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Criminal Justice and Immigration Bill

Volume 475: debated on Tuesday 6 May 2008

Lords amendments considered.

I must draw the House’s attention to the fact that privilege is involved in Lords amendments Nos. 92 to 95, 304 to 306 and 173. If the House agrees to any of these amendments, I shall ensure that the appropriate entry is made in the Journal.

Clause 10

Abolition of suspended sentences for summary offences

Lords amendment: No. 9.

With this we may discuss Government amendment (a) to the words so restored to the Bill, Lords amendment No. 301, Government motion to disagree thereto, Government amendment (a) to the words so restored to the Bill, Lords amendment No. 327, Government motion to disagree thereto and Government amendment (a) to the words so restored to the Bill.

Thank you, Mr. Speaker. I was listening so intently that I almost forgot my part in the script.

May I say what a pleasure it is to return once again to the Criminal Justice and Immigration Bill? I am pleased to see in their places both the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Enfield, Southgate (Mr. Burrowes). Today provides an opportunity to return to the discussions we have had on this important Bill since the beginning of the parliamentary Session—discussions that are now reaching their denouement. I should also like to welcome the hon. Member for Eastleigh (Chris Huhne) to his Front-Bench position for the later stages of our proceedings on the Bill.

Having noticed the hon. Member for Somerton and Frome (Mr. Heath) in his place, I want to pay tribute to him. When we started our consideration of the Bill in Committee, the hon. Gentleman and the hon. Member for Cambridge (David Howarth) were the Liberal Democrat Front-Bench spokesmen. Since then, there has been a change in Front-Bench responsibilities, but I wanted to put on record at this late stage my thanks to the hon. Member for Somerton and Frome for his consideration in Committee and on the Floor of the House. I hope that he will recognise that although there were major disagreements between us, some movement has taken place on some issues, and indeed that I have been able to accept some of his positive suggestions. I hope that the hon. and learned Member for Harborough and the hon. Member for Enfield, Southgate will also recognise that changes have been made in response to some of their suggestions.

That brings us up to today, when we will have a full debate on a number of key issues. The amendments before us return us to the matter of ending suspended sentence orders for summary-only offences. As you are aware, Mr. Speaker, I am inviting the House to disagree with the Lords amendment, which would altogether remove from the Bill the proposals in clause 10. On reflection—I know that there was an ordered and considered debate in the other place—I believe that that legislation is necessary, for reasons that I hope briefly to set out.

There is an honest disagreement between the hon. and learned Member for Harborough and myself—and, indeed, between the other place and myself—in respect of the use of suspended sentence orders for summary-only offences. On reflection, I think that it is an inescapable conclusion, on the basis of sentencing figures, that the courts are now using the new suspended sentence orders for substantial numbers of cases that would previously have received non-custodial sentences.

As you will be aware, Mr. Speaker, I am very much in favour of non-custodial sentences when appropriate. I hope shortly to introduce a campaign to support greater use of such sentences in the community at large, because they have a place in our society and are an important part of the overall armoury of sentences. However, if we look carefully at the use of the new suspended sentence orders, we see that a substantial number of cases are now being drawn into the framework that would previously have involved non-custodial sentences. That is important, and although it has already been considered in another place, I think we should reflect on it closely here today.

Let me take the hon. and learned Member for Harborough and the hon. Member for Enfield, Southgate back a few years. As they will observe, there has been a huge growth in the use of suspended sentence orders by the courts since their introduction in April 2005. However, I am sorry to say that there will be no equivalent drop in the use of immediate custodial sentences. I conclude that whatever changes were intended in April 2005, suspended sentence orders are not, in most cases, being imposed instead of sentences to immediate custody.

The Minister said that there had been no equivalent drop in immediate imprisonment, but does he not agree that in the case of summary offences there has been a drop?

I am grateful to the hon. Gentleman for his intervention. Let us look at the figures for magistrates courts alone. The immediate custody rate remained stable, at about 4 per cent., between 2005 and 2006. However, the use of suspended sentence orders increased from just under 0.5 per cent. in 2005 to 1.7 per cent. in 2006. Some 7,081 suspended sentence orders were made in 2005, compared with 23,274 in 2006, 12,397 of which—this returns me to the point made by the hon. Member for Cambridge—were for summary offences, compared with 4,007 in 2005. According to my ready reckoning, that amounts to an increase of some 8,300 over the period, and indicates some difficulty over the way in which suspended sentence orders have operated. If we examine particular offences, we see that such orders are gaining ground at the expense of non-custodial outcomes.

In the context of people who may face a prison sentence as a result of the Bill, we should consider, in broad terms, whether a community-based non-custodial sentence is more effective than a custodial sentence in helping to prevent reoffending in the long term. We must inevitably conclude that whatever the original motivation for the introduction of suspended sentence orders in April 2005, they are leading to greater use of custody at the expense of non-custodial outcomes. That is clear from a comparison between the figures for 2004, before the new suspended sentences were available, and the 2006 data.

Let me give two examples of summary offences that have given rise to a substantial number of suspended sentences. The first is common assault. Suspended sentence orders accounted for 7 per cent. of all sentences in 2006, compared to fewer than 2 per cent. in 2005. Over that period, community sentences and immediate custody remained stable. Fine, we may say; I very much encourage greater use of community sentences where appropriate. However—this is a key issue for us today—fines also fell by two percentage points, as did conditional discharges. That is for the offence of common assault.

An equally serious offence that I know causes hon. Members a great deal of concern is drink-driving, a summary motoring offence. When I look at the 2006 figures in detail, I see that suspended sentence orders accounted for 3 per cent. of all sentences, compared with 1 per cent. in 2005; the difference, of two percentage points, is a considerable number of cases. Over this period, community sentences fell by two percentage points and immediate custody fell by one percentage point. Fines and conditional discharges on both issues remained stable.

If those involved at the time recall the debates on the Criminal Justice Act 2003, they will know that the Act, quite rightly, treats the suspended sentence order as a custodial sentence. The courts must believe that there is an offence that justifies a custodial sentence before they can give a suspended sentence. Indeed, I recall having a discussion about that issue in Committee prior to Christmas. On any reading of the situation, it is clear that something has changed, or the figures would not show that movement from community disposals to suspended sentence orders.

There have been arguments that offences coming before the courts are now more serious, thereby lifting substantial numbers of offences into the custody bracket. I do not believe that changes to the seriousness of offences have caused that. I am not aware of any evidence that would show that that has occurred and it seems very unlikely that such a change would coincide exactly with the availability of the new suspended sentence. More tellingly, the use of immediate custody for summary-only offences in the magistrates courts has been stable at around 2 per cent. for the past 10 years up to and including 2006. That argues against a change in seriousness. It seems implausible that a change in seriousness would result in offences moving from community disposals to suspended sentence orders, but not in offences moving to immediate custody. It is much more likely that, faced with a new range of sentencing options, courts have not maintained the previous custody threshold.

There may well be training issues that are important in this sphere. I know that the Magistrates Association, including in submissions in our initial hearings—they now seem like 1,000 light years ago, but they were actually in October—spoke about the need for examination of further training and support for magistrates. We should be able to look at that. Training will be important, but it boils down to the fact that courts have not maintained the previous custody threshold. It is easy to say that courts should go through a simple process where they label an offence as being on one side or the other of the custodial threshold in complete isolation from consideration of sentencing options. In practice, as every hon. Member will know, this is a grey area where a prison sentence might or might not be appropriate for an offender. With such offenders, it is hard for the courts to consider the question in isolation from the available options.

It is important that we have pre-sentence reports, which can influence a sentencing decision by suggesting whether particularly suitable community punishments are available in a particular case. I have been keen to look at strengthening that area, including through the announcement recently of an additional £40 million for probation services to look at how they can support pre-sentence reports for sentencing decisions. I hope hon. Members will recall that the £40 million was money that we were able to secure from the Treasury to help to give strength to probation areas to look at how we can influence the greater use of community penalties in our communities and our courts. Even with that extra resource, however, and taking into account the issues mentioned and the discussions we will shortly have on the strengthening of the community sentence, it is still important that the pre-sentence report can influence a sentencing decision.

Handing down a suspended sentence must, intuitively, differ from handing down an immediate custodial sentence, where the offender has no chance to avoid prison. I consider that introducing a freely available suspended sentence, which was intended to be a useful tool to the courts as an alternative to custody, has had the effect of blurring the level of the custodial threshold. We had that debate in Committee, and it was also discussed in another place. Let me be honest about this: perhaps I and my colleagues in Government could and should have foreseen that, and maybe we should have considered it when the measures were previously before the House.

I have looked at the statistics over the past two years—I have given them to the House this afternoon, and the 2005-06 figures show that the immediate custody rate has remained stable at 4 per cent. but the use of suspended sentence orders has increased by 7,000 to 23,274 over the same period—and they tell me that there is a difficulty that we need to address. I hope that the proposed legislation before us addresses it, which is why I am arguing against the suggestion from another place to remove the measures altogether.

In any event, we believe that if suspended sentences are no longer available for summary offences, courts will impose immediate custodial sentences in those cases where they are clear that they have no alternative, and in other cases they will use community disposals. I believe that if they do not have the option of passing a suspended sentence, but instead have to choose between sending somebody to prison—with all the difficulties there will be for their family, their employment, their housing and their potential drug or alcohol behaviour—or finding a suitable alternative community sentence, magistrates and sentencers will look to use community disposals in a more productive manner. Under those circumstances, I believe that the custodial threshold is likely to revert to somewhere close to its previous level. Again, let me be honest: I might be wrong, and we might need to reflect upon this. That is why we have considered an amendment of our own to assist another place in the examination of these issues, in the event that what I have said proves not to be the case.

However, I simply put myself in the position of a magistrate or sentencer who is faced with the possibility of sending an individual to jail, rather than giving them the suspended sentence order. At a time when, admittedly, we have crowded prisons with difficult conditions, sentencers will be faced with a choice of putting somebody in prison—for, perhaps, a short period—when deep down they will know that a custodial sentence will potentially be more detrimental than a community sentence.

We plan to increase discussion on these matters shortly, and to promote the use of community sentences. There are a number of available options to help support the greater use of community sentencing. With proper support from probation, greater help with pre-sentence reports and effective focus on what works for the individual to help prevent reoffending, a sentencer choosing between a marginal custody threshold and a community sentence would rather give the individual concerned the benefit of the doubt by giving them a strong community sentence aimed at dealing with their offending behaviour.

There is unanimity between the major parties on this; the hon. and learned Member for Harborough has shared my views on the matter. We need to look at what works in preventing reoffending. In the circumstances under discussion, the sentencer examining the options is not going to be able to use the suspended sentence order, and the choice between custodial sentence and community sentence has very real consequences for the future reoffending rate of the individual before the court, because short custodial sentences ultimately lead to a greater reoffending rate than short community sentences. There is a clear correlation. I know the hon. and learned Gentleman supports that view, as we have debated this matter on many occasions.

The fears that have been expressed in another place about raising the custody threshold will not be met with the stark reality of individuals facing a court decision and the difference between prison and a community sentence. That is my firm belief, and I am of the view that if I do not restore clause 10 to the Bill as proposed, the courts will continue to impose suspended sentence orders where they would previously have used community orders.

The challenge for the official Opposition—I know that there is a debate on this issue with my colleagues in the Liberal Democrats—is to make the judgment, which is a very fine one, as to whether we follow the use of suspended sentence orders, as previously planned, or whether we make the change today. I hope and believe that colleagues in the Liberal Democrats will reflect carefully on this issue. I came to know the hon. Members for Somerton and Frome and for Cambridge during consideration of the Bill in Committee—I am sure that the hon. Member for Eastleigh, who is also on the Liberal Democrat Front Bench today, will reflect on these matters, too—and they have discussed this issue and pressed me, the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), and my right hon. Friend the Secretary of State for Justice, the Lord Chancellor, to look at greater use of community sentences for short sentences.

I am of the firm view that if we delete clause 10 today, it will lead to greater use of custody sentences, rather than community sentences. Again, there is a fine judgment to be made, and we are willing to reflect on it, as the later amendments will show. However, and without wishing to pre-empt what the hon. and learned Member for Harborough and the hon. Member for Cambridge, who leads for the Liberal Democrats, will say, I believe that they have some sympathy with this point; they know that the community sentence is a positive and a difficult sentence—one that will still be difficult for the offender.

My hon. Friend makes a very valid point. In some cases, it is more difficult for the offender, because they have to come to terms not just with their behaviour but with some of the demons that may well have driven them to it, whether they be drugs or alcohol. They may have to come to terms with doing pay-back work in the communities that they live in or perhaps with providing reparations to people whom they have worked with. There could also be a range of other options that constitute difficult sentences for them to undertake, but which may well—this is the key point, which I ask Members to bear in mind when they vote on the motion—mean that they keep their job or may keep their family together, in due course; help them get off the drugs or alcohol that caused them that difficulty in the first place; or help them to come to terms with their offending behaviour in a much more enlightened way than a short custodial prison sentence would. I say that with all due respect to my colleagues in the Prison Service, for which I am also responsible.

That is a debate that we must have across the board. Today’s proposed change regarding suspended sentence orders is about whether we look at the facts—the facts are that custody remains stable and the use of community sentences and fines has dropped—and whether or not we support another place in removing this provision from the legislation.

Let me be open and honest—I always try to be honest in these matters, as you know, Mr. Deputy Speaker—and say that the proposals before the House today will, in the longer term, save 400 prison places. There are two key related issues. It is no secret in this House that the prison population has been under pressure for some weeks and months, or that we are undertaking a massive £2.5 billion building programme over the next five to six years. It is no secret that we are going to increase the number of prison places to 96,000 by 2012-13, or that we are looking at trying to support community sentences in a much more effective way. However, it is also no secret that the next few months will be challenging, and that we have predicated our projected figures for the use of prison places on the fact that clause 10 will be in the Bill, and that those 400 prison places will be saved over the next couple of years by the actions taken through clause 10.

I know that the hon. and learned Member for Harborough may well say that we should have built earlier, and that we should have done this and done that, and I know that there will be lots of arguments about those issues

That is for another day, dare I say it. The key point is that however we have reached where we are—this week marks the first anniversary of the Ministry of Justice—throughout the planning that we have undertaken since June last year, from the publication of this legislation, through its Commons Committee stage and its passage through another place and back into the House of Commons, there has been discussion about those 400 people who would not go to prison if this clause is in place.

May I welcome you to the Chair, Mr. Deputy Speaker? You will know that if we were to remove clause 10, 400 people who are not in prison could be in prison over the next couple of years. I believe that we will have to face that problem. We would have to build a whole prison for those additional places. We would be talking about an additional 400 places, additional costs, prison officers, support staff and a prison-building programme if we were to remove clause 10.

Irrespective of the case that I am making, the facts show that, to date, the suspended sentence order has not worked in the way in which we intended it to do, the use of custodial sentences as opposed to community sentences is more detrimental in short-term cases and an additional 400 people will be in prison as a result of the removal of this measure from the Bill. All that drives me to believe that it should be kept in the Bill, as proposed.

Let it not be said that I am somebody who will not listen on behalf of the Government, because some very valid points have been made in the debate to date—[Interruption.] I missed that.

I shall not say that I do not intend to listen.

I began my introduction to this group of amendments by saying that I believe that a strong case has been made and that it can be proved by the facts, the general direction of Government policy and the impact on prison places. However, I recognise that discussion has taken place in another place about the clause’s impact and that both there and in Committee there was debate as to whether what I say will happen will happen. I do not base that only on what has been said in another place; I have to listen to the evidence brought forward by the magistrates courts and the Magistrates Association, which have again said that they believe that they may well up-tariff rather than down-tariff if this measure goes ahead.

I believe that I am on strong ground and that we have a good case to make, but I am also aware that doubts have been expressed as to the precise impact of the clause and I want, as far I am able, to acknowledge those concerns in a real and positive way. If hon. Members were to look at the Order Paper, they would see that in the light of those concerns, I have proposed amendments that provide for a power to suspend the amendments to section 189 of the Criminal Justice Act 2003 made by the clause; that is to say, it would restore the power to impose a suspended sentence order in summary-only cases if it should appear necessary to do so. Again, I hope that that is helpful.

If I did decide to bring forward an order in circumstances that allowed me to impose suspended sentence orders in summary-only cases again, such an order would be made by an affirmative procedure and would also allow the clause to be reactivated in due course. I hope that the power in the Government amendments will give us the opportunity to take forward what will be a useful measure; it will test whether my contentions work and it will give the Government the power to put down an affirmative procedure and allow the clause to be reactivated in due course if that were not to prove the case. Again, I cannot envisage such a situation, but I need to reflect upon whether or not the clause would have unanticipated consequences.

The amendments that I have tabled would provide a swift response, should those unanticipated consequences arise, and would introduce the affirmative procedure, so it would not simply be a question of the Minister making a decision and hon. Members having to pray against the clause. The affirmative order-making power would allow both the removal of the suspended sentence order policy, which we have already debated, and reactivation in due course, if that were required.

The amendments are not a concession but a clarification, and I hope that they will give sufficient comfort to the hon. and learned Member for Harborough and to the hon. Members for Cambridge and for Eastleigh. In the event of the consequences predicted in Committee, we could take swift action to rectify the situation. The Government’s second amendment has the same purpose and is aimed at enabling service courts to keep in step with the policy applicable in magistrates courts.

I have spoken for more than half an hour to ensure that I make the case for the original change in clause 10. I have backed my case up with figures that show that sentencing over the past three years has been as I have described. We need to examine in detail the possible consequences of removing the clause, not just for prison places—a key factor—but the impact on the 400 individuals who might be sent to prison instead of receiving a community sentence, or on reoffending.

I hope that I have also shown that we recognise the concerns expressed in the other place. We have empathised with those concerns and tabled amendments accordingly. If the action that I have outlined does not turn out to be satisfactory, the amendments will allow us to make changes. I look forward to hearing from the hon. and learned Gentleman. I hope that he reflects on what I have said and I hope that his party and the Liberal Democrats will support the amendments that I have tabled.

