'Nothing in Part 3 of the Public Order Act 1986 (c. 64) shall be read or given effect in a way which restricts or prohibits freedom of speech or expression on any matter of religious belief or lack of religious belief, unless the tone or content of such speech or expression is such as to constitute a justification for violent acts against any group of persons defined by reference to religious belief or lack of religious belief.'. —[Mr. Grieve.]
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 4—Protection for criticism, ridicule, etc.—
Amendment No. 1, in page 1, line 3 [Clause 1], leave out from 'Act' to end of line 7.
New schedule 1—Racial Hatred—
1 Part 3 of the Public Order Act 1986 (c. 64) (racial hatred offences) has effect subject to the following amendment.
2 Section 17 of the Public Order Act is amended to read as follows—
"(1) In this Part 'racial hatred' means hatred against a racial group, of persons defined by reference (whether directly or indirectly) to colour, race, nationality, (including citizenship) or ethnic or national origins ('a racial group').
(2) In this section—
(a) 'an indirect reference' means a reference to religion or religious belief or to a person's membership or presumed membership of a religious group as a pretext for stirring up racial hatred against a racial group;
(b) 'religious group' means a group of persons defined by reference to religion or religious belief.
(3) It shall not be an offence under this section if the activity consists of—
(a) criticising the beliefs, teachings or practices of a religion or its followers, for example, by claiming that they are false or harmful;
(b) proselytising one's own religion or urging followers of a different religion to cease practicing theirs;
(c) expressing irreverent comedic comments about religion or belief; its worship, teaching, practice or observance;
(d) expressing antipathy or dislike of particular religions or their adherents.".'.
Amendment No. 2, in page 2, line 1, leave out the Schedule.
Amendment No. 9, in page 2, line 12 [Schedule], at end insert—
'17B Groups not protected by Part 3
For the purposes of Section 17A any group of persons holding the following beliefs or lack of religious belief shall not enjoy the protection of this Part of this Act—
(c) believers in the need for human sacrifice to propitiate a deity;
(d) believers in female genital mutilation to live in accordance with the rules of a religion;
(e) believers in violence as a means of proselytising a belief;
(f) believers in the divinely ordained supremacy of one race over another.'.
Amendment No. 3, in page 2, line 22, leave out 'or religious'.
Amendment No. 4, in page 2, line 30, leave out 'or religious'.
Amendment No. 11, in page 3, line 1, leave out sub-paragraph (3) and insert—
'(3) In subsection (1)(b), for "racial hatred" substitute "racial or religious hatred".'.
Amendment No. 5, in page 3, line 4, leave out 'or religious'.
Amendment No. 6, in page 3, line 13, leave out 'or religious'.
Amendment No. 7, in page 3, line 21, leave out 'or religious'.
Amendment No. 8, in page 3, line 31, leave out 'or religious'.
Amendment No. 12, in page 3, line 33, at end insert—
'11A After section 23, insert—
"23A Blasphemous words, etc.
For the purposes of determining whether an offence has been committed under sections 18 to 23, it is immaterial whether the words, behaviour, written material, public performance, recording or programme is blasphemous.".'.
We return to one of the general issues that we considered extensively in Committee and which, I hope, we may be able to revisit this afternoon in a sensible frame of mind and perhaps from a slightly new angle. It was apparent in Committee that there was a universal acceptance that in the context of human discourse, it is sensible and prudent that people should express themselves moderately wherever possible. Equally, as became clear in the course of debate, there was some acknowledgement that matters of religion are matters of personal conscience, unlike race, which is immutable. I defy any hon. Member who participated in the Committee to have been able to conclude by the end of it that it was possible to distinguish between a religious belief and, say, a political belief. They are all matters of personal opinion and are all capable of criticism.
In Committee, Ms Thornberry—I am sorry to bring her in again, as she is not in her place—took the view that we might prudently prohibit all forms of incitement to hatred whatever form it took, therefore including, I suppose, incitement to political hatred. Notwithstanding that, the Minister was clear that he was trying to limit it to incitement to religious hatred only. That gives rise to two questions. First, what is the rationale behind doing this if it is difficult to differentiate religious and political hatred and any other form of hatred? Secondly, how can we do that without preventing or infringing freedom of speech in a way that many hon. Members may find unpalatable and unacceptable?
In new clause 2, I try—we did not do this in Committee—to approach the matter from a slightly different angle. Is it possible for the House, while allowing the Bill to proceed in its present form—I have grave misgivings about that, for reasons to which I shall return later—to have a sufficient definition of the mischief that we are trying to tackle so as to provide reassurance to individuals about the bounds of the criticism in which they can engage in considering other people's religious beliefs and, indeed, those people themselves? The Minister said in Committee that it was not the Government's intention to prevent the most vigorous criticism of religion but to prevent the most vigorous criticism that might incite hatred against the individuals who held those beliefs. We therefore spent some time considering the sort of people who might be protected. In amendment No. 9, I have re-tabled an amendment, in a slightly different form, that we debated in Committee. It highlights the fact that people who might enjoy protection under the Bill include Satanists, Scientologists, believers in the need for human sacrifice to propitiate a deity, believers in female genital mutilation so as to live in accordance with the rules of a religion, believers in violence as a means of proselytising a belief, and believers in the divinely ordained supremacy of one race over another.
We have to face the fact that under the Bill as drafted, one of the consequences, perhaps unintended, of the Government's approach is that such groups would enjoy a measure of protection and that people would be told that they are not allowed to incite hatred against those who hold such beliefs. We are entitled in this House to express hatred of the British National party—indeed, it is done quite regularly—and we frequently express hatred not only of the BNP but of some of its leading participants and proponents. Philosophically speaking, what is the difference between that and the hatred that one might have of people who believed in female genital mutilation as part of their religious convictions? I have never been able to understand how that distinction can be made.
In Committee, the Minister engaged in a certain amount of nimble footwork in trying to suggest that some of the people whom I list in amendment No. 9 would not be covered by the Bill because a religion has to have some public benefit. However, it is possible to have a religion that has a public benefit and where people still believe in some of those things. As there is no definition of religion in the Bill, it will attract the definitions that currently exist under human rights law and charity law, which are extremely broad and will cover individual sects, including those that many people might regard as repellent.
Can we find a way through this? New clause 2 says:
"Nothing in Part 3 of the Public Order Act 1986 . . . shall be read or given effect in a way which restricts or prohibits freedom of speech or expression on any matter of religious belief or lack of religious belief, unless the tone or content of such speech or expression is such as to constitute a justification for violent acts against any group of persons defined by reference to religious belief or lack of religious belief."
What is wrong with that new clause? How does it undermine the Government's intention? If I have understood the rationale behind their arguments correctly, it is that we must curb freedom of speech not because of the speech itself but because of its corrosive consequences in acts committed against individuals. The Under-Secretary will correct me if I am wrong, but that appears to be the justification for the Government's position.
I have sympathy with my hon. Friend's aim, but he asked what the problem with the new clause was. It does not refer to intent. It simply refers to whether speech constitutes a justification. Surely the new clause should be directed towards intent.
My right hon. and learned Friend is right. In Committee, we spent much time considering intent. If he examines some of the other amendments that I have tabled, especially amendments Nos. 3 to 8, he will realise that leaving out the word "religious" would confine the offence of inciting religious hatred to one of specific intent and remove it from the second category, which is sometimes described as the "likely limb". I am afraid that that is not immediately clear, but that alternative approach might commend itself to hon. Members.
I must however be realistic. I have to accept, in the light of what happened in Committee, that the Government vigorously reject the approach. They were committed to maintaining the duality of incitement to racial and religious hatred, including the possibility that the offence could be committed not only with but without specific intent, if the threatening, insulting or abusive words were likely to be heard by people in whom they were likely to stir up religious hatred. I stress to my right hon. and learned Friend Mr. Hogg that that is one of the reasons for my fundamental objection to the Bill.
Given that we are on Report and I am trying to tempt the Government, however, I am at least willing to try to encourage them to consider new clause 2 and provide some greater protection. If they did that, I would not jump up and down and say that the Bill was acceptable but it must get through not only this place but another place. The prospect of its getting though another place in its current form is limited. Given that I have always attempted to proceed by argument, not simply by confrontation, I tabled new clause 2 because it provides at least a measure of definition. Unless we provide that the words can be construed as constituting justification for violence, the Bill gives complete protection, whether there was specific intent or not.
Does my hon. Friend agree that, if the Government reject new clause 2, it would make their promise that the Bill would not curtail freedom of speech hollow? That would reinforce the view of many of us that they intend the new orthodoxy about which Labour Members spoke in Committee. The Government have banned people from doing things that they do not like and the Bill now bans people from saying things that they do not like.
My hon. Friend is right. There is the hint of a new orthodoxy in the air, which provides that people must restrict their speech so that they do not cause offence or encourage people to dislike others, whatever the views of the person to be disliked. Philosophically, that is a nail in the coffin of a free society. The moment we go down that road, it will be impossible to hold the sort of robust discourse that created the freedoms and democracy that this country enjoys. They were not born of everybody being inclusively kind to each other. I am sure that many advances in freedom of speech in the past 200 years were offensive to those on the receiving end.
I recognise that my hon. Friend is trying to improve rather than retard the Bill. However, I put it to him, without wishing to nit-pick, that the unspoken premise of new clause 2 appears to be that there should be no requirement to prove intention because people must simply be assumed to intend the natural consequences of their actions. That is a dangerous working premise. In matters of argument, whether political or religious, the assumption of rationality is rather dangerous.
My hon. Friend makes a valid point. However, it is worth bearing in mind the fact that new clause 2 has to be read in conjunction with the Bill. The measure creates an offence of incitement to religious hatred, one limb of which requires specific intent—the intent is therefore already present—while the other limb requires, in the absence of specific intent, the words to be threatening, abusive or insulting and likely to be heard by people in whom they are likely to stir up hatred. My hon. Friend—and my right hon. and learned Friend the Member for Sleaford and North Hykeham—must forgive me, but we went over the matter in great detail in Committee.
I appreciate that. Indeed, if my hon. Friend wants to develop the argument, he can examine the other amendments which I mentioned and to which I intended to move on, but I do not want to take up too much time.
I shall do so briefly and shortly.
In the meantime, new clause 2 does not remove the limb that requires specific intent. It simply makes it clear that, irrespective of whether there is specific intent, the words, speech or expression must be
"such as to constitute a justification for violent acts".
It has the merit that, once introduced as a concept, many things that people say about others, including things that may be offensive, certainly insulting, but probably not threatening—threats in discourse have little place in a democratic society—would be defused. In Committee, we worried especially about insulting terms.
My impression from contact with many members of secular and religious groups who have deep anxiety about the Bill—about 2,000 of them, in an impressive gathering, remarkable for its diversity, were demonstrating outside the House this afternoon—is that they would at least be reassured that their ability to express their dislike of other people's beliefs or their views on the morality of others would be protected, even if some people might find it insulting and even if some idiot elsewhere in the country seized on it as a justification for doing something that the ordinary words used could not possibly justify.
I challenge the Under-Secretary to explain why new clause 2 is unacceptable. It makes some progress towards achieving a measure of greater agreement about how to include safeguards in the Bill.
In the hon. Gentleman's introductory remarks, he spoke of the difficulty of distinguishing between religion and politics, or at least the principle of providing for an offence of inciting religious hatred but not political hatred. Has he had the opportunity to consider the position of, say, an Islamic People's party or Christian Democrats, if their members claim that their critics are inciting hatred against them on the ground of religion, not politics? Does that give them an unfair advantage in the hurly-burly of political discourse?
The hon. Gentleman makes a good point. There are in the world today—and, indeed, in this country—groups who have founded their political agenda on religious principles. Indeed, in Europe, the Christian Democrats did exactly that for a long time. So the two concepts are closely linked, but one of the questions that the Minister failed completely to answer in Committee was how we should disentangle them. I do not think that they can be disentangled.
The Minister falls back on the argument that the disentanglement will be done by the poor old Attorney-General, who, when confronted with a set of facts, will decide whether they transgress or exceed the mark. The Minister knows my view on this: it is very unsatisfactory to create a legislative framework that is wholly incomprehensible to the wider public and leaves them at the mercy of a single individual who sits in his office and decides whether they have overstepped the mark. I fear, too, that when prosecutions start, this approach will lead to all sorts of allegations that the Attorney-General is being selective and protecting certain religious groups and not others. I defy the Minister: even the Attorney-General, a man who would seek to apply a great measure of dispassionate assessment to any problem that he faced, could not fail to be swayed by societal considerations about what is or is not a mainstream point of view.
Perhaps I could ask the hon. Gentleman to calm down a little. He knows that in the nearly 20 years that the law on race hatred has operated, there have been 76 prosecutions, 44 convictions and seven occasions on which the Attorney-General has stopped a prosecution proceeding. It would serve the hon. Gentleman and the House well if we could put the role of the Attorney-General into perspective in this regard. It is an important role, but let us just get it in perspective.
I am grateful to the Minister for that intervention, but I believe that there is a clear distinction between race and religion. Race is immutable and, on any consensus view, a very poor foundation on which any intelligent person could make a distinction about someone's other characteristics. Religion, on the other hand, relates very strongly to a person's personal characteristics and views. The Attorney-General will therefore face a much harder task in regard to decisions on religious hatred than he does on racial hatred. That seems to be reflected by the fact that the Minister has suggested publicly that the level of prosecutions on religious hatred will be far lower even than that of prosecutions on racial hatred in the past few years.
I have a further reason to intervene on the hon. Gentleman: I have never suggested that. In fact, I have suggested that the numbers would be broadly similar. As I have just said, in nearly 20 years, there have been 44 convictions. The hon. Gentleman has once again described his view that religion is different from race, and of course I agree that there are differences, although I do not agree with his analysis. I simply wanted to point out that the Attorney-General comes some way down the process in this regard. The police first have to investigate a case; the Crown Prosecution Service then has to decide whether there is sufficient evidence and whether it would be in the public interest to pursue it. That all happens—and it happens well—before the Attorney-General has a veto over a case. I simply ask the hon. Gentleman to keep this matter in perspective.
