must bear the blame for the ridiculous things that police officers are asked to do.)

Sadly, the Government have not been swayed by the arguments of Lord Dear and others, and will seek to reverse the decision of the Lords when the Bill returns to the Commons in the autumn.