'If a charge was brought against a saintly religious leader whose intention was to save souls ⋯': An analysis of UK parliamentary debates over incitement to hatred on the grounds of sexual orientation

Parliamentary Affairs

Volumn 64, Issue 4, 2011, Pages 652-673

  Vanderbeck, Robert M ^a   Johnson, Paul ^b  

^a UNIVERSITY OF LEEDS   (United Kingdom)

^b UNIVERSITY OF SURREY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 80053519299     PISSN: 00312290     EISSN: 14602482     Source Type: Journal    
DOI: 10.1093/pa/gsr022     Document Type: Article

References (112)

1. Maria Eagle, Parliamentary Under-Secretary of State for Justice, HC debate, 29 November 2007, c. 661.
2. The term 'homophobic hatred' was widely used in parliamentary debates to characterize the offence (e.g. David Burrowes MP, 16 October 2007, c. 69), although it does not appear anywhere in the Criminal Justice and Immigration Act 2008.
3. Prior to being amended, Part 3A (Section 29B) of the Public Order Act 1986 dealt exclusively with incitement to religious hatred.
4. For example, John Bercow MP, HC debate, 26 January 2009, c. 53.
5. For example, Lord Dear, HL debate, 03 March 2008, c. 932.
6. There is considerable debate about the actual implications of the saving provision, with opponents describing it as 'objectionable', a 'menace' and an example of legislative 'mischief'. Guidance from the government indicates that the provision does not 'affect the threshold required for the offence to be made out' (and thus offers no additional protection), yet there was sufficient concern by the government that a freedom of speech defence could be mounted based on the provision that it took the unusual step of attempting to remove the provision before commencing Section 74 (Alexander Horne and Sally Almandras, 'Inciting Hatred on the Grounds of Sexual Orientation', 26 May 2010, House of Commons Library, Standard Note SN/HA/4983).
7. Given that the first arrests for the offence have just taken place at the time of writing (involving men accused of distributing a leaflet advocating the death penalty for homosexuals through local letterboxes and outside a Derby mosque), the actual impact of the saving provision on the decisions of the courts remains difficult to assess. The interpretation of the provision also has potentially significant implications for policing, given that police have to exercise discretion in making arrests, and their understanding of the provision will impact upon decisions about when to investigate complaints or make arrests.
8. HL division, 11 November 2009. The Lords voted 179-135 in favour of an amendment that defeated the Labour government's attempt to remove the saving provision.
9. A similar offence of incitement to hatred on the grounds of sexual orientation has been in force in Northern Ireland since 2004, although the offence is in some ways more broadly drawn. There is currently no offence of this type in Scottish law. For a discussion of the offence in Northern Ireland, see Kay Goodall, 'Challenging Hate Speech: Incitement to Hatred on Grounds of Sexual Orientation in England, Wales and Northern Ireland', International Journal of Human Rights, 13, 2009, 211-32.
10. For a discussion of the broader context of homophobic hate speech in the Northern Irish context, see F. Ash, 'Iris Robinson's Excitable Speech: Sexuality and Conflict Transformation in Northern Ireland', Politics, 29, 2009, 20-7.
11. For contrasting views on the legitimacy and likely effectiveness of hate speech bans in relation to sexual orientation, see E. Heinze, 'Cumulative Jurisprudence and Human Rights: The Example of Sexual Minorities and Hate Speech', International Journal of Human Rights, 13, 2009, 193-209;
