I draw the attention of the House to the fact that all four Lords amendments are to be debated together. Mr. Speaker's selection shows that a number of Opposition and Back-Bench amendments have been grouped with Government propositions. Members will wish to know that if the questions on the Lords amendments have to be put under the programme motion
With this we may discuss Lords amendment No. 2 and Government motion to disagree.
Lords amendment No. 3.
Lords amendment No. 4 and Government motion to disagree.
Government amendment (a) in lieu of Lords amendments Nos. 2 and 4 and amendments (i) to (iii), (xxiii), (iv) to (vi), (xxiv), (vii) to (ix), (xxv), (x) to (xii), (xxvi), (xiii) to (xv), (xxvii) and (xvi) to (xxii) thereto.
This promises to be yet another interesting and wide-ranging debate on an important issue. In moving the motions in the name of my right hon. Friend the Home Secretary let me make it clear to the House that the Government support Lords amendments Nos. 1 and 3, but not Lords amendments Nos. 2 and 4.
The Bill was last debated in the House on
The Lords amendments make four significant alterations. They separate the religious hatred offences from the racial hatred offences. They remove what was known as the "likely limb", so that only intentional behaviour will be caught. They insert a wide-ranging freedom of expression provision and remove the words "abusive and insulting" from the offence, so that only threatening speech and behaviour will be caught. Those changes considerably reduce the scope of the Bill, to the extent that, in our view, it would be virtually impossible to bring a successful prosecution.
It is important that we adopt a measured and constructive tone in the debate. That is certainly what I intend to do and I hope that the right hon. Gentleman and hon. Members on both sides of the House will realise by the end of my introductory remarks that the Government are firmly committed to the freedom of expression and that we will fulfil the promise that we made in earlier debates that, if it was possible to find words that would include a commitment to freedom of expression in the Bill, we would do so, and I will come to that in a few moments.
Although the Government were clearly disappointed that their lordships decided to take such an approach, one thing at least is now clear: there is now a consensus that an offence of incitement to religious hatred should be placed on the statute book. The Government have listened, as we said we would, to the widely and deeply held concerns that have been expressed. I fully accept that those views are sincerely and very strongly held both by hon. Members and people outside the House.
In the search for common ground, we have given careful thought to the way that the Bill is framed and taken into consideration a wide range of opinion. As a result, a number of those who actively opposed the Bill as originally drafted have indicated their acceptance of the Government's proposals. We believe that the amendments that we have tabled for consideration today strike the right balance and it may help the House if I set out our approach to them.
The Minister gives the impression that he has made concessions, but this is his message in the Labour party briefing:
"Is this a climb-down by the Government? Definitely not. Isn't this a watered down bill from your original proposals? No. The Bill does essentially what was originally proposed."
Does the Minister accept that at least he is saying that we are back where we were the first time around, to all intents and purposes?
No, I do not accept that position. Our proposals will give us a Bill that deals with not only incitement to religious hatred, but the kind of assurances sought by those who have raised their genuinely and honestly held, strong beliefs with me as the Minister outside the House and during debates.
Can the Minister explain whether if at a Christian open-air meeting reference were made to there being only one true God and to Jesus Christ, his son, being the only intermediator between God and man for the forgiveness of sins, that most basic and fundamental cornerstone of the Christian faith would be viewed as incitement to religious hatred?
The hon. Lady asks a serious question about a serious subject and my answer to her is absolutely not. That would not be covered by the offence. It would not have been covered even as the Bill was originally drafted and it certainly will not be covered if the Government amendments are accepted because they make it absolutely clear that an individual must have the intention of stirring up hatred, or stir up hatred by acting recklessly through their behaviour or use of words.
There will be plenty of time for hon. Members to intervene, so please let me finish my reply to Mrs. Robinson.
If it is clear that people have intended to stir up hatred, or behaved recklessly, they will be caught. If people express a strong religious belief, or adopt an attitude of ridicule, they will not be caught, even if they use intemperate language, unless there is clear intention.
This is an important issue because there was a recent case involving a minister of religion. He was standing in the open air on Christmas day reading the birth record of our Lord Jesus Christ in the gospel of Matthew, as he had done for years. A police officer said to him, "You must stop reading this because it has been objected to," and told the people standing round that they had to move on. I have accepted what has been said by Ministers and spoken about those assurances in speeches that I have made. However, when such a thing happens, we run into great difficulty.
The right hon. Gentleman makes an important point and I accept that there is sometimes a lack of clarity in the way in which the law is interpreted. I have said in Committee and on the Floor that, when the Bill is enacted, it will be important to draft appropriate guidance for the police and Crown Prosecution Service, in consultation with organisations outside the House, so that there is confidence in how the law will be interpreted.
Further to the comments made by Mrs. Robinson, can my hon. Friend confirm that my constituents would not be caught by the Bill for saying, "There is forgiveness only in the name of Jesus," or, "Mohammed's marriage to a six-year-old was immoral, and a call for the right to marry children is to be condemned as immoral."?
I can confirm that to my hon. Friend. I hope that hon. Members throughout the House will take this as an assurance in response to various questions that have been asked of them: people will not be caught by the Bill if they use language about their belief, or other beliefs, even to the point at which the language is abusive and insulting, if they do not intend to stir up hatred.
It has been pointed out by Opposition Members that we have three hours for the debate, so I would now like to go through the four areas that are fundamental to my argument. I will of course take interventions at appropriate moments, but if I do not start to make those points now, I will not have even started my speech before the interventions end.
First, I make it clear to the House that we now accept that the religious hatred offences should be separate from the existing racial offences in line with the framework agreed in the other place. The amendments mean that the offences will now form a new part 3A of the Public Order Act 1986, rather than being simply an extension of the racial offences in part 3 of the Act to cover religious hatred. The Government have had to think long and hard about that because we always argued for parity between the racial and religious offences. However, we have come to the view that as long as we can achieve a viable offence of incitement to religious hatred within that format, we should agree to the new framework.
Does the Minister accept that separation is meaningful only if there is a difference? As I read the proposals, there is no difference. What does he see as the difference?
There are differences because incitement to racial hatred will still have a likely limb, whereas incitement to religious hatred will have a recklessness limb. This is a serious business. As the Minister in charge of the Bill, I have considered it my responsibility to engage in constructive discussions to determine whether we can achieve the objective of attaining a measure that was a commitment in the Labour party's manifesto at the last election in a way that will calm people's fears and represent a practical way forward. There are differences, but we will achieve our objective of introducing a Bill that tackles incitement to religious hatred and which means something in practice.
I accept that genuine efforts have been made to try to reach consensus, although they have plainly failed. The Minister has decided to stop trying to find absolute parity with racial hatred provisions. In the circumstances, that is a major concession, because the Government placed a huge emphasis on that parity and, indeed, sold it to a large number of communities as such. Having made that concession, why do they not accept the logic of the Lords amendments that the offence of incitement to religious hatred should have a much narrower focus? The amendments that the Government are seeking to overturn would largely turn the Bill back into its original form.
What I said was that we were not seeking absolute parity, because I wanted to make a point about complete intransigence and the failure to engage in dialogue people who hold a different view. There is not absolute parity, but we do not want the offences to be so far apart that the difference between the two is very great indeed, because we would not achieve our objective.
On a point of order, Mr. Deputy Speaker. In the precincts of Parliament, the police have been deployed in extraordinary numbers to watch and to herd into a corner a peaceful group of Christians who are singing hymns. Is that restriction of people's right to come here and demonstrate peacefully a good or decent advert for our Parliament, or does it foretell the way in which the Bill may be used?
I am not aware of the proceedings to which the hon. Gentleman referred, but I trust that they can be safely left to the Serjeant at Arms and the House authorities. I suggest that we make progress with the matter before us.
Wearing three hats as a former president of the National Union of Journalists, as someone who has attended many freedom of information trials in different parts of the world and as the current chairman of an all-party inquiry into anti-Semitism, may I point out that the key provision for working journalists is proposed section 29K? It says that someone is not guilty of an offence if their action
"consists of criticising, expressing antipathy towards, abusing, insulting or ridiculing (or seeking to ridicule) any religion, religious belief or religious practice".—[Interruption.]
By any measure of plain English, that gives protection to any journalist, any latter-day Voltaire, anyone writing the equivalent of "The Merchant of Venice", and anyone willing to criticise the Koran and the Bible. I hope that the Minister will stick to his guns and that the views of individuals who have caused huge offence to many of my Muslim constituents, who are anxious that the House of Commons should not reject their genuine beliefs and concerns, are not taken into account when we vote tonight.
I am grateful to my right hon. Friend. A number of hon. Members on both sides of the House were shouting "unless" as he read the provision. They were referring to the end of the provision, which says
"unless he intends . . . to stir up religious hatred".—[Interruption.]
I am familiar with the wording of the motion that I moved. The provision would also apply if the person behaved recklessly.
I am not giving way.
The provision would apply if someone understood that their behaviour could stir up religious hatred, yet persisted with that action. I shall come on to that later. There is no reason why someone in the pulpit or on the stage of a theatre should be allowed to exploit a loophole in the law. If their intention is genuinely to stir up hatred they, too, should be caught by the law.
A number of hon. Members have provided the Minister with example statements and asked him whether the Bill would catch them. In each case, he has said that the Bill would not catch that statement, but it would be helpful if he provided an example of a statement that the Bill would catch.
