I beg to move, That this House
disagrees with the Lords in the said amendment.
The provisions in part 5 of the original Bill would create an offence of incitement to religious hatred. I shall rehearse some of the arguments in favour of such a provision and consider some of the reasons advanced in both Houses against it.
In relation to the original reasoning behind part 5, I remind hon. Members that, contrary to some contentions, the clauses were included because they had a clear connection to the events of
Those Members who have argued that the clause has no place in the Bill need to think about the behaviour that has been precipitated against Muslim people. It includes not only individual acts against Muslim people—there have certainly been crimes such as assault—but the growing emergence of propaganda inciting hatred against a religious group.
All hon. Members are interested in what the Minister is saying, but can she help the House by explaining how she would draw the line between proper discussion of the influence of Islam on the treatment of women in many countries and what she feels would be an offence under such a law? I understand where the extreme lies, but many of us ask where the line will be drawn. Given that religion cannot even be defined in the Bill, what hope is there of drawing that line in a way that will not lead to very considerable restrictions on perfectly proper discussion?
I shall certainly come to that more general point later, but I can tell the right hon. Gentleman now that one of the things that we have been trying to remind Members of during these debates is that the provision arises from the Public Order Act 1986. It will not inhibit rational discussion of any kind, including discussion of the premise or tenets of a religion but deals with the kind of threatening, insulting or abusive words and behaviour that will, or are likely to, incite public disorder. It deals with public order, not the limit of reasonable expression and discourse.
Building on the point made by my right hon. Friend Mr. Gummer and bringing the Minister directly to Government amendment (a), as I understand it, the Attorney-General will issue guidance on the circumstances in which he will bring proceedings. In reality, does not Government amendment (a) constitute a definition of the law? That guidance, which is not subject to debate or amendment in the House, will be issued by an Attorney-General—I make no personal criticism of him—who is not even a Member of this House. Is that a democratic way to proceed?
The right hon. and learned Gentleman is entirely wrong in his interpretation of what the Attorney-General is proposing. Neither we nor the Attorney-General propose that he take the power to decide the law. With this offence, as with offences involving incitement to racial hatred, the Attorney-General is required to give his consent before a prosecution can proceed, as the right hon. and learned Gentleman will know. The Attorney-General does not determine the ingredients of an offence and he cannot make something criminal that is not a crime under statute. There is a requirement for consent to filter out cases, and I shall expand on that point when I explain Government amendment (a) and the provision on the guidance that the Attorney-General will define.
May I be forgiven for being very puzzled as a non-lawyer? Why is it necessary to include this measure—virtuous, or not—in this emergency Bill? I really do not understand.
I started to set out what I thought were the reasons why the provision has been included. One of the reasons is that, as I have just elaborated, it has a direct link with the events of
Is the Minister not aware that other religious groups feel equally under attack? People from the Hindu community have told me how they feel that they have been threatened by the Muslim community. She suggests that the Government are simply reacting to one form of outrageous activity, but they do not accept that that activity takes other forms as well.
That is not what I am saying. I am explaining why there is an opportunity, precipitated by the events of
My hon. Friend has been challenged about what the clause is doing in a Bill on terrorism, and up to now she has not given us a satisfactory response. May I suggest the motivation? The clause has been tacked on as a sop to certain sections of Muslim opinion that have long wanted such protection. It is an anomaly and it should not be in this Bill—wrong clause, wrong Bill. The Lords were right to strike it down.
Once again my hon. Friend is entirely wrong, and I shall come to the reasons why she is wrong in a moment.
The second reason for including the provision in this Bill is the current anomaly in the law, of which hon. Members will be aware. Legislation on incitement to racial hatred protects two religious groups: Jews and Sikhs. Taking the opportunity to expand the provisions on incitement to racial hatred to include religious hatred will extend that protection not only to Muslims but to other religious groups, including Christians. The clause therefore both corrects an anomaly and extends protection.
I understand that point entirely, and if the hon. Gentleman is patient, I will answer his question.
Unlike Ms Abbott, I am four-square with the Minister in wanting to give protection to the Muslim community because I understand that this has been a great source of hurt to them for many years. However, like Mr. Dalyell, I cannot see why it is necessary to include the provision in this Bill.
Having studied all the case law, in which High Court judges have described race relations legislation as being, among other things, rubbery, I do not understand why the Government do not amend that legislation to make incitement to religious hatred an offence. Why are they introducing a wholly new offence in this Bill? The public mischief that Ministers and others want to deal with is a race relations issue, and the only reason why Sikhs and Jews are protected, and Muslims are not, is that judges have ruled in case law that the legislation does not protect Muslims. May I suggest to the Minister that the Home Office—
I do not know whether the hon. Gentleman was in the Chamber during the Committee proceedings when my right hon. Friend Mr. Kaufman made a powerful speech that addressed the nub of the argument, but he set out the opposing point of view, which the Government and I share, that the route suggested by the hon. Gentleman would not deal with the fact that people are attacked and discriminated against on the basis of religion. There was considerable debate about whether the cause of discrimination is ethnicity, culture or religion, and we came to the view that it is religion. I agree with my right hon. Friend in that regard, and I am sorry if the hon. Gentleman missed that speech.
The scientologists dignify a pyramid selling ramp with the word "religion", but when I say that, many scientologists will feel that I am stirring up hatred against them. Frankly, I am not trying to stir up hatred; I just do not want people to be led astray by that invention by Lafayette Ron Hubbard, who, as I understand it, made a lot of money out of it. If the Bill is passed in its present form, a lot of other people will call a lot of other ramps religion and protect themselves accordingly. I do not think that the Government know what they are doing. They are restricting people's right to point to sheer, outrageous, unbelievably wicked dishonesty.