12. The offence defines hatred on the grounds of sexual orientation to mean 'hatred against group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex, or both)' (Schedule 16, 29AB) and thus includes bisexuality. However, the terms of the debate in Parliament gave no explicit attention to bisexuality, and thus we primarily use the language of 'gays and lesbians' not to exclude bisexuals but to offer a realistic account of the debate in Parliament.
13. For example, Philip Hollobone MP, HC Committee debate, 29 November 2007, c. 686.
14. Perhaps the most vocal organisation in this regard has been the Christian Institute (www. christianinstitute.org.uk, last accessed 15 January 2011). Discussions of this issue in the UK context include S. Hunt, 'Saints and Sinners: The Role of Conservative Christian Pressure Groups in the Christian Gay Debate in the UK', Sociological Research Online, 8, 2003;
15. C. Stychin, 'Faith in the Future: Sexuality, Religion and the Public Sphere', Oxford Journal of Legal Studies, 29, 2009, 1-27;
16. C.F. Stychin, 'Closet Cases: "Conscientious Objection" to Lesbian and Gay Legal Equality', Griffith Law Review, 18, 2009, 17-38;
17. G. Valentine and L. Waite, 'Negotiating Difference Through Everyday Encounters: The Case of Sexual Orientation and Religion and Belief', Antipode, 2011.
18. R.M. Vanderbeck, J. Andersson, G. Valentine, K. Ward and J. Sadgrove, 'Sexuality, Activism, and Witness in the Anglican Communion: the 2008 Lambeth Conference of Anglican Bishops', Annals of the Association of American Geographers, 101, 2011, pp. 670-89.
19. See also, amongst others, A.K.T. Yip, 'Attacking the Attacker: Gay Christians Talk Back', British Journal of Sociology, 48, 1997, 113-27
20. On the evolution of UK Parliamentary rhetoric in relation to homosexuality, see J. Burridge, '"I Am Not Homophobic But ⋯ ": Disclaiming in Discourse Resisting Repeal of Section 28', Sexualities, 7, 2004, 327-44;
21. M. Durham, 'Abortion, Gay Rights, and Politics in Britain and America: A Comparison', Parliamentary Affairs, 25, 2008, 89-103;
22. D. Epstein, R. Johnson and D.L. Steinberg, 'Twice Told Tales: Transformation, Recuperation, and Emergence in the Age of Consent Debates 1998' Sexualities, 3, 2000, 5-30;
23. J. Moran, 'Childhood Sexuality and Education: The Case of Section 28', Sexualities, 4, 2001, 73-89;
24. M. Waites, 'Homosexuality and the New Right: The Legacy of the 1980s for New Delineations of Homophobia', Sociological Research Online, 5, 2000;
25. M. Waites, 'Regulation of Sexuality: Age of Consent, Section 28 and Sex Education', Parliamentary Affairs, 54, 2001, 495-508;
26. S. Wise, '"New Right" or "Backlash"? Section 28, Moral Panic, and "Promoting Homosexuality"', Sociological Research Online, 5, 2000.
27. For example, Ann Widdecombe MP, HC debate, 24 March 2009, c. 203.
28. Report of the Committee on Homosexual Offences and Prostitution (1956; Cmnd. 247).
29. See Burridge, op. cit.; Epstein, Johnson and Steinberg, op. cit.; Moran, op. cit.
30. Baroness Howe of Idlicote, HL debate, 22 January 2008, c. 144.
31. P. Johnson, Love, Heterosexuality and Society, Routledge, 2005.
32. C. Brickell ' "Whose "Special Treatment"? Heterosexism and the Problems with Liberalism', Sexualities, 4, 2001, 211-35; Burridge, op. cit.
33. Edward Garnier MP, HC debate, 29 November 2007, c. 668.
34. Many of the most vocal champions of the saving provision also attempted to block the repeal of the offence of religious blasphemy in 2008, undermining any claims that their advocacy of the saving provision represented a consistent commitment to freedom of expression. For example, see Baroness O'Cathain's argument for the preservation of blaspehemy in the Church Times (7 March 2008).