I had rather hoped that I was keeping it in perspective. The Minister's suggestion that there would be very few prosecutions seems to have been put forward to reassure the vast majority of people who are engaging in religious debate that they need have no fear while doing so. My anxiety is that the Bill is worded in such a way that anyone looking at its terms will see that they are very wide, and that only the Attorney-General's discretion will restrict them. For those reasons, I am trying to find a way forward.
I do not much care for the Bill—I shall come back to that in a moment and suggest some alternatives—but I am trying to suggest ways in which the Attorney-General's remit might be lessened. The police might therefore not need to get involved. They might say, "There was nothing in those words that could justify violent acts against anyone. You might find them very offensive, you might not like what was said, and people might be getting very worked up about it, but there is no justification for prosecution because the hatred was not of a kind that would tend towards acts of violence."
One of the problems with the Bill is that it does not define hatred. By its usual definition, all that it amounts to is an intense dislike.
Indeed. The implication that a person is likely to carry out an act of violence does not flow logically from either of those concepts. That is one of the reasons why the Bill is seriously flawed. I simply ask the Minister seriously to consider whether new clause 2 might provide a way forward in that regard.
The bit that the hon. Gentleman has left out of all his discourse so far is that each of the sections of the Public Order Act 1986 contains a get-out clause, as it were—a reason why someone might not be committing an offence. Each section is worded slightly differently, but they include circumstances in which a person is unaware of the content of the material in question or does not suspect or have reason to suspect that it is threatening, abusive or insulting. So there are already provisions under which someone would not be guilty of an offence.
I take the hon. Gentleman's point, but I have always thought that those were more of a publisher's get-out than a proponent's get-out. I suppose that it is just possible that a person might use threatening, abusive or insulting words without knowing that they were, but it would be rather surprising.
The hon. Gentleman might be right so far as section 20 of the Public Order Act is concerned, but each of the different sections is worded very specifically to ensure that there is a get-out, not only for publishers but for people who use words and behaviour, or puts on a play or makes a broadcast, in each of the different categories. The Act is pretty clear.
I agree with the hon. Gentleman, but I still believe that a protection that states, as the Public Order Act does, that
"A person who is not shown to have intended to stir up racial hatred 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" does not address the second issue, which relates to the stirring up of hatred. Clearly, if people are prevented from using threatening, abusive or insulting words, or have a let-out that they did not realise that they were threatening, abusive or insulting, that is one thing. However, I felt that the Minister made it clear in Committee that there might be circumstances in which someone could use insulting behaviour. Many people regard certain comedy turns as insulting, for example. If a comedy were to be put on that was deeply insulting to the religion being parodied, it would lose the person involved the protection of that particular limb of the Act.
Until the hon. Gentleman uttered those last few words, he was being far too kind to Chris Bryant. The defence in section 18(5) of the Public Order Act is no defence for those who are putting on a play or performance, especially when people have been consulted about its content in an attempt to meet their concerns. The people putting on the play would have been told, "We find this insulting", so they could not be unaware of the fact. If anything, the measures would encourage people not to consult or to let people know in advance that they might be putting risky material into a comedy, an entertainment or a play. Whether the material would incite hatred against individuals is a separate issue, but the measure that has just been mentioned is no help.
The hon. Gentleman is right. That is why we must be so careful with this legislation. New clause 2 at least offers some measure of protection. It is unlikely that anyone would suggest that a comedian's lampoon—however pointed, barbed or insulting—could constitute an encouragement to violent acts.
My hon. Friend has identified perhaps the greatest problem with the Bill, namely that hatred is not properly defined. Might I suggest that a way forward might be to define the concept so that it involved a propensity to cause violence? That would involve taking up his new clause, and attaching that concept to the definition of hatred.
My right hon. and learned Friend makes a very good point. If the Minister were to come to the Dispatch Box and suggest that that might be a way to proceed, I would welcome it. The fact that we can have this kind of debate on Report is extremely useful, because when the Bill goes to another place, the record of these proceedings will doubtless be read, and people will be able to see that that suggestion represents another approach to the problem. I tabled quite a few amendments in Committee to try to find a way around this problem. They were rejected, however. On Report, therefore, I wanted to confine myself to essentials. My right hon. and learned Friend is right, however, that that might be a better approach, and that a definition of hatred could be extremely helpful. Anyone who looks in the dictionary can see that the term is not well defined, which has been one of the anxieties throughout our consideration of this legislation.
"Is he telling us that those statements will be deemed to be not statements of hatred, but the personal confessions of those Churches?
The House begins its sittings with a prayer from the Book of Common Prayer. Parts of the Book of Common Prayer, such as the 39 Articles, have strong statements to make. Would those statements be considered as an incitement to hatred?"—[Hansard, 21 June 2005; Vol. 435, c.671.]
He said: "No, they would not." Surely the way to safeguard that in the Bill would be to accept the hon. Gentleman's new clause, but there is nothing in the Bill to safeguard the promise made. The Minister replying to the debate knows well that one cannot go into a court and say, "When the Bill passed through the House of Commons the Minister said this", for the judge would laugh and say, "Sit down."
I was unavoidably detained elsewhere during the early stages of the Bill. Did my hon. Friend quote from Voltaire, who, however much he disliked what one said, would defend to the death one's right to say it? Would not that be a more civilised maxim to guide the House today?
My hon. Friend is right. I do not think that I needed to quote that—it had been quoted extensively by others before I had the opportunity to do so. One of the problems highlighted in Committee was that many texts in the Bible, and certainly in the Koran, given a literal interpretation, must certainly be said to stir up hatred. One of the psalms that I read is specifically about hating other people who do one harm. In those circumstances, I raised the matter with the Minister. The 39 Articles also make it clear that there is a duty to point out the error of others, and to challenge them in their views.
Ultimately, someone must make a judgement, and on the basis of new clause 2, the people making the judgment will be the jurors in the criminal trial that takes place. At least it would be possible, however, to say to the jurors, "Unless, members of the jury, you are satisfied that the tone and content of what was said was such as to constitute a justification for a violent act against another group, it doesn't matter how threatening, abusive, insulting or what the intent might have been. It is irrelevant; the person is not guilty." It would boil down to that.
I understand that Voltaire, on his death bed, was asked to renounce the devil and all his works, and he said that it was no time to make unnecessary enemies. Under the Bill, might he have been in some difficulty and forbidden to die?
Is not a further complication that we happily allow people to hate each other, and in any case, how can we prevent them from doing so? It is an entrenched part of terrace culture that the supporters of certain football clubs hate those of other football clubs. We live with that. Surely the problem comes when the hatred leads to violence or incitement to violence. That is the distinction that we must capture.
The hon. Gentleman is right. It is a difficult dividing line. In fairness to the Government, as I understand it, they have kept on saying that the mischief that they are trying to meet is precisely the one that he identifies. The trouble is, however, that once one starts to argue that incitement to religious hatred is a criminal offence of itself, one has moved the goalposts a very long way. Anyone who reads this Bill can see that it potentially criminalises a wide range of expressions of views about other people.
Is not the truth that we are beginning to see a consensus building up that what is objectionable is not just the state of mind of the person listening to the language but the consequences of that state of mind? Therefore, what we are trying to strike down is language that might cause a state of mind to arise which itself will give rise to violent or unlawful conduct. Are we not coming to that?
My right hon. and learned Friend has got it absolutely right. The problem then, which is one of the reasons why I think this legislation is so misguided, is that the Government have found themselves hoisted on their commitment to create equality and a level playing field between racial and religious hatred. As a result, as became apparent from debates in Committee, every time a suggestion was made that religion should be treated differently from incitement to racial hatred, it was condemned by the Government on the basis that they would then fail in the promise that they made to the Muslim community, as I understand it, to create a level playing field with Jews and Sikhs. That is why I suggested to the Minister earlier that the Government might like to consider the possibility of splitting hatred against Jews and Sikhs on religious grounds from hatred against them on racial grounds. I accept, however, that that is a problem. As long as the Government persist in demanding that the Bill should apply equally as regards race and religion, we will be faced with that problem.
In the fascinating debate in Committee, which I found to be one of the most interesting in which I have been involved since entering the House, it became plain to me that the Government were trying to do something that was difficult, impossible and had a whole series of unintended consequences about which the House should be concerned. The truth is that race and religion are different. As long as the Government persist in maintaining that they must be treated identically, we will face that sort of problem.
In the other amendments that we tabled, we tried to deal with the problem through an alternative approach, by leaving the offence of "specific intent" in religious hatred but removing—if I may use the expression that seems to have been introduced in Committee—the "likely limb" of the offence. That approach has much to commend it, but falls foul of the issue that I raised a moment ago about the equality between racial and religious hatred. Again, as long as the Government are hooked on maintaining that link, it will not help them to find a way through their problem. I have grave anxieties, however, about whether people should be criminalised on the basis of expressions of religious hatred unless they were specifically intending to foment such hatred. In those circumstances, those are other grounds on which the House might consider that it would be sensible to allow a distinction to be made between racial and religious hatred.
The hon. Gentleman made a key point about Jews and Sikhs. A number of legal experts tell me that they do not believe there is discrimination now, and that Jews and Sikhs are protected against incitement to racial hatred because there is no Act or law that defines religious hatred. The new schedule will make it absolutely clear that any victim of incitement to racial hatred, whether or not that victim is a religious group, should and could be covered by the Bill. I do not believe, and I hope that the hon. Gentleman does not believe, that the anomaly that the Government have identified does exist.
What the hon. Gentleman says is relevant to the new schedule, which seeks to deal with circumstances already established by case law—circumstances in which an attack on someone's racial and ethnic identity is made through the medium of his religion.
I agree with the hon. Gentleman on another point. I have never had the impression that the clause protecting Jews and Sikhs from racial hatred was intended to protect them from criticism, even vigorous criticism—or even the fomenting of dislike—on the basis of their religious views. The Minister may correct me, but I know of no prosecution that has been brought on the basis that criticism was in fact criticism of their religious views. In my experience, such prosecutions have generally been brought as a result of far wider attacks on people's ethnic identity. To that extent, I have always thought that the anxiety apparently expressed by the Muslim community in Britain, which the Bill seems to want to address, is fundamentally misplaced.
Let us assume for a moment, however, that the Government wish to cure that problem. One way of doing so would be to adopt the new schedule. We have been over this ground before, and I leave it to Mr. Carmichael to speak to the new schedule, which has been described as the Lord Lester amendment. I will say, though, that it has the merit of allowing protection to be set down in statute for those who are under attack on the basis of their ethnic identity through the medium of their religion. The courts have already succeeded through case law, but the new schedule would set it down in black and white, and I think it would provide a really effective compromise. We have mentioned that before, and I look forward to hearing the Minister explain why it is not a better approach.
I apologise for taking up so much time, but the issues are lumped together. This is an important group of proposals. I urge the Minister to respond positively, because if we do not find a way forward, the Bill will go nowhere—or, at any rate, no further than the House of Commons. Moreover, we will introduce to an area in which I believe there is some agreement a further degree of party-politicisation, which I do not particularly welcome in the circumstances and which will continue until the Government decide—if they wish—to use the Parliament Act to force the Bill through.
That would not make the Bill any better. We have here a number of proposals which, if the Government responded to them positively, would at least provide a way forward. I must make it clear to the Minister that I have always considered the Lord Lester amendment to be the best option, but I hope that if they find it unacceptable, the Government will look sensibly at some of the other ideas.
At the heart of the hon. Gentleman's argument is the assertion that a person's religious belief is, in many respects, very similar to that person's political belief or—this example was given earlier—his or her support for a football club. Does he accept that many people's religious beliefs are much more fundamental than their political beliefs, or even their support for football clubs? Are not those beliefs fundamentally connected to their family, culture and heritage? Indeed, in many cases their religious beliefs are even more fundamental to their sense of identity than their race.
Some would argue—and I think surveys demonstrate it—that many people's political views are inherited. That certainly applies to the political parties that they may choose to support.
Of course, some may be apostates when it comes to the political views of their forefathers. Nevertheless, one's political views are closely bound up with one's philosophical outlook. But I would hate that to be treated as a defining characteristic, so immutable that it was entitled to special protection. What worries me about the approach of Sir Peter Soulsby is that it does suggest that someone's religious outlook is immutable. It suggests that we can compartmentalise society into a series of blocks of individuals believing certain things, which deserve to be preserved in aspic for all time without challenge.
I believe that in the pluralistic society that we are rapidly becoming in this country—indeed, we may have already reached that point—we should be going in the opposite direction. Far from there being special protection, people must face the fact that their personal point of view on matters as sensitive as religion, for instance, will come in for robust criticism, discussion and discourse. If we embark on the road down which I fear the Bill will take us, we will institutionalise difference, curb debate and thus produce a far less flexible society than the society we undoubtedly need if we are to go forward and prosper.
I certainly do not think that a religious outlook needs be immutable, but I believe it to be fundamental. It is, I believe, fundamental to how people identify themselves, and fundamental in a way that is particularly relevant to the Bill—fundamental to how others identify them and promote hatred of them. Surely the purpose of the Bill is to protect those who are identified by others, and by themselves, according to their religion. Surely we should extend the protection that already exists in the context of their identification in terms of race.
I appreciate that we are dealing with religious hatred. We should bear it in mind, however, that 200 years ago those in this Chamber—or rather down the Corridor, where the Chamber was then—were living in a society in which, notwithstanding the tolerance accorded to some dissenters and indeed to small Jewish minorities, there was a consensus, institutionalised by Parliament, that certain Christian beliefs contained in the 39 Articles of religion must be imposed for the sake of social conformity, and to maintain the body politic. That is the state in which our country then was.