I do not accept that. As the right hon. Gentleman knows, the provision contains operational safeguards, as do the provisions on incitement to racial hatred. The clause establishes a public order offence; it will require the Attorney-General's consent. I do not share the right hon. Gentleman's fears that cults such as scientology will be the subject of offences under the provision.
I shall further explain why the clause should be in this Bill before giving way again.
First, there is a connection between the events of
In the operation of the law on incitement to racial hatred offences, we saw a small but important deterrent effect on some of the worst excesses of extreme racist groups. I have no doubt that the provision on incitement to religious hatred would have a similarly significant deterrent effect on the groups that seek to extend their violent and distressing propaganda to Muslims and other religious groups. That is another important reason why it should be included in the Bill.
Will my hon. Friend not concede that she is confusing ethnicity, which we cannot change, and belief, which we choose? I cannot escape from being a middle-aged white English person, but I choose my socialist beliefs and I want them to be challenged and open to discussion.
I acknowledge that view. It is not one that we share.
I refer again to the powerful speech made by my right hon. Friend the Member for Manchester, Gorton who used his own experience to illustrate the fact that people respond to him in terms of his religion, not his ethnicity. That is the view that we have taken.
For the avoidance of doubt, I, too, stand four-square against discrimination against Muslims. One of the problems with the clause is that it does not provide protection against discrimination; it is about incitement to religious hatred. Furthermore, I believe that 99 per cent. of what it is now fashionable to describe as Islamophobia is either an offence under racial hatred legislation, or a straightforward public order offence.
There are gaps in the legislation. If Members think about why we need the incitement to racial hatred offence in addition to the other provisions in the Public Order Act 1986 and in addition to the racially aggravated offences provisions, perhaps they will apply that thinking to why we need the incitement to religious hatred offence. Current provisions do not cover every eventuality. They do not cover incitement as it is defined in the Bill: the use of threatening, abusive or insulting words or behaviour intended or likely to result in public disorder. That is the difference. It is not covered in other parts of the Public Order Act, nor is it covered in the other legislation to which my hon. Friend referred.
We on the Liberal Democrat Benches are extremely sympathetic to those in vulnerable communities who may be victims of incitement, which extends beyond Muslims and race to, for example, homophobic attacks. We support legislation covering a much wider range of people. Why did the Minister and her colleagues vote against an amendment in 1998 that would have included a much wider range? Why does she not introduce such a provision in a wider Bill that covers all vulnerable communities?
As I have said, the Bill follows the events of
A number of arguments have been advanced to demonstrate why the provision should not be in the Bill. I understand that there are concerns about limits to freedom of expression that might result from having an offence of incitement to religious hatred. The Government do not underestimate the concerns that have been expressed by many Members of this place and of the other place that a person should not be prosecuted for expressing their legitimate religious beliefs and for having legitimate debate on and scrutiny of those beliefs.
My right hon. Friend the Home Secretary undertook to consider the amendment that was tabled by
The difficulty is that creating an exclusion from prosecution, or creating a specific defence where, for example, a person cited a religious text, would create a loophole that could and would be exploited by those who deliberately seek to incite hatred. Those are the very people whom we need to catch by this legislation.
Groups have lifted quotes from the Bible out of context and used them as headlines on their literature in order to incite religious hatred. We therefore propose to reinstate an amended clause on incitement to religious hatred—a guidance provision that will provide reassurance on this specific point.
The amendment says that the Attorney-General "may" produce guidance. I would like to see that guidance before any commitment is made, but why does the amendment state that he "may" produce guidance, and not that he will produce guidance? Alternatively, when the Bill goes to another place, will the Minister change the wording so that the Attorney-General will produce guidance?
For reasons to do with legal advice that we received, the word "may" was included in the amendment, but we have made it clear, and the Attorney-General has made it clear on the record, that that guidance will be produced, so there is no difficulty in changing the word "may" to "will". I am happy to tell the right hon. Gentleman that we shall do that when the Bill goes to another place.
"issue guidance as to conduct in respect of which he will not institute proceedings".
In other words, his guidance will define conduct that may result in proceedings, as well as conduct that will not result in proceedings. That is a form of legislation, to be introduced by guidance from the Attorney-General—I am not criticising him—who is not a Member of Parliament. The guidance is not subject to amendment or even debate; that is not a proper way to operate in criminal law.
In tabling the amendment, the Attorney-General and the Government were responding to the legitimate concerns of Members that the provision should not limit legitimate expression or discussion of religious beliefs. We agree with that. I do not accept the right hon. and learned Gentleman's interpretation of the guidance. As he has outlined, the guidance will exclude legitimate expression and make it clear that such behaviour will not be regarded as criminal; it will not be regarded as inciting hatred or public order.
Is that not the point? Here we are, almost at the 11th hour of the 11th day, discussing the Bill. The Attorney-General may issue guidance; we do not have that guidance and do not know what it will include. This is a complicated area, as the Home Affairs Committee said in its report. Why is it being included in an emergency Bill and why is it being legislated for in this way?
I have gone through the reasons why we think that it is right to include it in the Bill; I am now trying to deal with Members' arguments against that.
