Free speech has always posed a liberal dilemma. On the one hand, we hold dear the principle that individuals are free to speak their mind, even when it gives offence. On the other hand, there is Mill’s ‘harm principle’ – what to do about those individuals who incite hatred and violence through their words.
It was this dilemma which was at the heart yesterday’s Commons debate on the Coroners and Justice Bill, which will criminalise incitement to hatred over sexual orientation. An attempt was made group of MPs, led by Labour’s David Taylor, to amend the bill to insert a so-called “free speech” defence. The BBC report gives the background:
The controversy stems from last year’s Criminal Justice and Immigration Act when Tory former home secretary Lord Waddington succeeded in amending the legislation dealing with inciting hatred on grounds of sexual orientation to allow for “discussion or criticism” of sexual practices.
The government was unable to remove the amendment last year due to a lack of parliamentary time but is now using the Coroners and Justice Bill to scrap it. Mr Taylor, MP for Leicestershire North West, said his proposal simply made “clear that discussion or criticism of sexual conduct is not caught by the homophobia law”.
High-profile critics of the government’s approach have included Blackadder star Rowan Atkinson, who claimed it could stifle creativity for writers and comedians.
David Howarth led for the Lib Dems on this, and voiced the party’s opposition to the amendment, and in favour of the bill’s criminalisation of incitement of homophobic bullying and intimidation. You can read extracts from his Commons’ speech explaining his and the party’s position below:
David Howarth: The offence of using threatening words or behaviour with intent to stir up hatred on grounds of sexual orientation was created by the Criminal Justice and Immigration Act 2008. Anyone who knows anything about the lives of gay people in this country knows why the provision was necessary and important.
Homophobic bullying and intimidation are distressingly common occurrences. Recent research shows that one in eight lesbian or gay people have experienced hate crime in the past three years. The problem is not only distressingly common but can have lasting deleterious effects on the lives and well-being of the victims. I hope
that no one in this debate will question the need for the provision; if they do, I hope that they will be honest enough to say so openly.
This debate focuses on a particular aspect of the 2008 Act. Some religious groups have said they are afraid that the new law will catch them because their religion strongly disapproves of homosexuality, and their representatives or preachers want to continue to say so publicly. It is important, however, to stress what the 2008 Act says and what the new crime is. The Act says:
“A person who uses threatening words or behaviour, or displays written material which is threatening, is guilty of an offence if he intends thereby to stir up hatred on the grounds of sexual orientation.”
That means that the words have to be both threatening and intended to stir up hatred. It is not enough for the words to be insulting or offensive; they have to threaten. Nor is it enough that the words may have the effect of stirring up hatred; they have to be specifically intended to do so.
The crime is difficult to prove at the best of times. If a charge was brought against a saintly religious leader whose intention was to save souls, I cannot see how anyone might think that that offence had been committed. … some people are anxious about the possibility that the police and the Crown Prosecution Service will not recognise the difference. I accept that that anxiety exists and that we should do something about it—the question is what.
David then went on to propose a new clause, which he argues would ‘meet head-on the problem of mistaken interpretations that lead to fruitless and distressing investigations’:
It would do so by requiring the Director of Public Prosecutions to issue guidance to prosecutors on the meaning of the offence, and crucially, it would require chief constables to make the content—or for those Members who were here yesterday, the gist—of that guidance known to police officers. New clause 11 would also introduce a real free speech element by requiring the Attorney-General, whose consent is necessary for any prosecutions to go ahead, to have regard to all the relevant rights and freedoms in the Human Rights Act before giving that permission.
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4 Comments
I find the whole “Incitement to..” business faintly ridiculous. It supposes that a given individual is so feeble minded that a single piece of writing, speech or behaviour can take them from being neutral on gays, blacks, Muslims or whomever to actively hating them.
And it would have to be a single identifiable piece of speech otherwise how would it be possible to prosecute?
Leaving aside whether we think we should be basing our law on criminalising attitudes such as “hatred” rather than damaging or criminal behaviour, should ANY liberal be supporting a bill that presupposes citizens are all THAT stupid?
Or put it another way – if you DO believe individuals are stupid, weak and controlable enough to be “incited” to hatred in this way, WHY be a liberal?
I tend to agree with Benjamin, though I have been on the steering committee in Oxfordshire that “policed” homophobic motivated crime. But as you say, crime is crime and should be prosecuted. “Incitement” I do find difficult. Nobody has a right “merely” to not be offended, but there is clearly a set of circumstances where “incitement” can itself be common assault in the sense of fearing the imminent application of force.
The case of Geert Wilders is one in point. After seeing Milliband (D) merely repeating the mantra that it was a “hate filled film” then denying he had seen it, I did watch it myself on YouTube and found it more thought provoking than “hate filled” and certainly no worse than some of the stuff mainstream media were compiling after 9/11. What I really wanted was for it to be aired with a debate where one could ask Muslims for the arguments against each Koran quote they used meaning what Wilders was inferring they meant with his imagery.
I am instinctively not anti-Muslim in any way. And I think they all, as a group, have had a very bad rap over the past decade in many western countries. But I often feel I want to be armed with their apologetics to use against egregious attacks on them.
But it was a bit of a bugger that this was timetabled last night! We had a long organized event (Vince organized it for us) to promote the idea of an all party parliamentary group on Land Value Tax and while Vince arrived a few minutes late there was a division before he got to speak and he never returned. But I am at least pleased to say that the Lib Dems had the only MP to be present for most of it in person – Andrew George (who has never come up on ALTER’s radar before) – and we also probably had the most number of MPs researchers there.
I’d perhaps be inclined to side with Benjamin here if this were an abstract debate about an idealised society where such attacks would be isolated incidents.
However, this is not about theory or exploring the effects of an action under neutral laboratory conditions.
Most people in Britain have grown up in a culture of heterosexism, homophobia and biphobia – so such actions as this bill seeks to address serve to reinforce and legitimise attitudes and behaviours we are still having to work to move on from as a society.
Jen – as a gay person (indeed any person with eyes and ears) I’m obviously aware that we have a long way to go before we get rid of prejudice.
But this isn’t about tackling homophobically-motivated attacks or even “hate speech” – it is about “inciting” an otherwise normal person to “hatred”.
For this offense to be commmitted it is not neccessary for anyone to DO anything. They merely have to say something to another person which a third party thinks COULD induce that person to THINK something.
It is beyond even the criminalisation of thought – it is the criminalisation of speech which might theoretically induce a thought.
And that’s always assuming you believe that a single piece of speech can actually have that effect on a free-minded individual.
What is more: In an environment where there are inevitably conflicts between different “interest groups” i.e. gays who want to criticise Christianity. Christians who want to criticise Islam. Right-wingers who want to criticise Gays, Muslims and just about everyone else and much of the time these conflicts NEED to be joined on one side or another.
Every piece of legislation that suppresses one side of these arguements suppresses the entire debate. And that is simply not healthy.