Over the last 200 years we have seen a dramatic change, not just in the extent of the tolerance accorded to others who wish to practise other religious beliefs. The country is in the process of a massive transformation: multiculturalism and religious views are important not just to small minority groups, but to substantial sections of society. I must tell the hon. Gentleman that in those circumstances I think it is particularly important for freedom of discourse to be maintained, including freedom to criticise in vehement terms. We must all get used to that. If we do not, we shall be moving in the wrong direction.
My hon. Friend is arguing strongly for new schedule 1, and I agree with him. One answer might be to insert in the new schedule a further amendment defining hatred, so that only conduct likely to cause people to engage in violence or unlawful behaviour towards the group in question would be unlawful. There would be parity in the case of both racial and religious groups, because we would have redefined hatred to involve the consequences of that state of mind.
My right hon. and learned Friend has repeated an important point to which I hope that the Government will respond, elsewhere if not here.
There is a philosophical argument that, because racial characteristics are immutable, allowing people to express hatred based simply on race is so peculiar and irrational that it may be proper to curb it. That, I think, is why it was curbed in the racial hatred clauses of the Public Order Act 1986. So while I very much agree with my right hon. and learned Friend about the application of this argument to religion, I should want to think very carefully about rowing back from the 1986 Act, which was framed to protect people on the basis of their racial identity. That could be argued to be a retrograde step; however, I hope that this issue can be looked at elsewhere.
I hope that the Minister will consider the new clause and related amendments carefully. I point out now, should I be unable to do so later, that I will put my name to, and view with great sympathy, new schedule 1.
There were some rather elevated exchanges earlier on about Voltaire, which lifted the tone of the debate no end. While they were going on, I was rather reminded of John Stuart Mill, which shows how complicated these issues are. In his famous mid-19th century essay "On Liberty", which defined how many of us think about these matters, he gives a very nice example. He says that it is perfectly proper for people to go around saying that all corn dealers are thieves, but that it would not be appropriate to say that to an excited mob outside a corn dealer's house. I am not sure that Mill is right, but that example does show the importance of getting these distinctions right.
Of course, that precise example is currently covered by other sections of the Public Order Act 1986, and it is an important distinction. We are talking about inciting people, through speech, to have hatred of others. Even under the current law, those who insult in the street people such as corn dealers on the basis of their religion are likely to be arrested.
Yes, and as we all know this is the important distinction. We are at one on the issues of incitement and violence, but we are not at one on where to draw the distinction between beliefs and believers. We keep coming back to this issue from many different directions, but it is fundamental to the Bill. Many of us are very keen to respond to the argument that we need to stop members of certain groups being picked on. We do not like people being picked on, and there is a lot of evidence to suggest that certain members of religious communities are being picked on not for their religion, but simply because of who they are. So we respond very positively to the need to protect people against being picked on, which is why I approach this argument in a sympathetic spirit. However, at the same time, I want people to be able to pick on other people's beliefs. That presents us with a difficulty. How can we protect the right of people to pick on other people's beliefs, while not picking on such people simply because they belong to a religious group?
Indeed it is, and I take that to be part of the same point.
There is a balancing act that we want to perform, but not because some of us are on the side of free speech and others are on the side of protection. Most of us want both to protect and to guarantee free speech; we are simply trying to find the correct balance.
In citing the words of Mill, the hon. Gentleman in fact told us how that balance should be struck. The reason why we do not describe corn merchants as thieves when we are standing outside a corn merchant's house is that the mob might throw a brick through the corn merchant's window. In other words, we consider the consequences of the words that we use, and that is the point on which we should be focusing, is it not?
I thought that it might be hazardous to cite that example, and in fact, the situation is even more complicated than that. In fact, in such a circumstance one is invoking anticipated possible consequences, rather than real ones. By way of defence, a person might say, "Of course I am entitled to say that all corn dealers are thieves when outside a corn dealer's house. I am not saying that you should act on that belief. I am not saying that you should burn the man's house down." So it is quite a leap to jump from a point of view that is certainly controversial, and in respect of which the circumstances matter, to an assumption about its consequences.
The serious distinction that we have to draw is between beliefs and believers. In trying to strike this balance—we are all doubtless trying to strike it in different ways—I simply wanted the Bill to provide some reassurance. The Minister, who could not be a more congenial and agreeable person to have at the Dispatch Box in these circumstances, has indicated his desire to find this middle ground, if it can be found. My new clause simply states:
It is simply an attempt in the most anodyne way possible—a way designed to maximise agreement—to secure in the Bill the commitment that nothing in it will stop people criticising or ridiculing other people's belief systems, and that no offences will be created simply because someone acts in that way. If we include such a provision, we will have gone a long way toward getting the balance right, and toward providing the reassurances that many of us want.
The hon. Gentleman is absolutely right to say that there is common ground in all parts of the House on the question of dealing with the mischief that the Government are addressing, and he is right to say that the Minister has been at pains to point out that the Bill will not create the mischief that some of us fear, which is unnecessary prosecutions. The difficulty that some of us have is that the Minister always ends up saying that the Attorney-General will act as the stop on such prosecutions, and that they will therefore not reach court. In doing so, the Minister fails to recognise that the problem is the effect that the complaint and the investigation will have on someone who is simply proselytising their religion, cracking a joke or doing any of the things that we believe to be part of free speech.
That is true and of course, according to a further powerful argument that has been deployed in this debate, if the Bill is left as it is, it will create expectations of consequences that will never be realised and should never be realised, and which the Government have said will never be realised. The argument is that the Bill is designed to offer symbolic reassurance, but that in doing so, it will generate expectations that, when unmet, will have consequences contrary to those that the Government quite properly want.
I have simply taken almost word for word paragraph 15 of the explanatory notes, which seeks to give such a reassurance. It states:
"The offences will not encompass material that just stirs up ridicule or prejudice or causes offence."
Such a statement is, more or less, what I would like to be included in the Bill. I would be prepared to add a "just" or a "merely" if that would help the Government, but having listened very carefully to what they had to say throughout our deliberations, I do not believe that there could be any conceivable objection to including in the Bill such a bland, anodyne statement. It became absolutely clear what this Bill was about and was not about.
I congratulate the hon. Gentleman on his sensible new clause. Does he agree that the biggest danger with the Bill is not that someone will be sent to jail who should not be, but that, without his amendment, people will be afraid to speak out on things on which the Government would not mind them speaking because of the uncertainty over the Bill? Is not the biggest danger that the Bill will restrict freedom of speech because people will be unsure as to what they can say and what they cannot say?
Yes, feelings will be generated on all sides that will be unhelpful to the Government's objective.
The Minister may be about to tell me that he agrees entirely with this anodyne new clause, in which case I could have saved myself a few moments on the Floor of the House. If not, I fear that this is but a foretaste of what is to come. It would be better to try to put a reassurance of this kind in the Bill now. If so, the Government will have a chance of securing the Bill with assent. Without it, I fear that that may not be the case.
I should say that unless the Minister was minded to accept our amendments and new schedule, it would be my intention to seek to test the view of the House by way of a Division at the conclusion of our proceedings on this group.
In this short debate, we have already had significant references to the work of Voltaire and John Stuart Mill. I should place on record that at different stages of my academic career, such as it was, I have been a student of moral philosophy and of jurisprudence. I should add that sufficient time has passed for me to be candid and to state that I slept through most of my lectures on both subjects, but I did learn one thing from them, which was not to get involved in arguments that one was not qualified to argue. With all due respect to the hon. Members for Cannock Chase (Dr. Wright) and for Beaconsfield (Mr. Grieve), I hope the House will forgive me if I take a more practical rather than philosophical approach to the amendments.
Implicit in what the Minister said in relation to the earlier group of amendments was that although we have had Second Reading and Committee and are now on Report, we have never got over the real issue that lies at the heart of the Bill and the difficulty it causes me and others. That issue is the fundamental distinction between the nature of religion and the nature of race and the very different views that should be taken to hatred that is stirred up on the basis of one's race and one's religion. That stems from the immutability of one's racial characteristics, which is quite different from the changeable nature of one's religious views.
That is it. For that very reason, hatred on the basis of race is a completely irrational thing; one is hating somebody else for something over which they have no control.
The point bears making, however, that there is a degree of compulsion that comes with one's religious beliefs and questions of faith that leads one to demand and to be entitled to a degree of protection from the law. That is one of the biggest difficulties that the Bill faces. It is because one is compelled to speak out in a certain way because of one's religious beliefs that the freedom of religious expression is very important and the Bill poses a real danger in this regard. The Government may have rather oversold the Bill in some religious communities, but there is a growing realisation that the Bill will be as unpopular among the Muslim communities as it will be among those who have been lobbying us so vigorously in the last few weeks.
The hon. Gentleman is spelling out what he thinks is at the core of the Bill, but will he address this question? Causing hatred is obviously a very wrong activity, but should it by itself be an unlawful activity? It would be quite wrong to cause hatred for homosexuals, but if that does not spill over into unlawful or violent conduct towards homosexuals, should the law intervene?
There is no single answer to that question. There are certainly clear areas where it is in public policy interest that we should prevent hatred and racial hatred is now accepted as being one of the most important areas. Our view is that we do not think that the creation of the new offence of religious hatred is within the ambit of public policy or what is desirable under it.
I agree with the hon. Gentleman, but why should stirring up racial hatred by itself be an unlawful offence? Should we not be saying that hatred becomes criminal if it is likely to result in unlawful conduct towards the group brought into that state of hatred?
That is an interesting point of view, and if we were starting with a blank sheet of paper I would be minded to explore it with the right hon. and learned Gentleman. I am mindful that we are beyond Second Reading and I do not want to pursue this at too much length because we are where we are. We have the now-accepted position in law of the illegality of inciting somebody to stir up racial hatred. The right hon. and learned Gentleman suggests that it would be preferable to make hatred leading to some further unlawful act an offence. It is an interesting discussion, but the debate has moved on beyond that.
New schedule 1 is the crux of the issue and is about trying to make the Bill workable. It would be helpful to read it briefly into the record. It brings with it a definition of racial hatred, which it seeks to define as hatred
"against a racial group, of persons defined by reference (whether directly or indirectly) to colour, race, nationality, (including citizenship) or ethnic or national origins ('a racial group')."
It goes on to say that, in the section,
"'an indirect reference' means a reference to religion or religious belief or to a person's membership or presumed membership of a religious group as a pretext for stirring up racial hatred against a racial group . . . 'religious group' means a group of persons defined by reference to religion or religious belief."
It is our view that that brings with it the answer to the problem that the Government have identified. I am not entirely persuaded that the problem is more real than apparent, but to take them at face value—to accept that they are acting in good faith—what we have here is a fairly elegant expression of the law as it currently stands.
The provision would put beyond doubt the fact that a Muslim—as distinct from a Jew or a Sikh, who has the benefit of coverage in relation to racial hatred or on the basis of mono-ethnicity—would be covered in circumstances where hatred was intentionally racially motivated. I am inclined to say that that is already the case. It certainly seems to be the view of a number of commentators who are better qualified in law than me, including my noble and learned Friend Lord Lester. I hope that the Minister will reconsider his somewhat inappropriate remarks about the motivations of Lord Lester. In the first sitting in Committee, the Minister suggested that my noble and learned Friend
"understands precisely that it would not work in practice and that is why he makes the proposal."—[Official Report, Standing Committee E,
I have to say that that was one of the few occasions on which the Minister fell below the standard that we usually expect of him in Committee. Frankly, it was an unworthy remark about someone with the pedigree of my noble and learned Friend. I hope that the Minister will feel that it is possible to be a little more generous about him today.
There is a point that the hon. Gentleman does not seem to understand. However attractive Labour Members found the Lester amendment, we believed that some people would choose to incite others on the basis of their religion—the hon. Gentleman would say, as a proxy for their race—and that the Lester proposal would incentivise people to act that way even more. It provides a clear get-out clause for those who are referring only to religion by virtue of religion. That is the problem.
If the hon. Gentleman is talking about people who are being attacked on a theological or doctrinal basis, rather than as a proxy for race, I believe that that is perfectly proper. I do not believe that the law should protect people from attacks on either theological or doctrinal bases. Furthermore, if it is anything other than that, I have to tell him that it would be covered by the terms of the new schedule, which I invite him to reflect on more closely and carefully.
Our other concern is that the Government have adopted a very narrow approach to the Bill. If we are to deal effectively with religious hatred, we cannot deal with it in isolation. We have to recognise that the reform of the law of blasphemy is long overdue. That law, which provides protection only to people in the Church of England rather than Christians as a whole, is a law that has long since outlived any useful purpose that it may ever have had. In that regard, I want to mention amendment No. 12, which is proposed by my hon. Friend Dr. Harris. He has tabled the provision in a personal capacity, but I want to make it clear that I have absolutely no difficulty in supporting it and that I commend him for introducing it.
The other important element of the new schedule is what I would call the free-speech rider in paragraph (3), which suggests that
"It shall not be an offence under this section if the activity consists of . . . criticising the beliefs, teachings or practices of a religion or its followers, for example, by claiming that they are false or harmful; . . . proselytising one's own religion or urging followers of a different religion to cease practicing theirs; . . . expressing irreverent comedic comments about religion or belief; its worship, teaching, practice or observance; . . . expressing antipathy or dislike of particular religions or their adherents."
A significant distinction may be drawn between that free-speech rider and the one in new clause 2, proposed by the hon. Member for Beaconsfield. My provision is about protection of free speech, whereas he invites us to accept a condemnation of speech that is used to justify violence. I wonder if he might have been better advised to finish his new clause after the words
"belief or lack of religious belief".
It would then read simply:
"Nothing in Part 3 of the Public Order Act 1986 . . . shall be read or given effect in a way which restricts or prohibits freedom of speech or expression on any matter of religious belief or lack of religious belief".