I must respond to the question that my right hon. Friend Denzil Davies asked about the word "legitimate". We all know what we mean by that. [Hon. Members: "No we do not."] Members will have to wait and see the Attorney-General's guidance. However, the intention, as I have made clear in response to Members' concerns, is that debate and statements about beliefs that are scrutinising, discursive and do not incite hatred—
Does not the right hon. and learned Member for Sleaford and North Hykeham have a good point? The guidance will create offences. Should that not be written into the Bill? If the Attorney-General is producing guidance, why cannot it be included in the Bill? That is where offences ought to be created, not in guidance.
The intention is not to create offences, but to clarify the kind of behaviour in relation to freedom of expression that the Attorney-General, in consenting to prosecutions going ahead, will not regard as criminal and will regard as a legitimate expression of—
On a point of order, Mr. Speaker. Can you help us? The Minister has just referred to the nature of the guidance to be given by the Attorney- General, which clearly has serious implications for the interpretation of the Bill. Is it in order to proceed with the debate about a part of the Bill, when we know that it will be interpreted by the Attorney-General in a way that we are not allowed to see?
Does the Minister accept that we are in a nonsensical position? I do not attribute blame to her personally. The House has decided, at the Government's behest, that we must complete the legislation tomorrow. That is the effect of the order that we were made to pass. We are a little more than 24 hours from that. We are discussing the definition of an offence that we have never had. Guidance may be issued, but it can never be debated subsequently and it may be seen by only one House, a couple of hours before the end of proceedings. Would it not be better for the Minister to take the measure away, consult widely and come back, as many of us suggested, when we will try to do what the hon. Lady wants—pass a law that works and in which people have confidence?
No, it would not be better. The guidance is a matter for the Attorney-General. If he is given the power in the Bill to produce the guidance, he will produce it. I cannot give a commitment on when it will be produced, as I am not writing the guidance—the Attorney-General is. I know that it is his intention to produce it as early as possible tomorrow.
Denzil Davies made a good point. What constitutes a legitimate expression of religious belief is highly subjective—it is capable of innumerable definitions. The hon. Lady is presenting us with a huge power to be conferred on the Attorney-General to define a legitimate expression of religious belief. That will make his life intolerable and give him unwarranted powers. The Bill is not the place for such a measure.
That is nonsense. The Attorney- General has the power. He must give his consent for any offence of incitement to racial hatred. That power of consent will be applied to the offence of incitement to religious hatred, if approved by both Houses. The Attorney- General will be applying the power that he already has. In response to hon. Members' concerns about any limitation on freedom of expression, the Government have offered in the amendment that the Attorney-General will clarify the circumstances that he will not regard as incitement—as public order offences. That is certainly within his power. The provision in the amendment goes a long way to answering the legitimate concern of hon. Members to ensure that we do not limit discussion or scrutiny.
My hon. Friend has spoken about the power of the Attorney-General. As she knows, other measures provide for a discretion that he exercises in the public interest. I suggest to her, however, that the Government are fettering that discretion in respect of the guidelines. If that is the case, should not those guidelines come before the House so that we can debate them?
The provisions do not fetter the responsibility of the Attorney-General to take into account the public interest, which my right hon. Friend mentioned. In addition to that responsibility, the Government amendment clarifies the fact that the guidance will simply say what sort of words and behaviour the Attorney- General will regard as being outside the offence of incitement. That will include legitimate expression of opinion and scrutiny and discussion. In conjunction with existing safeguards, the amendment will reassure people who feared that those expressing their truly held beliefs could inadvertently find themselves being prosecuted for an offence.
The problem of the Attorney-General and his role in giving guidance is wider than has been suggested. The Bill states that religious hatred is
"defined by reference to religious belief or lack of religious belief."
What will be required, therefore, is guidance on what can be said in expressing religious or anti-religious views. The definition of what is legitimate in religious debate will be determined by the Attorney-General and not by us in this House.
In so far as the Attorney-General already has the power to consent to a prosecution, and to the extent that he uses that power, he is required to give his consent. The Government amendment adds nothing new in that respect. This is a matter for the Attorney- General. He is not defining offences, but setting out by way of clarification the behaviour that he will regard as outside the remit of an offence of incitement to religious hatred.
Is not it fair to say that the specific reason why the amendment was tabled is the problem that was presented to us in Committee by
I am very grateful to my hon. Friend, because he has taken the argument back to the point at which I started. I reminded hon. Members why the Government amendment was tabled and of the process that had occurred since the right hon. Member for North-West Cambridgeshire and others expressed their concerns about the limit on freedom of expression. The amendment is a response to those concerns.
It is certainly right to say that it was my intervention that caused the Government to think again. I am grateful to them for having done so, although the House must understand that I am not responsible for the answer that they have provided. Given the disquiet on both sides of the House, does not the hon. Lady understand that, as it was peers from all parts of the other place who threw out clause 39, all that is happening now is that we are reinforcing their determination to throw out the clause again tomorrow? Perhaps she might provide them with some encouragement by giving an indication of the view the Government might take if they were to throw out the clause a second time.
We believe, for the reasons that I have tried to outline, that the Bill should include the offence. We believe that it is important to protect vulnerable religious communities. The Bill affords an opportunity to put such a provision on the statute book, and we want it to be enacted so that those religious communities can be protected. We are committed to that.
On a point of order, Mr. Speaker. More than half the debate has been spent on the Minister having to answer questions. As the Chief Whip is in her place, may I make an appeal through you for Government Front Benchers to consider introducing a proposal to extend the time for this debate and the remaining debates? The current position is nonsensical.
Other hon. Members want to speak and, as Simon Hughes said, time is moving on and I wish to conclude.