I am grateful to my hon. Friend for raising that point and shall provide him with an example that I used earlier today and on other occasions. The example involves a poster that depicts women, some of whom are white British and some of whom are not, wearing the burqa and that includes quotes from the Koran. The poster states that such women cannot be trusted, because they are recruited in various parts of the world as suicide bombers, and asks what they are hiding under their ugly clothes. That could be the kind of material that would be relevant under the Bill.
The hon. Gentleman knows me well enough to know that I shall give way to him in a moment.
It is difficult to provide precise examples, which may or may not be relevant. We are seeking to close a loophole in the law. The loophole is not huge, and we do not expect dozens of prosecutions every year. None the less, there is a gap in the current law, and we intend to fill it.
On the Minister's example, is it not the case that such a poster would be caught by the existing provisions of the Public Order Act 1986? He need only read the case of Norwood to see that the existing provisions of the 1986 Act would catch such behaviour. Does that not highlight the lack of need for the provision? If the provision is to mean anything, it must go much further than the Minister's illustration, and I must say that it has that capacity.
I provided that example because the poster incites hatred rather than a criminal act. The offence is not racial, because the poster depicts white British people in addition to Asian people. It is not covered by existing provisions on religiously aggravated offences and it does not involve damage. The hon. Gentleman is correct to say that the Public Order Act 1986 might cover the matter, but only if someone were distressed or harassed by seeing the poster. Even so, the maximum penalty for such an offence is only up to six months in prison, while the penalty under the Bill is more severe, which is appropriate. He must acknowledge that there are many circumstances in which the Public Order Act 1986 would not be sufficient.
Those of us who support the measure simply want to give Muslims the same protection in law, for which many hon. Members fought 40 years ago, as Jews and—this came later—Sikhs. I understand the criticism from people such as Rowan Atkinson, who is understandably afraid that it will not be possible to criticise religion itself. As my right hon. Friend Mr. MacShane said, however, the supplementary provisions such as proposed new paragraph 29K make it clear that religion itself can continue to be criticised and that there is no way in which the Bill can stop such criticism.
I am grateful for the comments of my hon. Friend, who has taken us back over 40 years. I welcome the protection that the new provision will provide for Muslims, Hindus, Christians and those of no religious belief.
I have made one substantive point and I have three more to make. As I have said, I am relaxed about taking interventions but I must make progress.
The second effect of the amendments agreed by their Lordships is the removal of what was known as the "likely limb", leaving only intent as the threshold for prosecutions under the offence. It remains our clear view that intent by itself is not enough, but rather than seeking to reinstate the likely limb, we have decided to introduce an additional test of subjective recklessness, so for a prosecution to succeed, it would be necessary to prove either that someone intended to stir up hatred, or that they were aware that their actions or words would stir up religious hatred, yet they continued. No one could be caught out inadvertently, as some have feared.
"is a sensible test, and one with which juries and judges are enormously familiar."—[Official Report, Standing Committee E,
In the same debate, Lynne Featherstone said:
"I understand that the law uses recklessness as a benchmark to judge whether the perpetrator knew what they were doing and what the likely consequences of it would be, but proceeded to do it anyway."—[Official Report, Standing Committee E,
I therefore hope that the addition of a recklessness test will provide further common ground.
It will come as no surprise to the Minister to learn that if the choice is between a subjective recklessness test and the "likely limb", I prefer the former, because the latter is even worse than the former. But as he knows from our discussions, such a test would be appropriate only where the offence is confined to threatening behaviour; even then, that in itself would be a contentious matter. Once the Government reintroduce the notion that the offence can be committed through abusive or insulting language or behaviour, any form of recklessness—whether subjective or objective—becomes completely inappropriate.
The hon. Gentleman will make his own mind up on this issue. I merely point out that the addition of the recklessness test, which was informed by his own contribution in Committee, is a move forward from the previous position and marks a very constructive step forward.
My hon. Friend brings us back to the very important issue of the Attorney-General's role. Of course, if there is a complaint the police must investigate it, and if there is evidence, they share it with the Crown Prosecution Service. It is at that stage that the Attorney-General has personally to sanction any prosecution. That is a further hurdle in respect of this offence that ought to give people additional confidence.
The question of recklessness is, in truth, the most important part of this debate. It is also one reason why our discussion of proposed new section 29K and the "unless" clause was interrupted so often. The "unless" clause introduces the question of recklessness and with great respect to the Minister, recklessness is not knowing that one's actions would stir up religious hatred; it is knowing that one's actions are likely to stir up religious hatred. There is a considerable difference between the two, and on that basis I bring the Minister back to an earlier, helpful intervention. The example was given of the following statement: "Mohammed's marriage to a six-year-old was immoral, and a call for the right to marry children is to be condemned as immoral." How could such a statement not be caught by the recklessness test, given that the person saying it must perceive that their comments are at least likely to stir up religious hatred?
I make the point to my hon. and learned Friend that the precise context in which those words are uttered is the key determinant of whether or not an offence would be committed. Clearly, the same words may be used by different people in different contexts. In one case they may amount to an offence being committed, whereas in another they do not.
He was giving his own honest view, based on his religious belief. He would certainly not have committed an offence in the context in which he said it and the manner in which he said it, because his intention—[Interruption.] Mr. Deputy Speaker, if hon. Members want to intervene, perhaps they will at least listen to my response. In the context in which Sir Iqbal Sacranie made the remark, he certainly did not intend to stir up religious hatred. However, Mr. Howarth points to something which I know is of concern to hon. Members in all parts of the House and elsewhere—that is, the way in which these matters are reported and investigated. One extremely important outcome of the Bill once it is enacted will be the drafting of the guidance for the police in their investigation of the offence, and so on.
"readily admitted that the 'free speech' clause in the Government's amendment 'has no legal effect'. That is because the proviso at the end of Clause 29K(1) is entirely circular. In practice it means: 'You have not committed an offence unless you have committed an offence'."
Would the Minister care to comment on that view?
The point of putting the freedom of expression amendment into the Bill is this: I have always argued that the Bill as originally drafted would not have caught the comedians, the serious commentators or the people who engage in vibrant debate and discussion about religion, but hon. Members on both sides, including some of my hon. Friends—my hon. Friend Dr. Wright was foremost among them—said that it was not enough to have the word of a Minister on the Floor of the House and his interpretation of these matters. So we make it clear on the face of the Bill that freedom of expression is permitted and will continue, as it should in a free and open society.
I am grateful to the Minister. He is being very generous. The difficulty that many of us have had throughout the passage of the Bill is that whatever sane and sensible comments may be made from the Dispatch Box by a Minister, and whatever sane and sensible decision may be taken by the Attorney-General in bringing a prosecution or by a court in interpreting the facts before a trial, there will be complaints, which will be investigated by the police. The Minister says that he will give guidance to the police, and I am sure he will. The problem is that that may well be the sort of guidance that has allowed over 35,000 people to be stopped and searched under section 44 of the Terrorism Act 2000, with only 455 arrests. Such guidance will give no comfort to people who may be affected by the Bill.
I have made the commitment, and I regard it as a personal responsibility to make sure that once the Bill is enacted, the way that the guidance is drafted—
Thank you, Mr. Deputy Speaker. I will take one further intervention from my hon. Friend Mark Fisher, once I have answered Mr. Heath. I regard it as a personal responsibility to make sure that once the Bill is enacted, the guidelines are drawn up properly in consultation with outside organisations, including faith organisations, and those who have mounted the most massive campaign against the Bill. I have no problem with that. I want to engage with them as we draw up the guidance, so that we get it absolutely right and ensure confidence in the way that the Bill will be policed. I shall take one further intervention and then I shall press on.
Will the Minister return to what he was saying about the word, "guidance"? Nobody doubts his personal good intentions in what he says from the Dispatch Box, but we cannot legislate on the basis of guidance that may or may not appear. We are passing laws that will criminalise people by giving them a seven-year sentence. We cannot accept that guidance will get us out of a hole that we are liable to dig for ourselves.
I have some sympathy with my hon. Friend. Of course we would want guidance to be available as soon as possible within the process. However, given that we are debating Lords amendments, Government amendments and other amendments, it is not yet clear what legislation will ultimately be enacted. How could we publish guidance about legislation that is not yet determined? As part of the commitment that I have made, I would of course be as open as possible with the House in the way that the guidance is drawn up and involve people as far as possible.
I am going to make some further headway. It is important that I do so to give other hon. Members ample opportunity to contribute to the debate.
I should make it clear that actual evidence that hatred had been stirred up is not required for the offence to be made out. That is reflected in section 27(2A) in part 3 of the Public Order Act 1986 and section 29L(3) in new part 3A. I note that Opposition Members have tabled an amendment that would remove that provision from our proposed wording. However, it seems self-evident, given that the offences that we propose are based on intent or recklessness, that the consequence of such activity does not have to be realised for the offence to be committed. It would be nonsensical if one had to produce someone in court who said that they had been stirred up to hatred in order for the offence to be proved.
