Updated Tuesday evening
Update The text of the “Waddington amendment” can be seen in the context of the legislation it amends by going here.
Today’s Observer has a report by Jamie Doward headlined Bishops fight for right to criticise gay lifestyle.
Church of England bishops are on a collision course with the government over its plans to amend the incitement to hatred laws, claiming they will stifle what they believe is legitimate criticism of homosexual lifestyles.
In what is being portrayed in some parliamentary quarters as a battle for free speech, a coalition of Anglican bishops, Conservative peers, Labour malcontents and leading crossbenchers have united to block the proposals.
You can read exactly what the Bishop of Southwell and Nottingham said over here.
For the background to this development, see these two TA articles from 2007:
The latter item contains a link to the statement issued jointly by the Church of England and the Catholic Bishops’ Conference of England and Wales at that time.
More recently (my copy undated, but was sent to me in March) the CofE issued a briefing note to parliamentarians which is reproduced in full below the fold. This shows that the CofE has changed its mind since 2007 about the adequacy of the legislation as originally proposed:
…While we were satisfied with the definition of the offence as it stood, we believe that the amendment successfully moved by Lord Waddington now provides a valuable safeguard…
(The relevant clause was numbered 58 in the original bill but because of other amendments has now becomes clause 61.)
CofE briefing note to parliamentarians – Coroners and Justice Bill – Clause 58
The Church of England, in common with many other organisations – not all of them religious – has concerns about Clause 58 of the Bill, which seeks to remove the so-called “free speech” provision on incitement to hatred on grounds of sexual orientation. The Church of England is not convinced of the necessity for this change and as such supports the cross party amendment 297, which seeks to leave out Clause 58 from the Bill.
When the offence of incitement to hatred on grounds of sexual orientation was first put forward within the Criminal Justice and Immigration Bill (now Act) 2008, we supported it on condition that it did not infringe freedom of expression on issues of sexual morality and conduct. We were satisfied that the high threshold of the offence (intention to stir up hatred by means of threatening words, behaviour or material) struck a reasonable balance between protecting people from attacks directed against their sexual orientation and maintaining freedom of expression.
Subsequently though a “freedom of speech” provision was inserted by a Lords amendment in the name of Lord Waddington and now stands part of the Criminal Justice and Immigration Act 2008. While we were satisfied with the definition of the offence as it stood, we believe that the amendment successfully moved by Lord Waddington now provides a valuable safeguard (parallel to the freedom of expression protection in relation to religious hatred) by making it clear that “the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices” does not in itself constitute an offence. If, as the Government argues, removing the amendment would not lower the threshold of the offence it is hard to see any justification for doing so. If it is argued that it is necessary for the effective operation of the law that the amendment should be removed, the implication would be that such discussion or criticism could in itself constitute an offence, and to this we would be strongly opposed. The present provision was made “for the avoidance of doubt” and in the absence of compelling grounds for change, it seems to us that this is an example of the kind of restless fidgeting with the law that Government and Parliament would do well to avoid.
Problems in this area often arise less from the formulation of the law than from over-zealous action by the police based on misunderstanding of what the law means. This was seen in investigations of alleged homophobic conduct carried out under existing public order legislation. In a joint submission with the Catholic Bishops’ Conference of England and Wales to the Public Bill Committee of the Criminal Justice and Immigration Bill in November 2007, we said: “We believe it is vital that there should be the maximum possible clarity about what is forbidden and what is permitted. Christians engaged in teaching or preaching and those seeking to act in accord with Christian convictions in their daily lives need to be assured that the expression of strong opinions on marriage or sexuality will not be illegal…. We also draw attention to the possible ‘chilling effect’ on free speech, which formed part of the debates on religious hatred. Uncertainty in the law has the effect of inhibiting behaviour which may not in fact be illegal. People holding firm opinions on sexuality will generally be reluctant to risk the emotional and financial costs of being challenged by a neighbour or colleague and investigated by the police, even if this does not lead to prosecution or conviction.”