I must make some progress. I have been generous and I hope that hon. Members will understand if I draw my remarks to a conclusion. I know that other hon. Members want to speak.
The limit on freedom of expression is an important argument, to which we have tried to respond. It was also argued that the power should be debated for longer to get it right. I remind hon. Members that the provision is an extension of existing law, not new law. Hon. Members are familiar with the operation of the current law on race hatred. It has worked for years, despite similar arguments against it when it was introduced. We have debated the subject for some weeks. If the mythical better version of the provision genuinely exists, where is it? The Attorney- General recently asked that question. I do not believe that it exists.
No, I must conclude.
The third argument is that the provision is inappropriate to an anti-terrorism measure. I began my remarks by pointing out the link with
Sometimes politicians must be prepared to seize the moment and the opportunity. The events of
It is evident that almost everyone who has spoken on the matter, whether for or against, in either House, has been united in their condemnation of the words and behaviour that would constitute incitement to religious hatred. Now is the time to ensure that the provision is on the statute book, given the opportunity that the Bill affords.
Let me begin where the Minister left off. She is absolutely right to say that there is consensus in the House that there are grotesque abuses of our social freedoms involved in the victimisation of members of particular religions. We are united in this House—and, I suspect, in the other House, too—in wishing to prevent those abuses. There are also grave problems of religious discrimination. As I understand it, it is lawful in this country at present to put up a sign outside a pub, stating: "No Muslims here" or "No Hindus here". That is a grotesque lacuna in our law, and changes are needed. We are at one in wishing to see those changes made. That is not, however, the issue that we are debating now. The Minister has not introduced a serious and considered Bill on religious discrimination. Indeed, she has not addressed that issue. The Bill addresses a different question.
In the last 43 or 44 minutes, the Minister has illustrated better than we could ever have hoped to do the reasons why this clause does not belong in the Bill, and why the amendment is not a sufficient answer to the problems raised. In her description of the clause, she mis-stated its intent not once, not twice, not thrice but four times—except that, on the fourth occasion, she mis-stated her mis-statement. She described the incitement as an incitement to "disorder". It is not so. Were it so, the matter would be easier to address. It is an incitement to hatred. The record will show that she used the word"disorder" three times. On the fourth occasion, she used the term "order". [Interruption.] This is not a matter of being too clever by half. It is a matter of attending to the issue that we are meant to be attending to: the words of the statute. Labour Members appear to believe that we can legislate without attending to the words that we use. We cannot do so. Our tradition of law insists on the ability of a judge to observe what is written. The duty of this House and of the other place is to write the right words. The duty of Ministers is to represent correctly what is intended to be written.
The problem with the clause is that it seeks to prevent an incitement which may occur through the statement of all sorts of propositions that are matters of legitimate belief, and that it seeks to make unlawful a hatred which may be engendered by the expression of those legitimate forms of belief. It does not provide us with an adequate means of distinguishing between those circumstances and the circumstances in which loathsome individuals engage in loathsome acts intended to create public disorder. That is the nub of the issue, and the Minister systematically obscured it.
Is not another very offensive part of this procedure the fact that we are giving to the Attorney-General powers of legislation, yet the House has the opportunity to hear only four or five speeches on the proposition, at the very most? That is not a proper way for us to discharge our responsibilities.
I agree with my right hon. and learned Friend. That is the next problem that the Minister's speech so admirably, if unintentionally, illuminated. The Government have made a genuine attempt, for which we give them credit, to address the problems raised by my right hon. Friend
It is true, as the Minister repeatedly said, that under the clause as it stood, the Attorney-General would have had the power to adjudicate on which matters he would prosecute. It is, in principle, an advance that, before exercising that power, he should state on what principles he would exercise it. But my right hon. Friend the Member for North-West Cambridgeshire is right to say that if that is the method chosen for acting in such cases, it is one that will allow of arbitrary and uncertain action.
The Minister illustrated that so pellucidly that she cannot possibly have understood what she was doing when she told the House that the Attorney-General intended to produce the guidance tomorrow. The clause and its amendment were first conceived approximately 48 hours ago. So, in some 72 hours, the Attorney-General will have produced law for this country. What is to guarantee that, 72 hours later, he will not produce some other law? [Interruption.] If the Home Secretary is saying that the Attorney-General contemplated producing the guidance much earlier, that information is helpful.
I shall be brief, as I merely want to say that the Attorney-General put down on paper the illustration of his guidance in response to requests to do so, including some from Conservative Members, who wanted to see the nature of the beast before voting on it. Far from being awkward, he tried to help, to illustrate what it would be and to respond to suggestions regarding inadequacy.
I accept entirely that the Attorney-General tried to be helpful, but he has produced guidance in a very short time. What is to guarantee that, a short time thereafter, he will not see fit to alter the guidance? What parliamentary check will there be on continuous alteration of the guidance? To what extent can we possibly hope that religious relationships in this country will be given a firm and certain basis in law if he can repeatedly change, without parliamentary check, the basis on which the law is to be enforced? This cannot be the right way to proceed in a matter so subtle, so delicate and so dangerous.
As a matter of fact, that is not case law, but let us leave that aside. The point is well taken. On incitement to racial hatred, the Attorney-General makes decisions about whether to prosecute. However, the burden of the argument made not just from those on these Conservative Benches, but from those on the Labour Benches; not just in this House, but in the other place; and not just in Parliament, but outside, is precisely that there is a great distinction between incitement to racial hatred and incitement to religious hatred, as the quality of decision that it falls to the administrator to make in the one is far simpler than in the other. That is precisely the problem that has repeatedly been drawn to the Government's attention, and it will not do to argue as if that difference does not exist.