I come now to the area that has probably been the source of most concern, which in view of all the comments that have been made means that we could be in for an interesting few minutes—the whole issue of freedom of expression. I stand by the reassurances that I have previously given to the House. I still believe that the Bill as originally drafted would not have prevented anyone from telling jokes, preaching and teaching or engaging in robust discussion about religion or belief. However, I promised, particularly in response to my hon. Friend Dr. Wright and others, that if suitable wording could be found I would be in favour of a clear statement in the Bill. Proposed section 29K of new part 3A contains such a statement and makes it clear that discussion, debate, criticism, expression of antipathy, abuse, insult, ridicule or attempts to convert people from one faith to another will not be covered by the Bill unless the requirements of the offences as regards intent or recklessness are satisfied. It also makes it crystal clear—
If I can just finish this point, I will gladly take further interventions.
It also makes it crystal clear that the offences are concerned with the stirring up of hatred against people, not religious belief itself. We believe that that provides the reassurance that many have been seeking. Indeed, Lord Lester, speaking about the way forward proposed by the Government during Third Reading in the other place, said that this form of declaratory statement would be
"a unique addition to the criminal code".—[Hansard, House of Lords, 24 January 2006; Vol. 677, c. 1075.]
The Under-Secretary has been generous in giving way. I want to ask specifically about conversion to another faith. I have several good Islamic friends, and one must understand that attempts to convert anybody from Islam to another faith are deeply offensive to Muslims. Were I or any other Christian to attempt to convert someone, we would commit an offence that is punishable under, for example, all four branches of the Sunni sharia, by death in the case of a male apostate. It is a serious offence if someone in an Islamic country tries to convert somebody from Islam. It is also a serious offence for Islamic people to stand by and listen to someone trying to convert another from Islam. How can that possibly not fulfil the Under-Secretary's criteria?
I understand that the hon. Gentleman feels strongly about those matters—he has expressed those opinions previously. I emphasise that people may use offensive language that may make others feel offended, but if they do not intend to stir up hatred and they are not reckless about their behaviour and words, no offence is committed. We are making it clear on the face of the Bill that robust expression, including an attempt to convert people to another faith, will be permitted.
My Friend is reintroducing the concept of insulting and abusive behaviour. I refer him to press stories about the huge controversy that is raging in Denmark, where cartoons of the Prophet Mohammed have been published in a newspaper. I shall give him two examples and I want him to tell me whether the cartoons would be banned under the Bill. The first depicts Mohammed wearing a bomb-shaped turban and the second has him telling dead suicide bombers that he has run out of virgins with which to reward them. Would those cartoons be caught by the measure?
The straightforward answer is that, if there was an intention to stir up hatred—[Hon. Members: "Oh."] It is the factual answer to the question. If there was an intention to stir up hatred or someone was reckless about the impact of their behaviour—
Someone who was intent on stirring up hatred could use a quotation from the Koran or the Bible. In that case, the words could be caught. However, if they were used as an expression of faith or as part of a debate about faith, they would not.
No one doubts the Under-Secretary's good intentions. However, does he realise that, notwithstanding the Bill's legal language, ordinary religious people might be inhibited from engaging in traditional religious disputation for fear of being caught in the Bill's ambit? That is a genuine danger.
I do not believe that they should or would be caught. However, I accept that I have a responsibility, in drawing up the guidance for the way in which the measure is to be enacted, to ensure that people have confidence and know what they can and cannot do. The ordinary practice of religion, even in an outward-going manner and using vivid language, should be permitted.
Is it not obvious, from the Under-Secretary's difficulties on the "Today" programme this morning and in the House this afternoon, that specific examples cause him immense difficulty in explaining how the Bill would catch any case that should be caught but is not covered by existing legislation? Why is the Bill being introduced? Is it because the Government would have liked several cases to be brought to court but that could not happen? If so, how many such cases have there been? If the number is significant, why does the Under-Secretary find it so difficult to give examples that people find acceptable?
Over a period of time, we have received representations from the police and religious leaders that we take seriously. I emphasise that current legislation on incitement to religious hatred protects Jews and Sikhs. We have always sought to ensure that there is parity in the law so those who follow other faiths—including Christians, Hindus, Muslims and people of no faith at all—are also covered.
The Conservatives need to decide whether the proposals would have no effect at all, or whether they would affect a vast number of people. They cannot have it both ways. I offer the House the example—I have known several concrete examples such as this—of a person who says, "All Muslims are, by definition, terrorists." Such statements have led the organisation Christian Voice to urge that British-born Muslims should be encouraged to leave the country, which is a policy adopted only by the British National party. Does my hon. Friend not agree that people of any faith in Britain deserve protection from this kind of mass abuse?
I agree strongly with my hon. Friend that people of all faiths and none should have equal protection under the law, and that is what we are seeking to provide.
An amendment has been tabled that would remove intent and recklessness from the freedom of expression clause. That would create a dangerous loophole that could, for example, allow someone to use abusive words about religious practices with the intention of stirring up hatred against people, without being caught by the legislation. We want to make it clear that, in a free and open society, robust discussion and debate must be allowed, but no one should be able to escape prosecution if they intend to stir up hatred against people.
Possibly in a moment. I want to make some further progress.
I shall turn to the issue of "threatening, abusive and insulting". The Government have made it clear throughout that to have only "threatening" as the threshold for the offence would not capture the type of behaviour that we are seeking to outlaw. We have of course taken a serious look at our position on this issue, particularly in the light of the deep concerns expressed in the other place. However, our clear conclusion is that nothing less than the reinstatement of "abusive and insulting" will make the offence viable.
The racial offence has contained the words "threatening, abusive and insulting" for 20 years without creating any difficulty of interpretation. It is, for instance, an offence to use abusive and insulting words or behaviour to stir up hatred against Sikhs, and it would simply not be right for there to be a lower level of protection for Muslims, Christians and members of other faith groups.
I shall give way shortly, but I want to make progress on this point. The hon. Gentleman can rest assured that he will have an opportunity to intervene on me before I finish.
Lord Lester made it clear in his speech on Third Reading in the other place that reinstating "abusive and insulting" would ensure that the offence was compatible with other public order legislation. The term "threatening, abusive and insulting" is an established legal concept that the courts are more than familiar with interpreting. To exclude any element of it would leave the courts unclear about Parliament's intentions. What is more, the words "abusive and insulting" are included in the freedom of expression clause relating to religion and religious practices. We have therefore made it clear that the terms used in relation to the offence relate to the stirring up of hatred against people, not against belief.
I am grateful to the Minister for giving way; he has been extremely generous. He will know that I am a devotee of parliamentary scrutiny, and, like Mark Fisher, I am very concerned about the promise of guidance, which the House will not have the opportunity to scrutinise, being produced later, in contrast to provisions in the Bill or in secondary legislation that we could scrutinise before the Bill's passage. Given that there is no question of a requirement for great investigation, research or analysis, will the Minister tell the House what he will learn later to enable him and his officials to produce the guidance after the passage of the Bill that he cannot furnish us with now?
May I take the Minister back to the question involving "insulting"? He says—I think it is the Government's position—that "insulting" will not matter because there has to be an intention to stir up hatred against the person on the basis of religion, but how will we distinguish the insult, which might be made recklessly against the individual practitioner, when someone is seeking legitimately to incite hatred against the religious practice? That is the central issue that the Government must grapple with. I have to tell the Minister that, at the moment, he seems completely to have failed to do that.
Again, the hon. Gentleman will have his own opinions, but the concept of "threatening, abusive and insulting" is understood and interpreted by the courts. It would be bizarre in the extreme if for this offence, and this offence only, we referred only to threatening behaviour and did not use the words "abusive and insulting". What would the courts make of that in relation to this legislation and, I might say, all other public order legislation?
I thank the Minister for giving way again. He keeps referring to the guidance as a reassurance to the House, but Ministers come and go, and guidance can change within the constraints of what Parliament has set down in legislation. Does he understand that the concern here in the House is to ensure that the legislation is as tightly drawn as possible so that no guidance can lead to people being self-censored or restricted in how they can make their comments?
I return to a comment made by my right hon. Friend the Home Secretary when he introduced the Bill on Second Reading. He remarked then that the legislation is narrowly focused. I would argue that, as we consider the amendments, we have a Bill that is still more narrowly focused. I am on record as saying on several occasions this afternoon that I regard it as a personal responsibility to ensure that the guidance reflects the legislation that we pass. There is a wider issue of public confidence, and it is important that we retain the public confidence in relation to this legislation as we move forward.
I thank the Minister for giving way. When the BBC broadcast the scandalous and disgusting "Jerry Springer The Opera", Christians right across the United Kingdom were understandably and obviously outraged. If there ever was a repeat of such a production, would the legislation cover it with respect to the offence given to evangelical Christians?
No, this offence would not be relevant to the particular instance that the hon. Gentleman cites. The Jerry Springer example would not be covered by the legislation. [Hon. Members: "Why not?"] Well, it is a rather interesting dichotomy that Opposition Members pose for us. I shall give way to my hon. Friend Mr. Reed and then to my right hon. Friend Mr. Denham.
I am grateful to my hon. Friend, who is being generous in giving way to Members on both sides of the House. I have expressed in discussions with him concerns over some of the wording and I accept some things that he has been taking forward today. In particular, he has just specifically referred to the fact that existing legislation extends to Sikhs and Jews. What assessment has he made of some criticism of this Bill in relation to the impact that wording such as much of that to which he has just referred has had on those communities and the potential for people to discuss things freely?