The Minister is nothing if not disarming. During the course of his 36-minute speech, he told us on three occasions that he was honest—even that he was open and honest. I have never suggested—or even thought—that he was anything other than honest. It may be that the instructions he receives from his masters cause him to say things that he would prefer not to say, but I salute him for the way he performs sometimes disagreeable duties. This must be one of those difficult occasions.

It is necessary to deal with the substantive issues before us and to respond to the Government’s invitation to disagree with the other place. We wish to sustain the objection to clause 10 and to retain the power of magistrates courts in summary cases to impose a suspended sentence if appropriate. It is not always appropriate to order that a defendant be given a suspended sentence. Sometimes it is more appropriate to impose an immediate custodial sentence although, on most occasions for summary offences, it is most appropriate to impose a community sentence or an even lighter sentence. I am afraid that the Government are in something of a muddle, not least because they are seeking to undo something that they put into law only with the Criminal Justice Act 2003.

If you had plenty of spare time, Mr. Deputy Speaker—and I do not think that you have—you would be able to look at the 2003 Act and see how little has remained on the statute book in the way promised by the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett). My memory may be defective, but I suspect that about half that legislation is either not in force any more or has never been implemented. Other parts have been amended, so the Government’s approach to the 2003 Act, which was said to be the best thing since sliced bread for the courts service and the criminal justice system, has been somewhat chaotic.

Right at the end of 2005, the Government implemented the power in the 2003 Act enabling magistrates to give suspended sentences in summary-only cases. The criminal courts could not use the power until 2006, and the fact that this Bill was introduced into the House in the autumn of 2007 means that the system had been in operation for barely a year before the Minister wanted to change it.

I am not sure that I am convinced by the evidence that the Minister produced. Even if his figures are correct, I am not sure that they help his argument. It may be true that common assault cases have led to more suspended sentences in the magistrates courts, and that the numbers of fines and conditional discharges for such cases have fallen. It may also be true that the proportion of suspended sentences handed down in drink-driving cases may have risen from 1 per cent. in 2005 to 3 per cent. in 2006, but I am not at all sure that any of that helps the Minister’s case.

Suspended sentences are either a useful weapon in the sentencer’s armoury, or they are not. I plead guilty to being a sentencer. I have been a Crown Court recorder for the past 10 years or so, and in appropriate cases I frequently make use of suspended sentence orders. They are an especially useful weapon: the sword of Damocles hangs over the defendant, keeping him out of prison in the immediate term and allowing him to continue to support family and dependants—and, with any luck, to keep his job. One benefit of the 2003 Act was that it allowed a court to attach to the suspended sentence order requirements that are akin to those attached to community sentences. That combination is very useful, as it can act as both spur and deterrent to the defendant.

I have been listening carefully to the hon. and learned Gentleman. He spoke of weapons in the armoury, but does he accept that magistrates courts would benefit from having that armoury broadened?

Yes, I think I do. I am not sure which part of my remarks that intervention touches on. No doubt the hon. Gentleman will help us further later. There is a confusion in the Government’s case, and I am not entirely sure whether the hon. Gentleman shares that confusion.

The suspended sentence will still be available to magistrates in either-way cases. Let us say that someone is charged with aggravated vehicle-taking—that is to say, with taking a vehicle without consent and causing criminal damage. If the value of the damage is more than £5,000—if the car is damaged to the tune of £5,001—that is an either-way matter. In that case, the magistrates can give a suspended sentence. However, if by some chance the defendant causes less than £5,000 of damage, the magistrates cannot give him a suspended sentence, although to all intents and purposes the nature of the offences and the effect of the damage on the victim are pretty much the same. An arbitrary number decides whether or not the magistrates have the power that the Government wish to take away from them.

We need to be pretty clear on that point. Suspended sentences are to be removed simply for summary-only offences; as I understand it, they are being left in place for either-way offences and for the Crown courts. Why are suspended sentences being taken away only for summary-only offences? The Government’s argument was set out fairly concisely in the letter from the Minister, which I received by e-mail this afternoon—I am grateful to him for that. I would be the first to admit that the letter does not contain a single factual inaccuracy, but it does not quite deal with the whole story. The whole story began to be revealed, at least in part, towards the end of the Minister’s remarks today—in about the 28th, 29th or 30th minute of his speech—when he mentioned prison figures. Of course, the basis of the Government’s argument has nothing whatever to do with wanting to improve the justice system and everything to do with wanting to prevent further chaos within the prison estate.

It is very nearly a year since the Department was set up and since the new Lord Chancellor took office. Since then, there have been any number of quick fixes designed to reduce the prison population, including early release from custody under the ECL, or end of custody licence, scheme. At some stage—I cannot remember whether it was before or after the Department was set up—there was the introduction of home detention curfew, and the Criminal Justice Act 2003 introduced automatic release at the halfway point in a custodial sentence. Despite all those measures, panic or otherwise, the prison population has gone up and up. It now stands at a record. When the Government came to office, the prison population was about 61,000; it is now 82,500.

You will remember, Mr. Deputy Speaker, that when ECL was introduced at the end of June last year the Government promised that they would release 25,500 prisoners early in order to reduce the overall prison population. I do not know how they managed it, but as a consequence of what they have done, the prison population has gone up.

We are now considering another measure, introduced in the Bill last year in spite of all the evidence from practitioners, sentencers and others who take an interest in and have knowledge of the subject, that the Government think will free 400 prison places. I am willing to make a small wager that even if the measure passes into law and magistrates are denied the power to give suspended sentences for summary-only offences the prison population will not decrease, and those 400 prison places will soon be filled by other people. I advise the House not to put much faith in the Minister’s suggestion that the measure is a good idea because it will free up 400 prison places.

The point that I am making is that whatever the rights and wrongs of the decision and whether or not it is linked to prison places, the consequence of removing clause 10, as proposed in another place and supported, I understand, by the hon. and learned Gentleman, is that those extra 400 prison places will be required in the next 12 to 18 months. That will add pressures to the prison population rather than alleviate them, whether as a deliberate policy or simply as a consequence.

I am grateful for the Minister’s intervention. It cannot be gainsaid that whatever the Government do in relation to sentencing and in attempting to relieve the overcrowding in prisons, which is at an all-time high, nothing seems to relieve the problem, and the measure will not do so, either. The Government have been hoist by their own petard. They wish to look tough in the eyes of the British public and to look capable of dealing in a hard way with those who commit crimes, but they are not. All they have done is fill the prisons, and the offending and reoffending percentage rates continue to be in the high 70s and 80s, whether those are custodial or community sentences.

In order to convince us, the Government—at the same time as removing the power of magistrates in summary cases to award suspended sentences—would have had to propose a much more robust and respectable community sentence system. They have not done so. There is no point in their dismantling one part of the system if they do not replace it with something better in the community sentence system.

It is a mistake to confuse a suspended sentence and a community sentence. The two are entirely different, although they may have certain elements in common. As the Minister has candidly, openly and honestly accepted, the suspended sentence is part of the custodial regime. It is not the equivalent of a community sentence and one should not be given a suspended sentence unless one has crossed the custody threshold.

If the Minister says that magistrates are passing sentences of suspended custody for offences which in the past would have attracted a community sentence, the answer, as he half-admitted in his remarks, is not to throw away the suspended sentence power but to improve the training of magistrates. The Government should pass fewer Bills and devote their time and energy to making existing legislation work, not least because the thing that they now seek to destroy has been in force only since 2006.

If we are not careful, we shall be able to describe the Bill as a piece of order, counter-order and disorder. In the light of the Bill, the poor old Criminal Justice Act 2003 will look even more ridiculous and abused than it is already. The Government need to be more confident in the ability of magistrates to use their discretion properly and to deliver the appropriate sentence in relation to the facts of the case, in relation to the offender, in relation to the victim and in relation to the wider needs of the public to see justice done.

Simply getting rid of the power of magistrates to award a suspended sentence in summary-only cases is not the answer; it is the result of a panic decision. Having made a bad decision, the Government do not have the self-confidence to realise that they have made a mistake and to stop. They should not reinforce failure but move on, in their new, post-Thursday listening mode. I know the Minister enjoys everything that I say, although he does not always remember it the following day. Even if the Government do not listen to what I say, I suggest with the greatest diffidence that they listen carefully to what the other place has said. They should have a think about it, rather than box themselves into a corner. At this early stage of the implementation of the 2003 Act, they should permit magistrates to continue to give, in the appropriate cases, suspended sentences of imprisonment for summary-only offences. I make that suggestion candidly, with honesty and openly. I hope that the Minister’s mind is sufficiently open to listen to my helpful suggestion, which I present to him with much respect but little hope—

If the Under-Secretary demonstrated her point by leaping to the Dispatch Box and saying, “Goodness me! I wish that I’d thought of that before. If only I had not wasted parliamentary time by trying to get clause 10 in the Bill and keep it there,” we would all be much happier. However, I suspect that whether I have spoiled the consensus or not, the Minister and the Under-Secretary will be nailed to this particularly feeble tree. I rather wish that they were not.

I start by referring to the issue on which the hon. and learned Member for Harborough (Mr. Garnier) touched. Let us all be open and honest: I should say that I agree with him. He was absolutely right to say that we need greater resources for the training of magistrates. One of the things I have detected from the regular reports I get from the bench on which my wife has served for many years is the huge variability of the training and the inconsistent messages coming from the trainers. I certainly agree with the hon. and learned Gentleman that one tool at the Government’s disposal is to improve the training of magistrates. It is critical that we create an environment in which the appropriate community sentences, with the proper pre-sentencing reports, can be applied. I am thinking especially of the type of cases about which many of us hear regularly in our constituencies.

Only last week, I saw a photograph of the new Mayor of London watching two young men scrubbing walls as part of a community sentence, although I cannot remember the details. If a magistrates bench determines that such a punishment is appropriate—not to humiliate, but to deal with the issue of reparation, which has an influence on young people in respect of how they respond to society’s penalties—then there is merit in that.

I want greater examination of the results of any studies by the House of the changes, to ensure—if the theory is correct—that we see some positive results. The issue is not simply the number of prison places, although I understand why the hon. and learned Gentleman might perceive that to be in the Government’s mind. At the end of the day, our task here is to create an environment that helps in the overall campaign to reduce crime in our society. All the evidence that I have seen suggests that the extended use of community sentences has its place. It is not an appropriate tool to apply universally, but where it is applied, particularly in the case of some young people, it can have the desired effect.

If I may go off at a slight tangent, the other day I came across a case involving an attempt to apply universally a community penalty by a chief constable through a response to a fixed penalty notice. I have to tell my right hon. Friend the Minister that it happened to be the chief constable in his area, who has a notorious view of some motoring offences. He was dealing with a mature gentleman who was deeply offended by the fact that for going a couple of miles an hour over the speed limit he was being treated in the same way as some young people who had been committing offences that could have had far more serious consequences. In all cases, whoever is issuing the penalty needs carefully to consider the particular circumstances around the case. As my right hon. Friend knows, I have always taken a much tougher line than the Government on drink-driving issues, and I would caution against taking what might be perceived as a more lenient approach. In some areas of the country, there has been a steady move towards winning the battle of hearts and minds over drink-driving, and we need to ensure that we are not perceived to be taking a softer line in that respect.

I have discussed reparation with a number of young people in my constituency from different parts of society, in organised youth groups and in informal environments. We can undoubtedly learn a lot more by engaging with young people about how they respond to community sentences involving a degree of reparation, and I commend that to the Government.

As for the removal of clause 10, I recognise that this debate is being conducted, on all sides, in an honest and open manner that is helpful in this area of law-making, where nobody can claim to have 100 per cent. of the answers. As my right hon. Friend explained, the sentencing statistics show an unexpectedly heavy use of the suspended sentence but no commensurate drop in the use of the immediate custodial sentence, which implies that the courts are regarding the new suspended sentence as a heavy community sentence and therefore as an attractive sentencing option. It should not be seen in those simplistic terms. We should ensure, by improving the training of our magistracy and broadening the range of tools in their armoury, that the downward pressure on crime is continued. I would urge that, with the constraints that my right hon. Friend has described, we seek to move the Bill forward with clause 10 intact.

This is one of those debates where nearly everyone agrees about the objectives but disagrees about how to get there. As I understand it, the objective is to ensure that magistrates use community sentences to the maximum degree appropriate and that people are not sent to prison as the consequence of breaching a suspended sentence. First, the question is whether the Government are right in their prediction of what would happen were clause 10 to be implemented. Secondly, even if they are right in predicting the direction in which the prison population goes as a result of clause 10, have they chosen the best possible way of achieving that end?

The sentencing guidelines for magistrates courts included in the Judicial Studies Board publication on this matter are very clear. Perhaps I should declare an interest; my wife is a magistrate, so I get to read such books more often than hon. Members may think. Suspending a sentence is done after a decision has been taken to impose a custodial sentence, and the process has to work in that order. If the guidelines are followed, it would not be possible for a court to do what the Minister said that it would eventually do, which is to compare the effects of a custodial sentence and a community one. According to the guidelines, courts should not do that. First, they have to decide whether the offence is so serious that only imprisonment is appropriate. Only after that can they decide whether to suspend the sentence or not.

To the extent that courts are following the guidelines, it follows that clause 10 and the abolition of the right to suspend sentences on summary conviction will have the effect of raising the rate of imprisonment. If a decision has been made to imprison and a suspension of sentence is not available, the sentence will be immediate imprisonment. The Government’s case is that magistrates are not following the guidelines, or that they are changing the threshold at which they decide that people should be imprisoned as a result of the Criminal Justice Act 2003. The Government assert that if the position established by the 2003 Act, which came into force in 2005, is changed back, the situation will reverse. The question is whether that is right, and I am not entirely convinced that it is.

Consistency is an important matter for legal decision makers; they do not like doing inconsistent things. Sentences are influenced not just by the case in question, but by a sense of fairness with regard to the run of cases that have been considered. Magistrates sit for a day a fortnight and they do not consider dozens of cases per week. They look back over a large chunk of time when comparing their current decisions with previous ones. When trying to be fair about in-out decisions, and in maintaining consistency over the previous year, there is a severe risk that removal of the power to suspend prison sentences for summary cases will mean an increase in immediate imprisonment. It will not result in the change in the other direction that the Minister predicted. That is a matter of judgment and no one can be sure about the effects—the Minister is right about that—but I fear that the risk exists.

The Government have issued the Opposition with the challenge, today and in the House of Lords, to explain the figures that the Minister presented. How is it that, on summary conviction in the magistrates court, the introduction of the new suspended sentence order has not resulted in a commensurate drop in immediate imprisonment? There are many possible explanations, and not all are excluded by the evidence before us. We are making the decision quickly, on the basis of one year’s figures.

What other possible explanations exist? We have heard one, which is that the seriousness of offences has increased. That is unlikely and not the only possible explanation. Another explanation is that prosecutors are raising the level at which they charge—“up-charging” in the ugly jargon of the profession. That is possible in driving cases—for example, moving up from careless driving to more serious offences. However, we do not know whether that is the case.

What the hon. Gentleman suggests is unlikely to be the case. Prosecutors often reduce the charge to be more sure of a guilty plea rather than go to the expense, time and trouble of a contested trial on a more serious charge.

As the hon. and learned Gentleman says, that happens most of the time, but we do not know whether that effect has been reversed or whether the normal pressure to do what he outlines has been lessened.

It is also possible that general public concern about violent crime has caused a change in sentencing behaviour. Recorded crime is falling—and has been falling for the past 15 years—but violent crime has not reduced commensurately. Indeed, sometimes violent crime increases—certainly anxiety about violent crime is growing.

Let me propose a third explanation, which the Government should consider. The use of the suspended sentence is concentrated on re-sentencing for community orders. What happens when an offender is given a community order, a programme to attend, unpaid work to complete and supervision to undergo but fails to fulfil the conditions? The offender returns to the magistrates court to be re-sentenced. In the past, magistrates have had little choice; they have re-sentenced with a different community order and sometimes a fine, which is difficult, but now they have the option of a suspended sentence.

If that explanation is correct, the problem is concentrated in one area and does not apply across the range in all summary cases. Magistrates may not be concentrating sufficiently closely on the tariff argument in that specific matter. When re-sentencing, a court does not pay as much attention as it does when originally sentencing on the structured approach that the Judicial Studies Board recommends. I would like the Government to consider whether that is the explanation, and if so, to examine whether their approach is right.

My other point follows from something that the hon. Member for Ellesmere Port and Neston (Andrew Miller) said about what is happening in the Crown court and the magistrates courts when sentencing for indictable offences, rather than summary-only offences. The same figures that the Minister cited on summary offences show an ever bigger increase—indeed, an enormous increase—in the use of suspended sentences in magistrates courts for indictable offences from 2005-06. Such cases are not ones for which suspended sentences were previously unavailable. The explanation is not that courts are using a sentence that they could not use before—they could—but there has been an enormous increase, of three to four times. There has been an even bigger proportional increase—indeed, a massive increase—in the use of suspended sentences on indictment in the Crown court. In the Crown court, that increase has come at the expense of community orders, whereas in the magistrates courts, it has come at the expense of fines.

The explanation for what is happening cannot have anything to do with the availability of suspension, so it must be about something else. One possibility is to do with the new form of the suspended sentence order that was introduced under the Criminal Justice Act 2003. The 2003 Act allowed far more flexibility to order something else in addition to a suspended sentence, which was agreed on all sides to be a good thing. The whole panoply of sentencing options that a court has under a community order—the supervision, work, curfews, restrictions and so on—are, under the 2003 Act, also available to a court on a suspended sentence.

The Government might have created too attractive a sentencing option. Courts say to themselves, “This is a good thing that we haven’t been able to do in the past on a suspended sentence”—it used to be a bare suspended sentence, with little additional action. However, under the 2003 Act, the suspended sentence, with all the other things happening, has become more attractive. In addition, a suspended sentence looks like a good way of getting an offender to do what they are supposed to do. Instead of just saying, “You’ve got a community order—you’ve got to turn up for this and that,” there is also the threat of imprisonment hanging over the offender’s head. That makes a suspended sentence more attractive.