It is not the duty of the House this evening to rehearse the arguments for or against Government amendment (a), which I believe are strong among Conservative Members and weak on the Government side, although we have inevitably been forced to do so. We are considering purely whether the decision of the Lords, who not just by a majority, but by an overwhelming majority consisting of Labour peers, Cross-Benchers, Liberal Democrats and Conservatives, voted to throw the proposal out, should be reversed in an attempt to reinsert in emergency legislation a provision that is, at very least, highly controversial. Surely anyone who listened to the Minister cannot conclude that the case is made for taking that extreme action.
May I reinforce the hon. Gentleman's point? The Minister said that Members will make up their own minds, but the fact is that the majority of Members on both sides of the House who are in the Chamber are concerned about the legislation. Those who will vote with the Government are not here to listen; those who are concerned are present, and Members on both sides share his anxieties.
I am grateful to the hon. Lady for that remark, which illustrates the point.
Close to the conclusion of the Minister's remarks—I think I quote her reasonably accurately—she said that it is sometimes right for politicians to seize an opportunity. That is true: it is sometimes right for politicians to do that. This is the moment for the Government to seize an opportunity, or rather two.
First, the Government have the opportunity to establish an unremitting cross-party consensus for the fostering of a proper Bill dealing with religious discrimination and religious tolerance that will set the country on the right track for many years—an opportunity that should not be wasted. Secondly, they have the opportunity to enable the two Houses to reach the consensus that we all seek on this necessary Bill by removing from it a wholly unnecessary, ill-considered and damaging clause.
The Minister was very complimentary about my right hon. Friend Mr. Kaufman, but his speech on Second Reading was misconceived, because it was entirely about actions and not about words. Here we are dealing with hatred, not the consequences of hatred. The Minister is, however, entirely right to suggest that this is a serious matter. The words of hate can be as vicious and damaging as actions to individuals and communities.
We need only consider the debate about "hate speech" in the United States, which has considered the issue in far more detail over the past 20 years than we have even begun to. We need only recall what happened in Germany between 1927 and the beginning of the second world war, when words galvanised by the Nazis set up all the appalling events of the 1940s. Words are of course damaging, and they need much more consideration than we are giving them here.
These are complicated issues. We talk of joined-up government, but the Government's own position on faith schools in the context of legislation of this kind shows that these are confusing, contradictory areas in which a great deal of nuance and paradox must be dealt with. We cannot legislate at such speed, and in such an ill-considered way. As the Home Secretary and the Minister have said, these matters are vitally important, but they require calm, reflection and time. The measures should not be rushed through like this; they will stand for a long time.
This is not, in itself, an emergency, in that religious hatred, regrettably, has been with us for a long time. We must get the provision right. We can easily return to it later in the current Parliament, or at some other time, but we should return to it in a much subtler, calmer and more considered fashion. This is not the right time, and I cannot support this part of the Bill.
I shall be extremely brief, as only a couple of minutes remain.
There are huge issues on the national agenda. There is the issue of how to ensure that people do not suffer discrimination on the basis of their faith. The Bill does not deal with that; nor should it. There is the issue of how to bring people together to respect and value each other, and the issue of faith schools—a linked issue, but one that, properly, is not dealt with here.
We are dealing with one item on a wide agenda—an item that has always been recognised as being hugely controversial. How do we achieve the right balance between free speech and the ability to criticise, whether the criticism is of scientologists, Protestants, Roman Catholics or any world or local faith? How do we ensure that people are respected?
As Mr. Fisher said, we are trying to achieve that within the narrow confines of concepts such as public order and incitement to hatred by words or actions. Whole issues are left undebated, such as how it can be established that someone has such action in mind—whether it is part of his or her intention. There is a bizarre tautology in the Attorney-General's suggested guidelines, which deem such conduct acceptable if it consists of a legitimate expression of religious belief. By definition, we are trying to establish what is such a legitimate expression.
For a long time, we have argued that it is proper for that issue to be on the national agenda. Long before
We are offered guidelines as the concession, as it were. To change from law that is difficult, even if it is in the Bill, to law that will be defined by something not in the Bill and that could change, is to substitute uncertain law at best for less certain and even more difficult to define law at worst.
Does the hon. Gentleman at least recognise that it was the Government's willingness to address some of the legitimate concerns that were raised on Second Reading that has produced the amendment, which is causing so much difficulty? In that sense, there was a response. Will he press the Government to pursue that response further, rather than this evening?
The right hon. Gentleman and colleagues throughout the House and in the other place are right. The Government need time to respond. Issues have been raised by the right hon. Gentleman and colleagues. The other place has only just begun to grasp and grapple with those issues.
The Liberal Democrats are unanimous. Whatever our different faiths or lack of them, whatever our different nationalities, we ask the Government to join with the consensus among Conservative Front Benchers, their colleagues and people around the country and say that this is not the time, this is not the place, and this is not the way. We can protect people in the meantime but we must legislate properly. We must not do it with our faces against the wall and the clock ticking away, resulting in law that no one will be satisfied has adequately met the task. These are huge issues and they cannot be resolved properly in the next 24 hours.
The Lords struck out the clause. I rise to urge the House not to reinstate it. The House needs to reflect on the genesis of the demand from the Muslim community for protection against incitement to religious hatred. I know what the genesis was because I was in the House at the time. The genesis of that powerful demand was the debate around Salman Rushdie. It is all about the issue of freedom of speech. If Members had been in the House at that time and had had the debate with the Muslim community that I had, they would know why the clause must be phrased much more carefully.