Thereafter, the operation of the new clause becomes problematic. I appreciate why he brought it forward and I am broadly with him, but I see some difficulties with the wording.
I have to say that if I were to confine my remarks to those phrases, it would mark the end of the Bill. That might be a very good thing, but I tried to be realistic. Without any qualifying element, we would be saying that freedom of speech cannot be restricted in respect of
"any matter of religious belief or lack of religious belief".
It seems to me that that amounts to the end of the Bill in its entirety.
Perhaps the hon. Gentleman has read my mind and realised why I was so keen on that rather truncated version of events. New schedule 1 would not introduce the concept of incitement to religious hatred at all; I appreciate the hon. Gentleman's point that he is trying to make the best of the Government's rather poor job on this provision.
That covers the essential aspects of new schedule 1. The question was raised in Committee whether the Bill would provide protection for what were broadly referred to as white Muslims. I have to say that I accept now as I did in Committee that that is very much the case. In order to justify a measure of this nature, I have to tell the Minister that I would need to be persuaded that there was a significant and pressing problem. I have not yet seen such evidence—[Interruption.] Perhaps we are about to be provided with it.
The point made in Committee that still applies now is that it is not just a question of giving protection to white Muslims. There are many Muslims in many mosques, just as there are many Christians in many churches: people from many different racial backgrounds are represented. Somalis, Pakistanis, Kosovans, Indians, Bangladeshis, people from Saudi Arabia and from many other countries are represented in mosques in this country. The point of new schedule 1 is that it would enable those who wished to whip up hatred against any of those people in a particular mosque—as, indeed, in a particular church, which may have many different ethnic and racial groups present—to do so. It would provide the perfect excuse for someone to point to a mosque and say, "Look, there are many different racial groups there and I am not, of course, whipping up hatred against any of those particular groups because—
Order. The hon. Gentleman is exceeding the bounds of an intervention. May I say to the House that interventions are generally becoming rather discursive? There is limited time for debate and some hon. Members are seeking to catch my eye.
Thank you, Mr. Deputy Speaker. I think that I get the hon. Gentleman's drift. He has to have regard to the very wide terms in which racial hatred is defined in paragraph 1 of the new schedule, which would catch most of the circumstances that he mentions.
The hon. Gentleman can read Hansard for himself if he wants to know the answer to that direct question. There was discussion, and there is a clear distinction to draw. A religious aggravation would essentially always exist in the first place whether or not expressly provided for in statute, and I accept that that has been quite effective. That is a very different thing, however, from the introduction of the concept of incitement to religious hatred as an offence per se. That distinction between the offence per se and the aggravation is an important one to bear in mind.
I am mindful that others wish to contribute and do not wish to take up too much of the House's time. I wish, however, to say a few words about the other amendments.
On new clause 4, I was interested in the views of the hon. Member for Cannock Chase. He clearly comes at the point from a direction similar to that from which my hon. Friends and I come. I wonder whether his term "offensive language" is essentially different from the "insulting" language that is already part of the Public Order Act 1986. I wonder, indeed, whether there might be some practical considerations there. In broad terms, however, if this were an earlier debate on an amendment, I would have little difficulty with it.
The question of the various definitions of religion provided, as the hon. Member for Beaconsfield said, a tremendously interesting and—at times—entertaining discussion in Committee. All that the hon. Gentleman really does here is highlight further the nonsense in the Government's position and the difficulties that arose when they embarked on the position that they have insisted on taking.
Finally, the amendments that would effectively introduce a crime of intent are interesting and should have been considered much earlier. That would be an important protection against the erosion of free speech, which concerns us. However, we have been round that course already, and I fear that those amendments will have little more joy than most of the others we have pursued today.
It was a delight to hear earlier from Mr. Grieve that he has achieved a new degree of realism in his approach. I note that one of his amendments is subtly different from one he tabled in Committee. In trying to define religion, his previous amendment said that one of the groups that should not be covered included those who were believers in the supremacy or superiority of one gender over another. He has ditched that point in his new amendment, so I am not sure whether he now believes that those people should have protection under the law because he subscribes to that view himself, or whether he is just trying to steer clear of today's debate in the General Synod of the Church of England.
I suppose that I have to admit that I tabled that amendment in Committee slightly tongue in cheek. When I came to define the terms for the purposes of Report, I thought that I ought to try to identify those who might be generally thought to be people whom individuals would dislike. I do admit that the gender issue is rather controversial in the context of the Christian practices of the Anglican faith, of which I am a member.
I have to say that I do not think that that is controversial at all. Men and women are equal. They should be equal under the law and, for that matter, in religion. We look forward to women being ordained as bishops and the Church agreeing to that. This, I know, strays some considerable way, Mr. Deputy Speaker, from the purpose of the Bill and the amendments before us.
I start from the fundamental belief that freedom of speech and freedom of religion are intrinsic to the democracy in which we all want to live. I want to live in a society in which nobody feels cowed or timid in the expression of their freedom of speech or their freedom of religion. One of the points of debate here is that many of us on the Labour Benches perceive that not everybody in this country equally enjoys the right to express their religious belief, and to join in that belief by association with others. That is the problem that we are essentially trying to address.
We believe that there is an injustice in the law as drafted, which allows protection, as many Members have mentioned, by race and, therefore sort of, by proxy, allows for those whose race and religion so overlap that the overlap is almost complete. Therefore, Hindus and Jews are allowed protection under the law—
It is not unusual for us to hear two conflicting views from the hon. Gentleman, and there is only the one of him. He misrepresents the position. The protection afforded to Jews and Sikhs is against racial hatred, not religious hatred, and that is provided only on the basis of the fact that one judgment took the view that they are monoethnic.
Perhaps the hon. Gentleman thinks that I say two different things because he does not listen as clearly as he might. That is, I think, precisely the point that I just made.
Well, we have achieved something here today—the Liberal Democrats agree with one another. To be fair, there are many issues on which I agree with Dr. Harris.
The point is well made that Sikhs and Jews were not originally afforded any protection under the law. Subsequently, by virtue of the overlapping of their racial and religious grouping, they have ended up receiving protection, not for their religion but by virtue of their race.
The hon. Gentleman has, I think, misunderstood the law. The Bill says that incitement to racial hatred would be made unlawful, and defines that by reference to cultural groups, race and so forth. What case law did was to identify that, by definition, Jews, when subjected to incitement to racial hatred—not doctrinal or theological criticism—were covered. That is not something that they have gained; they were always covered, and case law has demonstrated it.
Consequently, Jews and Sikhs are protected under the law, not by virtue of their religion, but by virtue of their race, because there was a definition that that constituted their race. The hon. Members for Oxford, West and Abingdon and for Orkney and Shetland (Mr. Carmichael) are trying to draw a very narrow distinction, on which, I think, we are all agreed. I am grateful to them for helping me to tease out the point.
The important point we are trying to make is that the particular injustice that we believe exists under the law encourages racists to express their hatred and incite hatred in relation to people's religion rather than their race, even when their hatred would probably be directed against their race.
I shall come to whether religion is something one chooses or something that is given and how one should address that question. It seems clear, however, that if it is possible to differentiate between the sin and the sinner—if, in other words, it is possible to hate the sin but love the sinner—it must surely be possible to hate a religious belief, or disagree intrinsically with it, yet still like, or indeed love, the person who holds that belief. Equally, it must follow that it is possible to protect the believer and leave the belief to fend for itself. That is what I believe the Bill will do.
I have raised this point when other Members were speaking, and it was first made by Dr. Wright. Should it be possible, even if it is not the style of Chris Bryant or me, to urge people to hate homophobic religious bigots? In the example of Christian fundamentalists, that could be urging people to hate the people not the belief. Should that be made a criminal offence?
I do not think that that example entirely falls within the ambit of the Bill, and it should not do so. The point was raised earlier that many would debate whether someone's sexuality is a fixed or chosen aspect of their life. The hon. Member for Oxford, West and Abingdon shrugs his shoulders, but that is a material consideration because many people have advanced the argument that the law is not good enough because one does not choose one's race but one does choose one's religion. The point that many Labour Members would make is that the percentage of people who actively choose their religion is remarkably small. One of my hon. Friends pointed out earlier that people can change their religion, but I still believe that just as it is wrong to judge somebody on the basis of the colour of their skin or their gender—or, for that matter, their sexuality—it is wrong and just as irrational to judge somebody, or think of them as a lesser person, on the basis of their religion.
The hon. Gentleman fails to say why political belief should not fall into that category. Tony Benn, the former MP for Chesterfield, famously said that he was born in the Labour party and he will die in the Labour party. If people can be born into a religious belief, can they not also be born into a political belief? Why is that not covered in the Bill?
That is rather the point that I was trying to make. I do not think that we need to stray down that route, and nor should we stray down the route of incitement to homophobia, although some of the most offensive and insulting material that I have ever seen was from some Christian organisations in relation to homosexuality. Some of the views espoused by, for example, Belfast Pride, which pretends to support homosexuality but in fact viciously attacks it, are very unfortunate.
Leaving homophobia aside, the hon. Gentleman says that he is happy that we should hate religious bigotry, but that it is not his style to say that we should hate religious bigots. That is fine, but should it be criminal for other people who do not share his style to say that we should hate extreme religious bigots? Should it be criminal to do so?
I am saying that it is possible to differentiate between the belief and the believer. It is also possible to differentiate between merely saying some words that other people might find offensive and deliberately seeking to incite other people to hate a group of people by virtue of their religious association. The latter is irrational and wrong and the law should criminalise it. That is why, broadly speaking, I support the Bill.
The distinction between the belief and the believer depends on the person making the distinction. A good person with love in their heart will be capable of hating the belief and loving the believer. But if a person has hate in their heart, they will be unable to do so.
I am hesitant to start talking about good people and bad people. I remember when Jesus was described as good and he asked why he was being called good, because there was only one who was good. It is not helpful to go down that route when considering these amendments.
I was troubled by the last intervention and I wish to pin my hon. Friend down on the issue if I can, because it goes to the heart of worries about the Bill. I want to be able to say that I hate religious bigots and religious bigotry. I want to go around urging other people to hate religious bigots and religious bigotry. Why am I to be prevented from doing that, as the Bill suggests?
Far be it from me to stop my hon. Friend doing anything. It seem to me that it is wrong to go out on the street and incite people to hate others because they are Muslims. We know that that is happening. My hon. Friend Mr. Malik said in his maiden speech, on Second Reading, that people used to call him a Paki, but now they accuse him of being a Muslim, in a very derogatory way. Such behaviour should be caught under the Bill.
Would not the example that my hon. Friend gives be covered by new schedule 1? In our manifesto, which I carry with me at all times, we promised that we would give people of all faiths the same protection against incitement to hatred on the basis of their religion. Could it not be argued that the Lord Lester amendment fulfilled that commitment?
We have had that conversation in Committee and this evening.
I tabled amendment No. 11 for a specific reason to do with the performance of plays. I said earlier that I believed that we should have as great a degree of freedom of speech in this land as is commensurate with others enjoying their rights to express their religion. Therefore, we should have a high hurdle for an offence to be committed in the production and performance of a play. For instance, many people might advance the argument that parts of "The Merchant of Venice" are offensive and insulting to Jews or Christians. Indeed, an individual production of that play could be extremely offensive and insulting to one of those religions. The character Barabas, in a play from a similar period, "The Jew of Malta"—I apologise to members of the Committee who have heard this before—says:
"I have been zealous in the Jewish faith,
Hard-hearted to the poor, a covetous wretch,
That would for lucre's sake have sold my soul".
Some might believe that putting on a play that portrays Jews as covetous and hard-hearted to the poor would fall foul of this Bill, so it is important that we ensure that no one would do so by putting on a production of "The Jew of Malta".
The hon. Gentleman is arguing that a high test is necessary, but does he agree that being hated, on its own, does not prevent anyone from going about their lawful business? It may be an unpleasant phenomenon to be hated, but unless that hatred is translated into overt acts of discrimination, hostility or violence, it is just one of those things that people have to face. Is not that the issue that we have to consider?
I am sure that the hon. Gentleman is right in one sense, in that if there were to be a law preventing people from inciting hatred of politicians, we would be in a right mess. The point that the Opposition would not accept in Committee—although we advanced it on several occasions—was that whereas some people might want an offence to be committed only if the incitement led directly to acts of violence, many of us think that if someone incites hatred of a group of other people, they increase the likelihood of violence towards them even if the relationship is not directly provable. That is the element of the tide of hatred that we want to wash further back down the shore. I accept, however, that many hon. Members think that that is impossible and that the Bill will not achieve that.
My point about the performance of plays is that the National Theatre might want to put on a play about incitement to religious hatred. A young woman from the east end of London might write a play that articulated in strong and effective fashion her profound dislike of what Islam had done to her family and her community, or she might point to some of the disagreements within the Muslim community in the east end of London. The director of the National Theatre should have every right to put on such a play. However, if the head of the British National party presented a play with similar themes to the National Theatre, I hope that the director would take a different attitude and would consider whether, in the circumstances, that might be an incitement to religious hatred.
I am about to come on to some complex aspects of the Bill's wording. So far, I have deliberately looked only at the performance of plays, but many people have advanced arguments that the freedom of expression should extend in other ways. Section 20 of the Public Order Act 1986 refers exclusively to plays, which is why, because the Government want to amend that, I have introduced an amendment on the point.
My hon. Friend referred to "The Merchant of Venice". I believe that the play is anti-Semitic, although Shakespeare did not intend that when he wrote it. However, it reflected the ingrained anti-Semitism in Christianity that has, I hope, been seriously undermined in the years since the holocaust. It is interesting that no attempt has ever been made under the provisions of the incitement to race hatred laws to stop a production of the play—rightly, because any attempt to do so would be ridiculous.
That is precisely the point that I was about to make. As far as I am aware, there has been no instance of the Public Order Act being used against the performance or production of a play. The definition of "play" specifically includes improvised performances, which is why the Act includes an explicit defence for a director who might not realise that particular words might be spoken or used.
