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New Clause 2 — Protection of Freedom of Expression

Part of Orders of the Day — Racial and Religious Hatred Bill – in the House of Commons at 7:45 pm on 11th July 2005.

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Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 7:45 pm, 11th July 2005

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.

I hope that I pass what I think should be the Gorton test. On Second Reading, Sir Gerald Kaufman made a point that, no doubt from his perspective, he felt was fair. He said:

"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; 21 June 2005, vol. 435, col. 674.]

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 right hon. Member for Manchester, Gorton referred in an intervention to

"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; 21 June 2005, vol. 435, col. 674.]

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.

In a further intervention on the Home Secretary Dr. Starkey referred to the play "Behzti". The hon. Lady urged the Home Secretary to

"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; 21 July 2005, vol. 345, col. 674.]

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.

On Second Reading, Mr. Reed expressed concern that hatred was not defined closely enough. At column 677, he said to the Home Secretary:

"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

"was surrounded by a gang of 20 thugs from Combat 18 telling me that I am going to die, it is because I am a Muslim." —[Hansard, 21 June 2005; Vol. 435, c. 703.]

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.