Furthermore, the powerful speech by my right hon. Friend Mr. Kaufman was wholly misconceived because he dealt largely with racial discrimination rather than incitement to religious hatred as such. Of course, every hon. Member is against discrimination against Muslims and believes that all religions should be given a measure of protection, but it should be in a properly thought out Bill introduced at the right time. It is the wrong clause. It is the wrong Bill. It represents a serious threat to freedom of speech. I urge the House to support the Lords in striking it down.
I appreciate the fact that the Home Secretary took seriously the concerns that I expressed in Committee. He was as good as his word. He made arrangements for me to see his officials and we had a constructive discussion. It would be fair to say, without revealing the content of those private discussions, that I alerted officials to the dangers of going down this route, and tried to persuade them of the merits of the way that I thought was best.
The Government have now introduced this legislation. I am grateful to the Minister for saying that the Government would table an amendment to substitute the word "will" for "may" in the amendment, but I have also let it be known that without having sight of the guidance—never mind the issue of guidance itself—there is no way that any responsible House of Parliament could endorse—
The cries of astonishment when the last vote was announced reminded me of "phone a friend" in the television programme. I hope that there will be a few friends around tonight—[Hon. Members: "Not a chance!"] I think there will be—there may even be one or two on the Opposition Benches as well as one or two on the Benches behind me.
The amendments relate to the moonlight clauses, or rather the sunset—[Interruption.]
I promise that I shall not try to crack another joke, Mr. Speaker.
On sunset clauses, the Government have taken several measures in response to the Select Committee on Home Affairs and to the wishes of individual Members and to debates held earlier on part 4. Those measures include a sunset clause after five years, review after a year and other provisions that reflect the will of the House.
I want to make it clear—so that there is no doubt in the other place—that we strongly resist any further move on sunset clauses. We shall not allow the Bill to be dismembered by the indiscriminate application of sunset clauses to different parts of it. Having voted on those matters when the Bill was before the Commons for the first time, and after having those provisions overturned by the House of Lords, it is clear that we have listened and responded to concerns on the main clauses of the Bill. It is not possible for the Government to decide that a Bill should be completely taken apart—nor has that been true for any other measure—with different timings for individual provisions; and that proceedings should be repeated and the measure brought back to the House.
The right hon. Gentleman will, of course, speak to Government amendment (a), which proposes that the review should be undertaken by
"not fewer than seven members of the"
Privy Council. Would he be so good as to tell us by what criteria he will select those members of the Privy Council? Why should we assume that they will not be carefully picked nominees? Would he further give an undertaking that the report will not merely be laid before the House
"as soon as is reasonably practicable", but be debated by the House, preferably on a free vote?
The right hon. and learned Gentleman manages to ask a perfectly reasonable question in the most aggressive manner possible, but I have to say that he can rest easy—the one thing that we will not be selecting on is past Cabinet Ministers' competence in doing their jobs. If we want a little bit of a roust at this time of night, we can have one.
Of course, we shall consult the Opposition parties on the committee of review's make up, so the House should agree to the Government amendment in lieu of the Lords amendment to provide a review committee, which would report within two years. That report would be laid before the House of Commons, and both Houses would hold a full debate on it. I am prepared tomorrow to consider the suggestions that the Opposition parties are putting to me to strengthen that proposal. Clearly, the review committee's recommendations on individual parts of the Bill would be taken forward by the Government. We will propose further refinements tomorrow that might—[Interruption.] I hope that right hon. and learned Gentleman had a very good dinner.
No, I will not give way; I have given way several times to the right hon. and learned Gentleman on a number of issues this evening.
The review committee will be made up of Privy Councillors precisely to allow it to take evidence from the security services and then to compile a report that will, therefore, carry weight because it can cover everything in the Bill.
First, will the Home Secretary accept that we have no intention of wishing to dismember the Bill, as he suggests our proposals would do? Secondly, does he object to the sunset provision accepted by the House of Lords because there would be different time limits for different parts of the Bill; or does he object to the fact that an emergency Bill contains a sunset clause at all? If he objects to the latter, I hope that he will accept that that is unusual, if not unprecedented, in the case of such emergency legislation.
I accepted the recommendation of the Select Committee on Home Affairs on the sunset clauses that relate to the updating of the Terrorism Act 2000, precisely to meet the requirements that hon. Members requested. We have sunset clauses on the justice and home affairs provisions for the end of next June. We have the equivalent of a sunset clause on data holding in the form of the two-year provision relating to the code of practice.
We have done our utmost to ensure that, because of speed and complexity, the review body, whose report will be debated by the House, can reflect on those aspects that it thinks require further consideration after the operation of the measure. That goes further than Governments have gone in the past in attempting to accommodate the genuine concern that exists because of the way in which we, by necessity, have introduced the Bill just over three months after the events of
So that the House can be well informed on the need for a sunset clause, will the Home Secretary explain what further refinements he will propose tomorrow and, indeed, whether they will include a response to the widespread opposition on both sides of the House to the religious hatred clauses, which we have just debated?