The Government want to change part of the original Act, and it is that change that I want to question. I am worried that the hurdle set in that measure will be lowered by the Government's change. Is the hurdle high or low, as constructed at present? To prove that there has been an offence, there must have been threatening, abusive or insulting language or behaviour as part of the play. That is moderated in the original Act by the defence that the producer or director did not know and had no reason to suspect, that the offending words were threatening, abusive or insulting.
The second point that must be proved is intent. It is of course much easier to prove intent in some forms of the criminal law than in others. It is much more difficult in the cases covered by the Bill. If someone thrusts a knife into another person's chest, one can assume that he intended to kill the other person. In a case where certain words are said or used, it is not so easy to prove intent. Consequently, as the hon. Member for Beaconsfield pointed out, there is a second likely limb under the 1986 Act, which is that
"having regard to all the circumstances (and, in particular, taking the performance as a whole) racial hatred is likely to be stirred up thereby".
That is what the Government want to change.
I believe that the Government's change will lower the hurdle in the second proposed subsection. The hurdle for the offence would be extremely low if it was that any person who might come into the theatre might be incited to religious hatred. Indeed, the person might already have religious hatred in their heart, which would be highly problematic. However, I assume that that is not what the Government intend; they intend the provision to apply to a person who is reasonable, yet if the test was whether a reasonable person might be incited to religious hatred the difficulty is clear, as most of us in the Chamber would say that no reasonable person could be incited to religious hatred.
It is unclear what the Government are hoping to catch by the change. I understand that they want to keep the likely limb as nearly identical as possible for each section of the 1986 Act. I understand their argument, but I do not accept that, with reference to material that might be published or posted outside someone's house, or words that might be said, the provision does not need a definition of the audience. At the public performance of a play, the audience is predetermined; people have paid for their tickets to go to the theatre to see the play. I worry that the Government are lowering the hurdle by creating an unnecessary offence in relation to the production of plays. The situation could be better clarified by the change that I suggested—going back to the provisions of the original 1986 Act in relation to plays.
I hope that the hon. Gentleman will carry on because he is doing an extremely good job of demolishing the internal logic of the Bill. Indeed, if the Government do not accept his amendment, I strongly suggest that he votes against the Bill on Third Reading. However, I cannot understand why he limits the difficulties that he has exposed to plays and not to the other spheres that the rest of us recognise pose equal difficulties for the wording of the Bill.
It is because the change to the likely limb in each of the other clauses will have a different effect from the change to the likely limb in section 20. If the hon. Gentleman looks closely at section 20, he will see that I am right.
There are plenty of hedges around the offence relating to the production and performance of plays, not least the defence that the wider context of the play must be borne in mind. That is why the Minister will probably tell me that the director of the National Theatre has every freedom to produce plays such as "The Jew of Malta" or "The Merchant of Venice", or a play written by a young Muslim woman from the east end of London that exposes problems in her community that she believes have stemmed from Islam. Such a play might even show some very unpleasant aspects of Islam, as she sees it, and might even include language that was extremely aggressive, threatening, abusive or insulting to Islam, because some of the characters might have to present such attitudes for the presentation to be effective. Indeed, many people might find elements of the novel "Brick Lane" by Monica Ali, if put on stage, offensive, insulting and so on. The wider context of a play must be borne in mind under the Bill. Intent must be borne in mind, and I believe that the Government are weakening the likely limb unnecessarily. I hope that the Minister will be able to give me some comfort in his reply.
It occurs to me that the longer we go on discussing this group of amendments, the less clear it is exactly what will and what will not be caught by the Bill. One of my fundamental problems with the legislation is that, unless it is amended—I shall discuss some of the specific amendments very briefly in a moment—and if it passes into law in its current form, I believe that we are in danger of stoking up difficulties between various communities. There is such uncertainty about what the Government intend and such uncertainty about what is and is not caught that the Bill will not help community relations and is likely to inflame them.
The Government have chosen their Minister with great care. He has been extremely courteous throughout the proceedings that we have enjoyed together. He is obviously a very reasonable man. He is, quite honestly, the right face to introduce legislation of this kind, but I can imagine the tactics meeting at the Home Office after the Bill's consideration in Committee, bearing in mind the lobbying that was going on, and I can imagine the Minister saying, "Look, we've got to give way on something in the Bill. Let's find the smallest possible amendment that we can concede, and we'll completely block the rest." What the Minister has done successfully—I welcome the concession that was made in the previous group of amendments, which, of course, I will not discuss now—is to deal with the speck of sawdust, leaving the plank lying in the middle of the Chamber for us all to trip over. Unless one of the amendments in this group is accepted, I do not think that the Bill will become law; nor should it.
A number of excellent points are made in many of the amendments, which I should like to touch on briefly. I will be mercifully brief. I am a very fair-minded person, so I want to touch first on new clause 2, tabled by my hon. Friend Mr. Grieve, the broad thrust of which I support. However, the word "tone" worries me slightly. I can imagine occasions on which Rev. Ian Paisley could be in his pulpit and expounding a very important religious doctrine, of course, very reasonably indeed, but perhaps in a tone that might fall foul of my hon. Friend's new clause.
I certainly support new clause 4, which would provide the kind of balance that we are looking for in the Bill. At the moment, it is not clear that the Government do not intend to clamp down on the kind of religious freedoms, discussions, discourse and even the kind of cynical lampoonery that I do not often enjoy and often find distasteful when poked at other people, other religions, other political parties and so on, but that is none the less an important part of a healthy democracy. New clause 4 has a lot to commend it, and if the Government cannot go all the way and accept new schedule 1, I hope that they will at least look seriously at new clause 4.
I think it particularly important that proposed new paragraph (3) in new schedule 1, or something like it, be incorporated into the Bill, because it gets to the heart of the matter. Why were 2,000 reasonable people outside Parliament campaigning against the Bill earlier today? I am not sure whether they are still there. Why have we been lobbied so extensively on the Bill by a lot of people who do not normally take the trouble to write to their Member of Parliament or to come to see us at our surgeries? Why is that happening? It is happening because a lot of genuine, decent people, many of whom hold their own religious beliefs very passionately and sincerely, are very scared indeed that the Bill will in some way curtail their freedom of religious belief and religious expression. They fear that the Bill, cloaked in uncertainty, will in some way undermine their ability to preach their gospel, to expound their faith and to contrast and compare other religious beliefs freely, sincerely and passionately. That is why people are demonstrating in Parliament square today, and it is why we have received so much lobbying. No matter how many ministerial assurances we receive, we have all heard them before. Ministers come and Ministers go. Unless we place something in the Bill that makes it abundantly clear that that is not what the Government are seeking to do, the Bill will not attract widespread support, and it will be poor law.
Even if the Minister cannot accept new schedule 1 or part of it, I hope that the Government will be able to introduce in another place an amendment, drafted by experienced parliamentary draftsmen, that deals with the substance of proposed new paragraph (3) in new schedule 1. I am repeating myself so that the Minister, who is returning to his place, absolutely understands that we must have something in the Bill that gives comfort and reassurance, as well as legal protection, so that people from all faiths in this country are free to expound their faiths in the years to come.
I enjoyed what has been said about amendment No. 9, tabled by my hon. Friend the Member for Beaconsfield. It is very important to discuss what we mean by a religion. We had a bit of a discussion about Satanists—we do not often do so in the House—during our proceedings in Committee. I should like to ask the Minister whether he thinks that Satanism is a religion. He many want to leap to his feet to intervene now; he may want to deal with that in his winding-up speech. He is itching to move. I think that he is about to intervene, and here he goes.
I will intervene if only to apologise to the hon. Gentleman for having to leave the Chamber for a short period. Given the considerable discussion that we had in Committee, he knows that it has never been the job of Parliament to define in statute what is and what is not a religion. We have left that to the courts, and it is right that we do so because a religion may change over time.
I am so pleased that the Minister replied as he did, because it seems to be absolute and utter evidence for the fact that we are legislating completely in the dark. We do not know what we are trying to stop and what we are not trying to stop. We do not even know what a religion is. The Minister who is responsible for introducing the Bill cannot tell the House today whether or not Satanism—the worship of the devil—is a religion in this country.
The hon. Gentleman leaps a few steps further, because he will also know from the discussions that we had in Committee that we do not just leave such things to the courts in a haphazard way. The courts take their responsibility very seriously. We have Strasbourg case law, as he knows, which requires a religion to have a level of cogency, seriousness, cohesion and importance, and to be worthy of respect in a democratic society, and in the case of Campbell and Cosans, to be compatible with human dignity. Some of the so-called religions in amendment No. 9 fall well short of that description.
I am surprised to hear that the Minister cannot answer that question because a Department—the Ministry of Defence—saw fit to recognise the Satanist worship practices of a seaman on one of Her Majesty's ships and to provide him with a cupboard in which to keep his paraphernalia for his worship. So in those circumstances, I should have thought that, unless the Minister wishes to disown the Ministry of Defence, he has already indicated that the Government take the view that Satanism is a religion.
Exactly my point. We are legislating blindfold. We are trotting through a minefield—perhaps galloping through one—and unless the Minister can give us reassurance and clarity in the Bill, it is destined for difficulty.
I should like to conclude on this group of amendments by saying that we all support the Government's desired outcome. We want to live in a tolerant and free society, where any member of a religion, even one currently under pressure, has the freedom to express their belief. People should not be persecuted, hassled, bullied, abused or assaulted because of their religious beliefs. However, I believe that the existing law is satisfactory to give adequate protection to people who adhere to those religions at the moment.
I believe that a more robust approach by the Crown Prosecution Service and the police in every locality where allegations of abuse and victimisation are made is the solution to any such problem. The Minister and the Government have never been able to justify with examples why they have introduced the Bill. Uncertainty and lack of clarity is written through every line. Unless an amendment is included in the Bill to make it clear that we will still enjoy religious freedom in this country when the Bill is enacted, it should not pass into law. The Minister ought to support one of these amendments.
I have one or two concerns that are more or less expressed in new clause 4, but if I had any doubts in my mind about the necessity for this measure they would be overruled by the present situation. Clearly, at a time when—this has unfortunately already occurred over the weekend—some hate-mongers are trying to brand the whole Muslim community as being responsible for the atrocities that occurred last Thursday, the law needs to be changed to provide protection.
I understand some of the concerns—I shall express one or two myself—but when I listen particularly to Opposition Members telling us what frightful consequences will occur, it reminds me, as I have mentioned before, that when we were dealing with incitement to race hatred almost 40 year ago, we were repeatedly told that the law was all right as it stood, that civil liberties should not be undermined by what was proposed, and that free speech was absolutely essential. I come back to this point: as a result of what was passed nearly 40 years ago against a good deal of opposition, are we less free as a country? Have our civil liberties been undermined? Have special privileges been given to any particular minority, be that Jewish or Hindu? It is nonsense to suggest that that is the case, so I make the point that some of the fears about the Bill are irrational. They are no more likely to come about than anything that was predicted as a result of the legislation passed in the 1960s.
Does the hon. Gentleman accept that although one can stop people saying things that one does not like, one cannot stop them thinking things that one does not like? There were no British National party councillors anywhere in the country in 1997, but there are 20 in 2005, a fifth of whom are in the Bradford district. The Bill will add to the burden of political correctness in this country that causes people to think that they cannot say things. It will thus create a recruiting sergeant for the BNP because people will think that if they cannot speak out freely, the only way in which they can express their view is by voting for nasty, horrible parties such as the BNP.
If the hon. Gentleman is genuinely concerned about fascism in whatever guise it takes—the National Front, the BNP and all the other riff-raff and detestable rubbish who want to incite as much hatred as possible against various ethnic minorities—I invite him to campaign vigorously against fascism in his constituency and join the national campaign. If he wants to be more actively involved in fighting fascism, as he should be, "Searchlight", an anti-fascist magazine, will give him and his colleagues every assistance.
I do not understand the difference that some hon. Members have cited between race and religion. We are told that we cannot change our race—well, we know that we cannot do that even if we wish to do so. Disraeli remained Jewish no matter how much he adhered to the Christian religion. Race is race. Obviously, when it came to systematic mass murder, the Nazis did not go round asking whether people believed in a religion or not—they would murder them. If the second world war had had a different outcome, my family and I would certainly have been murdered by the time I reached 11.
Although I understand these matters, I do not think that there is such a clear distinction. I do not have any religious beliefs or affiliations. Although it is true in a way that there is a difference between race and religion, anyone who is born into a religion does not lightly give it up. People are indoctrinated by their parents, and that happens in all religions. Some of us decide to leave religions later in life, but the majority of people are keen to remain affiliated to a religion when it comes to marriage or their wishes when they die, even if they do not adhere to the religion. I do not think that there is the clear distinction that some hon. Members wish to draw. They suggest that there is a sheer, clear divide between race and religion, but people are born into a religion, remain in a religion and are often persecuted because of that religion. We should try to avoid making a clear-cut distinction that is not really real.
Religion is of course a matter of choice, rather than a matter of birth. Will the hon. Gentleman give the House an example of a situation involving religious hatred that could not be dealt with already by existing Public Order Acts and would thus require the Bill? I think that he will struggle to do so, because the Government Front-Bench team has struggled for weeks to give a single example of a situation to explain why the Bill is needed to replace anything already on the statute book.
To a large extent, the hon. Gentleman is putting forward arguments that were made almost word for word 40 years ago. If he goes to the Library at some stage and looks up those debates, he will find that his predecessors on the Conservative Benches—although very few Labour Members—said what he is saying word for word.
I will not give way, if the hon. Gentleman will forgive me.