That is more likely to be what is happening than simply something to do with summary offences. If that is the case, the remedy cannot just be the abolition of the power on summary offences, nor can it be to remove the power of suspension or all the other attractive options that go with it under the 2003 Act, which would be a retrograde step. The only option that covers all the ground is training and the reiteration of guidance, to ensure that judges are aware of the problem caused if they ignore the structured approach to sentencing that has been agreed by the Judicial Studies Board, under which they should use the suspended sentence order, attractive though it is, only in cases where they have decided to imprison.

There is also a strange psychological problem, in that all the other, community order-type options do not seem to go naturally with a suspended sentence, which is a sentence that says, “Go to jail.” When people are in jail, they do not normally get all the other options. There is a problem with how courts are thinking about suspended sentence orders as a whole.

Another reason why the better option is guidance and training is related to the Government’s policy towards the moving of the tariff. It is possible to say that the tariff has moved in the wrong direction on summary convictions and that we want to move it back—I am not too sure that it will, however—by removing the option. However, by maintaining the current position for magistrates courts sentencing on indictable offences and for Crown courts sentencing on indictment, the Government appear to be saying that it is fine in those circumstances for the change in the tariff to continue in the wrong direction. I do not think that can be right. Magistrates courts are being sent two conflicting messages: that in summary cases the tariff has moved the wrong way, but that in indictable cases it has not. That does not make sense. For that reason, and in order to have a coherent approach to the whole problem, which has arisen because of the success of the new suspended sentence order, the only way to deal with the issue is through training and guidance.

Is there not another way of looking at the matter? The hon. Gentleman and I have both mentioned the sensible aspect of the 2003 Act that allowed requirements to be added to the suspended sentence as though it were a community sentence, although it is not. The reason why those on suspended sentences end up going to prison is, as often as not, because they breach or fail to comply with the requirements of the probation aspect of the suspended sentence, not because they commit a further offence. However, that is also a problem with community sentences. We need to see from the Government a real earnest to ensure that those who are subject to requirements will be properly supervised and monitored. That is where the breakdown comes; it is not in the sentencing process, but in the monitoring of requirements.

There are always challenges in that area. One difficulty with the new suspended sentence order is that when a case comes back, when someone has not fulfilled their requirements, they are already seen as being over the threshold for imprisonment. There is then a kind of automatic idea that the next step should be imprisonment rather than a repeat order or other sentence. For all those reasons, the Government might not be right in their prediction of what will happen if clause 10 is reinstated. Even if they are right, to some extent, they are not dealing with the problem in the best possible way. Given the risk that things might go into reverse in the wrong conditions, I prefer the Lords’ approach to the Minister’s.

I am grateful for our short debate, and I must respond to the point that the hon. Member for Cambridge (David Howarth) has just made. I am genuinely disappointed that he takes that view, because his colleague, the hon. Member for Somerton and Frome (Mr. Heath), said on Second Reading:

“I welcome clause 10 on the abolition of suspended sentences for summary crimes. I understand that I differ from Conservative Front Benchers in that respect, but it seems quite wrong that suspended sentences are used in the magistrates courts as a substitute for immediate sentences of a different kind, which was certainly not the Government’s intention.”—[Official Report, 8 October 2007; Vol. 464, c. 88.]

I thank the Minister for giving way. This is an instance in which the new procedure, in Committee, of having a kind of Select Committee investigation before going into the Bill, has proven valuable, because it was only at that stage, when we listened to the concerns of the Magistrates Association, that we started to wonder whether the measure was wise. This is about judgment and prediction. The difference is not one of values, between the parties, but one of prediction.

I am grateful for the hon. Gentleman’s intervention. I simply felt that a wider audience was needed for the initial comments, from the Front Bench, of the hon. Member for Somerton and Frome.

Absolutely.

I remind the House that clause 10 amends section 189 of the 2003 Act so as to abolish the power of the court to suspend a custodial sentence when it is passing a sentence of imprisonment for a summary-only offence. Our contention is that since the introduction of suspended sentence orders, in 2003, the courts have been using the new suspended sentence in substantial numbers of cases in which non-custodial sentences would previously have been given. Once the option of passing such sentences for summary offences has been abolished, the courts will, by and large, revert to giving community penalties.

I accept that the other place will disagree with our view—indeed, it voted to remove the clause from the Bill on Report—but I still believe that the Government are correct in their contention. But, as I have mentioned, it is important that we create an opportunity to test the water on this matter, which is why I have tabled an amendment that will allow Ministers to reflect on what happens and to assess the contention of the Opposition, and of the hon. Member for Cambridge, that the trend in the use of suspended sentence orders will continue. If that happens, we need to have the power to make amendments accordingly.

I can see what the Minister is trying to do, in having one more shot in relation to the lifting of the order, but why will he not accept the logic of his own suggestion and simply listen to the evidence that has gone before? Why will he not allow the suspended sentence on summary-only cases to continue for a while? That practice has only been in place since 2006, which hardly gives it enough time to be properly assessed. I would suggest that, rather than trying his reverse procedure, he should leave things as they are and let us all assess the position in a couple of years’ time.

As I said to the hon. and learned Gentleman in my opening remarks, we have had some time to assess the situation to date. That assessment shows that the immediate custody rate remains stable at 4 per cent., whereas the usage of suspended sentences increased from 0.5 per cent. in 2005 to 1.7 per cent. in 2006—an increase in actual sentences from 7,081 to 23,274. That big rise has coloured the Government’s opinion on the operation of those sentences.

My contention all along has been that the evidence base is there for us to consider and that we need to take action on it. I have said to the hon. and learned Gentleman openly, honestly and candidly that the impact of the Bill not being amended in the way that I am seeking to do today would involve an additional 400 places. I remind him, if I need to do so, that that is the equivalent of a small prison and would involve considerable expenditure and staffing costs, at a time when there are prison pressures that are being considered and examined.

The hon. and learned Gentleman mentioned the 2003 Act, and I should like to point out that 92 per cent. of the 329 substantive sections of the Act are now either wholly or partly enforced. So, while I am amending the 2003 Act through clause 10 of the Bill, this is not the widespread massacre that he initially suggested. We are doing this having considered the number of suspended sentence orders passed and the impact of the original proposals from 2003 on prison population issues, yes, and on the individuals concerned, who might well face prison rather than an alternative sentence. The honest debate that we have had today relates to up-tariffing.

The Earl of Onslow has said that there could be an explanation of the use of suspended sentences, in that there was an increase in the seriousness of the mix of cases before magistrates courts. I am not aware of that, and I do not believe it to be the case. It seems implausible to me that any such increase in seriousness would coincide solely with the availability of the new order. In my consideration, the new order is the key to this deliberation. As I have said, however, I am willing to consider reviewing this matter if the pressures prove to be wrong.

In support of clause 10, I pray in aid not only the original Second Reading speech by the hon. Member for Somerton and Frome but the chief executive of the National Association for the Care and Resettlement of Offenders, Paul Cavadino, who has said that

“restricting suspended sentences to more serious offences should help to avoid the ‘boomerang’ effect of these sentences which is boosting the prison population.”

There are, without a shadow of a doubt, challenges with the prison population, but our prime focus today is to make more effective use of the sentencing options by removing this measure from magistrates courts.

My hon. Friend the Member for Ellesmere Port and Neston (Andrew Miller), whom I thank for his contribution, spoke on a range of issues in support of the community sentence. He also mentioned the question of training, and of support for magistrates to help them understand the sentences more fully. There is merit in that suggestion, but I am sure my hon. Friend will recognise that the Sentencing Guidelines Council already sets out clear guidelines on custodial thresholds, and it would be a vast job to train a large number of men and women from the magistracy to take that matter forward. I am happy to look further into that, but our clear objective is to get this legislation through, monitor its progress and allow the Government to have the mechanisms they wish. If the case put by the hon. Member for Cambridge, the hon. and learned Member for Harborough and the other place comes to pass, the Government can review the matter in due course.

With that, I commend the Government’s position to the House.

Question put, That this House disagrees with the Lords in the said amendment:—

The House proceeded to a Division.

It being more than one and a half hours after the commencement of proceedings on consideration of Lords amendments, Mr. Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [this day].

Government amendment (a) to the words so restored to the Bill agreed to.

Lords amendment No. 301 disagreed to.

Government amendment (a) to the words so restored to the Bill agreed to.

Lords amendment No. 327 disagreed to.

Government amendment (a) to the words so restored to the Bill agreed to.

Clause 105

Extension of powers of non-legal staff

Lords amendment: No. 86

Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Mr. Hanson.]

Amendment (a) in lieu of Lords amendment No. 86 agreed to.

Amendment (a) to Lords amendment No. 88 agreed to.

Lords amendment No. 88, as amended, agreed to.

Amendment (a) to Lords amendment No. 89 agreed to.

Lords amendment No. 89, as amended, agreed to.

Lords amendments Nos. 87, 90 and 91 agreed to.

Schedule 26

Hatred on the grounds of sexual orientation

Lords amendment: No. 285.

With this it will be convenient to take amendments (a) to (c) in lieu thereof.

The question before us is an important one. The purpose of the offence that we are considering is to protect a group that is targeted for hatred, abuse and even worse, merely on grounds of sexuality. But we also need to protect freedom of speech—as we have made clear from the beginning of the passage of this Bill—where that does not threaten safety and public order. That balance was much in our minds as the Bill was drafted. Before the offence was drafted, I consulted representatives of a wide range of interests on all sides of the argument, and encountered many passionately held views.

The balance between protection from the incitement to hatred for a particular group of people and the protection of freedom of speech was in our minds as we drafted the offence, and has been a constant theme in our consideration of the Bill over these long months. Those who have participated in debates or read Hansard will be able to confirm that.

We debated thoroughly the question of freedom of expression before we sent these offences to the other place for consideration. Across the Chamber, we agreed that we should seek to limit freedom of expression only where this was necessary and proportionate to the aim of public safety and public order. The House concluded that there were substantial safeguards in the system to ensure that the offence as drafted did not overstep the mark and that we had got the balance about right. Not every hon. Member agrees, and those who do not will get their say, but votes of the House have indicated that that was the collective view.

Since then, the Joint Committee on Human Rights and the Equality and Human Rights Commission have both given a view, and they agree that we have got the balance about right.

We all agree that no one should be abused for their lifestyle, but the Minister keeps mentioning balance. An elderly pensioner couple, a bishop of the Church of England, a Roman Catholic archbishop, a leading Muslim figure and a leading author have been investigated by the police, and when that happens people worry about the nature of our society. We must maintain that essential freedom of speech while avoiding the harm and upset that neither she nor I wants to see.

I agree about the need to strike an appropriate balance. I began my remarks by saying that there was general agreement across the House about the need to get the balance between these difficult issues right. The hon. Gentleman refers to incidents involving public order offences with a threshold much lower than what we are considering today. I shall deal with the differences between those thresholds later in my remarks, so I hope that he will bear with me. I shall keep his comments in mind, and I want to reassure Members of this and the other place that the Government want to get the balance right.

I believe that we are more or less there. I shall deal specifically with the question of thresholds, as the threshold for the offence proposed in the Bill is higher than the thresholds for the public order offences that have been examined by investigating officers. It is important to note that the thresholds for the latter are much lower, but I shall set out the Government’s position in a bid to be as helpful as possible in reassuring those who have concerns.

The Government have said repeatedly that we believe that no additional wording is necessary to safeguard free speech. We have listened to other opinions, and I have consulted. We have tried to take all that into account in the drafting of the provision. We do not want to include in the offence anything that is unnecessary, as that would not make the offence any clearer. Instead, the proposed wording would introduce confusion, which we should avoid in respect of an offence of this sort.

Amendments (a) to (c) are likely to generate confusion. As a public authority, the Attorney-General is already bound by the Human Rights Act 1998 to have regard to the convention on human rights when considering whether to give her consent to a prosecution, so to put on the face of the Bill another requirement that she should do so would be to repeat something that she has to do already. It could also give rise to difficulties with statutory interpretation: when the courts or others look at the legislation, they will ask why Parliament inserted a provision that was already implicit in it. For those reasons, I have concerns about accepting amendments (a) to (c); they do not add anything substantive to the Bill.

I know, however, that those who tabled the amendments are looking to reassure people. My hope is that we can do the same in a slightly different way that does not cause the legal issues or problems with statutory interpretation that the formulations chosen for amendments (a) to (c) do.

The cases cited by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) did not reach the Attorney-General. They did not come under her discretion, and the convention on human rights did not apply, as they were dealt with at a much lower level, by the police. One reason to put something explicit on the face of the Bill is to ensure that the need to have regard for religious freedom and freedom of conscience is taken into account at all levels.

I understand what the right hon. Lady says, but I am not one who thinks that putting things that are otiose on to the face of a Bill necessarily adds to its clarity. There are better ways of achieving the same end, and I hope that she will agree that what I am about to suggest in that regard will do the job. We all want people to be reassured, and the offence must be as clear as it can be. In addition, we all want the people obliged to investigate incidents and to decide whether they should be prosecuted to be absolutely clear about where the threshold is and what behaviour is caught by the offence.

In other words, I do not believe that the safeguards proposed in the amendments would help the police and those others at the lower levels to whom the right hon. Member for Maidstone and The Weald (Miss Widdecombe) referred to interpret and use the offence appropriately. In fact, they add cause for confusion about an offence that we have from the beginning tried to make as clear as possible, and that is, as currently drafted, very clear.

We have looked carefully at some of the examples cited in which the police have allegedly been over-zealous in investigating incidents; the hon. Member for South-West Bedfordshire (Andrew Selous) and the right hon. Member for Maidstone and The Weald (Miss Widdecombe) referred to some of them. I think that we would all agree that those cases involve a delicate balance, and the police need to act sensitively and proportionately. That is a matter for training, guidance and awareness, rather than a matter of putting words in the Bill that do not make the offence clearer.

The hon. Lady is trying to deal with the issue moderately and reasonably, and we are grateful for that, but would it not give a little extra reassurance and confidence if people lower down the food chain, if I might put it that way, were prohibited from taking the initiative and taking the sort of actions that can destroy a life? The people cited by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) experienced great distress. It is not impossible to envisage people being driven to the end of their tether by that sort of thing. All that we ask is that we try to prevent by anticipating.

I understand the hon. Gentleman’s point, and I understand the concerns that those who are investigated by the police for any offence may have, and the impact that such investigation can have on their day-to-day lives and reputations. I do not believe that we will solve the problem by putting in the Bill a requirement, in terms, that the Attorney-General consider particular issues, when it is implicit that she has to consider them anyway. That does not go directly to the heart of the issue, which is the understanding or otherwise of those who are responsible for investigating offences. However, I believe that we can take actions that would address the issue.

I fully accept the Minister’s point that the Attorney-General is, by implication, required to take into account the matters that I set out in my amendment (c), but the Bill will be read not only by the Attorney-General, but by chief officers of police, who will instruct subordinate officers on how to approach the issue. I accept that the issue is very delicate, but the greater the clarity in the Bill, the greater the clarity of the guidance that senior officers will give to inspectors, sergeants and police constables.

I agree that clarity is tremendously important, but I do not agree that the hon. and learned Gentleman’s amendment, or the Liberal Democrat amendment (a) for that matter, would provide that clarity; I think that they would do the opposite. Let me suggest how we might move forward with what ought to be a more targeted way of dealing with the concerns that hon. Members raise. First, some of the incidents mentioned by the hon. Member for South-West Bedfordshire and the right hon. Member for Maidstone and The Weald were investigated under current public order legislation, which deals with

“threatening, abusive or insulting words or behaviour”.

That is a much lower threshold than the one we suggest for the offence that we are considering. The wording of our proposed offence follows that of the religious hatred offence, which is committed when someone uses words or behaviour that are threatening and intended to stir up hatred. That is a much higher threshold, and that is an important difference to bear in mind when considering the issues. That threshold allows much less room for subjective judgment than, say, the phrase, “abusive or insulting words”.

I agree that the threshold for the offence that we are considering is much higher, and appropriately so, but I hope that the Minister will say how she will deal with the fact that clearly there is either too low a threshold, or prosecution is too readily used, in cases that come under sections 4A and 5 of the Public Order Act 1986. I share the concerns that Conservative Members have raised, although I have a different perspective on the matter. Will there be new guidance?

I am doing my best to come on to what I propose, but I keep giving way to Opposition Members—and I will continue to do so, if they wish me to. The hon. Gentleman has to give me a little more leeway, so that I can get on to the safeguard that I am proposing. I just wanted to make the point that we are not talking about an equality of threshold; there is a much higher threshold for the proposed offence than there is in respect of the public order offences that gave rise to some of the examples that caused concern. It is important that we bear that in mind.

It is a high threshold that we have adopted because we understand the concerns that we have heard about freedom of expression. We recognise the importance of defending freedom of expression and we want, therefore, to be as clear as possible about what the offence will cover and what it will not cover. I cannot think of words or behaviour that are threatening and intended to stir up hatred that should be regarded as acceptable for freedom of expression reasons. Some in the Chamber may be able to think of examples, but the threshold is very high.

Amendment (b) deals with guidance. I said in the House on Report that we intend to issue guidance about the offence, which we hope will be useful for all criminal justice agencies and for all those who seek to implement and use the legislation. The guidance will also be available to the public.

We understand from the Crown Prosecution Service that it intends to issue guidance to prosecutors on commencement of the new offences by way of a policy bulletin and legal guidance. Legal guidance provides prosecutors with an online source of information on legislation and policy on a range of legal issues, and is accessible to the public on the CPS website. That ought to be available to anybody who might feel concerned about the way in which the offence would work and the way in which the CPS would enforce the provisions once they are on the statute book, should they get there.

In addition, the CPS published its refreshed policy statement and guidance for prosecuting cases of homophobic or transphobic hate crime on 27 November. The policy statement explains the way in which the CPS deals with cases with a homophobic element. That covers crimes with a homophobic motivation, rather than incitement to hatred, but it is useful guidance in this context.