I was talking about the review of the whole Bill and about any identified aspects of the Bill that the review committee finds to be working inappropriately or not in accord with the wishes of both Houses. We could reach a reasonable measure of agreement on that—if not wholly tonight, then certainly in the next 24 hours. That is an attempt not to end up with a Bill that is fragmented, or with this House and the Lords constantly repeating proceedings on the Bill, which, I have to remind right hon. and hon. Members, has had eight days in the Lords. [Hon. Members: "But not here." ] No, not here. Let us be clear: we originally agreed a timetable, and I have always accepted that it is extremely tight. [Interruption.] There are a few grumbles. Some people accept the agreements that have been reached, and some do not.
I hope that it does not finish his career altogether, but I have to praise the shadow Home Secretary, Mr. Letwin, who, despite considerable disagreement with me about parts of the Bill and fundamental ideological differences, has always kept his word. That has made it easier to do business with him. We shall continue to do business over the next 24 hours and, I hope, for a very long time to come.
I thank the Home Secretary for his remarks, and his hopes are reciprocated. Moreover, I hope that he will accept from us, and I think from the Liberal Democrats, that if he comes forward with proposals that will genuinely make that review bite, we will look at them constructively and discuss them with him, if he so wishes, and with our colleagues in the other place, in a genuine effort to come to a consensus on this vexed question.
I am deeply grateful, because the two Houses, the working of our Parliament and the response of people outside to the way in which democracy can operate will be enhanced if we can achieve that in the hours ahead. If we end up making a mess of this, I can see no value or gain for any of us or for our reputations or the reputation of Parliament. If we are able to act swiftly but carefully, people will be encouraged to view our democracy in the way that we would like.
We have rightly had robust and difficult debate and scrutiny of the Executive. I believe that we have listened and responded, and I have certainly learned a great deal over the past few weeks. I hope that by dealing with the Bill as we have, we will be able to present the House of Lords with a programme to which they can now agree. I hope also that despite the harsh words that have sometimes been spoken in the other place, as they have here, they will respect the way in which the Commons has responded, and we in turn will respect their rights to scrutinise and return to us certain measures, which we, in turn, have deliberated on. It is in that spirit that I propose that we reject the Lords amendments and agree to the Government amendment in lieu.
I pay tribute to the Home Secretary for the constructive way in which he has approached this matter and others. I welcome some of his positive responses—"concessions" sounds too dismissive—and the way in which he has changed the wording of the Bill accordingly. However, we are not convinced that enough progress has been made on sunset clauses, and I shall be asking my colleagues to agree with the Lords, not the Government, when we come to vote in 17 minutes or so.
The Home Secretary mentioned a review, and it would be helpful if tomorrow some flesh were put on the bones of that. If the review would result in a sunset clause of a different nature, we would be willing to hear about it, as, no doubt, would the Conservatives. If, however, the intention is simply to tart about with the panel of Privy Councillors that he has suggested, that will not be enough.
Sunset clauses are necessary in this Bill for three reasons. First, by common consent, this is emergency legislation, and it is far reaching. Secondly, most Members feel that it goes beyond what is necessary to deal with terrorism, and deals with subjects that are way beyond that, including ordinary criminal activities.
Thirdly, the Bill has not been properly discussed. Insufficient time was given to Second Reading and the Bill's first consideration by the Commons, and tonight there is insufficient time to deal with a range of important issues raised by the Lords amendments. When this 125-clause Bill was first considered by the Commons, 86 clauses were not debated in Committee and only two of those were subsequently discussed on Report, leaving 84 clauses undiscussed. None of the schedules were debated in Committee save schedule 5, which had less than five minutes' discussion, and schedule 1 was briefly debated on Report. Of the clauses that were debated, 19 were debated for less than five minutes in Committee. No one could possibly claim that the Bill has been properly debated by the Commons.
In those circumstances, and given the nature of the Bill, it is impossible to say that it should be passed without a proper review being established. With due respect to the Home Secretary's proposals, that body of Privy Councillors does not constitute a proper review. It is a body comprising the great and the good who will consider the legislation and may comment on it, but in no way is their judgment to be binding on the Government. When Lord Rooker was asked whether the recommendations of the review would be accepted, he replied:
"That cannot be said at this point."—[Hansard, House of Lords, 10 December 2001; Vol. 629, c. 1204.]
In other words, he gave no undertaking that the comments made by that body of Privy Councillors would be accepted by the Government.
Will the hon. Gentleman make the point that amendment (a) is not the amendment that will be enacted? We now know that the Government are to table amendments to amendment (a), so we are not debating that which the Government expect to become the law.
I am not quite clear what the Home Secretary is saying, but if it is that whatever the recommendations made by the review body, the Government will automatically accept them, that is not what was said in the House of Lords. If that is what he is saying, it is welcome, but it is not a substitute for a proper sunset clause that limits emergency, far-reaching and draconian legislation. Previous legislation of this nature—prevention of terrorism Acts—have contained clauses whereby a statute is expected to "die" or to be subject to renewal orders. That is not the case with the Bill and we must know why not.
We have not been given sufficient time and it is dangerous to enact such far-reaching legislation in such circumstances. Lord Rooker said:
"the speed with which this legislation is being passed must be recognised by the Government."
He seems to recognise it—do other Ministers? He also said:
"We are rushing the legislation and there are no gaps between the stages allowing for mature consideration of the issues raised."—[Hansard, House of Lords, 12 December 2001; Vol. 629, c. 1203-04.]
In circumstances in which a Minister acknowledges that legislation is being rushed, the least the Government can do is ensure that there is a proper sunset clause covering the entire Bill—apart from part 12, on which there is common agreement. By so doing, if there are mistakes and if the Opposition points are well-founded, the Government can get themselves out of the hole and restore the civil liberties that I fear will be taken away under the Bill.