As a Christian, I would like to criticise other religions and I believe that the Bill will not prevent me from doing so. Has the Minister made any assessment over the period in which that legislation has been in place of the removal of freedom to discuss those religions? Specifically, what assessment follows for the other religions that will be included here—for example, the Christian and Muslim faiths?
The assessment from both the Jewish community and the Sikh community is that the incitement to racial hatred legislation has been beneficial. That gives us confidence to extend that cover to people of all faiths and none.
While the guidance is important in terms of avoiding frivolous complaints and pointless investigations, the Minister does need to rely on it to support the Bill. Is it not the case that every single piece of legislation enacted by this Parliament to deal with issues relating to discrimination and incitement to hatred has confronted entirely the same debate that we are hearing this afternoon? We will have to rely on the judgment of the court and the common sense of the jury in listening to the evidence and reaching a conclusion. He is right in pursuing the legislation, as we can rely on the legislation drafted and the common sense of the courts to distinguish between those matters that should not be pursued and those that should.
Can I bring the Minister back to the issue of recklessness and the Danish cartoons? Should the cartoons of the Prophet Mohammed or similar be deemed to be abusive or threatening and their publication reckless, would a warrant for the arrest of the publisher be issued if they were published in a Scottish newspaper distributed in England? If so—this is a very serious question—why do the Government's amendments not include the Lords amendment that would allow a search warrant to be issued in Scotland to search for publications that would be placed in the court thereafter?
The legislation that we are discussing does not apply to Scotland, and several amendments have had to be made because of that technical issue. Members on both sides of the House have posed various scenarios in the course of this debate and others. Ultimately, it will not be for a Minister to interpret whether, in specific circumstances, an offence has been committed. It will be for the police to investigate and for the Crown Prosecution Service to consider the evidence, and reference will be made to the Attorney-General to consider whether a prosecution can take place.
The amendments contain some minor consequential changes.
No, not at the moment.
We are also seeking to amend the likely limb of the racial hatred offence along the lines originally proposed in the Bill. Given that the provision was only ever intended to make clear that it must be likely rather than proven that material is likely to be seen by someone in whom hatred is likely to be stirred up, and that it is now restricted to the racial offence only, I hope that Members on both sides of the House will accept the proposition.
The Government have made an honest attempt to find common ground with those who have been critical of us. The amendments provide reassurance and the means to introduce a measure that would be one more weapon in the armoury against those extremists who peddle hatred. I commend them to the House.
The Bill has had a long passage through Parliament and, in its later stages, after the Lords substantially amended it, the Government made a genuine attempt to see whether a compromise could be achieved. I would not wish this moment to pass without putting on record my thanks to the Home Secretary and the Minister for the spirit in which those discussions took place. They were constructive, and a credit to all the parties who participated, but ultimately that compromise has proved elusive.
The reason for that is that the Government appear to have got themselves off to a completely wrong start. Through their decision, which was due, I think, to the pressure of various interest groups, to offer an identical Bill in relation to incitement to religious hatred as in relation to incitement to racial hatred, they got completely tangled up, because, in fact, the two issues are entirely different. Race is immutable in its characteristics. Religion, however, is a matter of belief in exactly the same way as politics and political views. The attempt to run the two together is the main reason why the Government got themselves into such a mess.
The House of Lords made a valiant effort to get the Government out of their mess. The Bill that it returned to us might contain some small details that could do with attention—the Minister mentioned the extent to which it might apply to Scotland: he does not want that—but its architecture is probably the best that could be on offer. Its key components reduce the offence to a narrow scope and concentrate on the issue of threatening behaviour, which I suspect every Member would agree is unacceptable in any discourse. The trouble is that the Government seek to reverse that. They have told the House that they are paying attention to what the House of Lords has done, but the end product of the Government's amendments is jolly close to the original Bill.
The hon. Gentleman has attempted to make a distinction between incitement to hatred on racial grounds and incitement to hatred on religious grounds, saying that we cannot change our race but we can change our religion. Does he not accept that in our society it is unreasonable that people should be so afraid that they feel the need to change their religion in order to escape the hatred incited against them? Are they not entitled to the same protection that they receive on the basis of their racial group?
I do not think that there are people in this country who feel obliged to change their religion because of fear. The problem that we face in this country is that we are on a cusp in relation to the question of religious tolerance and tolerance of plurality and diversity. The decisions that we make this evening will be of great importance over the next decade, influencing the direction in which we proceed.
While the hon. Gentleman is advising the Government on various approaches that might have resolved some of the problems, may I ask his opinion about a totally different approach? A level playing field could be created by abolition of the law of blasphemy. Civil law can be relied on to deal with such matters as public order and race; we have robust laws in many other contexts. Would we not have secured a much more straightforward position by abolishing the blasphemy law, and avoided many of the difficult issues that we are discussing now?
The law of blasphemy is entirely obsolete. I voted for its removal when the opportunity presented itself to the House. I regret that we were not allowed to consider it in the context of this Bill, but we were told that that would be procedurally impossible. I should have been much happier if the Bill had included a repeal of that law.
Does my hon. Friend accept the general proposition that the Bill creates problems that it should be seeking to address? It sets faith against faith, or at least has the potential to do so. It will give weapons to people who wish to attack Christianity, which—whether Labour Members like it or not—is still the established religion of this country.
I think that the problem with the Bill is that it will give a weapon to every malevolent who wishes to browbeat other groups that might criticise him. Many people would disagree with the remarks made by Sir Iqbal Sacranie, but they were clearly honestly made and part of his belief. His fate in the past few weeks—the fact that he was left in a position of uncertainty for several days while police investigated his remarks—is, I am afraid, something of which we shall see a great deal when the Bill is on the statute book. The Bill will be a weapon in the hands of every extremist group, whether religious or secular, with which to browbeat its opponents. I must tell the Minister that I do not believe that any amount of guidance will cure that problem.
One of the reasons why Sir Iqbal Sacranie is so much in favour of the Bill is, no doubt, the letter that the Home Secretary sent to mosques at the time of the general election. It said that he merely wanted to give Muslims the protection enjoyed by Jews and Sikhs. I understand that right-thinking Muslims are concerned, but that is a complete misreading of existing legislation. The fact is that Jews and Sikhs are protected only by racial laws: there is no protection for the religions of Judaism and Sikhism.
My hon. Friend is right. I fear that many were misled about the impact of the Bill. I have received no representations from the Bill's supporters asking us to adopt a particular position. As the debate has progressed, an increasing awareness may have crept in that the Bill does not deliver what people expected, even those who supported it, and that, on top of that, as Sir Iqbal Sacranie has found in recent weeks, it has unintended consequences that may be rather unpleasant for those who hold religious beliefs.
Does my hon. Friend agree that there is concern that some politically correct chief police officers may be malevolent? It may be not religious groups but some chief police officers who seek out cases just to tick a new box.
One of the problems that I have discovered during my time in the House is that the moment one orthodoxy disappears, a new orthodoxy starts to rear its head. I have no doubt from incidents that I have seen in my own constituency, that I have heard about and that I have been written to about, that there is a danger of a new orthodoxy creeping in that prevents people from freely expressing their beliefs because the public good in some way requires it. Just as 150 years ago it was impossible to express one's beliefs on certain matters—certainly before the Catholic emancipation—so we are suddenly moving, after what may turn out, if we are not careful, to be a very brief window of true freedom, into a new orthodoxy. That worries me very much.
I suspect that Sir Iqbal was trying to be helpful in view of the fact that some people were calling for the death of Salman Rushdie, but it highlights the need for the House to send the clearest possible message that freedom of speech must be tolerated, that everyone in this country must accept that they may be insulted about their own beliefs, and that that is something we must put up with. The criminal law should prevent people from carrying out and inciting criminal acts, but it should not start to fetter the way in which people express their beliefs. That is the view that I take. I hope that hon. Members share my view, in which case they will support the line of the Opposition in the Lobby.
The hon. Gentleman speaks of freedom of speech. Does he think that extremist organisations such as those that operate in my constituency of Burnley, which he visited during the election campaign, should have the right to say that Muslim groups should be attacked because of their religion, not because of their race?
My hon. Friend is making an excellent defence of our right to free speech. Is he, like me, receiving a lot of letters and e-mails from law-abiding, mild-mannered Christians in his constituency who are genuinely afraid that the Bill is out to get them and will restrict their right to speak up for their faith and normal worship? The Minister is stirring up a problem where there was not one.
Many people are worried, and the Bill's opaque nature is one of the things that worry them most. I will come on to that in a moment, but the fact that the Minister has to say that he will issue guidance highlights the fact that this is catch-all legislation. He is saying, "You need not worry too much about that because the Attorney-General and the prosecutors will ensure that only those cases that need prosecuting are prosecuted." However, that leads to a terrible chilling factor among those who wish to express their opinions, whether it be comedians who do not know the limit to which they can go, or those who wish to preach their own beliefs and at the same time, inevitably, to criticise the beliefs of others. They do not know at what point their actions can translate into the reckless insult of another, at which point they will be prosecuted and condemned. That is the nub of the matter.
Does my hon. Friend agree that there are some parallels with the compensation culture? Vagueness and uncertainty are forcing people into behaviour that is completely mad when it is considered objectively. The Bill is uncertain. Does he agree that the fear of prosecution is likely to lead people into behaving absurdly?
