Schedule - Hatred against persons on racial or religious grounds
Racial and Religious Hatred Bill
9:30 am
Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)
No doubt that will continue to be a difference between us, but part of the Government’s motivation in bringing forward the legislation is to produce a level playing field for different religious groups. One group of amendments, which I shall come to shortly, would introduce a lower test than the current likely limb test. I assume that the Committee would not want a test lower than the current one.
I shall explain to the Committee why the Government wish to make the changes to the likely limb. I refer, first, to section 18(1) of the Public Order Act 1986, which states:
“A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive, or insulting is guilty of an offence if
(a) he intends thereby to stir up racial hatred”.
I do not think that there is any argument that, as a first preference, we would always try to prove—and the court would judge—whether there was a clear intention to stir up racial hatred. However, we accept that it is difficult to prove whether someone has intended to do something, which is why we introduced the second leg, or the likely limb, of the offence.
The Public Order Act says that an offence is committed if, having
“regard to all the circumstances ... racial or religious hatred”
is likely to be stirred up thereby. There is a concern and a risk, referred to by the hon. Member for Beaconsfield, that the court may interpret the likely limb as requiring proof that threatening, abusive, insulting words or behaviour were seen by someone in whom hatred is likely to be stirred up. The burden of proof becomes whether or not the words or behaviour were actually seen or heard.
As I explained in previous sittings, if somebody has produced material or spoken words that are likely to whip up hatred on the grounds of religious belief, the fact that a decent person saw the poster or heard the words and reported that to the police and/or had the posters taken down should not excuse the person who put the posters up in the first place. If their actions were likely to lead to religious hatred being stirred up, they should not be allowed to get off scot-free, and nor should they get off if it was the police who first saw the poster and took it down. They will be guilty of an offence in putting up those posters whether or not they were seen by someone in whom hatred was likely to be stirred up. That is why we have introduced the changes. The test is not lower—hatred will still be the high test that has to be proved—but we wanted to take account of the fact that we do not want people to get off scot-free just because someone has not seen their poster or heard their words.
Our changes must also be seen in the context of section 18(5) of the Public Order Act. I hope that this will offer some reassurance, not least to the hon. Member for South-West Devon, who rightly argued that there must be some degree of intentionality behind the actions. Subsection (5) says that
“a person who is not shown to have intended to stir up racial hatred”—
someone who has not been proven to have committed the first limb of the offence—
“is not guilty of an offence under this section if he did not intend his words or behaviour or the written material to be, and was not aware that it might be, threatening abusive or insulting.”
Under the 1986 Act, someone has to intend that their behaviour or words will be threatening, abusive or insulting, or at least be aware that they might be.