We have also spoken to the police, who intend to issue guidance as part of the updating and revision of the Association of Chief Police Officers hate crime manual. Currently, that deals only with crime that has a hate motivation, but it is intended to expand that to deal with crimes of incitement to hatred. I believe, and the right hon. Member for Maidstone and The Weald may agree or she may not—she will have her chance to do one or the other later—that that is much more likely to be read by the typical bobby on the beat who might be investigating such complaints, and it is probably a much better level at which to pitch the promotion of understanding of the offence, what it means, what the threshold is, what is allowed and what is not allowed.

Neither we nor the Attorney-General will give operational guidance to the police. It would be inappropriate for us to do so, but our guidance will cover the purpose and need for the offence as we have described them during the Bill’s passage through the House. On the important issue of freedom of speech, the guidance will also cover the need to ensure the balance between the convention rights and protecting targeted groups from hatred. We expect to issue such guidance to coincide with the coming into force of the new legislation.

It will be for the police to offer operational guidance on the matters that they will face in dealing with the offence. The CPS gives operational advice to prosecutors, and the police and other criminal justice agencies will take this into account when they are investigating crimes. Any advice must take into account the European convention on human rights, because both the CPS and the police are bound by the Human Rights Act to act compatibly with those rights.

I know the House is keen to find a way through on the issue across all parties, and I am keen to do so, too. The Government are, therefore, ready to table an amendment when the Bill returns to the other place tomorrow afternoon that places on a statutory footing a duty on the Secretary of State to issue the guidance to which I referred. As I said, the guidance will cover the purpose and construction of the offence, what it covers and what it does not cover. We will ensure that the guidance is properly publicised to all interested parties.

In conclusion, we have a clearly defined offence that would bite only on words or behaviour that is both threatening and intended to incite hatred against gay and lesbian people because of their sexuality. We do not believe that it needs further embellishment to protect freedom of speech. The real protection in the offence is the very high threshold required to make it out, in conjunction with clear guidance and understandable—

I am not concerned about the need to issue guidance on the legislation because it is narrow and the threshold is high. Before she concludes, however, can the Minister give reassurance about whether there would be new guidance, with or without a duty to do so, on the conduct of potential prosecutions or investigations relating to sections 4A and 5? With respect to unnecessary arrests or investigations by the police, the mischief is in that area. The hon. Lady has not said whether she can do anything to prevent that from happening again.

I can give the hon. Gentleman the assurance that I will be happy to talk to the law officers about that. Today I am concerned with giving assurances about the offence that we are discussing. When hon. Members raise concerns about any offence not working properly or not being investigated according to how it is generally believed it should be, an issue is raised about whether existing guidance should be changed. I will be happy to get back to the hon. Gentleman about that point.

To conclude, I should say that we are ready to provide for statutory guidance to try to provide reassurance, and to introduce a Government amendment to that end. On that basis, I invite the House to disagree with the Lords amendments and reject amendments (a) to (c), because of the additional problems that accepting them would cause in respect of statutory interpretation of the role of the Attorney-General’s office.

I am grateful to the Minister for how she has explained the Government’s position on the Lords amendment. However, I am afraid that I cannot agree with her approach. Let me try to explain why.

Although this is a free-vote matter for my party, we on the Conservative Front Bench support the principle of this legislation. I strongly support it; we all agree that gay people can live in fear and are subject to violent attacks, and that hateful lyrics broadcast against them, for example, have no place in a civilised society. We all agree that there is a legitimate case for making sure that gay people are protected from such activities. Our difficulty has been to make sure that, in framing a criminal law, a proper balance is achieved between the desirability of outlawing such acts and ensuring that what Stonewall, whose work on promoting this legislation I commend, has described as “temperate comment” is not outlawed.

Although it is true that the clause is rightly limited to intentional acts and threatening words and that merely abusive or insulting words are excluded, the real concern is that there have been many examples of clumsy policing and of arrests in relation to other, similar legislation. That gives rise to greater concern in this House that this legislation may be abused. A related concern is that there may be a chilling effect and that people may feel constrained about what they say.

Does the hon. Gentleman accept that what he has described relates to offences that have a much lower threshold and that the high threshold in respect of this offence is the main protection?

The concern is to ensure that the police and prosecutors have a clear understanding of the intention of the House in framing this law. One of the problems has been that in our debates until now it has not always been clear exactly what kinds of words would be outlawed. It is important that we establish such clarity in this House and that we make sure that the proper guidance goes to the police and others, so that the law is properly enforced.

If the law is not properly enforced, and if we pass a law that is abused and even results in arrests—even if no charges are brought—that law will be brought into disrepute. That would not help anybody, least of all the gay community. We all agree that we need to strike the right balance and that the right guidance needs to go to police officers to ensure that temperate comment is not caught by the legislation. In that sense, there is not an enormous amount between my party and the Government. However, we have to discuss the right way to achieve that clarity.

We tabled two amendments in lieu of the Lords amendments. They set out an approach slightly different from that taken in the House of Lords. As the Minister said, the first is to require the Attorney-General, in consenting to a prosecution, to have particular regard to freedom of expression and other articles drawn from the European convention on human rights. The second, related requirement is that guidance must be issued to chiefs of police and Crown prosecutors, drawing their attention to that requirement.

Those are hardly onerous requirements; they are perfectly reasonable safeguards to ensure that those fundamental principles of freedom of expression are considered by the relevant authorities. I did not understand the precise objection to the inclusion of the wording of those articles in the amendment. I see no legal difficulty in repeating them and in requiring the Attorney-General, in considering prosecutions, to have particular regard to them. The advantage would be that the House made plain its intention to hold free speech highly and to stipulate that free speech be properly considered before any prosecution. The Minister herself talked about issuing guidance. Why, then, does she not accept our amendment, which would require such guidance? Our difficulty is that the Minister is now talking about tabling another amendment, which we have not seen. However, our amendment is perfectly reasonable and could be considered.

In the absence of Government support for our approach, we have the approach taken by the Lords in their amendment No. 285, which is similar to that taken in a cross-party amendment tabled in this House at an earlier stage. I should say that the amendment is in no sense a wrecking amendment. The protection for free speech that it seeks would not undermine the fundamental protections to be given to gay people.

Does the hon. Gentleman not see that if we agreed to the Lords amendment, we would have to explain to gay people why they seem to deserve less protection than religious groups?

We need to remind ourselves that the purpose of the amendment is to say what will and will not be subject to the criminal law. The amendment does not weaken the protection for gay people, but it makes clear that the kind of temperate comment to which Stonewall referred will not be caught by the legislation.

I would rather that people did not make such comment. I do not wish to indicate to people any kind of licence to make such comment, whether it falls within the criminal law or not. However, we are not here to legislate for matters of taste; we are deciding whether comment should fall within the scope of the criminal law. All the amendment seeks to do is say that for the avoidance of doubt, criticism of sexual conduct and urging people to refrain from certain sexual conduct should not of itself be taken as threatening or intended to stir up hatred. That is a perfectly reasonable safeguard.

Does not the hon. Gentleman believe that the terms of the threshold that we have set in the proposed legislation provide that clarity? Temperate language cannot be caught by the offence; it is pretty clear that only words and behaviour that are threatening and intended to stir up hatred are caught.

I do not see the harm in ensuring that that is clear in framing the legislation. When certain forms of abuse were discussed at the pre-legislative scrutiny stage, in Committee and in the other place, it was not clear, and in some cases Ministers would not answer, as to whether particular hateful lyrics fell within the scope of the Bill. Therefore, Parliament’s intention was not clear, and that is why it is necessary for us to be absolutely clear now. The Minister did not say anything about amendment No. 285 and why it would in any way upset the protection that is being afforded.

The amendment introduces confusion. It says that

“the urging of persons to refrain from”

certain sexual conduct

“shall not be taken of itself to be threatening”,

but if a group of skinheads says, “Gays had better stop that activity”, that is urging them to refrain, but it is also rather threatening, the implication being, stated or unstated, “Or else.” The exemption would apply to urging people to refrain from certain activity rather than to being directly threatening, but in context the former can be threatening. The amendment would merely introduce confusion where there was less confusion to start with.

The hon. Gentleman is right about context, and the courts will have to have regard to that. What we are trying to establish, and to find some way of writing into the Bill, is what happens when, for instance, religious groups express in a temperate and reasonable way their hostility to the conduct of gay people, as opposed to gay people themselves. I would rather that those groups did not do so. I object to such hostility, and I wish to debate with people the grounds for such criticism. However, we should all agree that merely temperate criticism should not fall within the scope of the Bill, and the amendment seeks to clarify that it will not. Unless the Government accept a similar amendment—whether our own proposals to have regard to the importance of free speech, or this amendment or some variant of it—religious groups and others will continue to worry that they will be unable to express sincerely held views.

Does my hon. Friend agree that the amendment that has been sent to us from another place addresses the concerns expressed by the hon. Member for Oxford, West and Abingdon (Dr. Harris)? It clearly states that

“urging persons to refrain from…such conduct…shall not be taken of itself to be threatening”.

In other words, it makes it explicit that context is what matters, and that urging somebody to refrain—as, say, a cleric might—would not “of itself” be an offence. The hon. Gentleman’s point is well covered by the amendment.

My right hon. Friend is exactly right. That is why the amendment is helpful, not unhelpful, and would offer the reassurance that is sought.

We should remind ourselves that the Bill by no means commands universal support in the country or, indeed, among gay people. Some object to it in its entirety, believing that it amounts to an unnecessary restraint on free speech. I do not agree. There is a place for properly drafted legislation to extend this protection, but it is important that it is clear.

I agree with the hon. Gentleman about temperate and moderate language, but the problem is that that phrase does not appear anywhere in the amendment sent to us by the Lords. It would allow any sort of language to be used in such circumstances. All the work is being done by the phrase, “of itself”. Can he explain in what walk of life or in what circumstances words are used without a context?

Surely the point is that “of itself” is exactly the safeguard that my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) suggested. It would not allow any words to be used—it simply says that those words alone could not amount to the commission of a criminal offence. Yes, indeed, they would have to be considered in context. That is why I cannot understand what the objections to the amendment are. I repeat that it is not a wrecking amendment—it proposes a perfectly sensible approach. The alternative approach is contained in the amendments tabled by us and by the hon. Member for Cambridge (David Howarth), which would have a similar effect. I suspect that there is less disagreement between us on this matter than it might appear.

I hope that the Government will say more about the guidance that they intend to bring forward. Should the House disagree to the Lords amendment, this matter will go back to the other place tomorrow, so there is very little time for it to hear more about that guidance. The more that the Government can say about the precise scope of the legislation and the kinds of words that they intend to be outlawed, the more they will be able to reassure people about its scope. That is what they need to do.

I am genuinely confused. I can see that the hon. Gentleman is opposing the Lords amendment as it stands and has tabled his own amendments, but is he saying that he is willing to negotiate via what the House of Lords does if and when the Government put their amendment back to it tomorrow? Is not that the best way forward? It would of course be useful if we saw what the Government intend to say, but I wonder if that is the best strategy to take forward instead of outright opposition.

It will be a matter for the other place as to what it does, and it will have to decide on that tomorrow. We have not seen what the Government intend to bring forward. My name and that of my hon. Friends has been added to that of the Justice Secretary in relation to disagreeing to the Lords amendment because we wish to table our own amendments. If the Government will not accept our amendments, my view is that we should agree to the Lords amendment, and it will then be for the Government to persuade the Lords that it is wrong and to say more about the guidance that they have pledged to bring forward.

We must strike the right balance. I am persuaded that this protection is necessary, and I believe that we are now very close to securing it. However, I want the Government to take on board the fact that concern remains about the inadequacy of guidance and uncertainty in the law. I think that the Minister accepts that, because otherwise she would not have suggested that she was going to come forward with guidance. Until we have seen that, it is necessary to support the Lords amendment and, while it will be a free vote, that is what I personally will do.

I agree with the hon. Member for Arundel and South Downs (Nick Herbert) that this is a vital measure, not only for symbolic reasons but for reasons to do with individual people’s lives. Homophobic hatred creates an atmosphere in which far too frequently the result is terrible violence against people simply because of their sexuality—and sometimes because of their apparent sexuality. We are therefore dealing with an immensely important matter.

I agree with the Minister, however, that the starting point for the discussion is the narrowness of the offence itself. The way in which the offence has been defined means that the only words that count are those that threaten or which are intended to stir up hatred, so there is already substantial protection in the drafting. That is not the case for racial hatred, where those conditions do not apply. However, there is still the problem of absurd police investigations, and some people may feel that their right to express a view in a moderate and temperate way has been interfered with by existing law. Let us not forget that the examples we have considered occurred not under the Bill but under existing public order legislation.

The question is how to deal with the problem. It is apparent from the debate so far that there are three different ways of doing so. We need to consider which of those ways, or which combination, to adopt. One is the Lords amendment, the second is guidance and the third is the procedural safeguards of the sort put forward by us and the Conservatives.

Is there not a slight flaw in the hon. Gentleman’s argument? Does it not come down to the issue of in whose mind there is an intention to cause threatening behaviour—the person who feels offended or the person speaking? That has been dealt with in different ways in the past.

For this criminal offence, the intention has to be in the mind of the offender because that is where intentions in criminal law generally have to be. That has been an issue in previous debates on other matters, but not with regard to this particular offence in the Bill. There is a serious problem with the drafting of the first way proposed to deal with the problem: the Lords amendment.

Before my hon. Friend leaves that point, I want to explore with him the issue of immoderate or intemperate language. There is scope for some division of view on, for example, someone who from a religious standpoint argues strongly, using emotive language, that he believes homosexuality to be sinful and likely to result in some form of divine punishment, which might be seen as threatening. I think my hon. Friend and I are at one in what we want to achieve, but is he satisfied that references to moderate or intemperate language—given that he suggested a moment ago that it might have been better to include them in the Bill—will not exclude strongly felt views expressed with no kind of intention to pose a definite threat, still less to instil hatred?

If my right hon. Friend waits for a minute, he will see that I do not think that dealing with the problem by talking about what language is acceptable will ever work. Substantive control, as opposed to procedural control, has fundamental flaws, which is why the Conservatives are in a contradictory position. They are putting forward two contradictory ways of dealing with the problem.

To return to the point made by the hon. Member for Arundel and South Downs (Nick Herbert), one of the problems with the Lords amendment is the statement

“for the avoidance of doubt”.

I do not think there is much doubt about what the provisions mean. Including a provision with the words “for the avoidance of doubt” automatically suggests that there is something to be doubtful about. In the past, such provisions have been inserted in legislation when the courts have said things that are contradictory or unclear. Parliament then says, “For the avoidance of doubt, this interpretation is the correct one.” There is not yet any court interpretation of the legislation for there to be any doubt about because it has not been passed yet.

The second problem with the Lords amendment are the words “of itself”—as if words can ever float free of context. Words are always used in context, and it is the context that tells us what is going on. Among the Conservatives, there seems to be a naive belief in an abstract notion of language, whereby words have their own existence outside of human beings, human minds or human forms of life. There is no such thing as a context-free sentence—it makes no sense. Every time the Conservatives try to explain how their provision would work, they run into that problem.

The third problem with the Lords amendment relates to context and how people use words. Urging someone to refrain from particular sexual conduct sounds okay, but it can easily become a code or euphemism for something that, in context, really is threatening. We have seen that in, for example, the way the British National party used religion as an indirect way of attacking people on the basis of race. Society never stands still, and the meanings of words never stand still. Contexts change and words that might appear at one stage to be innocent will not be so at a later stage. The provisions are dangerous, and the problem lies in attempting to solve the problem by saying that there are some permitted words and some unpermitted ones. Such an approach will always run into the problem that words do not have abstract meanings; they have meanings only in social contexts.

The second way we have been offered to solve the problem is through guidance. The Minister offers us, through the Crown Prosecution Service, guidance to prosecutors on how the provisions should be used. That is not an inconsiderable offer, but it would be even better if the duty to provide guidance were included in the Bill.

The CPS will provide guidance in any event. What I am offering the House—I apologise for not having the wording—is statutory guidance from the Secretary of State for everyone in addition to the other guidance that has been produced.

I thank the Minister for that. In a different context, I remember a long debate—about half a day—during consideration of the Companies Bill of what the meaning of “statutory guidance” was. There are two sorts of statutory guidance: when the power to issue guidance comes from a statute, and when there is a duty to issue guidance and it has some sort of legal force. I am interested in the Minister’s offer, and I think that it is a way forward, but I need to see the detail. If the guidance lacks legal force, that is a problem.

The third method of dealing with the problem is procedural. Our amendment (a) and the subsequent Conservative amendments (b) and (c) propose to deal with the problem in that way. Ours would require the prosecution authorities—at the moment, the Attorney-General, but I hope that under the constitutional renewal Bill many Attorney-General powers will be transferred to the Director of Public Prosecutions because these should not be political matters—to

“have particular regard to the importance of the right to freedom of expression provided by the European Convention on Human Rights”

in deciding whether a prosecution should proceed. That is in addition to the guidance, and it is an attempt to create a trickle-down effect. It says that the prosecuting authorities must take a firm view on freedom of expression, which should eventually reach down to the level of the police.

The Under-Secretary said that that sort of thing has no effect, but it does. First, it has a possible administrative effect by diverting the authorities’ attention in a specific direction. Secondly, it has a legal effect because it provides a hook—perhaps not a strong hook, but stronger now, given what happened in the BAE case—for some form of judicial review. If there is no effect, the Government should explain why the Human Rights Act 1998 includes a similar provision on the balance between freedom of expression and privacy. That provision was included on behalf of the press, but it is a suitable model for protecting people who are not the press. I therefore believe that the procedural way forward provides a better balance. If the opportunity arises for a vote on the amendment, I request that one be held.

Amendment (c) would work in a similar way, although I do not believe it is as good. It lists many human rights—

Absolutely. However, the problem is that the amendment mysteriously misses out some rights. We want to concentrate on the right to free expression. If one lists many rights, the question arises why they are not all listed. The one that is missing is the right to life. Dealing with homophobic hatred means protecting some people’s lives. If rights are to be listed, one may as well include those that are important from the victim’s point of view.