I have no doubt that there will be absurd consequences. For example, I have no doubt that those who really do wish to stir up hatred will make speeches in which, although they use horrific language to criticise the beliefs and practices of other faiths, their every fifth phrase will be, "But of course I exempt the practitioners." That will have exactly the same corrosive impact. It will cause exactly the same damage but they will be able to say, "I am completely in the clear." Therefore, the mischief cuts in every direction. Far from bringing about the quietening of discourse, which is what I think the Minister intends, that will be exploited in every possible way. One will find that it will be the innocent who will fall foul of the law and will be left most defenceless.
Can my hon. Friend give me an example of a single faith that does not have any practitioners? He said that people would say that they exempt practitioners. I cannot imagine how they could do so because practitioners and faith go together—one cannot criticise one without criticising the other.
My hon. Friend is right. The problem is that all beliefs have their adherents, unless the belief is dead and wrong. In those circumstances, attacking the belief must undermine the status of the adherent. That is the Bill's most fundamental flaw.
I accept entirely that the hon. Gentleman has a genuine commitment to civil liberties and that he argues with complete sincerity, but does he accept that Labour Members who support the measure have no less a commitment to free speech, and that we were warned constantly that, if we passed race relations measures to ban racial discrimination, we would undermine the honourable tradition of free speech in this country? The critics were proved wrong. We are no less a free country than we were before those laws were passed. We may be making a mistake today. I accept that that is a possibility but the warnings that he and his colleagues are expressing may prove no more right than those of Conservative Members so many years ago.
I am sure that the hon. Gentleman is sincere. I am sure that the Government are sincere in their intentions. I believe sincerely that the Government and the hon. Gentleman are profoundly mistaken in their analysis of the way in which the Bill will work. As I said earlier, part of the reason is the failure to carry out a rigorous exercise to separate race and religion. The fact that those two things have been conflated is at the heart of the Government's misunderstanding of the issue. Politics and religion are much closer than religion and race, and no one in the House would argue that we should have a Bill of this kind to protect people's political views, although, having said that, that might be tempting providence.
May I move on as other hon. Members want to speak in the debate?
I turn to the matters that have been raised by the Minister. He sought to provide reassurance that new paragraph 29K will provide a crucial protection to debate in respect of freedom of expression. I disagree. First, the Lords amended the Bill to protect freedom of speech. I think that their version is better than what the Government propose, as it makes specific reference to "adherents". Interestingly, the Government chose not to include that in their amendments but, that apart, there is not a great deal between the two versions.
However, paragraph 29K(2) of the Government's proposed new schedule—the "avoidance of doubt" provision—is a different matter. I am aware of its origin, and I am sure that Lord Lester had good intentions, but the more I read it the more I am convinced that it is not the worth the paper it is written on. It is an entirely circular argument, whose consequence may be that almost every prosecution will spiral down into oblivion. However, it will not prevent the police from knocking on people's doors and saying, "You'd better be careful. We heard what you had to say in your preaching hall last week and we didn't like it."
It is obvious that people who indulge in
"criticising, expressing antipathy towards, abusing, insulting or ridiculing . . . any religion, religious belief or religious practice" will lay themselves open to the charge that they intend to stir up religious hatred against individuals. The Government place great emphasis on that distinction, but I do not think that it is one that, logically, can be made.
Does my hon. Friend agree that the use of the word "reckless" ignores the fact that almost every religion, with the possible exception of Judaism, is proselytising by nature? Therefore, are not missionaries and others who set out to persuade people about their faith in one sense reckless, as they often disregard the consequences of what they are doing because their faith is so great? Will not that cause the police and others to bully them and lean on them to make them stop proselytising, with the result that there will be great division in society?
There is no doubt that people who preach Islam, the gospels or any other faith embark on a process of confronting people who may be unconvinced. In some cases, they encounter physical or verbal abuse, and the process can be vigorous and cause disturbance. The criminal law exists to keep that disturbance within reasonable bounds. I accept that we need those laws, but the Government want to go further and to produce what is in effect a straitjacket for such encounters. In my view, that is wholly misplaced.
Many people believe that the Bill will lead to the persecution of people who preach the simple gospel of Jesus Christ. Does the hon. Gentleman agree that the House is right to rein in this Administration in that respect?
My fear is that the Bill will cause people of all faiths—and none—increasingly to be constrained in their ability to follow their consciences, even though they live within the criminal law. That is the mischief in the Bill, and it applies to every religion, and to none.
I grew up in Northern Ireland. Does the hon. Gentleman agree that the consequence of the Bill could be the exact antithesis of what the Government intend? Debates between people of different religions can often be robust and offensive, but they can also produce the sort of accord that is leading to a more peaceful and settled environment in Northern Ireland. If the Bill goes through, there is a good chance that it will cause division between religions, rather than encouraging the environment for debate that can settle differences.
Will my hon. Friend consider a slightly different angle on the problems that the Bill is likely to create? If a group of people following a particular form of undesirable activity set themselves up as a cult or religion, could they not use the Bill to claim protection from criticism? It is gradually dawning on moderate Muslims just how restrictive the Bill could be. For instance, a group or people with bizarre sexual preferences might say that those practices were part of their religion. [Hon. Members: "Like the Liberal Democrats."] I was not referring to the Liberal Democrats. Could someone criticise that group of people without falling into the trap that the Government are blunderingly setting out for the House?
My hon. Friend makes a good point. Earlier in the Bill's passage through the House, we debated the real possibility that people of extreme political views could claim that their views were part of their articles of faith. In that event, they could use that to prevent criticism of their beliefs. I am aware that the definition of religion can be brought before a court, but religions can be created quite easily. They are not confined to the principal, monotheistic faiths.
The hon. Gentleman will appreciate that only rarely do I allow my faith into the realm of politics. I am a Christian, and I would be very worried if I believed that the Bill would restrict my right, or the right of other Christians, freely to espouse our belief system. However, I accept that there have to be restrictions on how far I go in expressing my views. I trust the judiciary to make sensible and correct decisions about any statements that I might make. That is what they have done with legislation on sexism and racism. Would the hon. Gentleman, as a lawyer, put his faith in the judiciary to make those correct and sensible decisions?
The starting point is the quality of the legislation that we enact. Unfortunately, the Bill is of very poor quality. It is uncertain in scope, it requires guidance to define it, and its
"Savings for discussion, debate and criticism" come very close to gobbledegook, as we have discussed. The meaning of those provisions will be argued endlessly in court. Lawyers will have a field day with them, and make a lot of money out of them—as they usually do when bad legislation is enacted.
My view is that the Bill is unnecessary. The Lords have done their best to make it as good as it can be and, although I recognise that the Government want to have the Bill on the statute book, we should stick with what the Lords have done.
In conclusion, I turn to the provisions concerning the savings for discussion and debate. The Government insist that it is somehow possible to split belief and believer. As I said earlier, that is not practical, and I shall read a short excerpt from a letter written by Rowan Atkinson in December. He put the matter so tellingly that I cannot improve on it. He wrote:
"As you may know, I have always been sceptical of the benefits of separating the concepts of beliefs and believers in that I have never believed that you can attack one without attacking the other . . . One should try to look at it from a comedian's or dramatist's point of view. A comedian is unlikely to attack a religion by pure reference to religious practices or beliefs: he is going to attack it by reference to the people who believe or follow those practices. All jokes and drama have to characterise a situation in human form. Knowing that there is a law that states that it is a crime to "threaten, abuse or insult a group of people defined by their religion" remains, I am afraid to say, very intimidating."
That is the simple truth of how the Bill will be constructed if the Government amendments are accepted. It is intimidating. What is permissible, and what is not, is completely unclear. Most people get to know about beliefs or practices that they may not like or approve of through the medium of other people who practise them. To those who believe that the Government's proposals will constitute a safeguard in that respect, I say simply that they really are not worth the paper that they are written on. I accept that the Bill is well intentioned, but it is not in any way capable of providing protection.
We have heard much concern from people of religion, but those on the left, as it were, also have a concern. If I say, as I might well do outside this House, that we should hate Christian fundamentalist homophobic bigots—contentious, but I should be allowed to say it—it is clearly intended to stir up hatred against people on the basis of their religious beliefs, and I would be prosecuted. Even if I restricted my remarks to bigotry, which I should not have to do, I would be reckless as to whether other people might blame the bigots for the bigotry, as we blame Nazis for Nazism or communists for communism. The worry is that fair, free speech would be caught under the Bill, and the Minister has never given me any reassurance on that point.
The hon. Gentleman is right. I hope that I made it clear earlier that this is not just about protecting people with religious beliefs but people with all beliefs. They are entitled to their say. Those of us who have beliefs—like Huw Irranca-Davies, I am a Christian and a practising member of the Church of England—just have to lump it when people say things that we find offensive. We have grown used to doing so in the period of greater tolerance that developed in the last century, and it worries me that the Government are asking us to take a step backwards on the issue, instead of saying, "Those are our values, and people who live in this country have jolly well got to subscribe to them." Without that, we will move towards the dominance of whichever group makes the loudest noise, is the most insistent and threatens other people—in subtle ways—the most. That is profoundly undesirable.