A sunset clause is an essential defence. I hope that the Home Secretary will reflect on that.
I see that my hon. Friend Mr. Letwin wants to speak, so I shall be brief.
I object to the motion to disagree with the Lords amendment and to substitute amendment (a). To begin with, I am a strong supporter of the sunset clauses in the form that the Lords approved them, and I strongly oppose any attempt to derogate from them. Furthermore, I oppose in particular the proposal in amendment (a).
We are told that there is to be a review. That is very nice of the Home Secretary, but a review by whom? The record of the current Government suggests that it will be a packed review body, comprising nicely and carefully chosen Privy Councillors who will do what they are told to do by the right hon. Gentleman. I have no confidence in that sort of review. What will happen when we have the review, which is to be laid before the Houses of Parliament as soon as reasonably practicable? That is jolly nice of the Government. But what then? We are told that the Government will implement the proposals. Why is that not in the Bill? That is because the Home Secretary does not want it in the Bill. Why is that? It is because he wants to be in a position not to do that which he has just said. If not, it would be in the Bill.
What procedure will there be for ensuring that the report is speedily debated? The answer is none. The truth is that weasel words have been brought forward by a Government who are in a fix, trying to find a mechanism to smooth over the effectual injustice of that which they are about. [Interruption.] The Home Secretary is chuntering away. The truth is that we should not have a Bill. However, if we are to have a Bill, we should have a proper sunset clause, and the present proposal is no substitute for it.
Worse, we are told that amendment (a) is not in its final form, because tomorrow, there will be further amendments. We are being asked to approve tonight a solution to a problem that is no solution. Further amendments will come back to the House and we shall have five, six or seven minutes to discuss them. They will then be put through the House on a Government vote. This is a profoundly undemocratic process and we should have no part of it.
I shall certainly not attempt to emulate the unbelievable eloquence of my right hon. and learned Friend Mr. Hogg. I share many of the reservations that he so potently expressed. Moreover, I share also many of the reservations that were expressed by Norman Baker.
The Opposition seek, as does the Home Secretary, to achieve legislation that will protect the United Kingdom from terrorism. As we have always reminded ourselves and the House, that is a joint aim. We have adopted what we continue to believe to be a responsible and sensible approach to resolving the problems that the hon. Member for Lewes accurately described. There is the problem that is engendered by the Home Secretary's desire to see the Bill enacted so rapidly, which is that we have not had an opportunity sufficiently to scrutinise the uncontentious parts of the Bill to determine whether they will work in practice.
If we had our way, and if there were not a problem of urgency, I would wish that we insist permanently on our sunset clause, as my right hon. and learned Friend the Member for Sleaford and North Hykeham, with the gay abandon of the Back Benches, so splendidly calls for. However, we need a Bill, and as I understand it the Home Secretary has offered—I take seriously his point that when he says these things he means them, and he has shown that repeatedly—to consider how the decisions or views taken by the committee of Privy Councillors could be given real bite and made to bear on parliamentary debate and parliamentary revision.
I am sure that the Government will bring forward such proposals. I do not guarantee that they will in their entirety meet immediately with our approval, but we shall engage with them. We will work with the Government to ascertain whether we can crack this problem so that the clauses do not prove an obstacle to achieving the passage of the Bill. We need to see the removal of the clauses on incitement to religious hatred, and we have dealt with that. Many of the other items that were most objectionable have been removed or amended by the Government. The item before us should not be a sticking point. Let us hope that in the next 24 or 36 hours we can achieve the desired result. If we fail to do so, it will not be for want of trying on the Opposition Benches.
I do not welcome the continuing opposition, but I welcome the measured and sensible approach that has been enunciated. Everyone in politics has to make decisions about what is possible as well as about what is desirable. In the past few weeks, each of us has endeavoured to do just that. If, in the next 24 hours, we can find a way forward, people will thank us.
In response to those who are sceptical and believe that we are packing the measure or are being elusive, if we were prepared to take seriously what was said by a committee that undertook a review and could take security evidence but, after debate in both Houses, we were not prepared to respond to it, we would be making a rod for our own backs. Making sure that what we say and do is credible is a matter of both will and necessity; there should be trust that that will happen.
The shadow Home Secretary illustrated the necessity even in opposition to recognise that the Government must govern; we have to lead and find a way forward. I urge Liberal Democrat Members, if they aspire to be a major Opposition party, to be prepared to do the same. I have heard the spirit of co-operation tonight, but I have not heard any words about being prepared to give as well as take. If I am prepared to give as well as take with a majority of 165, Liberal Democrat Members might do so as well.
I hope that the Home Secretary will reflect that in all the conversations that I have had with him and his ministerial colleagues, and in debate on the Floor of the House, I have always said that there is scope to improve the Bill in both Houses by amendment. There are principles at stake, and there may be some that clash. I hope that the Home Secretary will not confuse a difference of view on the right outcome with willingness to see if we can reach an agreement. We are certainly willing to reach an agreement; if we can agree, we will, but I cannot promise that we can.
I understand that no one in opposition can promise that. However, I simply make the point that, at the end of the process, people will judge what we do by watching how the Opposition and the Government conduct themselves. In my position, I have to be mindful of that. The shadow Home Secretary has indicated how he sees the way forward and I hope that the Liberal Democrat spokesman will find it in his heart to be big enough to do so as well. If we can find a way forward together, there will be some credibility for all of us. If we cannot, people will make a judgment about those who are unwilling or unable to do so.