It is odd that, although the amendment lists the rights in exactly the same terms as they appear in the Human Rights Act and the European convention on human rights, it cannot bring itself to specify their source. Perhaps I am making more of a political point than a serious point for today, but it is peculiar and perhaps emblematic that the Conservatives can use in an amendment the terms of several human rights, but cannot bring themselves to mention the words “Europe” or “human” in doing that. Nevertheless, that amendment’s approach is correct—the procedural approach is the best.

I was muttering because I was dismayed at the poverty of the hon. Gentleman’s argument, which surprises me. His amendment (a) and my amendment (c) try to achieve the same outcome. I would not have thought that he needed to waste much time making offensive remarks when our amendments are designed to achieve the same purpose. We need to be concerned about why the Government find neither our nor his approach appropriate.

I accept that point. Amendments (a) and (c) try to deal with the problem seriously and they require a serious response from the Government. I do not believe that the Government’s answer—on the one hand, the approach is unnecessary; on the other, it would have no effect—is convincing.

The necessity derives from the need to tackle the problem of the absurd investigations. There is also an effect—it may not be as great as some people wish, but it is a definite effect. The choice for the House in tackling the problem of balance is the substantive words approach, but I do not believe that that works; or the guidance alone approach, which is not yet sufficient, although it has a certain promise, especially when the detail is produced; or the procedural approach. I am a little confused by the Conservative party’s stance, which appears to favour the substantive approach on the one hand and the procedural route on the other. The Conservatives must decide between the two. Nevertheless, I hope that hon. Members will find an acceptable way forward that is also acceptable to the House of Lords.

I always find such debates difficult because whenever the House of Commons tries to quantify or qualify free speech, it moves in a dangerous direction.

I yield to no one in my abhorrence of acts of hatred and crimes committed against individuals for their beliefs or practices—whatever those beliefs or practices, so long as they are legal. Homosexual conduct is rightly not stigmatised as criminal any more. Nevertheless, some people, particularly in the Christian Churches but also in other faiths, strongly believe that that conduct—not the people—is wrong and sinful. Whatever one’s personal view of those beliefs, they are sincerely held. When they are articulated, sometimes with force, vehemence and clarity, they can have the effect of inciting undesirable, nasty people to do thoroughly nasty things, yet it is important that the law should not be brought to bear on those who utter the words, and do not do so because they wish to incite.

I assure the hon. Gentleman that the offence would not apply in those circumstances because the potential offender—the person who uses threatening words or behaviour—has to intend to incite hatred. The circumstances that he describes would not, therefore, be caught by the offence.

I do not for a moment impugn the Under-Secretary’s good intentions and I would like to see the guidance to which she has referred. It is a pity that she could not produce it this afternoon—I do not criticise her—but if it is to be produced tomorrow in the other place, why could it not be produced this afternoon in this place?

There is the difficult matter of who is to decide what constitutes the intentions. We had a similar discussion on the low-level cases, to which my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) referred. Some people have heard rather simplistic preachers and decided that they were speaking from hatred when they were preaching from what I would call over-simplistic philosophies.

Such preachers and bishops have been investigated for offences with a much lower threshold. The public order threshold is threatening, abusive or insulting words, which is much lower than threatening words or behaviour intended to incite hatred. Does the hon. Gentleman not understand and accept that?

Yes, I understand the Under-Secretary’s point, but I believe that we are considering an imperfect way of dealing with the problem. I was brought up on Voltaire’s maxim:

“I disapprove of what you say, but I will defend to the death your right to say it”,

and that of Dean Swift:

“He lash’d the vice, but spared the name”.

We have moved a long way from those propositions in the Bill and in much other legislation that we have passed in recent years. I am worried lest people who do not intend to do anything other than proclaim their heartfelt beliefs fall foul of the measure. I repeat that I do not doubt the Under-Secretary’s good intentions, integrity or belief that she has found a solution, but I beg leave to remain unconvinced by it.

Given the zealousness with which some police officers have pursued those who do exactly as the hon. Gentleman describes, does he not accept that, despite the guidance and the high threshold, both of which the Minister has talked about, there is a danger that prosecutions will be started? The impact of those prosecutions will be to silence people who, according to the Minister, should not be silenced and whom the law is not intended to silence.

Exactly so. I completely understand and agree with the hon. Gentleman’s point. I therefore remain worried. I would like to see, at the earliest possible date, the notes for guidance and to know their precise statutory effect, how they will be distributed and what seminars and other means of communication will be employed to ensure that police chiefs and those who serve under them fully understand them.

This House will be moving in an unfortunate direction if it passes legislation that can in any way inhibit a sincere individual from proclaiming his or her religious beliefs and convictions. I remain convinced that we are in danger of moving in that direction with this Bill.

Can the hon. Gentleman explain why religious conviction should have a special place and why political convictions should not enjoy the same legal favours? Some really abstruse religions might look to anyone else like simple political prejudice, so if he can make that case, as I am sure he will attempt to, how would he define religion?

I accept that entirely. I am talking about mainstream religions, in particular Christianity. Of course the hon. Gentleman should have the right to articulate whatever beliefs he holds without the fear of the law, and so should I. If anybody listening to us subsequently performs a violent, nasty act, the law is adequate to deal with it. There I rest my case.

In addressing the issue, we need to consider the context in which provisions in the Bill for the avoidance of doubt are now perceived as necessary. If the Bill, with its high threshold, to which the Minister rightly referred, had been the only similar piece of legislation in the past five years, the concern would have been nothing like as great. However, the Bill is another measure in a raft of legislation that either has already been used or has the potential to be used to curb freedom of speech.

That is why there is concern about the additional measure and why, despite whatever the threshold in the Bill may be, we believe it necessary to include something specific. That is why I support the amendment that Lord Waddington moved in the other place, and which has been sent to us, and why I co-sponsored a similar amendment in an earlier stage of the Bill in this House.

I should like to refer briefly—you will not allow me to refer to it in any depth, Madam Deputy Speaker—to some of that previous legislation. That includes the interpretation of the Public Order Act 1986 that led to a series of incidents, which my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) enumerated, that have given rise to considerable concerns about the value that we in Britain now put on free speech.

In the case of the Lancashire couple who had asked to distribute Christian literature in registry offices alongside the registry office’s own literature on civil partnerships, the police visited their home and spent an hour and 20 minutes questioning them. That is the first time in this country—or at least the first such incident that has been publicised—that the police have knocked on someone’s door not for something that they have done, but for an opinion that they have expressed.

The same thing happened to the children’s author Lynette Burrows, who in the course of a radio interview expressed the view—in response to questioning, not gratuitously—that she did not believe that homosexual couples should be allowed to adopt. She had the police on the phone within a short time of arriving home, for an opinion that she had expressed. I shall not go into all the others, such as Iqbal Sacranie, who have also been scrutinised. However, although we are not talking about the KGB knocking on the door at dawn or people being shanghaied off to the Lubyanka, it is now an established fact that, under public order legislation, people have been visited by the police for expressing an opinion. That has raised a lot of concern in the country.

That legislation was followed in fairly short order by the sexual orientation regulations, in which, for the first time, people have been obliged to participate in activity that they do not agree with. For example, a Christian printer was obliged to print homosexual literature—he was not obliged to print abortion, hunting or any other sort of literature, but he was obliged to print that.

The concern has grown. Now that we have the current Bill, it has crescendoed. I accept what the Minister said about the threshold. If the Bill had appeared in isolation, we would not be so worried, but we cannot take it in isolation from how other legislation has been interpreted and implemented. There is now a serious concern—principally, but by no means exclusively, on the part of religious faiths—that our ability to express what we believe and to refuse to participate in activity in which we do not believe is being severely curtailed.

My hon. Friend the Member for South Staffordshire (Sir Patrick Cormack) referred to his upbringing, in which Voltaire apparently played a significant part. I grew up in a less philosophical household. Nevertheless, it was in the immediate post-war period, when people had lost life and limb, and shed blood—husbands had not come back; sons had not come back—to fight the Nazis. Yet in that very same society, Colin Jordan and Oswald Mosley were allowed to hold their rallies, because we believed in free speech.

At the height of the cold war, when we had a whole raft of weapons pointing straight at us from the Warsaw pact countries—we tend to forget that now—people were allowed to stand for Parliament as communists. They would not be elected, but they were allowed to stand. People were allowed to distribute communist literature on street corners. [Interruption.] For all I know, the Justice Secretary may have done so in his youth. I certainly did not do that, but we were allowed to do so if we wanted to. There was no restriction on such activity, despite the huge level of social disapproval, because of free speech.

In the days when homosexuality and abortion were unlawful, there were campaigners who wanted to change those laws, in the face of huge social disapproval. Nobody prevented them from exercising their right of free speech. Our society was different then and had a completely different set of values, but nobody prevented those people from exercising their right to campaign for a change to those laws. However, now that the laws have changed, the rights of people to object to some of those changes are being curtailed.

That is, if I may put it this way, a libertarian dictatorship. That is our concern on the Conservative Benches. We are not trying to undo the legislation or say that people should be able to be cruel or discriminatory towards somebody on the grounds of sexual orientation. We are merely saying that, in the context of recent legislation and the social way in which free speech is now being curtailed, we want the Bill to make it explicit that if someone disapproves of something or believes something to be wrong, that should not, of itself, be an offence.

The hon. Member for Cambridge (David Howarth) poured scorn on the term “of itself”.

I shall tell the hon. Gentleman exactly what it means. When the police rang up Lynette Burrows, she had threatened nobody, and had caused no public disorder that I am aware of. Her opinion, of itself, was a reason for them to contact her. That is what we seek to avoid happening with this legislation. I very much hope that the House will agree with the Lords amendment and will disagree with the Government’s motion, not because I dispute the importance of the threshold, but because of the context in which legislation is now being interpreted and because of the desperate need out there for reassurance.

It is a privilege to listen to and follow the right hon. Member for Maidstone and The Weald (Miss Widdecombe), who speaks so clearly. I do not necessarily agree with everything that she said, but as I shall go on to say, there are some real issues of freedom of expression that we need to deal with.

I declare an interest as the president of the Liberal Democrat campaign for lesbian and gay rights, but I have to balance that role against my well-established stance on seeking freedom of expression. The balance of this legislation is important to someone such as me and to those whom I seek to represent.

I am glad that there is an increasing stirring on the Conservative Benches from Members who are concerned about freedom of expression. May I suggest that it would be more consistent and coherent if that concern extended to the issue of consenting adults viewing films and reading literature that those Members might consider to be offensive, and which others might consider to be pornographic? Conservative concerns about freedom of expression often do not extend to all free expression, and are sometimes quite censorious.

Provisions on incitement to hatred need a rational framework, and we are slowly but surely getting there. Our laws on incitement to racial hatred have a very low threshold, in that there is no requirement to intend to stir up hatred and the language can be threatening, abusive or insulting. That is a long-standing provision, and I do not propose that it should be changed. However, it is a low threshold.

At the other end of the spectrum, we need a high threshold to capture cases involving the criticism of people’s opinions, whether they be political or aesthetic; I include in that religious opinions, even though they are often felt more strongly. That is why the House got things absolutely right with the narrow offence for incitement to religious hatred, which required an intention to incite hatred and was restricted to threatening language. Given that opinion is not innate and given that the Government were not offering any concessions on the matter, it was appropriate to have a freedom of speech saver clause, which hon. Members will remember debating and which is now on the statute book. I am pleased that there has been no plan to repeal that clause.

Sexual orientation falls somewhere in between those two ends of the spectrum. It is towards the racial hatred end, in terms of requiring protection, because it is innate and part of a shared or common humanity; it is not something that one can alter or choose. However, it perhaps requires less protection because there is a great deal of sincerely held, often religious, opinion that extends to sexual orientation that does not—generally speaking, in this country, thank goodness—extend to race. I find homophobia just as offensive as racism, but there are people who sincerely hold such views but do not intend to stir up hatred against individuals. The threshold for offences in relation to sexual orientation therefore needs to be middle-ranking.

When, on Second Reading—a long time and many clauses, new clauses and extra parts and schedules ago—I invited the Secretary of State to place the threshold close to that for incitement to religious hatred, but without the freedom of speech saver, he got it absolutely right. The Government have since then, broadly, got it right in choosing to stick with that, because the provisions in the Bill, without the Lords amendments, would exempt most religious language. That is a fact.

As has been said, even the most ardent pastor who is strongly against homosexual behaviour does not intend to stir up hatred against people. That is obvious, and now that the Minister has offered guidance, it will be obvious from the guidance. On many occasions, such language will not be threatening, but fire and brimstone language can be threatening. That is why the word “threatening” alone is not sufficient to ensure that the threshold is high enough. I hope that the Government will succeed in persuading others, as they have persuaded me—or I persuaded them; whichever way around it was—that the combination I mentioned is exactly right.

I have two concerns about scope of the Bill, the first of which concerns the Government’s failure to cover in the Bill what is known as transphobic hatred, because the bigots out there who do intend to stir up hatred using threatening language against gay people do not make a distinction between people with transgender or homosexual tendencies, so the mischief could exist in both those regards. The same protection should be given in both such cases, and I regret the fact the Government have not taken the opportunity to do that.

Secondly, I regret the fact that the Government’s formulation does not seem to cover what I believe to be the real mischief—the liability of organisations such as the British National party to seek to equate all homosexuals, or particular homosexuals or a particular gay club, with paedophilia. I can think of nothing more inciting to, or more designed to incite, racial hatred than making that analogy, but it may not be done in threatening terms. Stonewall told me that the Government would argue in another place that that issue was covered by the existing provisions, but the Minister in the House of Lords specified that it was not. It is therefore an omission. That is a matter for regret. I do not want us to have restrictive measures, but if anything is going to cause problems, it will be in that area. That will not necessarily come from religious voices; indeed, it is far more likely to come from the odious religious right.

I do not share the concerns of the right hon. Member for Maidstone and The Weald regarding the sexual orientation regulations, as a series of measures. They are a series of progressive measures that give rights to people to escape discrimination. There is clearly an implication that people who run commercial businesses are not allowed to discriminate. I do not want to go too far into this area, and I urge the right hon. Lady not to either, but I do not accept that either those measures, or the measure that we are debating, are anything other than progressive measures that should be welcomed.

The hon. Gentleman calls this a progressive measure, but that is a matter of opinion. We have had a series of measures that impinge more and more on people’s rights to speak and to act in accordance with their conscience.

I accept that, and that issue must be strictly controlled. If one acts as a public authority, or is in the commercial sector—we have debated this—that is a reasonable balance. I accept what the right hon. Lady says about controlling the right to object to behaviour. That might be the case; however, it is being controlled not by this measure, but by sections 4A and 5 of the Public Order Act 1986.

I am sure that my hon. Friend the Member for Cambridge (David Howarth) would accept that none of his solutions would cover the problem of the ludicrous police investigations that have been mentioned. In my constituency, we had a case in which a student—who was, I think, the worse for drink—who asked a police officer if his horse was gay, was arrested under the Public Order Act. That is preposterous. I also found it preposterous that, in Trafalgar square, at a free speech rally—which had been cleared by the police—in support of the Danish cartoonists, someone who was wearing a T-shirt with the cartoon on should be arrested under the Public Order Act because there had been a complaint that someone had been caused distress and alarm. I do not think that the police were acting in the right way. I am grateful to the Minister for offering to meet to discuss the matter, because the guidance that she is promising will not cover that area, and there is an urgent need to ensure that free speech is covered much more widely than the issues that are dealt with by this measure are covered.

We are lucky to be having this debate. It was only because of the abysmal turnout by some peers on the Government side that this amendment got through in the Lords. I cannot understand why the Government are able to get lots of their Members to turn out to vote down reasonable measures but cannot persuade them to vote on this sort of thing. It was the Government’s decision to go to 11.30 pm in the House of Lords, yet they were surprised when the amendment was passed.

I do not believe that the Lords amendment should exist; I agree with the Minister entirely on that. There should not be a free speech rider; it is unnecessary and it does not give the victims of incitement to sexual orientation hatred the status that they deserve. As has been pointed out, it is unnecessary because the threshold is high and the offence is narrow. The proposal will cause confusion, as I pointed out to the hon. Member for Arundel and South Downs (Nick Herbert). Urging persons to refrain from certain conduct might, in itself, be threatening, yet the amendment states that

“for the avoidance of doubt”

such behaviour

“shall not be taken of itself to be threatening”.

That simply confuses the issue, and brings a lack of clarity. If someone were to say, “Gays had better stop doing that, or else”, those words would of themselves be threatening, even without the context that my hon. Friend the Member for Cambridge thinks is so important.

My hon. Friend has rather weakened his argument by adding the words “or else” to the words in the amendment. He thus made it into a threat, whereas the original words did not.

I know, but the amendment refers to urging persons to refrain. Certainly, when I am urged by people in authority not to do something, a consequence is often implied; that situation would be covered by the amendment and would not be considered threatening in and of itself. However, the words that I have just used are threatening, as my right hon. Friend admits. It is therefore right that we should reject the Lords amendment.

When we come to choose between amendments (a) and (c)—amendment (b) acts as a stem towards either amendment (a) or amendment (c), so I do not feel strongly about amendment (b)—it seems right that we should use the words that the Government themselves used in the Human Rights Act 1998 to provide extra cover, which some people argued was unnecessary, for the press. The Act states that the courts, when considering issues of privacy,

“must have particular regard to the Convention right to freedom of expression”

provided by the European convention on human rights. Those words are rooted in existing statute, and this issue should therefore unite those on the Opposition Benches. I hope that we will have a vote on amendment (a) and that the House will support it.

I rise strongly to support my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack), both of whom have made strong cases. I also want to apologise to the Minister and to my hon. Friend the Member for Arundel and South Downs (Nick Herbert) for not having been here for the bulk of my hon. Friend’s speech or for that of the Minister. However, I hope that I have picked up much of the thread of the debate as we have gone along. I must also declare an interest as the churchwarden of the Royal Garrison church in Aldershot.

These are difficult issues, as my hon. Friend the Member for South Staffordshire explained. One pitfall of debating these matters is that we are always at risk of treading on sensitivities. Fortunately, the tenor of the debate this evening has done the House proud, but deeply held convictions are involved. As my right hon. Friend the Member for Maidstone and The Weald said, it is extraordinary how we have moved in a short space of time from observing centuries of established Church of England teaching to questioning that teaching. Those who previously questioned that teaching were given every right to argue their case, but those of us who now seek to defend that original teaching are regarded almost as pariahs. The House therefore needs to be extremely careful about the possibly unintended consequences of this legislation.