My next issue is what constitutes "abusive and insulting". We have touched on the issue already, so I may not need to say too much about it. The fact is that abusive and insulting words and behaviour are different from threatening words and behaviour. If the word "insulting" is put back in the Bill, even remarks that to an ordinary person might appear innocuous but are deeply wounding to a person with a particular religion or belief would be caught. A person could engage in a moderate discourse that nevertheless caused great insult—the examples given earlier included calling into question the divinity of Christ or calling into question whether the Prophet Mohammed's revelations were divinely inspired. Another example is the play "Beshti", which was profoundly insulting to Sikhs. It was insulting in its concepts and its implications about the behaviour of priests and elders in gurdwaras, and it is that sort of play that would, logically, be caught by this legislation, even if the Minister thinks that any guidelines that might be enacted would provide protection. "Beshti" is a classic example and that is why the House should not allow the words "abusive and insulting" back into the Bill. By keeping the word "threatening", we latch on to the very things that were identified by the Minister, such as the Norwood case and the poster with the twin towers that said "Muslims out of Britain". That is threatening. The examples that the Minister gave of people attacking women wearing the hijab or calling for people to be thrown out are threatening and would not require the words "abusive and insulting" to be added.
The hon. Gentleman suggests that "Beshti" is a classic example of the sort of play that would be caught under the legislation. However, the existing law against incitement to racial hatred applies to the Sikh faith, so why were the producers of the play not prosecuted? Does not that provide the reassurance that future plays about the Islamic faith would also not be caught under the Bill?
I disagree with the hon. Gentleman's analysis. The racial hatred laws do not exist to protect the beliefs, but to protect the racial and ethnic identity of the believer. Hypothetically, "Beshti" could have come under the existing racial hatred laws, but in practical terms it would never have done so. Once we introduce religion into the matter, it is entirely possible that it would do so.
The Government intend that the Bill will not restrict free speech and will deter extremists. However, does my hon. Friend agree that the Bill will follow the same route as every piece of political correctness? Ordinary, decent people will be afraid to speak their minds for fear of breaking the law. Resentment will build up and drive them into the hands of the extremists—nasty groups such as the BNP—because they feel that they have no other way of expressing their reasonable views. People will be encouraged towards the extremists, not deterred from them.
I agree with my hon. Friend that a far better weapon for those of us who wish to see moderation in discourse is ridicule of those who do not, because ridicule is a very powerful weapon. Societal pressure on people to behave in ways that are not offensive to others is a much better course than trying to impose criminal sanctions on people. From that point of view, my hon. Friend is right. There is a danger that some people will become martyrs and resentment will build up, which are entirely undesirable.
Does not the Bill create a new danger that people of a certain religious faith will sit in judgment as jurors over those from another religious faith in a situation in which the former's religious faith might call on them to put religious law before the law of the land? Would not that create chaos in the courts?
I do not agree with my hon. Friend on that point. I hope that the legal system is sufficiently robust to deal with such attacks. However, there are clear signs, as we see around Europe, that groups—and not just Muslims—are seeking to invoke special privileges and rights, or demanding consideration and requiring other people to accept that. It is—and I can put it no other way—a growing fad. Therefore, it is all the more desirable that the House should restate clearly that that is not the way that we believe society should be conducted. If we made special concessions to various groups, it would not facilitate the exchange of ideas that underpins a multi-faith and multicultural society, but would reinforce difference and create the ghettos of the mind that are so inimical to our making sensible progress.
Does the hon. Gentleman agree that Christianity has become a target even before this legislation is enacted? For example, we are not allowed to put Christ on Christmas cards, because they should say "Season's Greetings" and we are not allowed to have nativity plays because other faiths might be offended.
As I said earlier, there is a tendency towards a new orthodoxy abroad, but the example the hon. Lady gives would not be the result of this Bill, whatever form it finally takes. I would prefer to keep my remarks on the subject of the Bill.
The issue of recklessness has been touched on and, indeed, it merges into the other two. The Government had a "likely limb" that went much too far, and they have made a concession by withdrawing it. However, while there might be some shred of justification in putting in a test of subjective recklessness if the Bill were confined to threatening behaviour, it would be utterly pernicious if the Government managed to add "insulting and abusive" behaviour. There is no way in which a person who seeks to criticise a faith can be sure that in the process he will not be held to have been reckless as to whether he was invoking hatred for the adherents of that faith. That is one of the fundamental flaws of the Bill and the only way to cure it is to take out recklessness. That leaves an offence of specific intent, which will be amply sufficient in most cases, and I hope that the Government and Members will see clearly that if the offence can be caused by recklessness the climate of uncertainty that will be created will be extremely damaging.
I am grateful to the hon. Gentleman for giving way to me again.
What is the attitude of the hon. Gentleman's party to the statement made by Nick Griffin, the leader of the British National party, filmed secretly by an undercover journalist and broadcast on national television, that he was advising his supporters to focus on religion rather than race? He made a statement; he was not telling them to go out and do anything. Is not that precisely the type of reckless activity that we are trying to avoid?
I hope that the hon. Lady will accept the fact that I do not intend to comment on a matter that is uniquely sub judice at present. It would not be proper of me to do so. I should be happy, outside the Chamber, to communicate my views to her, but I shall not do so here in any circumstances.
Before the hon. Gentleman leaves the question of recklessness, will he consider this point? Recklessness is in truth the curse of this legislation and if it were removed most Members would be able to accept the measure. The problem is not that the legislation is unclear, but that it is too blisteringly clear, in that the examples that have been given recently—the cartoons of the Prophet—would undoubtedly be caught under the recklessness provisions. It could not possibly be argued that those who produced them were not reckless as to the fact that some people were likely to have religious hatred stirred within them. Does not that underline the fact that whereas we have always inhibited our freedom of speech to deal with race and racial matters, for 300 years we have turned our face against protecting faith by legislation because we cannot protect faith without protecting bigotry?
I agree entirely with the hon. and learned Gentleman. I add only that it is precisely because we did not provide that protection that our society has been able to evolve as it has, towards something of which everyone in the House can be proud in terms of the maintenance of freedom, moderation and liberty, which are capable of being ruthlessly undermined by the proposals if we get the measure wrong.
Could not it be said that the Prophet Mohammed and Jesus Christ were so reckless in the way that they conducted themselves that they would have fallen foul of the legislation?
Indeed. When our Lord drove the moneychangers from the temple he would probably have been arrested under the public order Acts and served with an ASBO, but after that illustration I shall not try to look more closely into such issues. My hon. Friend is right: religious belief has sometimes been promoted in turbulent fashion, which is not to say that we should necessarily allow it to continue too turbulently but we should ensure that our historic traditions of robust discourse are maintained.
For those reasons, although there will be limited scope to vote, when the time comes we shall vote against the Government's motions to disagree with Lords amendments Nos. 2 and 4. We shall invite other Members to join us, and we very much hope that those who have considered and taken part in the debate will realise that we are not trying to cut off the Government's feet; it is simply that they have got it wrong.
It is for the House to send out a simple message. The Government can have their legislation. They can put it on the statute book in the form that the Lords have wisely altered and it can then go forward, but we should get away from the dead end on which we shall embark if we are not careful.
I speak as a declared and unashamed unbeliever. I have argued in this place for the repeal of the ridiculous blasphemy law, which goes far beyond what we are proposing today yet covers only the established Church. I have argued and voted in this place against the extension of religious schools and, where they exist, to require them to take pupils from other faiths and of no faith at all.
No, I want to continue so that other Members can speak.
I was brought up always to respect the religious beliefs, or unbeliefs, of others as part of a tolerant and understanding society. That is why I support what the Minister has been saying, accepting some of the improvements made in the House of Lords but rejecting some of their proposals that would be damaging.
I do not believe that anyone should be allowed to incite hatred against someone else because of that person's religion, partly because it is wrong in principle, but also because incitement has consequences. Incitement leads to people being abused and assaulted due to their religious belief. When I say that, I am told that if people are abused and assaulted action can be taken against the offenders and they can be prosecuted, but before a prosecution can take place someone has to suffer the spitting, abuse and assault. I want to prevent people from being assaulted and abused.
I do not believe that anyone—Rowan Atkinson or anyone else—needs the right to incite hatred against someone because of their religion. He has apparently said that we should look at things from the point of view of the comedian. Other people in the world are just as important as comedians. Muslim women who have been assaulted, abused and spat on for wearing the hijab are as important to me as Rowan Atkinson, for all his sense of humour.
I do not believe that anyone's conscience, whatever their religious belief, requires them to attack the religious belief of anyone else. Cannot they be satisfied with their own religion? Furthermore, people of religious belief have the right not to be incited against—if that is a proper piece of English. We have to give people the right to be protected against such incitement. The Government's proposals would make that incitement a crime and there would be two effects: first, reducing incitement would reduce the consequences of incitement, and secondly, and much more important, there would be a clear declaration in law that such incitement is wrong.
My hon. Friend Mr. Winnick was present many years ago when the House passed a law that made incitement to racial hatred an offence. As a consequence, there has been a great reduction in incitement to racial hatred. Loose, abusive and vile language against people of different races has been much reduced, because there was a demonstrable declaratory effect when that incitement was outlawed. To extend that principle to outlaw incitement to hatred of people due to their religious belief would have the same effect and we would have a better society. I see no reason why people who cleave to their religious belief—or people such as me who cleave to none and are proud of it—should be inhibited in saying what we think in promoting our beliefs. But no one needs the right—the right—to incite hatred against someone else because of their religious belief.
