Thursday, 12 November 2009

Sexuality and hate speech

The BBC reports that the government will be taking anti-hate-speech legislation to a fifth vote in the Commons, to remove so-called "free speech" protections that the Lords keep putting back.

The fourth time this came up in the Commons, the vote was almost entirely on party lines: Labour and Lib Dems in favour, Conservatives opposed. There were a few Labour MPs and 1 Lib Dem MP against it. The votes in the Lords were on a similar basis.

The nature of this debate is that the Lords can keep putting them back in and the Commons can keep taking them out more-or-less indefinitely. The principle that the Lords do not have the right to indefinitely overrule the Commons is in the Parliament Act, but this sort of shorter-term delay is allowed and probably sufficient to block the bill. The question then is whether the Lords is willing to block the bill as a whole, which they are presumably mostly happy with, over this small bit of it, and whether the Commons is willing to take that risk or just abandon this amendment to pass the rest of the bill.

As it happens, the Commons backed down first. LGB rights are not sufficiently important to them to risk the Lords blocking the bill as a whole.

As for what was being argued over here, it's quite complicated to determine, because the Statute Law database hasn't been completely updated, so the relevant bits of legislation are scattered all over the place, and the media doesn't go into enough detail. I'll try to summarise:

  • The Public Order Act 1986 contains Section 3 which makes creating racial hatred illegal.
  • The Racial and Religious Hatred Act 2006 inserted this amendment to the Public Order Act 1986, making religious hatred (which includes hatred over a lack of religious belief) illegal to stir up.
  • The Criminal Justice and Immigration Act 2008 modified this insertion to give sexual orientation equivalent protection to religious preferences.
  • In the religious hatred section, there is the language: (section 29J) "Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.". Summarised: you can insult religions and belief systems as much as you like, but you can't attempt to get people to hate them. You can also try to convert people.
  • When the sexuality hatred amendment was made, an equivalent section (29JA) "In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred." was added.
  • The Commons would now like to remove 29JA. The Lords would like to keep it.

The Lords/Conservative argument is that removing that part, while not removing 29J, creates an inconsistency between the two forms of incitement to hatred which they do not wish to support. (They also, presumably, think 29J is good, since they're not proposing to remove that). They also don't think it's a problem, or if they do, they haven't mentioned it, that a similar provision to 29J or 29JA isn't in the original racial hatred language.

This might be clearer with a table:

LegislationGroupsBehavior or written or spoken words must beExceptions "for the avoidance of doubt"
Public Order Act 1986Races, colours, nationalities, citizenships, national or ethnic originThreatening, abusive or insultingNone
Racial and Religious Hatred Act 2006Religions, beliefs, or lack thereofThreateningAbuse, insults, conversion explicitly allowed, provided it isn't threatening.
Criminal Justice and Immigration Act 2008Sexual orientation (Lesbian, Gay, Bi, Het)ThreateningCriticism, conversion explicitly allowed, defined as not threatening.

The debate is whether the highlighted table cell should be changed to 'None'

Even with this amendment, the protections against sexuality-based hate speech are considerably weaker than the protections against racist hate speech. You can be abusive and insulting about LGB people, provided you somehow do this without being threatening, without breaking the law.

The clauses, despite the Lords/Conservatives stance on them, are not particularly equivalent to start with. The religious hatred one states that insults, abuse and conversion, in the absence of a threat, are legal. The sexuality-based hatred clause states that criticism of sexual conduct and practices and calls to refrain from them2 are not in themselves threatening or intended to stir up hatred.

Of course, they are, no matter how politely they're phrased, because you can't say that people shouldn't be LGB without it being a threat to those who are, because of the high levels of violence from other people who also say that, and because it's a denial of a basic part of someone's identity. There are good reasons that no similar clause is in the racial hatred legislation3, and these reasons apply to the sexuality-based hatred legislation too.

These clauses are not equivalent to start with. The Lords added it to the Criminal Justice and Immigration Act, and the Commons backed down rather than lose the rest of the bill. Yet again, the Lords have delayed the bill up until the end of the Parliamentary session, and the Commons have been unwilling to see if they were bluffing about killing the bill entirely.

There won't be another chance for a while, since the next Parliamentary session will be a short one, truncated by the inevitable general election. At the moment, it looks likely that there won't be the Commons majority necessary to try again after that happens.

As an aside, from the BBC article: "But some comedians have criticised the plans, saying they could stifle creativity and even lead to the threat of people being arrested over jokes." If your 'joke' counts as homophobic hate speech, it wasn't very creative, since that sort of joke has been around for centuries. If it was so hate-filled that it gets you arrested, then it probably wasn't funny either. Going after easy targets and relying on prevalent stereotypes is not "creative humour", it's unwarranted laziness. Since abuse and insults are still allowed, and since I presume comedy doesn't intend to actually threaten people, I doubt many acts will need to change. The presence of the racial hatred legislation, which is far broader, hasn't prevented racist jokes being made by comedians, after all.

1 I use a restricted initialism because the amendment being debated doesn't address transphobic statements or those made about gender identity. As far as I can tell, that is still legal. The language added in 2008 defines sexual orientation "whether towards persons of the same sex, the opposite sex or both", so asexual people are also still legal targets for hatred. As far as I can tell, since the Public Order Act seems to be the place for hate speech legislation to live, you can also threaten people for their gender more generally, any disabilities they have, or their weight, with complete impunity. Comedians relying on bigotry for their act needn't worry about running out of material any time soon. Everyone else probably should worry.

2 Pre-emptive note: there is nothing at all in this legislation, with or without 29JA, that would prohibit criticism or prevention of non-consensual sexual activities. Take that slippery slope elsewhere.

3 While the racial hatred legislation is stronger, it's fairly clearly still not strong enough.