35. Lord Dear, HL debate, 9 July 2009, c. 800.
36. Lord Waddington, HL debate, 7 May 2008, c. 598.
37. Lord Waddington, HL debate, 22 January 2008, c. 170.
38. Lord Clarke of Hampstead, HL debate, 3 March 2008, c. 927.
39. D. Taylor MP, a Labour rebel on this issue, quoting actor Rowan Atkinson, HC debate, 24 March 2009, c. 195.
40. Evan Harris MP, HC debate, 9 November 2009, c. 114.
41. Ann Widdecombe, HC debate, 24 March 2009, c. 203.
42. Baroness O'Cathain, HL debate, 3 March 2008, cc. 932-3.
43. Andrew Selous MP, HC debate, 6 May 2008, c. 600.
44. P. Johnson and R.M. Vanderbeck '"Hit Them on the Nose": Representations of Policing in Parliamentary Debates About Incitement to Hatred on the Grounds of Sexual Orientation', Policing: A Journal of Policy and Practice, 5, 2011, 65-74.
45. Lord Stoddart of Swindon, HL debate, 22 January 2008, c. 145.
46. For example, Lord Waddington, HL debate, 21 April 2008, c. 1367;
47. Gerald Howarth MP, HC debate, 24 March 2009, c. 191.
48. Lord Waddington, HL debate, 3 March 2008, c. 943.
49. Gerald Howarth MP, HC debate, 6 May 2008, c. 620.
50. Lord Harrison, HL debate, 7 May 2008, c. 604.
51. Edward Garneir MP, HC Committee debate, 29 November 2007, c. 669.
52. Baroness Butler-Schloss, HL debate, 7 May 2008, c. 600.
53. William Cash MP, 6 May 2008, cc. 622-3.
54. Lord Bishop of Newcastle, HL debate, 21 April 2008, c. 1372.
55. It is important to recognise that although it was repeatedly asserted that the police received a high volume of 'vexatious' complaints, research shows that most incidents of homophobic hate crime go unreported. See, for example, M.L. Williams and A.L. Robinson, 'Problems and Prospects with Policing the Lesbian, Gay and Bisexual Community in Wales', Policing and Society, 14, 2004, 213-32;
56. K. Wong and K. Christmann 'The Role of Victim Decision-making in the Reporting of Hate Crime', Safer Communities, 7, 2008, 19-35.
57. Lord Dear, HL debate, 11 November 2009, c. 854.
58. Dominic Grieve MP, HC debate, 24 March 2009, c. 198.
59. Tom Harris MP, HC debate, 24 March 2009, c. 204.
60. Ann Widdecombe MP, HC debate, 6 May 2008, c. 615.
61. Lord Waddington, HL debate, 7 May 2008, c. 597.
62. Baroness Knight of Collingtree, HL debate, 7 May 2008, c. 604.
63. Lord Armstrong of Ilminster, HL debate, 7 May 2008, c. 606.
64. Lord Moran, HL debate, 18 May 2009, c. 1294.
65. David Taylor MP, HC debate, 9 November 2009, c. 114.
66. For a fuller analysis of Parliamentary discourse in respect of the policing of hate speech, see Johnson and Vanderbeck, op. cit.
67. Lord Dear, HL debate, 11 November 2009, c. 853.
68. Lord Monson, HL debate, 9 July 2009, c. 808.
69. Lord Waddington, HL debate, 22 January 2008, c. 171.
70. Lord Stoddart of Swindon, HL debate, 22 January 2008, c. 169.
71. Earl Ferrers, HL debate, 3 March 2008, c. 931.
72. See, for example, Goodall, op. cit.;
73. Hunt, op. cit.; Stychin, 'Faith in the Future: Sexuality, Religion and the Public Sphere', op. cit.;
74. Stychin, 'Closet Cases: "Conscientious Objection" to Lesbian and Gay Legal Equality', op. cit.
75. John Bercow MP, HC debate, 26 January 2009, c. 36.
76. Heinze, op. cit.
77. Home Secretary Jack Straw MP, HC Second Reading, 8 October 2007, c. 67.
78. Racial and Religious Hatred Act 2006, Schedule 1, Section 29J.
79. See, for example, 'Incitement to Religious Hatred', the Christian Institute, available on http://www. christian.org.uk/resources/theology/ apologetics/christian-freedoms-and-heritage/ incitement-to-religious-hatred/ (last accessed 1 December 2010).
80. Lord Waddington, HL debates, 7 May 2008, c. 160.
81. House of Commons Division 84, 24 March 2009.
82. Jim Dobbin MP, HC debate, 9 January 2009, c. 450.