I shall attempt to emulate the brevity of Frank Dobson, but I am afraid that I would seek to follow little else in his speech. He still seems stuck in the same problem as the one that the Government have been stuck with throughout the proceedings on the Bill—trying to create some sort of equivalence between the treatment of people according to their race with that according to their religion. Those are very different aspects and they must be treated very differently.
I wish to associate myself with the remarks about the Minister made by Mr. Grieve. The debates have often been difficult and emotive, as we have heard today, and I want to place on the record my appreciation of the Minister for the fact that he has been unfailingly courteous to those who have opposed him throughout the proceedings on the Bill.
The Liberal Democrats invite the House not to agree with the Government's motions to disagree with the other place. The arguments about the Bill in its broadest sense have been well rehearsed, and I do not intend to repeat them. However, by saying that there will not be a huge number of prosecutions under the legislation, the Minister does not bring any great comfort to the House. I seem to recall that the same arguments were advanced with regard to demonstrations in Parliament square, but in excess of 28 people have been arrested on allegations of breaching that legislation merely a few months after it came into force. Such reassurance does not address our concern that there will be a fundamental chilling of the freedom of expression.
In our view, the Bill is very much improved by the amendments that have been made in the other place, and we very much regret that the Government again seek to change it in two ways. First, they want to expand the state of mind involved from merely making the crime one of intent by including recklessness. That is our most fundamental objection, and I will expand on that later. Secondly, the expansion to include conduct that is covered by abusive or insulting words or behaviour is also exceptionally worrying and very wrong. In fact, we find the combination of both those elements fundamentally obnoxious. If the crime were merely one of intent, I could probably live with the extension to include abusive and insulting behaviour.
My hon. Friend is something of a purist in these matters, but as a matter of pragmatism, I think that most of us could live with that. However, the extension to include recklessness, along with that to include abusive and insulting words and behaviour, causes me the greatest difficulty.
We questioned initially the need for the Bill, but I accept that the Government will get it. We have asked the Minister throughout the process what is the demonstrable need for the Bill, but he has never properly answered us. The Government must still justify the need to extend the offences in the way that they propose. What conduct will be caught by the Government's new proposed form of words that is not already caught by the form of words introduced by the Lords?
The question of recklessness lies at the heart of our debate today. In our submission, it represents a significant lowering of the threshold of what constitutes an offence under the Bill. Of course, recklessness is a well-known legal concept, but it is normally applied to crimes against property or the person, and it is normally quite easy to establish and apply without difficultly because there is usually an element of physical damage or injury. Expanding that concept to a speech offence, such as the one that we are debating, is dangerous in the extreme. To my mind, that gives rise to a number of questions about the proportionality of the Government's proposals.
Many hon. Members remained unconvinced that such proposals represent an appropriate way to frame terrorism legislation. Allowing recklessness to become the test in relation to encouraging terrorism under the Terrorism Bill, which the other place is currently considering, is still a matter of some controversy. Those Labour Members who engaged in that debate and had that concern should carefully consider whether it is appropriate to extend the application of recklessness to an offence whose importance must come somewhere further down the hierarchy. If the Government have their way, a citizen can fall foul of the law by being reckless about the consequence of using insulting language, and that is going too far for the Liberal Democrats.
When I was a law student, I was told by a tutor that a breach of the peace under Scots law was anything that two cops did not quite like the look of, and we are in danger of replicating that attitude in the offence that we are considering today. On other occasions, my hon. Friend Dr. Harris has used the example of the producer of a play who is warned by the police that if he proceeds in putting on the production, it is likely that he will incite racial hatred because the language or behaviour used will be insulting or abusive. Given that warning, it is difficult to understand how the producer of that play, if he proceeds, will not fall foul of the recklessness element of the Bill. If we go beyond constituting the offence merely by intent, the chilling effect on the producer in that circumstance is absolute and apparent.
Let us consider the chilling effect on the streets in, for example, the Green Lanes area of my constituency. Let us say, for example, that while a constituent was reading some words from the Bible or, indeed, the Koran, he was warned by a police officer that he risked offending the people who were listening. Is that not similar to someone who reads aloud without the intention of stirring up religious hatred? Is not that person putting himself within the remit of being reckless? If a listener's complaint is taken further, does he not risk at least being arrested, if not being convicted in court?
That is absolutely true, and it certainly applies as much to religion as to the example of the theatre producer that I have already offered to the House. Of course, the Government will say that there is the safeguard of the Attorney-General's intervention and so on. Again, that is highly unlikely to be of any great use when someone has been taken to the police station, questioned, arrested and perhaps spent a night in the cells. That is where the real chilling effect will be felt.
We will never be able to quantify the chilling effect, because the people who do not proceed because they have been warned that they could fall foul of the law will never be recorded anywhere. The people who are prepared to make a stand will become apparent, because they will go through the system and the statistics will be gathered. The real danger is for the people who heed the warnings, and they will be substantial in number.
Lowering the threshold to include recklessness will be counter-productive. Where little is needed to constitute an offence, one is almost inviting complaints to be made, either inter-faith or intra-faith, by different sects in a religion, one against the other. In that way, the protection of religious freedom that the Government seek to enshrine and encourage will be weakened.
By trying to frame the Bill in such a way, the Government are putting great reliance on the distinction between the belief and the believer. For example, they want to criminalise attacks on Christians, but not Christianity itself. That is exceptionally unrealistic. I think that most Christians—I am one—and especially fundamentalist Christians, will perceive an attack on their faith as an attack on themselves. At the very least, they will see that as insulting. Indeed, if the test is to be recklessness, it is difficult to envisage how such an attack could not be covered.
I wish to say a few words about the free expression rider. I am afraid that I do not draw great comfort from a measure that effectively says that conduct will not be an offence if it is an offence. It is worth reading into the record the terms of the rider that the Government are recommending:
"a person is not guilty of an offence under this Part of being reckless as to whether religious hatred would be stirred up if he is reckless as to whether hatred would be stirred up against a religion, religious belief or religious practice but is not also reckless as to whether hatred would be stirred up against a group of persons defined as mentioned in" proposed new section 29A of the Public Order Act 1986. The provision is there
"For the avoidance of doubt".
I now understand why the hon. Member for Beaconsfield was getting excited by the prospect of the litigation that would arise as a consequence of the measure. It might have been proposed for the avoidance of doubt, but as far as lawyers are concerned, it is certainly not for the avoidance of profit.
Stewart Hosie asked the Minister about the Bill's impact on Scotland. The Bill will, of course, apply only to England and Wales but, as he observed, it will be have impact on Scotland. I commend to the House an example cited by the Christian Institute. It obtained the opinion of one of Scotland's leading Queen's counsel, Herbert Kerrigan. He says:
"though it is correct to say that the Religious Hatred law will not directly apply to Scotland it is simplistic to say that it will have no effect on Scotland. In practical terms the law will affect Scotland and every institution in Scotland which is in any way involved in writing, publishing or broadcasting will have to obey it even though it is not part of Scots law. The law is being criticised in England because of its 'chilling' effect on religious debate and because it will inevitably lead to 'self censorship' and caution. It will certainly have those effects in Scotland also."
Is it not the that case not only will publishing and broadcasting in Scotland be censored, but broadcasts for the UK that emanate from London could change dramatically over the next few years, which would affect what people in Scotland heard and read?
Yes. I do not want to over-emphasise the point, but it shows the Bill's lack of cross-border workability. I wonder whether there has been any consultation with the Scottish Executive. Given the Bill's possible chilling effect and the need for propriety in the constitutional settlement, such contact should have been made, at the very least.
The Minister repeatedly referred to the guidance for the police that he will draft if the Bill is passed. Much as I respect him and have no doubt that he is a man who honours his word, I do not find that reassuring in any way. He offered the House his personal assurance. That is worth something, but I remind him that there is a reshuffle coming. If he were to be moved as part of that reshuffle, his successor need not feel bound by his personal, rather than official, assurance. In any event, Ministers who hold his post in the future might well feel differently about the matter due to different circumstances and a different climate. They could well provide alternative guidance to the police, but such guidance would never have to come to the House for ratification or debate.
Would not life be a lot simpler if we could consider some form of draft guidance? We could then at least determine the Bill's likely impact if it were ever to become law.
Such guidance would assist us by giving us a practical idea of what we would be subjecting the citizen to by passing the Bill, but it would be of limited use because guidance is not binding in any way and, as we know, draft guidance can be changed dramatically by the time that it is imposed. Hon. Members will never be given a proper and formal opportunity to debate the guidance.
Regardless of the guidance, is not the basic problem that the Government have failed to give a single example of something that is happening and needs to be caught by the Bill, but is not caught by existing race hate measures or public order offences? At the same time, we know that the Bill will have a chilling effect on people's ability to criticise religions, not least because of the recklessness provisions. The guidance is immaterial to that problem. The Minister has still not given such an example, although the House has asked for it on three occasions.
Is not the reason why the Minister cannot give examples the fact that there are few, if any, examples to give? The Government are caught on the hook because they know the Bill to be bad, but feel that they must go through with it simply because it was offered as an electoral bribe to a part of society.
