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Repeal Section 29JA of the Public Order Act 1986

2 Comments 5th July 2010

Section 29JA of the Public Order Act 1986 reads:

"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."

This so called "Waddington Amendment" was made by the House of Lords to legislation which prohibits people from threatening or inciting hatred against people just because they happen to be gay. It serves no purpose in law, as- contrary to what you might read in certain tabloids- the law has a very high threshold before it can be applied. (In 30 years of similar legislation as regards race, only 20 prosecutions have been made).

The Lords insisted on inserting it into the law apparently to prevent people who might want to criticise homosexuality in a reasonable way from being prosecuted- this is despite the fact that the then Secretary of State for Justice, Jack Straw, said at the time that the law in question would not mean "jokes involving gay people being outlawed, it would not prevent expression of opposition to same-sex relationships where the discussion does not amount to threatening language with the intention of stirring up hate".

"For the avoidance of doubt" and "of itself" render this clause completely superfluous but could confuse some hateful people into thinking that "free speech" is a defence for stirring up hatred and violence.

Why does this matter?

We have already established that this clause doesn't really do anything legally, so why is it important that it's removed? Well, in addition to making the law less open to misinterpretation by bigots, it's a matter of principle.

This clause being on the statute book means that the law in this country still tacitly approves criticism of homosexuality. It should not do so. Without this clause the law will still permit people to criticise homosexuality, but it won't imply that doing so is expected or approved by the state. The Commons voted on several occasions not to have this clause in the law, but the government were forced through lack of time to accept the Lords amendment. Consequently, this clause means that very right-wing unelected Lords who bear little resemblance to most citizens of this country are still getting their way when it comes to deciding on what we the people, through our laws, think is moral or immoral- rather than our elected representatives. It is, for those Lords, a victory for a brand of right-wing illiberal Christianity for which most of us have little time.

Repeal this useless clause, and remove the law's last tacit approval of homophobia.

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2 Responses to Repeal Section 29JA of the Public Order Act 1986

  1. Mr Magoo says:

    It has been argued that the free speech clause is superfluous6 because the offence is said to have a “high threshold”, that is, the words or behaviour used must be “threatening” and must be “intended to stir up hatred”7 for a person to be guilty of the
    offence. However, the free speech clause provides much-needed clarity as to what is and what is not covered so that there is no room for doubt and less opportunity for false accusations. There is a free speech provision in the Racial and Religious Hatred Act 2006 (“RRH Act 2006”) on incitement to hatred on which this offence is modelled. That section has
    exactly the same threshold, so that the words or behaviour need to be both intentional and threatening. However, in the case of the sexual orientation offence, the free speech provision that former clause 61 (previously clause 58) sought to remove, is modest in comparison with the wording of the RRH Act 2006. That Act inserted section 29J into the Public Order Act 1986, which reads:
    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.
    Conclusion? Disagreeing with a lifestyle and being able to say that as per one’s free speech human rights it is NOT a hate crime.

  2. Mr Magoo2 says:

    1. “Without this clause the law will still permit people to criticise homosexuality” – Not true. Without any free speech clause, criticism could always be potentially used as a weapon to attack any disagreement with, for example the anal acts of mainly male homosexual behaviour, which many will always find abhorrent, no matter what.
    2. “A brand of right-wing illiberal Christianity for which most of us have little time”. You make the point well that even though you scream for tolerance, it is in fact the militants you advocate for and may find favour with that are truly intolerant.
    3. Overall this causes division and resentment for many and succeeds in dividing rather than uniting us all.
    4. Shame really as many of us have shown true tolerance since the Sexual Offences Act changed the law and don’t need to now beaten into promoting homosexuality. They won’t.
    5. You should be allowed to have protected, free speech, just like anyone else who may disagree.

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