My right hon. Friend and my hon. Friend have both given examples of past practice. I would add to the catalogue set out by my right hon. Friend the case of the Bishop of Chester. That was a dreadful case in which the bishop had his collar felt by P.C. Plod in the form of no less than the chief constable of Cheshire. That was absolutely extraordinary and outrageous. I wrote to the bishop to support him, but I also wrote to the chief constable to tell him that he had absolutely no business interfering with the freedom of expression of a bishop.

The Minister has said that a protection is available in the legislation because the authorities will have to prove intent to stir up hatred. That will probably be okay for the bishop, and it might be just enough to spare Lynette Burrows and Sir Iqbal Sacranie. However, I fear that lesser mortals will not enjoy the sort of protection that the bishop and certain others will undoubtedly enjoy as a result of the measure that the Minister is seeking to present to the House this evening. I fear that, if a complaint were lodged against an ordinary mortal, who was perhaps slightly less careful in the way that he had phrased his remarks—and which might not have been uttered in a religious building such as a church or a church hall—the police and the authorities would have no compunction about looking over their shoulder and saying, “I’d better not feel the collar of the bishop, because I might get into trouble, but this is only a mortal soul. We will be able to deal with him with impunity.”

I am afraid that the Minister has not persuaded my right hon. and hon. Friends and me that the protection that she has sought to present to the House as being sufficient will turn out to be so. It is also unfortunate that the guidance notes are not here tonight. This Government have frequently produced legislation that needs to be interpreted or supported either by statutory instruments or by some form of guidance, and it is a discourtesy to the House not to produce such guidance, especially when the Minister is partly relying on it.

It is right that we should adopt the amendment that has been proposed in the other place. I can see nothing wrong with saying “for the avoidance of doubt”. After all, under our constitutional arrangements, when there is an element of doubt in the minds of the judiciary—rather than in this place—it is the duty of the courts to interpret the will of this House. That is why a procedure now exists whereby the courts can take into account remarks made from the Dispatch Box. When we are dealing with a matter as sensitive and as essential to the culture of these islands as the freedom of expression of our people, it is our duty to leave the courts in no doubt as to our intentions. The hon. Member for Cambridge (David Howarth) suggested that one of his reasons for opposing the amendment was that the courts had no need of guidance. If that were the case, there would be no harm in accepting the Lords amendment and incorporating it into the Bill, because we would then all be clear as to the position. Furthermore, the judges would be clear about it as well, because the House would have given its express view and made its intention crystal clear.

These are extremely important issues. The fact that there is not a large number of right hon. and hon. Members in the House tonight should not leave the public with the feeling that we do not care about these matters. Free speech is extremely important. I myself have taken advantage of the Bill of Rights of 1688 in the last few days, and it is extremely important that we should be able to afford the protection of free speech that we enjoy here to our fellow citizens.

It is significant that both Matthew Parris and Iain Dale have spoken against this legislation, and the House would do well to take advantage of the offer from the other place. It may have been late at night and the Government may have sent their people home to bed early, but the result there was a sensible compromise that will assist the promotion of freedom of expression as well as protecting those whom the House wishes to protect. It is also important to send a clear message to the judges that they must err on the side of allowing freedom of speech in our country.

I had not intended to speak in the debate until I heard the extremely powerful arguments put by my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and my hon. Friends the Members for South Staffordshire (Sir Patrick Cormack) and for Aldershot (Mr. Howarth).

A huge question about freedom of speech is at stake, and it deserves a fuller House and more careful deliberation. I listened to the hon. Member for Oxford, West and Abingdon (Dr. Harris). I have to say—I hope that he will understand my saying it—that he engaged in a degree of sophistry. He does not want anything to impinge on his crusade, but his letting slip a reference to the “odious religious right” prompted me to get to my feet. I would say that that demonstrates a degree of—

Yes, I think that is fair. I see that the hon. Member for Oxford, West and Abingdon is about to rise and is probably going to deny that he said that. It seems not now, but never mind. The fact remains that he was seeking to weave his way through an extremely important Lords amendment to demonstrate that, for him, it was not just objectionable but not necessary, which is where I part company with him.

I need not say much more. I profoundly believe that where people have religious convictions and feel that they have to express views based on their belief and their assessment of the moral purpose that lies behind so many issues, they should have absolutely no inhibition whatever in expressing those views as a matter of their opinion.

I have just checked the recollections of my colleagues. What I meant to say in context was the “odious extreme political right”; in fairness, however, I believe that the religious right can also be odious at times.

I rather sensed that that was the case. No doubt the hon. Gentleman, coming from Oxford, will share the same opinions as those of Richard Dawkins on religious matters. The fact remains that some people have profound beliefs, and they should be entitled to express them. Equally, freedom of speech is intrinsic to our liberties—far more so than the concatenations of the Human Rights Act 1998, which presents vast amounts of legalese to support principles that most people understand in normal parlance and by way of common sense. We have a reputation for tolerance and fair-mindedness as a country, so we do not need the Human Rights Act in order to improve something that is natural to the people of this country.

That is all I need to say. I believe profoundly in free speech and I thoroughly endorse the views expressed by Conservative Members.

We have had a wide-ranging debate in which all the relevant issues have had an airing. That is a good thing, which I certainly welcome. I am sorry that the hon. Members for Aldershot (Mr. Howarth) and for Stone (Mr. Cash) were not in their places to hear the earlier speeches, as I do not want to repeat everything I said in my opening remarks, which would bore hon. Members who were present. I hope that those two hon. Members will forgive my not going through it all again on account of their not being present to hear the earlier arguments. I do want to respond to one or two points, however.

It is quite clear from this and earlier debates that some views on this matter are irreconcilable, but it is important to note that we have tried to listen to each other’s views and deal with the various points, issues and concerns raised in the debate. I welcome the general recognition across the House that gay and lesbian people should be protected from being attacked on the basis of their sexuality and from incitement to hatred. From Second Reading through the evidence-taking in Committee, the important issues about this matter were raised and generally accepted.

I wish to raise a very important issue. Anybody who is attacked in this country requires protection. It is absolutely essential to be clear that anyone attacked—not just particular categories of people—should be protected. The Minister is in danger of suggesting that one form of attack is worse than another, whereas any attack on anybody for whatever reason is bad news.

I agree with the hon. Gentleman. I never said any such thing—that any particular group deserves more defence from attack than any other particular group. What I was trying to say is that during the passage of this Bill the House has dealt seriously with these issues. There are, and always will be, rights that clash. We have never had total freedom of speech with absolutely no restraint on it. That has never been true.

I hear what the right hon. Member for Maidstone and The Weald (Miss Widdecombe) said and I am grateful to her for not arguing with me about the high threshold. She made some points about context. Similarly, the hon. Member for Arundel and South Downs (Nick Herbert) talked about reassurance. He argued—the hon. Member for South Staffordshire (Sir Patrick Cormack) made the same point—that those who express their views and beliefs in a temperate way should not be constrained from so doing by legislation, and I agree. It would not be possible to make out this offence with the very high threshold it has if temperate language were being used to express a view. The offence quite clearly requires words or behaviour that are_“threatening or intended to stir up hatred”.

Many examples of some of the ludicrous investigations referred to around the Chamber have not been brought under Bill, as it is not on the statute book yet. They were brought under various parts of public order legislation, which has much lower thresholds, such as words or behaviour “threatening, abusive or insulting”, which are “intended” or “likely” to stir up hatred. All around, that threshold is much lower.

I understand the concern of many Conservative Members. I do not denigrate it. I am not as concerned about it as they are, but I nevertheless understand it because we all believe that freedom of speech is important in this country. I believe that focusing on ensuring that those who investigate crime—the police and those responsible for deciding whether charges should be brought in individual cases, namely the Crown Prosecution Service prosecutors—are those who need to be clear about what this Bill means. That also applies to the other raft of legislation that, rather than thresholds, the right hon. Member for Maidstone and The Weald said provided the context of her concerns and motivated her support for the Lords amendment.

The CPS published its refreshed policy in “Guidance on prosecuting cases of homophobic and transphobic crime” on 27 November last year, which post-dated some of the issues and cases cited by Opposition Members. It is a cautious policy that rightly encourages the police to take very early advice from the CPS in considering individual cases. Some of the examples cited were when individual police officers over-interpreted current legislation, partly perhaps because the thresholds are lower, but also perhaps because the police do not come across these cases every day. They are trying to do their job in good faith, but they have gone a bit too far.

I think it will help if the CPS tells the police that they should ask it about such matters at an early stage, and that the revising and updating of the ACPO hate crime manual will make it easier to make it clear to investigating officers at a lower level what kind of behaviour should be caught by the Public Order Act and what kind should not. However, the threshold for this offence under the Bill is very high, and in those circumstances I am not persuaded that we need the caveat sent down to us from another place.

According to the picture that the Minister is painting, a reasonable law exists, and a few over-zealous policemen who do not fully understand it and do not deal with it very often get into a bit of a muddle. In the Lancashire case, however, senior police officers defended those who had gone into a couple’s home and questioned them for an hour and 20 minutes, and stood by that defence until the moment they were sued, at which point they gave way. That does not inspire confidence that senior police will govern the actions of junior police.

Every police force is different, and each has its pros and cons. We all know that from our constituencies in various parts of the country. I think the fact that the ACPO hate crime manual is being revised provides an opportunity to focus, laser-like, on issues of this kind, and to deal with the problem raised by Opposition Members at the point at which it will bite most.

I do not believe that most police officers are aware of what is in a particular statute, or of when the Attorney-General must consider whether a prosecution should take place. I think that they are much more likely to take note of ACPO guidance and the local CPS prosecutor if they are telephoned early enough to find out how they ought to deal with a particular set of circumstances in a particular context. I believe that we can respond to many of the concerns that have been expressed by ensuring that those who enforce the law across the criminal justice system are fully aware of what needs to be done and what the law says.

Did not the Minister’s reply to my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) demonstrate that we need to make assurance doubly sure? What damage will be done to the Bill, and what violation will be done to the Minister’s perfectly reasonable principles, if the amendment passed in the other place is incorporated in the Bill?

I said in my opening remarks that the amendment sowed confusion over what is actually a very clear offence, and that is my belief. I think that some of the points made by the hon. Member for Cambridge (David Howarth) about the precise implications of the wording had some merit. I do not believe that the amendment deals with the mischief that was the main focus of the points made by the Members who supported it.

I do not suppose that we shall secure full agreement throughout the House before the vote, but I hope Opposition Members accept that, in other legislation, I have tried to meet the concerns raised across the House about over-zealous investigations. I should also emphasise that, while we believe in the importance of freedom of speech, we also believe—I hope that this, too, is accepted throughout the House; it has certainly been endorsed by the Liberal Democrats and by the hon. Member for Arundel and South Downs (Nick Herbert)—that gay and lesbian people ought to be defended and protected from threatening words and behaviour intended to incite hatred against them purely on the grounds of their sexuality. That is the balance that we need to strike, and I think that the high threshold of the offence as currently drafted strikes it, although I recognise that some Members do not agree.

I have tried to make it clear that we will issue guidance from the Secretary of State, in addition to other improved guidance, and I believe that it will focus on the real mischief that has been highlighted by those who have spoken this evening much more than the Lords amendment. There is little point in my saying any more. We have had a good debate, in which all Members have expressed their views.

Question put, That this House disagrees with the Lords in the said amendment:—

New clause

Lords amendment: No. 115.

Order. Please will Members who do not wish to participate in the debate leave the Chamber as quickly and quietly as possible?

Thank you, Madam Deputy Speaker.

The House will be aware that on Report in another place their lordships proposed an amendment to provide for a new criminal offence for data controllers who intentionally or recklessly disclose personal information, repeatedly and negligently allow information to be disclosed, or intentionally or recklessly fail to comply with the data protection principles. During the debate, the Government argued that it would be premature to propose an amendment of such a nature and that a considered view should be taken on what measures are necessary to strengthen the protection of personal data once the recommendations of the various ongoing data protection reviews are published.

We believe that the Lords amendment is drafted extremely broadly and is therefore capable of penalising relatively minor infringements, just as it seeks to penalise very serious infringements, as it does not discriminate between them. For example, a person writing letters and including someone’s details in them repeatedly, possibly as a result of being ill-advised or ill-trained or of not looking anew at the letters they are sending out, could fall foul of the offence, but that is a lower level of infringement than some of the examples of data going missing that we have all become aware of over the past few months. That is a concern. In addition, criminal proceedings require a significant call on the public purse in terms of court and judicial resources and legal aid, and a criminal conviction is a disproportionate means of achieving the kind of behavioural change the Information Commissioner is trying to influence in information management. We therefore propose the amendment in lieu as a suitable alternative, and I want to take the House briefly through its components.

The amendment inserts new sections into the Data Protection Act 1998. Proposed new section 55A will confer on the Information Commissioner a power to impose a monetary penalty notice on a data controller. The power will be exercisable in circumstances where the Information Commissioner is satisfied that a data controller has committed a serious contravention of the data protection principles. However, the commissioner must also be satisfied that the contravention was either deliberate or that the data controller knew, or ought to have known, of the contravention risk, and that the contravention would be likely to cause substantial damage or substantial distress, but he failed to take reasonable steps to prevent that contravention. The commissioner will determine the amount of the monetary penalty.

The Minister talks about substantial distress or damage. Can she explain what she means by that? She will appreciate that the provision was introduced because of concerns about identity fraud and the illegal or inappropriate use of personal data, and it is intended to send out a strong message that that kind of activity must not be condoned. Does she therefore accept that there is a risk in what she proposes, and will she explain where she is coming from, particularly in terms of what would be regarded as serious?

That is an important point. The Lords amendments in respect of this matter do not discriminate between relatively minor and quite serious breaches of the data protection principles. That is one of our concerns. There is probably agreement across the House on some of the issues to do with data getting out that have arisen over the past few months. We would certainly want to focus on those kinds of instances, where people’s personal data have ended up in rubbish tips or in the public domain through lack of care on the part of a data controller. We would not want to focus on, for example, a new executive officer in the Department for Work and Pensions who has not finished all his courses on how best to send out letters to people on social security benefits in certain circumstances, and who has got things wrong.

This is a matter that the Information Commissioner will be well placed to have a view on, because he is the custodian of the data protection principles and he has a lot of experience in dealing with these issues. My amendments in lieu of the Lords amendments are about giving him the discretion to deal with these matters.

I hear what the Minister is saying about giving the Information Commissioner discretion, but her proposal reserves rights for the Secretary of State effectively to override a decision by the Information Commissioner to set down a penalty. Why?

Let me finish my comments; I will be perfectly happy to deal with the hon. Gentleman’s point once I have set out our proposals.

The commissioner will be able to determine the amount of the monetary penalty in accordance with guidelines that he will make, albeit the maximum penalty will be set out in regulations. The power will not apply retrospectively. Sums recovered by the Information Commissioner by monetary penalties will be payable into the Consolidated Fund, so he will not have any budgetary incentive to chase after those who might have breached the data protection principles. Proposed new section 55B will make provision for procedural rights.

Before the Minister moves on to the procedural section, I would like her to confirm that the duties under proposed new section 55A will, with the one exception of the Crown Estate Commissioners, apply to Government Departments, because one of the problems in the previous law, which the Lords amendment attempts to deal with, was the special treatment it gave to Departments.

That is certainly the intention.

Proposed new section 55B will make provision for procedural rights, including a duty on the commissioner to give the data controller notice of his intention to issue a monetary penalty notice, which will inform the data controller of his right to make representations before the penalty is imposed. It also includes a right of appeal to the information tribunal against the monetary penalty notice.

New section 55C will make provision requiring the commissioner to prepare and issue guidance about how he proposes to exercise his power to impose monetary penalties. New section 55D makes provision for the enforcement of the monetary penalty. New section 55E confers a power on the Secretary of State by order to make further provision in connection with monetary penalty notices and notices of intent.

In considering what would be an appropriate penalty, we have taken into account many factors, in particular that criminal liability is generally reserved for unlawful behaviour that is sufficiently serious to merit the most stringent liability that the law can impose. A criminal offence would be a disproportionately heavy-handed penalty where there has been no intent or wilfulness in the data controller’s non-compliance. Criminal proceedings could result in a costly and time-consuming process for data controllers and the commissioner. Penalties imposed by criminal courts, which may not have the necessary technical expertise to deal with data issues—which the Information Commissioner has—are often regarded as an inadequate deterrent to regulatory non-compliance.

For those reasons, we consider a criminal penalty inappropriate. We believe, however, that a civil monetary penalty would offer a proportionate and fair sanction for serious breaches of the data protection principles. The commissioner, with his expertise, would be best placed to determine an appropriate monetary penalty for a data controller, having regard to the particular circumstances.

In issuing the monetary penalty, the commissioner would take into account factors such as the seriousness of the breach, the behaviour of the data controller, the nature of the personal data and the extent of the harm likely to be caused. Issuing a civil monetary penalty is a comparatively efficient and quick process and keeps any additional burden on the courts to a minimum, while of course protecting the right to make representations of the person—the data controller—if he is about to have a monetary penalty imposed on him, and the right of appeal against either the notice of intent or the monetary penalty. For these reasons, the Government are firmly of the view that a civil monetary penalty will be more effective and appropriate for serious breaches of the data protection principles than a criminal offence.

On the Secretary of State’s power, to which the hon. Member for Hornchurch (James Brokenshire) referred, the Secretary of State will not have any power to override a monetary penalty set by the commissioner. There are provisions on making sure that appeals can be dealt with properly, and that is the power that the Secretary of State has.