83. HC, 09.01.08, Amendment 1.
84. Jim Dobbin MP, HC debate, 3 March 2008, c. 938.
85. Lord Dearing, HL debate, 3 March 2008, c. 938.
86. For example Lord Bishop of Chester, HL debate, 3 March 2008, c. 938.
87. Similar to the distinction that was made in these debates about the difference between homosexual identity and practice, prior debates about the offence of incitement to religious hatred saw government supporters often maintaining a distinction between religious identity and belief to justify the protection of expressions of 'antipathy' and 'abuse' related to religious belief. For one perspective on the unsustainability of this distinction between identify and belief, see E. Barendt, 'Religious Hatred Laws: Protecting Groups or Belief', Res Publica, 17, 2011, 41-53.
88. Lord Waddington, 7 May 2008, c. 612.
89. Lord Lester of Herne Hill, HL debate, 9 July 2009, c. 805.
90. Baroness Turner of Camden, 21 April 2008, c. 1370.
91. Lord Bishop of Winchester, 9 July 2009, c. 806.
92. As theorists of sexuality have argued, representations of homosexuality as innate serve to reproduce notions of heterosexuality as unproblemtically 'natural' and reinscribe binaristic notions of human sexuality. See Johnson, op. cit.
93. Evan Harris MP, HC debate, 6 May 2008, cc. 616-17.
94. Lord Hunt of Kings Heath, HL debate, 3 March 2008, c. 940.
95. To clarify the definition of 'threatening', several attempts were made (led by David Heath MP, Evan Harris MP and David Howarth MP) to add language to the legislation making explicit that the linkage of homosexuality with paedophilia should be construed as 'threatening' (even when a direct threat of violence was not stated), but these amendments were repeatedly rejected by the government as unnecessary.
96. As explained by then Undersecretary of State for Justice Bridget Prentice MP: 'I fully understand the motivation behind new clause 37, but I believe that it is unnecessary. Allegations about offences, and specifically about child sex offences, are a very easy and damaging way of stirring up hatred on the grounds of sexual orientation. Such allegations are damaging and distasteful and should be challenged, but we believe that it is not necessary to mention them specifically in the offence. In many instances, allegations linking sexual orientation with child sex offences will be threatening as well as distasteful, and will be caught by the offence' (HC debate, 24 March 2009, c. 201).
97. Ben Summerskill, HC Committee, 16 October 2007, c. 75.
98. Gareth Crossman, HC Committee, 16 October 2007, c. 131.
99. Lord Alli, HL debate, 7 May 2008, c. 601.
100. Sir Patrick McCormack MP, HC debate, 6 May 2008, c. 612.
101. Evan Harris MP, HC debate, 6 May 2008, p. 617 and c. 622.
102. HC debate, 16 October 2007, c. 85.
103. Edward Garnier MP, HC debate, 16 October 2007, c. 85.
104. David Howarth MP, HC debate, 24 March 2009, c. 189.
105. The Daily Telegraph, 24 October 2009.
106. Evan Harris MP, HC debate, 9 November 2009, c. 114.
107. David Taylor MP, HC debate, 9 November 2009, c. 110.
108. Lord Dear, HL debate, 11 November 2009, c. 854.
109. Lord Bach, HL debate, 11 November 2009, c. 861.
110. P. Webb and S. Childs, 'Wets and Dries Resurgent? Intra-party Alignments Among Contemporary Conservative Party Members', Parliamentary Affairs, 2011, online advance access.
111. British Broadcasting Corporation, 'I've changed my mind on gay adoption, says Theresa May'. BBC News Online, 20 May 2010. http://news.bbc.co.uk/1/hi/uk- politics/8696102.stm (accessed 1 May 2011).
112. C. Jee, 'Stability, Not Sexuality', YouGov, 24 August 2010. http://today.yougov.co.uk/life/ stability-not-sexuality (accessed 15 December 2010).