The House of Lords has voted to keep an amendment that would create a defence of “free speech” in a bill that is designed to criminalise incitement of homophobic hatred.

Today, the House voted 186 to 133 to retain the amendment, which allows “discussion or criticism” of sexual practices. This includes criticisms of homosexuality and urging gays to turn straight.

The issue will now return to the House of Commons, where MPs voted to remove the amendment in March by 154 votes.

In May 2008, the Criminal Justice and Immigration Act created an offence of incitement to hatred on the grounds of sexual orientation.

However, the “free speech” amendment was added by Tory peer Lord Waddington, a former home secretary under Margaret Thatcher.

His amendment to the offence of using threatening language with intent to stir up hatred on grounds of sexual orientation said that urging someone to change their sexuality or criticising homophobia should not count “of itself” as threatening or as intended to stir up hatred.

The government has said the amendment is unnecessary, but campaigners including the Blackadder star Rowan Atkinson and the gay actor Christopher Biggins have argued that the clause relating to hatred in the Coroners and Justice Bill could limit freedom of expression and could lead to prosecutions over gay “jokes”.
In March, Atkinson warned a House of Lords committee that the government risked creating a culture of “censoriousness” by removing free speech.

He said: “Do I think that I would risk prosecution because of jokes or drama about sexual orientation with which I might be involved if we don’t have the free speech clause?
His comments were echoed by gay actor Christopher Biggins, who said: “Showbiz, camp theatrics and dazzling wit helped to pave the way for gay rights. They should be cherished, not suppressed.”

The Criminal Justice and Immigration Bill had to become law by May 8th 20088, when prison officers’ right-to-strike provisions expired under an industrial relations procedural arrangement.

For that reason the Waddington amendment was kept in the bill, but ministers made clear they were unhappy with it.

Justice minister Maria Eagle described it as “undesirable and unnecessary; it does not add anything to the law as it would stand without its inclusion.”

The new law against incitement to hatred on the grounds of sexual orientation is unlikely to be used frequently.

Similar laws against inciting racial hatred have only been used around 20 times in the 30 years since they came into force.