We do not intend through this new amendment to widen the scope of the legal obligations imposed on data controllers. Data controllers are already under an obligation to comply with the data protection principles and are subject to enforcement procedures. Our aim is to focus this new monetary penalty on the most serious breaches of the data protection principles. In cases where a data controller is continuing to breach those principles, we would expect the commissioner to issue both an enforcement notice and a monetary penalty notice. The enforcement notice would require the data controller to cease his unlawful activity and to comply with the legislation in future. The monetary penalty notice would punish the data controller for his past behaviour and send a strong deterrent signal to other data controllers. We believe that this is better than the arrangements put into the Bill in the other place, and I hope that, on that basis, the House agrees that we should disagree with the Lords amendment.

We have eight minutes before the guillotine comes clattering down, which will leave police and prison service pay and violent offender orders largely, if not wholly, undiscussed; this is not a good way to make legislation. This new provision has come to the Bill at this late stage, and it really does not do the Government much credit that they have—

In the second half of the second sentence of my speech, Madam Deputy Speaker, I was going to deal with the alleged merits of this new set of provisions, but I think it fair to make the points I have just made, because doing so puts those provisions into context.

These provisions bear all the hallmarks of a civil procedure, but with criminal consequences. Once again, we see the Government taking a civil route to a criminal law end, and although there is an appeal to the tribunal at first instance, it is the commissioner who is the policeman, the prosecutor, the jury and the judge. It would be interesting—if we had time—to hear from the Minister to what standard of proof the commissioner has to be satisfied that there has been a contravention. What level, or levels, of penalty are we not being told about? Although the Minister has briefly given us some idea and has referred to the commissioner’s expertise, if we look at proposed new section 55C(1), we have absolutely no idea what the levels of fines—let us not beat about the bush—will be and in what circumstances they will be enforceable under the county court jurisdiction, and under the High Court jurisdiction. Why are the regulations referred to in proposed new section 55B(6) not necessarily published, even if only in draft form, so that Parliament can see what is proposed? I know that the commissioner must lay guidance; why is the Secretary of State not required to lay guidance? He is the person accountable to Parliament, not the commissioner.

This is a hopeless way to deal with such legislation. There is not time, I am afraid, to fillet this new proposal in a way that Parliament deserves, and although I am not going to advise my hon. and right hon. Friends to disagree with the Government’s disagreement with the Lords, I must most trenchantly register my utter dissatisfaction at the procedure that we are having to deal with in respect of the making of the criminal law.

Lords amendment No. 115 goes back to a proposal from my hon. Friend the Member for Somerton and Frome (Mr. Heath), whom Ministers praised for his views on earlier parts of the Bill. I just want to add my tribute to his work on this part of it, because it was he, along with members of the Justice Committee, who spotted this gap in the law. When this provision was first proposed it was very apt, because it was at a time when the Government were in various ways losing vast amounts of data—data from Swansea, child benefit data, and so on—and it was clear that there was a pretty lackadaisical attitude within Government to holding the public’s personal and private information.

I accept the Minister’s point that the crime created by Lords amendment No. 115 is a pretty general one. It covers intentional and reckless behaviour, and repeated negligent activity—a controversial aspect of the crime that she did not refer to. Nevertheless, when penalties are imposed on people, it is important that they be put within the context of the criminal law, and the procedural protections of the criminal law are there to help them through any difficulties that the substance of the law creates.

In addition, the new crime itself did allow a number of defences, which were in the Lords’ proposed new section 55A(2); unfortunately, I do not have time to explain the merits of those. Nevertheless, like the hon. and learned Member for Harborough (Mr. Garnier), I am not going to advise my hon. Friends to vote against the Government’s replacement provisions, which do go a long way toward our goal. They do have certain difficulties, however. Using civil penalties never strikes me as anything short of a contradiction: if something is a penalty, I do not see how it is “civil”; nevertheless, the intention is there. Because it is a new procedure, a procedural clause has to be included, and it is very difficult to see at this stage precisely how that would work. However, I do welcome the Government’s willingness to move on this issue and I hope that these provisions have the desired effect.

I understand the concerns that both the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Cambridge (David Howarth) have expressed about the time limit that we have, but of course, nobody opposed the programme motion earlier, and we did take up that time discussing matters of great concern to the House. So although I understand the points that have been made, this has been agreed between the usual channels.

Let me deal with one or two of the points that have been made. The standard of proof, about which the hon. and learned Member for Harborough asked, will be a civil standard. The question of the appropriate level at which to set the monetary penalty will be subject to consultation with the Information Commissioner and on a wider basis. However, thinking back to some of the concerns that have given rise to this issue, it has to be commensurate with the seriousness of the data loss and the distress or damage caused by it. So, there will doubtless be a range of levels, but we intend to consult further in respect of precisely what that range ought to be.

I can tell the House that the Information Commissioner is pleased at this extension of his powers. It will enable him to deal more flexibly than he currently can with data loss and with breaches of the data protection principles. Such work is, of course, his basic raison d’être, so we appreciate—

It being four and a quarter hours after the commencement of proceedings on the consideration of Lords amendments, Madam Deputy Speaker put forthwith the Question already proposed from the Chair.

Question agreed to.

Madam Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [this day].

Government amendment (a) in lieu of Lords amendment No. 115 agreed to.

New Clause

Lords amendment: No. 173

Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Mr. Straw.]

On a point of order, Mr. Deputy Speaker. We have just had a vote on an important matter relating to police and prison officer pay, which has not been debated in the Chamber because the knife came down. Ironically, the issue is being debated by the Prison Officers Association in Portsmouth, but not here. We had a debate of about 15 minutes on data protection, and we have had no debate on violent offender orders—

Order. I am sorry to cut the hon. Gentleman off, but I see the point that he seeks to make. It has already been made this evening. I understand the point, but to repeat it at this stage is only to take time from the next debate. These matters have already been decided—

With respect to the Minister, I can deal with this point myself, and I suggest that we move on.

Lords amendment No. 117 disagreed to.

Lords amendment No. 127 disagreed to, and Government amendments (a) to (e) in lieu thereof agreed to.

Lords amendments Nos. 118 to 126 and 128 to 149 agreed to.

New clause

Lords amendment: No. 116.

With this it will be convenient to discuss Lords amendments Nos. 196 and 344.

These amendments abolish the common law criminal offences of blasphemy and blasphemous libel. Following my announcement on Report on 9 January, and after a short period of consultation, the Government tabled these amendments at the Committee stage in the other place. These offences have now largely fallen into disuse and therefore run the risk of bringing the law into disrepute. The issue of what to do about them has been around for many years and has attracted considerable debate. As long ago as 1985, the Law Commission recommended that they be abolished.

The Lords Select Committee Report on religious offences, published in 2003, devotes a whole chapter to the issue. As I said on Report, it is high time that Parliament reached a settled conclusion on the matter. Today gives us an opportunity to do so. The last prosecution under these laws was in 1977, in the case of Whitehouse v. Gay News Ltd, and there has been no public prosecution under them since the 1920s. There have therefore been no cases since the introduction of the Human Rights Act in 1998. Given that these laws protect only the tenets of the Christian Churches, they would appear to be plainly discriminatory.

The Minister may be aware of a case that she did not mention—Wingrove v. the United Kingdom—in which the European Court, not a body for which I hold a great brief, ruled that people should be able to say what they liked in matters relating to blasphemy, under article 10 of the convention. It is peculiar that when we come up against political correctness, sometimes the Government use the European convention on human rights to support their position, but neither do they deny that the convention also gives rise to rights on our side of the equation.

I did not quite follow the hon. Gentleman’s argument, and he may intervene again if he wishes to do so. I do not believe that abolishing the common law offences of blasphemy and blasphemous libel is anything to do with political correctness.

If this law is not being used, one might wonder whether it is doing any harm. One might make the point that its abolition could appear to be an erosion of the position of the established Church. There is a mismatch: people indulge in self-censorship of any criticism of the Mohammedan religion—rightly, because we should not criticise it—but they feel free to pour abuse and vitriol on, and make comedies about, Christianity. Getting rid of the blasphemy law sends a message that that is okay, but it is insulting to many Christians.

I do not believe that to be the case, and I do not share the hon. Gentleman’s analysis.

In its report on this Bill in January, the Joint Committee on Human Rights said:

“the continued existence of the offences of blasphemy and blasphemous libel can no longer be justified, and we are confident that this would also, in today’s conditions, be the view of the English courts under the Human Rights Act and the Strasbourg Court under the ECHR”.

The High Court’s decision on 5 December last year that the Theatres Act 1968 and the Broadcasting Act 1990 prevent the prosecution of a theatre, the BBC or another broadcaster for blasphemous libel would appear to have given further weight to the notion that the offences are, to all intents and purposes, moribund. That was the result of a case brought by the organisation Christian Voice in response to the broadcast of the play “Jerry Springer: The Opera”.

We are well aware of concerns—expressed particularly by members of the Christian community, but by no means exclusively by them—that abolition of these laws could be seen to represent further evidence of our society’s drift towards secularisation, and that that would be an attack on the Christian values that underpin so many of our institutions. The hon. Member for Stone (Mr. Cash) has just made it clear that that is his view, but the Government have been at pains to emphasise that the proposal is not in any sense an attack on those values, on the Christian Church or on Christians themselves.

The House will be aware that in 2001 the Government introduced legislation that specifically affords protection, in the form of religiously aggravated offences, to religious as well as racial groups. We have also brought in legislation to protect people from discrimination on the grounds of religion or belief. Perhaps most importantly, we introduced a new offence of incitement to religious hatred in the Racial and Religious Hatred Act 2006. I know that there was controversy about some if not all of those provisions, but they show that we have introduced protection for people expressing their religious views that we believe is fair.

I am a member of a minority religious group, and I have no doubt that if something insulting were to be said about the religious community to which I belong—however indifferently—I could appeal to the new laws to which the Minister has referred. However, if I were a member of the majority Christian religion, I am not clear that I would get anywhere by appealing to those new laws once the law of blasphemy was abolished.

A person in that position would of course gain as much as a member of any other religion. The legislation to which I referred does not exclude members of the Jewish faith, the Church of England or the Catholic Church—or members of any other faith or religion—from the equal protection that it offers.

I was making the point that the common law offences that we are seeking to abolish have fallen into disuse. If anything, they cause more harm than they do good. Although I accept that not everyone in the House or in society believes that the offences should be abolished, I think that there is a broad consensus that at long last they should go.

The UK is a signatory to a number of international conventions that commit us to tackling discrimination in all its forms, and we are regularly criticised by international bodies for having these laws. The UN special rapporteur on freedom of religion recently voiced concern about the continuing existence of the blasphemy offences in this country. Moribund and discriminatory as those laws are, their presence can be seen as a blot on our otherwise extremely good record on combating discrimination and promoting human rights. We believe that it is time to abolish those laws, and on that basis I hope the House will accept the Lords amendments.

I am speaking in a purely personal capacity, as this is a matter entirely for the consciences of my hon. Friends. On this side of the Chamber—at least, for hon. Members in the bit directly behind this Dispatch Box—this is a matter for a free vote. What happens in other parts of the Chamber I cannot say.

It might be thought strange for someone who has spent the past 35 years practising at the libel Bar to support the abolition of the common law offence of blasphemy and blasphemous libel, but that is what I intend to do.

It is not strange in the slightest. Surely, as a libel lawyer, my hon. and learned Friend would be interested only in those laws that he could make money out of, and not in those that simply form part of the historical and cultural threads that make this country what it is.

I will not allow myself to be disturbed by the outrageous allegation that my hon. Friend the Member for South Norfolk (Mr. Bacon) has made. It may be that the standards in the City are different from those that we apply in the Temple—but let us leave it there.

As I think the Minister mentioned, in its verdict on “Jerry Springer: The Opera” the High Court underlined the very high threshold that has to be passed for a prosecution to be brought under the common law of blasphemy. Essentially, the Court said, that means that

“there must be contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ, the Bible or formularies of the Church of England.”

Order. We will not have a very satisfactory debate if we keep getting interventions from a sedentary position. Perhaps hon. Members who wish to intervene will do so in the usual way.

I am most grateful. In response to my admittedly sedentary intervention that all those offences were present in “Jerry Springer: The Opera”, my hon. and learned Friend retorted that I was no longer a member of the Church of England. Is he suggesting that God, Christ and the Bible are the exclusive preserve of the Church of England?

No, I was suggesting that my right hon. Friend was no longer a member of the Church of England.

The High Court also held that

“the publication must be such as tends to endanger society as a whole, by endangering the peace, depraving public morality, shaking the fabric of society or tending to cause civil strife…This element will not be shown merely because some people of particular sensibility are, because deeply offended, moved to protest. It will be established if but only if what is done or said is such as to induce a reasonable reaction involving civil strife, damage to the fabric of society or the equivalent.”

That was the reasoning of the High Court just before Christmas.

The Archbishops of Canterbury and of York wrote a letter to the Secretary of State for Communities and Local Government on 29 February, setting out the Church of England’s view of the proposal to abolish these common law offences. Broadly, they said that the decision on “Jerry Springer: The Opera” appeared

“to make it even clearer than before that the real purpose of the offences is the preservation of society from strife rather than the protection of the Divine or any particular religious beliefs; and in so far as achieving that end indirectly protects religious beliefs, they are the beliefs of Christians generally, not just those of the Church of England.”

Against that background, the two archbishops suggested that the Church of England had

“serious reservations about the wisdom of legislating at this moment, and especially as part of a Bill introduced to deal with quite different matters.”

I could not agree with them more in that: this is the most shambolic piece of legislation that has ever had the misfortune to come before this House. I think that many hon. Members on the Treasury Bench would agree with me.

If the Minister is saying that the whole lot of them do, he is quite right. The whole lot is dreadful.

The two archbishops were speaking on behalf of the Church, and it appeared to them that the verdict in the “Jerry Springer: The Opera” case would make it much harder to bring prosecutions

“in all but the most compelling circumstances”.

Although they said that

“it is not clear that there is a pressing need for repeal until there has been more time to assess the impact of the offence of incitement to religious hatred”,

they did not advise that the change in the law should be resisted.

I am curious about the letter from the archbishops, and I would be grateful if the hon. and learned Gentleman let me know what he understood them to mean. Does he think they were saying that if blasphemy still was a useful offence that could be used to suppress insulting language directed against Christian beliefs, it should be kept, and that they do not oppose the abolition of the offence only because the recent judgment showed that it would be quite difficult to use it? Or are they saying they think it wrong to give special protection to religious belief, or to one particular class of religious belief, however wide a class Christianity may be considered to be? What is the hon. and learned Gentleman’s view of what they meant?

My view is that the archbishops were taking a pragmatic approach on the effect of the High Court decision on common law.

May I help my hon. and learned Friend and the hon. Member for Oxford, West and Abingdon (Dr. Harris)? The description that my hon. and learned Friend gave of the letter from the archbishops seems to set out a classic Church of England position—neither for nor against, and not willing to resist.

That remark would have been more suitably made in an independent speech than in an intervention, but of course my hon. Friend is entirely free to make what remarks he wishes, and to make them in the manner in which he wishes. It is not for me to comment further on that.

Having read the archbishops’ letter to the Secretary of State, and having understood their attitude to the repeal of the set of common law offences in question, it is not for me to take a different view. The blasphemy law is very rarely used, if at all. We are witnessing the end of a Government who have introduced 3,000 or more new criminal offences, so it is to some extent refreshing to see the Government removing one or two of those offences from the criminal law. I will not pursue the matter further, because I know that there are a lot of very keen Conservative Members behind me who wish to say quite a lot. For my part, I will support the removal of this set of offences from the statute book.

The hon. and learned Member for Harborough (Mr. Garnier) has already set out what was said in the case of the application of Green against the Westminster justices, but it is worth emphasising what Lord Justice Hughes said in that case. In his view, the essence of blasphemy and blasphemous libel turned out to be not the protection of religion or religious views, but the prevention of civil strife. That civil strife might come about through the insulting of the Christian religion, but the offence is only the method; the object of the exercise is to prevent civil strife.

It should be said that the issue of whether the Church of England in particular was protected by the blasphemy offence comes about through the connection, in the minds of lawyers and politicians over the centuries, between the Church of England and social order. That is why the idea spread that the offence protects only the Church of England. Of course, that is not so; it protects Christianity in general. It is also worth saying that the relationship between blasphemy and human rights is influenced by the idea of the blasphemy offence being about the prevention of civil strife, and not about—

In a second; I knew that the hon. Gentleman would intervene at that point. I will just finish what I was saying. The relationship between blasphemy and human rights is influenced by the idea of the blasphemy offence being about the prevention of civil strife, and not about questions of free expression alone. That is because the human rights aspect of blasphemy is entirely influenced by the fact that it is a public order offence. It is perfectly justifiable to say that the blasphemy offence does not violate the Human Rights Act 1998 as long as it is seen as a public order offence, and not as being purely to do with speech.

I am afraid that I really do not buy the argument that it is necessary to include the civil strife issue, for the simple reason that in the House of Lords case of R v. Lemon it is said unequivocally that

“it is not an element of the offence that the publication must tend to lead to a breach of the peace.”

I think that that was in Lord Scarman’s judgment. There is a difference between tending towards an immediate breach of the peace and tending towards the dissolution of the social order. The point worth making is that it might be an effect of the Human Rights Act that common law, like statute law, has to be interpreted so that it is compatible, as far as possible, with the Human Rights Act. Given that there is ambiguity, the interpretation of blasphemy as a public order matter is the interpretation that is most clearly compatible with the Act. That is how we got to the current situation.

One of the arguments against the further existence of the blasphemy offence is that there are other ways of dealing with civil strife—other criminal offences that are aimed at preventing widespread violence. They include riot, provoking violence, and all the public order offences that we discussed earlier, including the threatening, abusive or insulting language crimes, of which there are three, all of which can be aggravated religiously and racially. There is also incitement to racial hatred and incitement to religious hatred. Then, of course, there are all the terrorism offences. The definition of terrorism is using violence to influence the Government in the interests of an ideology or a political or religious cause. Again, that is aimed at the idea that it should be clearly criminal to act in a way that tends towards the dissolution of society.

