Schedule - Hatred against persons on racial or religious grounds
Racial and Religious Hatred Bill
9:00 am
Dominic Grieve (Shadow Attorney General, (Assist the Home Affairs Team); Beaconsfield, Conservative)
I welcome you to the Chair, Mr. Gale, and I apologise for having assumed that permissions that were given yesterday might have been extended into today as far as our state of sartorial elegance or otherwise is concerned.
This is a very large group of amendments and has a rather daunting quality about it, but it is possible to break it down fairly readily. Some amendments were tabled by the Liberal Democrats, and I shall leave it to them to explain their position on those. Of the amendments that I tabled, there are really only three that are a novelty, because the remainder duplicate them as one goes through the text of the schedule, so the group is nothing like as terrible as it might appear at first sight.
I should add that all the amendments were tabled for probing purposes, so that we have an opportunity to consider an aspect of the schedule that has caused anxiety, which is the rewriting of the second limb of the racial hatred offence. The Committee will recollect that someone can commit the offence because they intend to incite racial hatred under the old law, or someone can commit the offence because in all the circumstances of the case it was likely that racial hatred would be incited.
With the Bill, the Government seek to change the test so that when religious and racial hatred continue together, it should come under the new test that
“having regard to all the circumstances the words, behaviour or material are ... likely to be heard or seen by any person in whom they are ... likely to stir up racial or religious hatred.”
I look forward to the Minister explaining in due course exactly how that test will operate.
I have, as I told the Committee yesterday and the day before, reservations about the test. Amendment No. 8 would simply remove sub-paragraph (3). Perhaps slightly clumsily, it is intended to suggest that we might be as well to leave things as they are—that is, with the old test under the Public Order Act 1986 and the incitement to racial hatred provision.
If we are not to do that, I invite the Committee to consider whether we should look carefully at the sentence in that sub-paragraph, whether there are ways to alter it and what impact that would have on its meaning. The first amendment that is relevant to achieving that is amendment No. 9, which would leave out the word “likely” in line 21 and substitute “intended”, so that the text read,
“having regard to all the circumstances the words, behaviour or material are intended to be heard or seen by any person in whom they are likely to stir up racial or religious hatred.”
That would mean that intentionality would have to be shown throughout, in that in the second limb the person would have to intend the material to be seen by people whom they thought might be stirred up even if they did not intend that they would be stirred up to religious hatred as a result.
The alternative, with amendment No. 15, is to leave the first part of the sentence as it stands but leave out the second “likely”, so that the subsection would read,
“having regard to all the circumstances the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they (or it) will stir up racial or religious hatred.”
It is worth while for the Committee to consider carefully how those words would work in practice, which brings me back to my critique of, or anxiety about, what the Government are trying to do.
The old test, in the 1986 Act, provides for circumstances in which somebody says that they did not intend to stir up racial hatred and there is no evidence to show that they did, but the truth is that they were reckless about the impact of their words. That is how I have always understood the second limb of the existing Public Order Act offence to work. Someone can still be convicted, as the judge can tell members of the jury that even if they consider that the defendant did not intend to stir up hatred, they can look at the matter in the round and judge whether the prosecution has satisfied them that, considering all the circumstances, racial—or now religious—hatred would be stirred up.
That is a sensible test, and one with which juries and judges are enormously familiar. It asks them to apply their common sense and consider all the factors that can be taken into account. Those factors would include: where the speech, for instance, took place; its audience; whether it took place in a climate of heightened tension between communities; and whether the speaker allowed the speech to be disseminated knowing that it would be passed into areas or communities that would be inflamed by the words. The test asks the people to look at the totality of the picture.
We contrast that with the new test, which is dangerously narrow. All that has to be shown is that the words are likely to be heard by somebody
“in whom they are ... likely to stir up racial or religious hatred.”
That would put a great burden on somebody making a speech. For example, a vicar or priest who delivers a talk to a learned audience about Islam and provides a rigorous critique of Koranic teaching could find that his words are published and read by some fundamentalists with a violent bent, who use them at a public meeting to claim that people are being incited to hatred of Muslims, even though that had not been the vicar or priest’s intention. We could reverse that situation and apply it to a Muslim imam—the denomination does not matter.
Under the Government’s new test, the jury will be prevent from considering all the surrounding circumstances, which might incline them to the view that the vicar or priest could not have imagined that the words were likely to stir up hatred. All that now has to be shown is a likelihood that it might be seen by somebody in whom it might be likely to stir up hatred. That strikes me as too narrow a test.
Amendments Nos. 9 and 15 would deal with that, but I am the first to acknowledge that they may have downsides. If we agreed to amendment No. 9, there would have to be a specific intention that the material would be seen by people in whom it was likely to stir up racial or religious hatred, which I accept might be a tighter test that what exists at present. Amendment No. 15 would allow for the recklessness element to remain but would put the burden on the prosecution of showing that it was likely that the words would be heard by people in whom they would stir up racial or religious hatred.
If I were choosing how to amend the schedule, I would prefer amendment No. 15 to amendment No. 9, because it would allow the recklessness element to remain but, on the other hand, it would put the burden on the prosecution to show that the people who were going to hear the words would be stirred up. That then raises the question of what the Crown would have to prove in bringing a case in respect of likelihood. Would they invite the jury to consider all the circumstances? Would they produce somebody who attended a public meeting who said that they thought that such words would have been likely to stir them up if they had heard them? It is not at all clear to me how people will be prosecuted, now that we have departed, as I said to the Minister, from the much simpler test that originally prevailed.
I understand, because the Minister explained it to me and also because it has been published, that the reason for the alteration is the problem of acts taking place, such as posters being taken down before anybody could read them. Although it could be argued that the posters were likely to stir up racial or religious hatred, it was impossible to show that, in all the circumstances, hatred was going to be stirred up. I sometimes think that a single case leading to an amendment may produce bad law. The Committee should reflect carefully on whether we should alter the law at all. After all, if by a happy intervention of the police, the publication of a document that is intended to stir up hatred is stopped—in the same way as a murderer whose murder is prevented escapes the full rigour of the law—there is at least an argument that we should be thankful that the person concerned need not be prosecuted.
If, on the other hand, it is felt that we should prosecute such people, where it is only by a happy chance that the words have not been disseminated, confining the offence to a specific intent might be better, or if not, amendment No. 15 might provide a fairer outcome. I should apologise to the Minister for having been so technical; it is not an easy topic to get one’s head around, especially at 9 o’clock on a Thursday morning.
Perhaps the Minister will be able to persuade me that I am completely wrong about the matter, but I think that the impact of the changed test raises the possibility that people will be convicted unfairly. As the test that he is planning to introduce does not require intent, it strikes me that when one likelihood is piled on another, a highly speculative environment is created, which is unfair to the person concerned. That worries me. The Minister can persuade me that I am wrong, as I am open to persuasion, and if another member of the Committee can persuade me that there is another way of approaching the problem, I shall be equally happy.