Why are the Government introducing the Bill? Mark Pritchard seemed to suggest that it was purely a cynical move to get Muslim votes, but I do not believe that that is the case at all. The Government might be misguided and mistaken, but that is not my view. Unlike what happened nearly 40 years ago, the Bill might not be successful, but the Government have the genuine motive of trying to protect the interests of a group of people who have been harassed because of their religion. The Government believe that those people should have the same protection as that given to Jews and Hindus.
I now turn to the new clause tabled by my hon. Friend Dr. Wright. Despite what I have just said—I hope that this does not contradict what I have just said in any way—I want the Government to make it clear, even if they cannot do so in the Bill, that if the Bill is passed into law, as I hope it will be, we will not find ourselves in a position in which it will not be possible to criticise religion. I do not want that situation to arise and I hope that Home Office Ministers share my sentiments. Rowan Atkinson has made some valid points. I understand his concerns that there might be a danger that the sort of material often used by artists like him could be declared unlawful as a result of the Bill.
No doubt my hon. Friend is right. However, it is essential that the criticism of religion does not become unlawful in any way. I am reminded of the film "Life of Brian", which some found amusing, although those Christians who were deeply religious probably did not. I would not want such a film to be prohibited. I want a situation in which other religions—why should it be only the Christian religion?—could be subject to the same sort of criticism and ridicule. I doubt whether "Life of Brian" undermined the faith of Christians in any way; their faith, and especially that of strong believers, was unlikely to be undermined by a film.
I share the hon. Gentleman's sentiments, but the current wording of the Bill implies that "Life of Brian" or any other lampoon might be criminalised. It only needs to be established that a lampoon is viewed as insulting in the minds of the people being lampooned. Once that trigger has been passed, if the material is likely to be heard by people who are likely, on that basis, to be incited to the hatred of a person's religion, the offence is established in law, so only the Attorney-General stands between the lampoon and prosecution.
Ministers have disputed that and I hope that the hon. Gentleman's assertion is not the case. However, I would not be making a speech if I did not have some worries and reservations, because it is pretty obvious that I strongly support the Bill and think that it is necessary. I hope that the hon. Gentleman will not consider it offensive if I say this, but although I could be wrong, I think that I remember his late father, who was a distinguished Member of the House, criticising the measure about which I have already spoken, so perhaps he is following his father. [Interruption.] I am sure that it is a distinguished tradition.
I tell my hon. Friend the Under-Secretary that the concerns that I am expressing as a supporter of the Bill will undoubtedly be expressed by some in the House of Lords who do not support it. I thus think that it would be appropriate to find words to make it even clearer than it is at present that the Bill will not make the criticism or ridicule of religion unlawful in any way and that the Rowan Atkinsons and material such as "Life of Brian" can go on. That is important. If it were otherwise, ammunition would be given to the critics. Those who are now so critical would say, "We were right," and I do not want them to be right. Instead, I want this measure to be successful. If it is to be successful, the concerns that have been raised by supporters of the Bill, such as myself, should be met.
I support new schedule 1 and amendment No. 1, the paving amendment, which we have indicated that we would want to see pressed to a Division unless the Minister says that he is prepared to accept it. I hope that there will be a vote on amendment No. 1.
Given what has been said by Mr. Winnick, it is important to recognise that there is little difference in motivation between many of us on both sides of the House, including those Labour Members, who have a proud history of seeking to combat racial discrimination and incitement to racial hatred. I understand that some Labour Members represent constituencies where they see similar things happening in the name of religion and that, therefore, there is a need to tackle the problem. I recognise that their motivation, and that of the Government, is in this respect entirely legitimate.
I hope that it is understood, when choosing between the Government's form of the Bill and the form of the Bill that would be established by the introduction of new schedule 1 and the consequential amendments, that we are talking about a difference in the way of dealing with the matter and how we find the balance between tackling the mischief that is abroad in society—attacking individuals and groups of individuals, and inciting hatred against them on the one hand, and the need to protect freedom of expression from the criminal law and from investigation and near prosecution by the prosecuting authorities and the police, and from the need to self-censor to a far greater degree than is currently the case.
"The problem with interventions by Conservative Members is they are totally unrepresentative of the population as a whole in that hardly any of them are open to the kind of humiliation that many members of our communities are open to. If they were, they would not be criticising this legislation."—[Official Report;
I have been subject to anti-Semitic attack, physical and verbal. Given what the hon. Member for Walsall, North has said, I should point out that for 20 years, if not longer, I have subscribed to "Searchlight", a magazine that has kept these matters afloat through the difficult eras and the healthy eras. I hope that Labour Members do not take the view that there may be some on the Opposition Benches—I do not make the case but it has been made by others—who do not feel strongly about the issues of hatred that we have been discussing. That does not apply to those who support new schedule 1 as a different way of dealing with these matters.
I thought that it would be useful, in support of the new schedule, to consider the record of debates in the House to identify whether there is misunderstanding of the Bill, which is one of the fears that many of us have. Many of those who support the Bill, as opposed to the new schedule, perhaps, believe that it is doing something that it is not doing. I would argue that there are other laws that deal with the problems that they have identified. Perhaps, there is the problem that the new schedule—the Lester amendment—does not tackle the problems. It is important that we consider what has been said, especially by Labour Members, although I do not necessarily allege that all such Members misunderstand these matters or that there is misunderstanding elsewhere.
"the case of Mrs. Shahzada, a constituent of mine who went to a shop in central Manchester soon after 9/11. She wears a veil over her face, and the shopkeeper refused to serve her because she was, to his perception, a Muslim. That was hatred against an individual, not a criticism of Islam."—[Official Report;
That was discrimination. The Equality Bill, which is in the House of Lords, will deal with that discrimination. Whether it was motivated by hatred is immaterial. It should be unlawful and the Liberal Democrats—particularly Lord Lester—have argued that that sort of discrimination should have been outlawed some time ago. Measures to deal with that were proposed, but they were opposed by the Government.
"remind the House that if that play attacks any community, it is the Sikh community, which is of course already covered by existing law, as is the Jewish community."—[Official Report;
That misunderstands the fact and the circumstances of the play, even if we accept that Jews and Sikhs are somehow already protected from incitement to religious hatred, which they are not. There is no such offence as religious hatred, and that did not touch on the "Behzti" offence.
The Government's argument in favour of their legislation and against new schedule 1, is that there is a loophole. The discussion has taken place and it seems strange that it has not been understood. Current law protects certain people from incitement to racial hatred. That is not incitement to religious hatred. I can read the definition of racial hatred in the Public Order Act 1986. It talks about nationality, culture, race and so forth. Case law has stated that, for the sake of argument, if someone is being anti-Semitic, they will therefore be covered, potentially, by incitement to racial hatred. Case law does not state that if the attack is solely doctrinal and solely theological, Jews and Sikhs will be protected on the basis of incitement to religious hatred. There is no such offence.
If we are worried about the loophole or the unfairness in the practice of the law, we need to determine whether, if there is incitement to racial hatred directed against a group of Muslims, they would be covered. At best, it could be argued that the law is unclear, although I understand that there is a pending prosecution in circumstances that might fit that case. However, the Lester amendment makes the issue explicit so that it would be seen clearly by both the perpetrators and the victims that they are protected and that if racists seek to hide behind words like "Muslims" instead of words such as "Pakis", which is what they are said to be doing—I have no doubt that they are—that would be covered. I would argue that that deals with the current problem. I say that from the perception of someone who finds such racial attacks to be anathema.
I hope that that is accepted by those on the Government Benches, including Ministers, who are careful about their words. When they talk about the loophole, they say that Jews and Sikhs are protected against hatred. They know that they cannot say that they are protected against religious hatred. They are not, because such an offence does not exist. Ministers know also that, if Jews and Sikhs are protected against racial hatred, which is what they are protected against as a group, that will open the door to easier understanding of what the Lester amendment seeks to do. The Minister has to explain and accept—I hope that he will—that Jews and Sikhs are not protected against incitement to religious hatred and that that understanding has not been grasped by many Members of this place, including those who have contributed to the debate.
In the infamous column 674 of Hansard, Ms Barlow raises the question of homosexuality and whether incitement to hatred on the basis of homosexuality should be covered. That was a point made in an intervention by Mr. Hogg. On two bases I would argue that there is a stronger case for introducing a law against incitement to homophobic hatred. First, homosexuality is innate and not chosen and secondly there is far more of such hatred going on. It is second only to incitement to religious hatred, which is not racial hatred. I cannot understand why, if the Government are seeking to deal with a social problem and incitement to hatred, they have not dealt with homosexuality either at the same time or before.
"Will my right hon. Friend make sure that the element of hatred is clearly defined when the Bill is considered in Committee? That will reassure people with genuine concerns, as the Bill must be tightly drawn to ensure that people retain total freedom of speech in respect of these matters."
The Home Secretary replied:
"I am happy to give the commitment that my hon. Friend seeks. In Committee, we will look at any proposal aimed at providing a tighter definition of hatred in the Bill".—[Hansard, 21 June 2005; Vol. 435, c. 677.]
The hon. Member for Loughborough was seeking a commitment to make a better definition, not to look at a proposal. However, I understand that there were no such amendments in Committee. Hatred was not defined more closely as requested, so another group in the House will not have gained reassurance.
Mr. Malik made what everyone acknowledges was an impressive maiden speech—because it was a maiden speech, no one sought to intervene—in which he made the case for new schedule 1 and the Lester amendment. He said that at school he was beaten up by a gang of skinheads because, to use his words,
"we were all seen as 'Pakis' and we were all fair game."
He went on to say that the world has changed, and if he
I do not believe that Combat 18, the vile British National party or the National Front, and their particularly odious band of followers are making a theological point when they attack Muslims, particularly those who appear to them to be members of a racial group. Attacking and harassment are not the subject of the Bill, but there is no doubt that that is a racial offence. I find it hard to understand why the hon. Gentleman, who clearly has great insight into the situation, should seek to argue that the offence is based on incitement to religious hatred.
Mr. Denham, who did not accept interventions—certainly not from me—gave an example at column 709 which demonstrates a fundamental misunderstanding of the nature of the Bill and of the alternative proposed in new schedule 1:
"If one were to publish a leaflet saying, 'We don't want Jews living round here, let's drive them out', it would be caught under a section of our existing legislation that would not catch the same act if the word 'Jews' were replaced by the word 'Muslims'."—[Hansard, 21 June 2005; Vol. 435, c. 709.]
I simply do not believe that to be the case under existing legislation and certainly not under new schedule 1. Those motivations are not theological or doctrinal but racial. Indeed, the right hon. Gentleman made that point when he discussed whether certain groups of Semites would be protected if they were Jewish from anti-Semitism—which I would call a form of racial hatred—but not if they were Muslim. I believe that they would be so protected under the current law and that that protection would be made even clearer by new schedule 1. If senior Government Back Benchers do not recognise the key issues at stake in the Bill, the outside world will find it difficult to do so, and there will be many calls for prosecution, which would be inappropriate.
At column 721, another example of a common misunderstanding, Ms Thornberry, who spoke often on Second Reading and, indeed, in Committee, said:
"I shall give the hon. Gentleman an example. A young lady on her way to the Elizabeth Garrett Anderson school is on the bus with her head covered. A man starts shouting at her and abusing her because she is a Muslim. That abuse results in an assault on her by a gang of boys, who know not only that she is a Muslim, but that she is white and has converted, which makes the situation worse. In normal circumstances, that man would get off scot-free."—[Hansard, 21 June 2005; Vol. 435, c. 721.]
The man who was shouting at that girl and abusing her because she was a Muslim would not get off scot-free, because he would have committed a public order offence. If it is not incitement, it is an offence under section 4 or section 5 of the Public Order Act 1986 and, indeed, it is covered by the law on harassment. Such misunderstanding by hon. Members is fuelling calls for the Bill which, however, is flawed.
Sir Peter Soulsby made a good speech today. I read carefully the speech that he made on Second Reading, in which he argued that because people identify themselves on the basis of their religion, they should have protection from incitement to hatred on the same basis. The offence of incitement to racial hatred, however, is not dependent on the perception of the person against whom hatred is incited. The courts must judge whether the person committing the offence is inciting racial hatred, regardless of whether the person against whom it is committed and who may be a member of a racial group believes that it is because of their religion, gender, race or anything else. I can see the point that the hon. Member was careful to make, but he does not appear to recognise that the current law, particularly if new schedule 1 were accepted, protects people who define themselves according to their religion from incitement to racial hatred.
Mr. Khan was another speaker who was not in the mood to accept interventions on Second Reading. At column 735 he claimed that there is a loophole and that "Freedom", the British National party magazine, has explained it to its readers. He said:
"An article under the headline, 'Police drop a clanger' said that a supporter who repeatedly displayed a copy of an 'Islam out of Britain' poster in his window was arrested, questioned and charged with 'incitement to racial hatred'. The article continues:
'The snag for the police, however, is that Muslims are not covered by anti-free speech race law . . . it's legal to say anything you want about Muslims, even far more extreme things'."
In fact, that person was prosecuted successfully for committing a public order offence, which was deemed religiously aggravated. I understand that his appeal failed. Contrary to the impression that may have been left by the hon. Gentleman, who did not accept interventions, the full story is that the current law covers such situations. The hon. Gentleman continued:
"We are talking about hatred creating an atmosphere in which Muslim women—British women, some of them white—wearing a hijab or scarf are spat at, insulted, sworn at and even hit."—[Hansard, 21 June 2005; Vol. 435, c. 737.]
Those are already offences under the Public Order Act. To try to pray such outrageous occurrences in aid of the Bill does a disservice to the efforts of the police and prosecutors, who are seeking to use the existing public order offences.
I shall make a few points in defence of new schedule 1, following the suggestions made by the Minister and others. Chris Bryant argued that the Lester amendment creates a loophole that will help to tell racists that as long as they "get doctrinal and theological" they will be exempt. Any such mechanism would already be available, and the Lester amendment makes it clear that using religion as a pretext for racial hatred will not create a new loophole. If racists could suddenly become religious bodies without any vestige of literature or any other context that courts must consider when determining the offence of racial hatred and if they pursued hatred against people on the basis that they practised the Muslim faith, it would be incumbent on the Opposition to reconsider whether the legislation were necessary. At the moment, however, racists are racists—they are not theologians.