In the background is the other common law offence that the House might at some point consider: the offence of sedition. It is sedition intentionally to excite attempts to change the law or constitution by unlawful means, or intentionally to promote feelings of ill-will and hostility between different groups in society. There are already other ways, either on the statute book or in common law, of dealing with what is now rightly seen as the fundamental point of the blasphemy and blasphemous libel offences, which is to prevent civil strife. The question whether to keep the offences comes down to the issue of the protection of a single religion. That is about discrimination, as the Minister said. The offence singles out a particular religious view for protection. It violates the idea that the state should not show favouritism towards any particular religious view, or to religious views rather than non-religious-model views.

The hon. Gentleman’s argument sounds like one for the disestablishment of the Church of England. Is that what he believes should happen?

I should say that it is the policy of my party to work towards the disestablishment of the Church, and the separation of Church and state. I am fairly comfortable with that position. I will come back to the issue in a moment, because it is relevant to another point that I will make.

The principle of the separation of Church and state is not about the separation of religion and politics, which I think is impossible. We cannot separate people’s moral, religious views from their political views. We are talking about the state, not about society, and about the religious commitments of the state, not about whether people in society are religious or not. In the course of debate we have heard three separate arguments against the idea of state neutrality in religion. The right hon. Lady just alluded to one of them; it might be called the “this is a Christian country” argument.

We do indeed have an established Church, we have Acts of Parliament such as the School Standards and Framework Act 1998, which mandates an act of broadly Christian collective worship in schools, and we have Prayers in this place. The trouble with that point is that what is, is not necessarily what ought to be. It ignores the new circumstances in which we find ourselves, which make it important now more than ever to reject the idea of the mixture of Church and state, any notion of theocracy or any hint that the state should be built on a particular religious view.

I had not intended to vote, but the hon. Gentleman has convinced me that I must vote against him. Is he not aware that the Government, in the person of the Prime Minister, no less, have proclaimed their support for the established Church, and therefore the maintenance of the status quo?

The battles in the House historically between the Conservatives and the Liberals have always been about issues such as this, but when I see the House now, I see the massed ranks of the Conservative party on both sides. I am therefore not surprised that that is the Government’s position.

There has always been a theoretical case for the separation of Church and state. It is in the US constitution, in the first amendment to it, and in the French statute of 1905 that separates Church and state. What I am talking about is a new factor. We are faced—not just internationally—with people who also have a theocratic view, which we find it difficult to argue against because of the vestiges of the admixture of Church and state in our own arrangements. If we are arguing against the use of blasphemy laws, for example, in Pakistan or in Iran, it is difficult for us to do that while we maintain in vestigial form, a form that is not used very often, the same sort of law in this country.

Is the hon. Gentleman seriously suggesting that for the sort of people who run Pakistan or Iran, it would make the slightest difference to the way they run their countries if we sent such a signal in the way that we run our democratic country?

Not at all, but the signals are to young people in our own cities. One of the things that the former Prime Minister often talked about, on which people did not take him seriously—perhaps they should not have taken him seriously on other matters, but on this they should have taken him seriously—is the idea that we are in an ideological battle with certain ideas for the hearts and minds of young people in our own cities.

If there are people who are arguing for a new caliphate, for the idea of a religiously based state, who argue for a complete mixture of politics and religion in Church and state, it does us harm in arguing for our position in that ideological battle that we still vestigially maintain that sort of arrangement in our own constitution. It is not about what happens in other countries; it is about what happens here, in our own cities.

That is the first argument—the “Britain is a Christian country” argument, which I as a Liberal have always believed does not lead to the idea of establishing particular Church views in our constitution.

The hon. Gentleman is making a well argued case, with which I totally disagree. On the point of this country being a Christian country, is it not right that in the last census about three quarters of the population said they were Christians?

Yes, indeed, and 10 per cent. of people go to church, and as the Bishops pointed out in the equivalent debate in another place, about four in 10 people go to carol services.

The argument comes down to the difference between society and state, which if one is a Liberal, one understands, and if one is a Tory, one probably does not. If one is a socialist, one does not understand it at all. The fact that our society is, in majority terms, still Christian is not in itself any sort of argument that the state should adopt a discriminatory stance towards that religion.

The second argument that I have heard might be called the affirmation of identity argument. It is an argument put forward by Christians who feel themselves to be threatened—not people in the position of hon. Members in the House today, who are very confident in their social position and their religious views, but people who feel that their Christianity is somehow threatened by changes in society that they have observed in their own lives.

The hon. Gentleman places great emphasis on the question whether the issue is a Christian one. Does he accept that one of the ten commandments, which is not an exclusively Christian set of beliefs, is:

“Thou shalt not take the name of the Lord thy God in vain”?

I am fascinated that the hon. Gentleman appears to be proposing a new criminal offence based on the Decalogue. I do not think that that is a route that he wants to go down. I was trying to make a more serious point, which is reflected in the letters that we receive from our constituents, who feel that their identity as Christians needs to be affirmed by the state.

I understand that feeling, but I think it ought to be resisted. As a Liberal, it seems to me to be objectionable, as well as sad, that people should look to the state for their sense of identity. They should not look to the Government or the law for their own sense of worth. They should look to themselves, their families and their other social relations. It is a deeply sinister idea that the state should help to create people’s identity. I realise that the Government frequently get close to that view in their debates about Britishness. That is a dangerous route to go down.

So the hon. Gentleman believes that the state has no right to impose Acts of Parliament dealing with matters such as incitement to religious or racial hatred. He seems to be suggesting an ultra-Liberal point of view that the state has no role in that respect. Is that right?

Not at all. The state’s role is to prevent harm, but it must do so in a way that does not show favouritism to particular religious views.

The third argument that comes up in such debates and which is a serious argument, although I disagree with it, is the argument that the state needs to play some role in creating or maintaining a difference between the sacred and the profane, and that it is harmful for society if a category of the sacred is diminished. That is the view of the Archbishop of Canterbury. If one reads his lectures—not the ones that caused all the trouble, but lectures in the previous week about this issue—that was the central point that he was making. I shall read out part of what he said in that lecture, because it was an important contribution to the debate:

“but the uncomfortable truth is that a desacralised world is not, as some fondly believe, a world without violence, but a world in which there can be no ultimate agreement about the worth of human or other beings. There may be a strong, even practically unbreakable consensus about the wrongness of torturing prisoners or raping children; but there will be no very clear sense of what, if anything, beyond the dignity of an individual is being ‘violated’ in such cases.”

I respect that argument. I have known the archbishop for 25 years; we were fellows of the same Cambridge college for a while. However, I think that he is wrong. It does not matter that we have different reasons for agreeing on basic values, such as torture being wrong. What matters is that we agree. For the state to operate on the basis of consent—another important Liberal principle—it does not need the population to have uniform ideas or exactly the same religious practices; all it needs is an overlapping consensus about basic structures and values.

In our society, there are fundamental differences about religion—not only between different religions, but between those who believe and those who do not. In such a society, an overlapping consensus is the best that we can hope for. If we do not work for that, we will end up with something worse. The problem with laws such as those against blasphemy, which favour particular religions, is that they make more difficult that overlapping consensus, in which people come from different directions to the same conclusions about value. Such laws imply that more virtue lies with the favoured religion than with others.

I come back to the point that I made in my first intervention. Does the hon. Gentleman accept that there is an “overlapping consensus”—to use his phrase—that it is wrong deliberately to insult people’s most cherished religious beliefs? However, does he also believe that insults to the beliefs of the Jewish or Muslim faiths would be treated the same as insults to the beliefs of the Christian majority faith? I do not believe that there would be equality of treatment under the secular laws. I was originally going to abstain, but I am now inclined to support my Christian colleagues on this issue. I feel that they need extra protection, because their faith is particularly vulnerable in the current political environment.

That is a version of one of the arguments that I have mentioned. I respect it, but I do not think that it is right. Given the fundamental differences about religion—not just between religions, but between those who are religious and those who are not—we have to find a framework with which we can all live, if we are to get along. The one that says that the criminal law will deal with people who make remarks about religion that offend but do not harm people will send us in the wrong direction and make maintaining a cohesive society more difficult.

There are disagreements on the issue, but the question is the correct one. In the end, it is about whether the existence of the law of blasphemy makes this society more or less cohesive. I am afraid that it is the latter.

That is the right question. However, by extension, the same question becomes one about whether the presence of one religion that is favoured in law by being a state religion makes cohesiveness more or less likely. The odd fact, which counters the hon. Gentleman’s argument, is that the leaders of pretty much all the other major faith communities are in favour of the continuation of the established Church of England.

It is true that there is more support for establishment among religious leaders than we would expect. However, they do not all believe in establishment, and they certainly do not all believe in the maintenance of the law of blasphemy.

The central point is about tolerance and cohesiveness. It is not plausible to say that maintaining a single state Church with privileges in law helps cohesiveness. In fact, there are religious scholars and sociologists of religion who say that it does not help religion either. Religious life flourishes far more in the United States, and some say that it is no accident that that country has no state Church. The Church there has to live by its own beliefs, attractiveness and words, not by being supported by the state itself. In the end, even if one is thinking solely of religious believers, there is a strong case for taking the Church out of the state.

I believe that we should disagree with their lordships’ amendment. I have not been persuaded by anything that I have listened to for the past 22 minutes or, indeed, by the brief remarks of the Minister.

I should like to give what I think is a good illustration of the dangers of getting rid of our blasphemy laws, which apply very specifically to the Christian religion. We all remember the outbreak of outrage among the Muslim community when the Danish cartoons were published. If ever one wanted an example of a propensity for civil strife, one had it there. However, the point that I consider more relevant is that it served to demonstrate that Christianity does not receive equal treatment in our country. I was one of the worshippers who arrived at Westminster cathedral shortly after some of the Pope’s remarks had been rather badly misinterpreted, and I was confronted with banners being held by members of the Muslim community proclaiming, “Jesus is the slave of Allah—Islam will conquer Rome”: not one or two banners from one or two lunatics but a very large number. The police were there, but they did nothing. I do not, in fact, advocate that they should do something, because I am, as I have said before, a big believer in free speech. However, let us suppose the reverse and that I was stood outside a mosque with a big sign saying, “Allah is the slave of Jesus—Rome will conquer Islam”. I would be up before the bench before one could say “Jack Robinson”, or “Danish cartoon”. I could not do that—I do not think that the Minister would deny that—but they could. That, to me, is a clear demonstration that Christianity would not, as my hon. Friend the Member for New Forest, East (Dr. Lewis) said, receive equal treatment.

I will give way to the hon. Gentleman in due course—if I do not, I am sure he will remind me.

As I said in an earlier debate in this House, I am entirely in favour of free speech. My hon. Friend the Member for New Forest, East would say to me that Christ was not God. That is not blasphemy, but an expression of religious opinion. However, if he were to do something completely different—to mock, to ridicule and to use, in the most horrible fashion, the person of Jesus Christ—that would be a direct assault on me as a Christian. What a lot of people fail to understand about blasphemy is that it hurts deeply and is deeply offensive. The reason the Muslim community got so worked up about those cartoons was that they did not mock Muslims—they mocked the Prophet. None of us would get worried about Christians being mocked, but when Christ is mocked, that is different. Most of us feel that with the way society is going, it is very unlikely that, out of good manners alone, if there were no final legal hurdle, Christians would be protected from that type of insult.

When I tried to intervene earlier, the right hon. Lady was making a good point about the inequality of perception of what an insult is and her feeling that she would run the risk of being had up under our friends, the public order offences that we mentioned in an earlier debate. The answer is surely to get guarantees that her freedom of speech will be protected and that she is able to make that religious point instead of levelling down all the freedoms of speech to the lowest common denominator, which is what she seeks to do in preserving the blasphemy laws.

No—I think that the abolition of the blasphemy laws is a levelling down.

I rather take exception to the Minister’s comment, much expanded on in 22 minutes of waffle from the Liberal Front Bench, that the unique protection of Christianity is somehow—I use her own word—discriminatory. We have an established Church, and when I asked whether the Government wanted to abolish it, the Minister shook her head. If we call such protection discrimination, there is already discrimination built into our law. If we have an established Church, we need laws that reflect that. It is right that we keep that last legal hurdle and that people know that it is there. I am not suggesting, and no one with any common sense would do so, that it is an absolute protection against blasphemy—the Springer case proved that it is not. Nevertheless, it is there and it acts as some sort of small brake. I fear that if it is taken away, the inevitable result will be a huge outpouring of what we consider blasphemy, directed particularly against the Christian faith.

Does the right hon. Lady consider the current common law offences to be useable? One of our main points is that they are not useable any more.

I believe that they would be useable if the will to use them existed. “Jerry Springer: The Opera” could and should have been prosecuted because it was so extreme. The will to use those laws needs to be there. We are led in a whole number of ways by the notion of what we believe we should prosecute. There was and is insufficient will to prosecute blasphemy—it is not a fault of the law—just as there is insufficient will to prosecute practitioners of late abortions, even when they clearly fall outside the law. Somehow it is felt that we should not pursue that matter. The Minister will know that there is an enormous lack of will to ensure that the Hunting Act 2004 is enforced—[Interruption.] I thought that that was going to get more of a reaction. We should distinguish between what is useable and what is used: they are different concepts. I advocate that we keep the blasphemy laws because they could be used, and they would be a final safeguard in the current situation where Christians are being unfairly picked on.

In response to what the Minister said earlier, if Bagehot were here, he would argue that we should not keep something just because it is entirely rational. There is something symbolic about the law in question. It is to do with our culture and tradition, so it has value in that sense.

I agree with my hon. Friend and I look forward to hearing him make that case in his own contribution. That is the end of mine.

I agree very much with the sentiments expressed by my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe). I have mentioned a couple of legal cases, and one of the problems is that the matter is a fundamental question of law. There is a constant draining away of our spiritual and moral foundations; nothing is certain or clear any more. Sooner or later, someone will say, “What’s the point in the Queen having to take an oath? What is the point in Members of Parliament doing so?”

There were similar cases in the Liberal past. Mr. Bradlaugh, for example, took exception to taking an oath, but that was not because he wanted to attack the Christian religion; it was a matter of personal conviction. He was supported by many in the Liberal party, such as John Bright and others, who believed profoundly that a person should be entitled, as a matter of freedom of speech, to take such a position. An unlevel playing field is emerging, and I endorse what my right hon. Friend said about the situation outside Westminster cathedral. If the situation had been reversed, there is no doubt whatever that there would have been a serious onslaught on the person or persons taking part in the demonstration. I am glad to say that I do not believe—with slight reservations about some of the more extreme racist elements in our society—that those circumstances would arise in the first place. We are a tolerant and fair-minded people.

Even in the days of empire, we made a significant case for toleration of other religions in those parts of the world where we held governmental sway. We went out of our way to ensure that people were properly protected. Taking such a position is a judgment of wisdom and statesmanship. That is one of the reasons why, for example, even in Roman times, there was recognition of the other religions that existed within Rome’s overarching jurisdiction. It is also a reason for the extent of the aversion to the Bulgarian atrocities when the Ottoman empire engaged in a process of genocide, which led the Government of this country to take such a strong position against events there.

At the heart of our debate is a question about what sort of society we are. I believe that we are a Christian society and that we should be tolerant of other religions, but that is not to say that we should back away from the fundamentals that underpin our Christian way of life. The law of blasphemy lies at the heart of that.

I agree with my hon. Friend, but is not there a danger that less tolerant minority faiths will perceive a blasphemy law as something to which they aspire to protect the less tolerant version of their faith?

I understand that case, and I believe that the point is well made. However, it is said time and again that our society is based on certain fundamental values—the Prime Minister speaks about the “values of our society” and our leader talks in a similar vein. If those words are to mean anything, they must ultimately depend on the spiritual foundations on which the values are based. If people on the other side of another religious divide happen to take the position that they would like the law of blasphemy to apply to their religion and not to the Christian religion, and we followed that route, it would effectively be a form of appeasement. Indeed, in the case of Choudhury in 1991, the divisional court confirmed that the offence of blasphemy is limited to Christianity and does not extend to other religions. In that case, Islam was the religion in question.

Let me revert to the Liberal Democrat spokesman’s remarks. As I said in an intervention, in the matter of civil strife, which appears largely to have developed in the Jerry Springer case, I understand that the offence requires contemptuous and revolting behaviour, which would endanger society as a whole. That does not sit easily with the House of Lords case, which I mentioned earlier, of R. v. Lemon, in which the

“House of Lords held by three to two that it was sufficient for the prosecution to prove that blasphemous material had been published and not necessary to prove that the defendants intended to blaspheme… a blasphemous libel was material calculated to outrage and insult a Christian’s religious feelings; it is not an element of the offence that the publication must lead to a breach of the peace.”

In other words, in that House of Lords case, which as far I know still stands, precisely because it is a House of Lords case, the question of civil strife was not at the heart of the decision.

There is an irony in the situation, as we move further downhill towards a secularised society, which is what this is all about. Make no mistake; I wait with interest, but without any trepidation, to hear the words of the hon. Member for Oxford, West and Abingdon (Dr. Harris). I have heard him on many occasions. He is like a mirror image of Richard Dawkins in his advocacy of the secular society. I have no doubt that he will put a powerful case by his standards, but unfortunately it will not convince me.

The case that the hon. Gentleman and others who wish to secularise our society put is based on something completely different. The idea of spiritual and moral values in respect of religious conviction is alien to them. The solution in their kind of society is to secularise—to dumb down and to be not merely politically correct, but to repudiate and to oppose. That is atheism and secularisation run together.

Is not the nub of the argument the signal that the decision that we make tonight will send to the country, rather than the practicality of the law? If we do not keep the blasphemy laws, we will be saying that we are moving towards a secular society.

I entirely agree. That is the reason I am speaking on this point. The secularisation of our society is the easy way out. That is not to say that we should not have full respect for other religions, that we should be intolerant of those who believe in Islam or that we should repudiate other religions or minimise the importance of other people’s beliefs. However, the law in question is related to a Christian’s notion of a belief in God, whereby God should be respected and no statements should be made that contradict the fundamental beliefs held by people who believe in God in a Christian society. We should stand by those provisions because, as my hon. Friend the Member for Peterborough said, they are an intrinsic part of the society in which we dwell.

I shall probably regret this intervention, but the first point is that my hon. Friend meant our hon. Friend the Member for Wellingborough (Mr. Bone), not Peterborough.