I do not believe that the danger is that people will suddenly become theologians and start engaging in narrow exegesis of some great theological point in Islam, Catholicism or whatever. The problem is that the Lester amendment encapsulates precisely the problem that we already have, and perpetuates it. It will allow the existing loophole to continue, and will say to the Muslim community that we are not interested in whether they suffer attacks or not.
I do not agree with any of the points that the hon. Gentleman makes and I do not understand—[Interruption.]—any of it, he says from a sedentary position. I do not understand how he can get any of that from the Lester amendment. There are many in the Muslim community who recognise what it does and are grateful for it. It makes it clear in law that racists cannot hide behind religious words to promulgate racial hatred. It makes it clear that racist Islamophobia is unlawful. Every time we legislate in this area, as the hon. Member for Walsall, North pointed out, there is a balance to be struck between freedom of speech and the need to tackle a social problem.
We say that, if hatred is being incited against people on the basis of their religion, which will clearly not be considered by the court to be incitement to racial hatred using a religious pretext—that rules out all the activities of the BNP and the far right, for a start—and that serious problems are being caused outwith that set of people and those motivations, we will need to re-examine the matter. However, the presumption in the House must be in favour of preserving free speech. Many of the arguments—not all, because some people did not see that there was a problem—around the introduction of the measure were about the balance between free speech and the need to legislate. Simply because 30 or 40 years ago, when the measure was first introduced, some people thought that it went too far—I believe that they were wrong then and that it did not go too far, because there was clear mischief that needed to be dealt with—does not mean that the Government should have carte blanche to introduce any sort of law. We must discuss each measure on its merits and decide whether the need to preserve free speech has been met.
That deals with the point that was raised in an intervention by the right hon. and learned Member for Sleaford and North Hykeham, who urged us and those on his own Front Bench to support a race law that covers only acts likely or liable to lead to other criminal offences. I see his point, and I see the need to balance free speech. The Liberal Democrats believe that the current race hate laws are appropriate for dealing with the problem, and that the freedom of speech which they restrict is not a freedom of speech worth defending. It is not rational to attack people on the basis of their race, for the reasons given by my hon. Friend Mr. Carmichael and Mr. Grieve. It is right that we should have philosophical discussions about these matters, but in the end there is a balance. We on the Liberal Democrat Benches believe that the Lester amendment tackles the problem out there, and therefore that it should be supported.
My next point relates to the argument used by the Minister that, because the Attorney-General blocked only seven prosecutions, there is not really a problem. The hon. Member for Beaconsfield and others identified the problem that, in this and similar legislation, we are leaving it to the Attorney-General to decide what is and is not acceptable. One must have good reason for allowing that. The problem for people in the artistic and entertainment world is not just that the Attorney-General will allow them to be prosecuted, but that steps will be taken against them by the Crown Prosecution Service in building up the case to put to the Attorney-General and by the police. They may even be picked up for questioning or arrested.
Complaints will be made against artists and entertainers and, as the Government accept in a letter to Mr. Walker, who kindly gave me a copy, there will be restrictions on their ability to present their work. In a letter of
"if a policeman decided that the circumstances warranted further investigation"— there is no Attorney-General in that decision—
"then it is only right that the police ask those responsible for the conduct in question to discontinue it while an investigation takes place."
That spells bankruptcy for that production if the producer has to pull it on the basis of complaints. We have seen that we live in a society where there is a propensity for complaints to be made. We saw it in the case of "Jerry Springer—the Opera", and I fear that we will see it again if it goes to regional theatres, and we saw it in the case of "Behtzi". The Minister should recognise that hiding behind the Attorney-General will not give people who wish to pursue their artistic freedom protection from censorship or from being taken off the air and the stage.
That is not the point. Hon. Members on both sides accept that we live in a climate where people with strong religious views are taking offence, and I am not surprised, given how strongly they feel about their beliefs. They are seeking to restrict the production and broadcasting of pieces of literature, of whatever merit. I accept that that should not come under the Bill, but there will be decisions for the police to make well before the matter comes to the Attorney-General. Given what we have seen, there may be many such offences. I hope that the Minister accepts that there will be a chilling effect because of calls for prosecution, investigations prior to prosecution and the actions of the CPS before the matter gets to the Attorney-General. I should be grateful if the Minister would deal with that point in his response.
Finally, amendment No. 12 in my name inserts new section 23A headed "Blasphemous words, etc.", which states:
"For the purposes of determining whether an offence has been committed under sections 18 to 23, it is immaterial whether the words, behaviour, written material, public performance, recording or programme is blasphemous."
I hope that the Minister will accept the amendment and respond to it at the end of the debate. It is regrettable that he has not taken the opportunity provided by the Bill to tackle the anomaly of the blasphemy law. I shall not repeat what I said about that on Second Reading. It would not be in order to talk about repeal of the blasphemy law, but I hope that the Minister will accept that there is an urgent need to make it clear in the Bill and generally that freedom of speech is paramount.
Although Christians may be offended—the blasphemy law applies only to Christians—it is wrong that the Government should be standing at the ramparts in this place or in another place to defend a law that is discriminatory, out of time and against the European convention on human rights. I do not understand why the Government, who have looked into the matter, have not felt able to table an amendment or repeal the measure to reassure people who fear that the Bill will be used to bring about the censorship of people who wish to say strong words about, for example, the Christian faith.
I hope that the Minister will respond to the arguments that I and others have advanced, and that he will give comfort to those of us who recognise that there is a problem to be solved, and that amendment No. 1 and new schedule 1 are a far more satisfactory way of dealing with it.
It would be hard to find a more graphic list of groups that would cause people concern. The amendment refers to
"Satanists; . . . believers in the need for human sacrifice to propitiate a deity; believers in female genital mutilation to live in accordance with the rules of a religion; believers in violence as a means of proselytising a belief; believers in the divinely ordained supremacy of one race over another."
The one that I skipped over was a reference to Scientologists. I hope my hon. Friend will understand that although Scientology may be very controversial, people who are Scientologists find it profoundly offensive to be included in that list. As he may be aware, Scientologists in this country are based in East Grinstead, which is just outside my constituency, and many hundreds of my constituents are Scientologists. They will be mystified by their inclusion in such a list, particularly as many other groups, such as those who practise voodoo, are not included.
"it is . . . a dangerous organisation that preys on people with mental illness". —[Hansard, 21 June 2005; Vol. 435, c. 681.]
That is a characterisation that many people in my constituency would find peculiar and to which they would not relate.
I am not familiar with the details of Scientology as a religion or as a set of beliefs, and having heard the Minister's comments earlier, it would be hard to decide on which side of that boundary it would fall. Those who practise Scientology would say that it is a religion, but many others would contest that. Undoubtedly, as human beings they do a great deal of good. I have seen for myself their project to take people away from drug addiction and their work to encourage methods other than medical technology and medicine to deal with children with conditions such as hyperactivity and attention deficit hyperactivity disorder. I have heard of the work that they do in New York to work with firemen with respiratory diseases as a result of their involvement in the terror attacks of
In selecting the list for debate here and in Committee, I tried to identify groups that might be regarded as controversial and for which some people have expressed intense dislike, as did my right hon. Friend Mr. Gummer. It is there for the purposes of illustration and debate. I make no judgment on Scientology, which is a subject of which I know very little. The only judgment that exists in respect of Scientology suggests that it is not a religion at all, in which case it would not enjoy the protection of the Bill in any event.
I am grateful to my hon. Friend for clarifying those issues and for explaining more of the thinking behind the amendment. Certainly, as an organisation, Scientology has gone through serious hoops in terms of ensuring that it has the right to broadcast on television by satisfying the Independent Television Commission that it is not a cult. It is a not-for-profit organisation, and that is well recognised.
The huge flaw in the Bill that my hon. Friend highlighted is the lack of a definition of religion. The Minister has set out certain guidelines that cover that, but it is not clear on which side of the boundary Scientology would fall. It is right and proper that we should have a debate about whether it is a religion, but the lack of clarity makes the Bill unworkable.
I hope that when my hon. Friend considers the issues raised in this debate, he will understand why the inclusion of Scientology in the list has caused offence and take that into account.
The hour is late, so I will be brief.
As a new Member, I think that I am beginning to learn some of the tricks of this House. If the Government have a bad law they put up a nice Minister and hope that they can get it through. At the beginning of the debates in Committee, the Minister gave those of us who wanted changes to the Bill some hope when he said:
"we are prepared to engage and we are prepared to listen. Obviously, we would be foolish if we did not consider any sensible proposals that could improve the Bill."—[Official Report, Standing Committee E,
Having listened to the debates today and on Second Reading and read through the Hansard of the Committee proceedings, it is clear that this is a bad Bill and that even the Minister proposing it is not too sure what it is meant to do. Indeed, I am grateful to Dr. Harris, who went through almost every example—I counted them off as he did so—that was given as to why the Bill was needed, showing that such incidents can be dealt with by existing legislation. We are therefore left wondering what exactly the Bill is about.
Even some supporters of the Bill, such as the hon. Members for Rhondda (Chris Bryant) and for Walsall, North (Mr. Winnick), are beginning to have doubts about it. Indeed, the hon. Member for Rhondda made the case when he said that he wanted certain changes made for theatres because the Government have "lowered the level". If the Government have lowered the bar that makes it difficult for theatres to put on plays, has it not been raised for those who wish to proclaim their religion or to preach in church?
The hon. Gentleman says no, but the terminology is exactly the same. He was worried about the aspect of intent, which will also apply to people who preach in churches and express views about other people's religion. The hon. Member for Walsall, North also said that he wants some safeguards.
The other reason why the Minister should consider accepting new schedule 1—it is typical that such a sensible and pragmatic approach should be proposed by a Scotsman—is that all it would do is formalise the promises made by himself and by the Secretary of State. On Second Reading, when my hon. Friend Rev. Ian Paisley mentioned the Westminster confession of faith, the Secretary of State said:
"I think that I can give him the assurance for which he asks. Statements in the Bible, the Book of Common Prayer and other faith books—the Koran for instance—are precisely that. They are not incitements to hatred."—[Hansard, 21 June 2005, Vol. 435, c. 671.]
At the end of the debate, he promised the House that the Bill would not place restrictions on freedom of speech, stop comedians telling jokes, or prevent people with strong views about religion from expressing their opinions. If that is so, why cannot the explicit terms in new schedule 1 be incorporated in the Bill? Since assurances have already been given in the House, surely new schedule 1 can be included to reassure those who fear that the measure will restrict the freedom of speech of those who want to express their religious views or tell jokes. Why will not the Government make the assurances explicit in the Bill by accepting new schedule 1?
Leaving the Bill so open-ended will lead to bad law and malicious complaints to the police. That applies even with the safeguard of the Attorney-General. The Home Secretary announced the seven stages in any prosecution. However, the five stages before a complaint reaches the Attorney-General are sufficient to cause trauma and difficulties for people against whom malicious complaints have been made and when the police have started an investigation. The one sure way of not having to rely on the Attorney-General and of ensuring that we do not go down the road of people suffering the trauma of an unnecessary police investigation, which may never finish as a prosecution, is to provide explicitly in the Bill for the things that will not be included, as listed in new subsection (3) in new schedule 1, paragraph 2.
The Under-Secretary should live up to the promise that he made at the beginning. He should listen, engage and accept a compelling argument.
The debate has been powerful and wide-ranging, not least the contribution of Sammy Wilson. However, although the debate has been wide-ranging, four key issues were presented.
The first key issue is freedom of speech, to which new schedule 1 and new clauses 2 and 4 are relevant. I do not dispute the honourable intentions of those who tabled the amendments. They want to include in the Bill an assurance that legitimate words and actions, in speech or in writing, in jokes or in preaching or proselytising religious belief are not caught. My candid assessment is that the amendments are either so weak that they add nothing substantial to the measure or they add so much that they create further loopholes.
Let me give an example. New subsection (3) in paragraph 2 of new schedule 1 provides for four broad exceptions, which extremists could manipulate to avoid prosecution. We already know from evidence that the police have given us that extremists get round the existing race hate legislation by inciting hatred on the ground of religion. That places them outside the law. They know that and they manipulate it accordingly. If we include exceptions, such as those in subsection (3), we will create further loopholes. The Government believe that inciting hatred, on the ground of either race or religion, is wrong and that, whatever the context in which it occurs, it should be covered.
It is true that we have not defined hatred in the Bill. Several hon. Members made a point about that. We are happy to accept the dictionary definition of intense dislike and enmity. Making an enemy of somebody is a high test but that has not been a problem when considering earlier legislation, for example, the Race Relations Act 1965, the Race Relations Act 1976 and the Public Order Act 1986. They all refer to hatred but none defines it on the face of the legislation.
It is worth acknowledging the aspect of new clause 2 that acknowledges the gap between the religiously aggravated offences that we have created and the more serious offences of inciting violence or murder. New clause 2 accepts that, if
"the tone or content of such speech or expression is such as to constitute a justification for violent acts", it would be wrong. However, I stress to Mr. Grieve that I cannot accept the new clause because it blurs into the serious offence of incitement to violence, which already exists. It would also omit a series of other behaviour, whereby hatred or inciting hatred may be intended. That would not be captured if we accepted new clause 2. I do not dispute that it was an honest effort but the threshold remains too high.
I am grateful to the Minister for his explanation, although I am sorry that he cannot accept the amendment. I am troubled by the implication of that. It was said during the course of the debate that no one was trying to prevent people from hating others because they did not like their views or their religion, yet the Government persist in holding the view that someone might be able to hold a private hatred but that they cannot communicate it to someone else in order to persuade them to take the same viewpoint. I find that astonishingly illogical, and we ought to be anxious about that. If the mischief that we are trying to address is not inciting people to hatred so as to commit acts of violence, what the Bill is really saying is that people cannot communicate their own strongly held beliefs to others, even though that would not lead to violence.
The hon. Gentleman has made that point before. The simple point that I am making is that new clause 2 takes us far too close to incitement to violence, which already exists and is a more serious offence than the one that we are discussing here. New clause 2 is an honest attempt to bridge a gap that the Government have identified, but the threshold is too high.
New clause 4 presents me with different problems. I am in no doubt whatever that my hon. Friend Dr. Wright is trying very hard to put clarification into the Bill. He sees that as helpful and wants to make it clear that material that
"criticises or ridicules or causes offence" would not be caught. I believe that this is a genuine attempt to be helpful, but hatred is a very high test. It is certainly well above the tests involving criticism, ridicule, causing offence or even, in the words of the hon. Member for Beaconsfield, "criticising in vehement terms". None of these activities would be caught.
The Home Secretary has stated on the face of the Bill that the legislation is compatible with the European convention on human rights, which of course enshrines a right to freedom of expression. That right is therefore built into the assurance that all the activities described by my hon. Friend the Member for Cannock Chase are already covered. That is implicit in the Home Secretary's assurances on the ECHR. Indeed, on the two previous occasions on which the Joint Committee on Human Rights has considered this legislation, it has agreed that it is proportionate to the problem that has been identified. It has also said that the Home Secretary is right to say that the Bill is compliant with the ECHR.
The Minister's argument is that some amendments are too weak and some are too strong, yet he accepts the desire across the House to place further reassurance in the Bill than currently exists. Will the Government therefore table a third way amendment at some point to address these difficulties and provide us all with the reassurance that we need?
I do not know whether a third way exists, but I have said throughout these debates that I continue to listen. Indeed, after we have voted on the Bill tonight, it will go to the other place, which will also have a go at scrutinising it. I say again to my hon. Friend that the assurances that he seeks are already built in to the Bill in the form of the guarantee of compliance with the European convention on human rights. I certainly do not want to go to the other extreme and include behaviour that would allow extremists a loophole through which they could escape. Even if no third way is to be found, I say to my hon. Friend—as I said in Committee—that the drawing up of guidance on the way in which the legislation should be interpreted and implemented will be absolutely vital. I want to do that in a way that includes faith communities, people from the arts and others who have expressed concern about the Bill, so that their worries can be taken into account and they can be reassured as we develop the guidance that their fears are misplaced.
Will the Minister tell the House when we, Members of the elected Chamber, will see the guidance? Why, having had the Bill's Second Reading, Committee and Report stages in such short compass, have the Government still not made available to the House such a significant part of their proposed operation of it? Is that satisfactory?
The hon. Gentleman will know that guidance is not ordinarily made available until legislation has been passed into law. I am looking to see whether it might be possible to bring forward draft guidance. I can consider that in this instance because this is not a complex Bill in terms of length, number of clauses and so on. It is a very tightly defined Bill, so it might be possible to have some draft guidance. I am considering that at the moment. Obviously one would not ordinarily issue draft guidance, because legislation can change before it is enacted. That is the reason for not publishing draft guidance in many instances.
Does the Minister recognise how unsatisfactory it is for him to come to the House and say that he will not include in the Bill wording that would reassure Members on both sides of the House, and that we should rely on guidance that we will not see before we legislate? That is not the way to make law.
Were that all that I was saying, I would agree with the hon. Gentleman. I am saying that the concerns raised by my hon. Friend the Member for Cannock Chase are answered by the guarantees in the Bill of compliance with the European convention on human rights. I also say to Opposition Members who want to introduce a higher test and other provisions in their amendments that that would create loopholes that extremists could exploit, in their efforts to incite hatred, to get away with with impunity.
Does my hon. Friend agree that in the light of the terrible events last Thursday, the need for this Bill to be enacted swiftly becomes even more pressing, given the possibility of a rise in Islamophobia as a result?
My response is that this legislation is as important today as it was two weeks ago and a month ago. It is important that we put it on the statute book as soon as possible.
The second issue raised by Opposition Members is the so-called Lester amendment. Let me begin by responding to Mr. Carmichael. I meant no disrespect at all in my comments about the noble Lord Lester in Committee. He spent a lifetime dealing with these issues and has made a huge contribution. What I shared with the Committee was that I found it difficult to understand, as I began to think seriously about the Bill, how somebody who had such a reputation could bring forward a proposal that clearly would not work. He is an experienced lawyer and understands these issues as well as, and better than, most. Then the penny dropped—he does understand that the proposal would not work. It is a perfect way for him to be constructive in terms of dealing with the Bill, but he knows full well that it does not take us a single step forward.
Thank you, Mr. Deputy Speaker.
There are two reasons why I cannot accept the Lester amendment. The first is that it is already covered by existing legislation, under which it is not necessary for racist language to be used for an offence of incitement to race hatred to be proved. The language used can be religious, and the case can be made now if it can be demonstrated that such language was accompanied by racist intent.
Does the Minister therefore accept that if the British National party uses the word "Muslims" instead of "Pakis", as, sadly, it has done in the past, it could be successfully prosecuted under current law? Muslims are not therefore uncovered in that respect by the current law.
I do not accept that because I do not accept that there is a direct read-across between race and faith. There may be for Jews and Sikhs—in fact, there is—but there is not for Muslims. A Muslim could be Asian, African or white British.
The Lester amendment and the view of those who support it are based on the false assumption that the Government are interested only in stopping the BNP making comments about Muslims that are a proxy for racial comments. Our intention is broader: we want to give the same protection that is given to Jews and Sikhs to all religious groups. We think that that is the right thing to do, which is why we have brought this legislation back for the third time. We think it right for people to be able to live free from fear. We think it important to stop extremists undermining the tremendous work that has gone on within, across and between faith communities as we have tried to build the community cohesion that we need.
It is also important for us to prevent the exploitation of those who feel frustrated from time to time and who may be open to the influence of extremists. We have drawn a line in the sand. We think it wrong to incite hatred on the ground of religious belief. My hon. Friend Mr. Winnick spoke of 40 years' experience, and of all the doom and gloom and promises of negative impacts that have been heard during that time. None of that has happened; we have had very successful legislation, and I think that the same will be true of this Bill.
It is true that, in law, they are protected by the racial hatred legislation, because the religious hatred legislation does not exist. It is because of the close association between the two that Jews and Sikhs are covered: both are faith groups as well as race groups. We teased out that issue in Committee. I think it impossible to disentangle one element from the other, but I acknowledge that the protection that currently exists is on the ground of racial hatred. We seek to introduce legislation that will provide protection from the incitement of religious hatred. There is no direct read-across between race and faith. If the language is religious but the intention racial, that can already be proved.
The third issue that I want to raise relates to the definition of religion or religious belief. I am grateful to those who tabled amendment No. 9 for enabling this discussion to take place. It is true that we have never defined religion in statute. We did not define it when we introduced the concept of religiously aggravated offences in the Anti-terrorism, Crime and Security Act 2001. We did not include it in the Criminal Justice Act 2003 when we increased the sentences that could be imposed for religiously aggravated offences. We did not include it in part 2 of the Equality Bill, which is currently being dealt with in the other place, and it is not in the employment regulations. It has not been a problem.
There is a good reason for our not wishing to include that definition in the Bill, which I mentioned earlier. Over time, things may change. We need flexibility, which is why we should let the courts decide. As I said earlier, Strasbourg case law is helpful. The characteristics of religion, as decided by the court, are cogency, seriousness, cohesion and importance. It should be worthy of respect in a democratic society and, as made clear in the Campbell and Cosans case, should be compatible with human dignity. That definition would exclude a number of practices specified in the amendment. Human sacrifice is, apart from anything else, a serious criminal offence. "Minister introduces legislation to protect Satanists" might be a catchy headline, but it is Parliament's job to protect believers, not belief, and it is the court's job to define religion. It is rather important that the House should appreciate the distinction between the two. Our job is to focus on believers. This legislation is about protecting believers from others who incite hatred against them; it is the court's job to define religion.
The hon. Member for Beaconsfield talked about the differences between religion and race, and I acknowledge that there are differences. Clearly, the two are not the same, but they are not as different as he suggests, and in that regard I cite my personal experience. I was born into a Roman Catholic family. Later in life, I made a rational choice about that religion in favour of it, but I cannot disentangle from having done so the fact that I was born in and brought up in that community. That has made a mark upon me and it is part of my identity. To say that my religion is simply a rational choice flies in the face of reality.
The fourth and final issue is the beloved "likely limb" that lawyers love to talk about. Of course, the prosecution's first priority will always be to look for evidence of intent. Nothing in this legislation removes that obligation, but we know that intent is hard to prove. It is hard to be absolutely definitive about what is going on inside somebody's head, which is why, when the existing race hate legislation was introduced 20 years ago, Parliament included a second limb—a likely limb.
The Public Order Act 1986 states that an offence is committed if
"having regard to all the circumstances racial hatred is likely to be stirred up".
There are three points to consider. First, we are making some limited minor changes to the wording of the current likely limb, so that the offence is committed if
"words, behaviour or material are . . . likely to be . . . seen by any person in whom they are . . . likely to stir up racial or religious hatred."
Some Members asked why we are doing so, and in particular whether doing so will lower the test. It will not, but there is some concern that the current offence turns too much on the prosecution having to show that the material was actually seen, rather than on the likelihood of it stirring up hatred.
Let us say that somebody publishes material that is seen by the hon. Member for Beaconsfield, who then takes it down, or that the material is reported to the police, who are first on the scene and then take it down. Should the perpetrator of that material, which is capable of inciting hatred on the ground of religious belief, get away with it just because the hon. Gentleman or the police got there first? No, they should not. We are seeking not to lower the test but to clarify the law, so that it turns on whether the material was likely to incite hatred, rather than on whether it was actually seen.
Secondly, Members have made the accusation that we are somehow weakening the test by setting it too low. The most convincing evidence to the contrary is our having operated race hate legislation with a second likely limb for 20 years. It has been used effectively and has led to a modest number of prosecutions—76—and to 44 convictions. However, in addition the test of hatred in law is very high—way beyond criticism or causing offence. Moreover, in law "likely" means "probable", not "liable" or some lower test. Again, that is a very high test. Under the terms of section 18(5) of the 1986 Act, for the likely limb to be proved it also has to be shown that the defendant intended their words or behaviour to be threatening, abusive or insulting, or at least that they were aware that their conduct might be interpreted as such. So, according to either leg—be it intention or the likely limb—a level of intent, or of awareness of the impact of one's conduct, must be proved.
Thirdly, it is not possible to separate the religious aspects of this legislation from the race aspects. If we did so, we would simply re-create the two-tier system to which many of the amendments would lead, and which we do not want. We simply cannot have one law for Jews and Sikhs, and another for other groups. I offer my hon. Friend Chris Bryant the assurance that, in relation to the theatre, all circumstances must be taken fully into account. The whole play must be considered, so individual lines and speeches would not be covered.
Last and not certainly least, Dr. Harris mentioned blasphemy. I know that he wants to support legislation that would remove the blasphemy laws, a discussion that my right hon. Friend the Home Secretary has promised—
I am not able to give way. I must allow time for the hon. Member for Beaconsfield to respond.
As I was saying, that is a discussion for another day and the hon. Gentleman's amendment would add nothing to the Bill.
These were my reasons for opposing the group of amendments and I urge hon. Members to oppose them.
I regret that the Minister did not succumb a little to the temptation that new clause 2 offered. He said some reasonably kind things about it—for example, that it was an honest attempt to try to reconcile a serious difference of view. The clause was certainly put forward in that spirit. I make no pretence to it being perfect in the way it is drafted, but it went a long way towards reflecting some of the concerns expressed on his own Benches about the Bill by seeking to centre on a definition of the difference between what constitutes hatred and the degree to which it must go.
I believe that a court and a jury would have little difficulty in identifying words that were tantamount to an encouragement to violent acts. It is not a difficult concept for people to grasp—the difference between ferocious criticism and words that imply that people should feel free to use violence against others. I say to the Minister, even at this late stage, that he might like to consider the issue carefully and we may be able to return to it.
Although I put forward the new clause in that spirit, I am not minded to press it to a vote because there is a clear difference between some hon. Members and others about whether the entire Bill and its scope is desirable or whether it can be narrowed down solely to the issue of what is called the Lord Lester amendment, in terms of defining and protecting those whose religion is attacked as a pretext for an attack on their race and ethnic identity. That is my preferred course of action. As I see that the amendment enjoys support from all sides of the House, I will seek to withdraw the new clause in the belief that the Liberal Democrats will seek a vote on amendment No. 1.
This has been a fascinating and wide-ranging debate, but the Minister must be aware of the disquiet expressed from both sides of the House about the way in which the Bill will work in practice. Unless the Government come up with a constructive solution to the problem, the Bill, however well intentioned, will end up as the source of polemical argument and will never see the statute book at all, or at least not for a long time. I cannot believe that that is a desirable state of affairs.
There must be a way through the problem, but the Government show no sign of responding to it. The basic reason for that is that they have been hoisted on the petard of their own promises. They have made a promise of equality between Jews and Sikhs and other religious groups that is completely fictitious for two reasons. First, it is a fiction because the equality in fact already exists and would be enshrined in law if Lord Lester's amendment were to be accepted. Also, the protection currently enjoyed by Jews and Sikhs is on the basis of their racial identity and not on their religion.
Secondly, it is fictitious because, in moving to create an offence of religious hatred, the Government are seeking to marry it in identical terms to racial hatred when the difference between racial hatred and religious hatred is so palpably plain that it makes a nonsense of the entire legislation.
I shall withdraw new clause 2 and support those who are seeking to put amendment No. 1 to the vote. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.