There is perhaps some merit in the hon. Gentleman's suggestion, although I would hesitate to use the term "electoral bribe" because I fear that it might be unparliamentary. The Government rather oversold the proposal during the general election. It was suggested to some faith communities that they would be getting the equivalent to Christian blasphemy measures, but clearly the Bill was never intended to be such a thing.
I respect Dr. Harris greatly, but he was somewhat unfair on the Government, so I must put the record straight. He said that the Government could not cite a single example, but the Under-Secretary of State for the Home Department, Fiona Mactaggart, gave me an example. She said that a group in her constituency had been accused of using sex to recruit members and that someone had attacked it on that basis. She told me that the group would have been protected by the Bill. However, surely one should be allowed to attack groups—they are often such things as cults—that use sex to recruit members. That shows the problem with the Bill, as was pointed out earlier.
That sounds like an interesting example, but given recent events, it is not one that I intend to explore on the Floor of the House.
I know not of Slough, other than the references to it in Betjeman's poems.
The choice is clear. We can either accept the Minister's reassurances about guidance to come that will make everything clear, or we can do our jobs as parliamentarians by scrutinising the legislation before us. We cannot do both.
I will certainly be brief. On Report on
"reckless as to whether religious hatred would be stirred up".
Moreover, the provisions state that
"a person is not guilty of an offence under this Part of intending to stir up religious hatred if he intends to stir up hatred against a religion, religious belief or religious practice".
To a large extent, the Government have tried to meet the criticism of those of us who were concerned that Rowan Atkinson had a valid point. He may not be satisfied, as critics are generally not satisfied, but the Government have tried to tackle concerns, and they should be congratulated.
In our debate, as on previous occasions, the Government have repeatedly been asked to give examples. My hon. Friend Dr. Wright, for instance, wanted them to give examples of offences that are not covered by existing law and the Minister tried to explain the position.
To return to the core issue, why are the Government introducing the legislation? The cynical, simplistic view, certainly of the Opposition, is that it is a tactic to attract Muslim votes. That may be a crude way of putting it, but I do not believe that is the case. Neither do I believe that Muslims will vote Labour simply because of the measure. There is no evidence in the past 40 years that people of Jewish origin or people who practise the Jewish religion said that they would vote Labour because of legislation on incitement to race hatred. Indeed, if we look at the Jewish vote, we can see that it turned to Labour when the lower-middle class and the middle class proper started to vote Labour in 1997. I simply do not believe that the Muslim population will say, "Ah, the Government have passed a measure on the religious hatred. That's a good reason to vote Labour."
The Government are genuinely concerned, as has been pointed out by my hon. Friends today and on previous occasions, about people who are being victimised, spat on, looked on with contempt and spoken of in a certain way simply because they belong to the Muslim faith. That is the reason why they have acted, just as, more than 40 years ago, previous Labour Governments—not Conservative Governments—introduced the measures to which I referred and which were the subject of intense criticism and opposition by the Conservatives. Reference has been made to political correctness. If political correctness means in effect that people are protected in law against religious or racial abuse and so on, I am very much in favour of it. Whatever it has brought about—there are some distortions and exaggerations—it is better than the situation that existed before those laws were passed.
On examples, in a previous debate in the House on the subject, my hon. Friend Mr. Khan gave the example of the British National party, which advised its members to put posters in their windows. It knew that it could not get away with saying, "Jews out" or "Sikhs out", but it knew that it could say, "Muslims out". That is a good example. If the BNP is exploiting such a loophole, Members on both sides of the House should take every opportunity to close it.
I fully endorse that. Some Opposition Members—I except Opposition spokesmen, who do not deny that there is a problem but believe that it can be resolved by existing laws, so clearly we disagree—simply do not accept what my hon. Friend said. They do not accept that Muslims are demonised and subject to unacceptable abuse.
People who aspire to the hon. Gentleman's track record on anti-racism oppose the measure because they recognise that religion and race are different. Mr. McGovern is wrong because, the Norwood case, which has already been cited, shows that such acts are public order offences under section 5 of the Public Order Act 1986. Someone who put up a poster saying, "Muslims out of Britain", with a picture of the twin towers, was prosecuted under that legislation. Sub judice rules do not apply when we are making law, so I can say that Nick Griffin has been prosecuted for his disguised racism using religious words, which is evidence that the existing law bites. I urge Mr. Winnick to reconsider his criticism in this area.
I do not question, any more than he does mine, the hon. Gentleman's total commitment to anti-racism. That goes without saying, but the Government disagree with him, as I do, because there are certain forms of abuse and so on that are not covered by existing law. The argument that there is a difference between race and religion is true to some extent. Someone cannot change their race. I have previously given the example of Disraeli, who may have been a Christian many times over but in many people's eyes remained a Jew because he was born a Jew. However, we should accept that, although we can change our religion, for many people, especially among ethnic minorities, religion is something that they hold dear. We cannot simply say that someone can choose their religion, as we must recognise that the religion they follow is fundamental to their personality and their way of life.
I said that I would be brief, so I shall conclude. I said in an intervention on Mr. Grieve that he may well be correct. In practice, his criticisms may be such that we may regret what I hope we will do tonight. I do not believe that that will be the case. I repeat that all those who criticised race legislation and who argued that, by passing the Race Relations Act 1976 and incitement to race hatred measures, we would undermine the traditional liberties and freedoms of our countries were wrong. Just as I believe that they were wrong, I believe that those who oppose what we are doing now will prove to be wrong.
Much of the time in the House, Members are obliged to resist the temptation to indulge in overstatement. Tonight, we must resist the temptation to understate the case, because this is a matter of great seriousness that goes to the very heart of the nature of our society and the freedoms that we enjoy.
The Lords amendments are an attempt to improve the Bill, or perhaps an attempt to limit the damage that it may do. They go to the very heart of the matter. The nub of our consideration concerns the essence and expression of belief. That men hold strong belief is not itself virtuous. As has been said by hon. Members on both sides of the House, some beliefs are repugnant, but beyond such repugnant views, it is arguable that belief in anything is better than belief in nothing. The absence of purposeful passion—the ugly nihilism that leads men to murder carelessly or to abuse without conscience—is not merely the absence of goodness but its antithesis. When I am asked whether I detest cruelty, whether I abhor mindless destructiveness and whether I hate evil, I reply, "Yes, I do." In that, I am inspired by the Bible, which tells me that I must
"Hate what is evil; cling to what is good."
I must hate wrong actions and wrong ideas. Those who flew the aeroplanes into New York's twin towers believed that they died martyrs' deaths and that they would go straight to paradise. Such evil ideas are not matters of indifference. They should be hated—indeed, they must be hated, so that society remains free. If I promote hatred of those ideas, someone will undoubtedly allege that I am either intentionally or recklessly promoting hatred of people.
My hon. Friend will remain completely invulnerable to the Bill, but our constituents, who will live in fear in the atmosphere that this Bill is about to create, will not.
With the alacrity and perspicacity for which my hon. Friend is renowned, he has anticipated my next point. The only people who will be free from the culture of fear, of which my hon. Friend Mr. Grieve painted a picture in his excellent appraisal from the Front Bench, are hon. Members, who are protected by parliamentary privilege. As my hon. Friend Mr. Howarth said, this House will be the only place in the kingdom where we can speak our minds. The distinction between the proper exposition of hatred of evil and the Minister's case on recklessness and intent is so narrow that it is impossible to draft amendments adequately to deal with it, but at least the Lords have attempted to modify the excesses of the Bill.
Mr. Winnick said that many people do not believe that we need a Racial and Religious Hatred Bill, and he was right. Hon. Members on both sides of the Chamber have touched on the reason why many of us believe that such a Bill is unnecessary: there is already law to protect people from the sort of thing that he fears. As has been said repeatedly, statute already exists to protect people and, since 2001, it has had a religious element, too.
If we believe that it is right to hate wrong, and if we believe that it is right to express that hatred, we may well fall foul of the new legislation. Most people who have strong beliefs want to express them and those who have strong political or religious beliefs have a mission to express them and, indeed, to convert. Some people will undoubtedly perceive that as insulting or offensive, while others will undoubtedly perceive it as a threat. Such people will go to the police, who will find themselves in the impossible situation of having to make theological or political judgments on matters about which they may know very little.
The freedom to express strong belief is not unlimited—those hon. Members who know me well know that I would never make the case for unlimited freedom—but freedom is best constrained by manners, courtesy, custom and convention. Occasionally, freedom must be constrained by law, but it should always be done with the utmost caution. The Minister, who is an honourable and decent man, should exercise great caution tonight in making his argument and directing Government Members.
The Lords amendments form a perfectly reasonable compromise and I and other hon. Members cannot understand why the Government do not simply accept them. The Government's manifesto pledge to create a religious hatred offence would be fulfilled and they could return to those with whom they no doubt brokered a deal and tell them that they have delivered on their promise. Furthermore, Rowan Atkinson, Justice, the Christian Institute, the National Secular Society, the Muslim Association of Britain and many other groups that have lobbied against the Bill would go away if not exactly happy, then at least relieved that the scope of the offence had been circumscribed.
It is notable that many religious and secular believers do not seek the legal protection that the Government seem so enthusiastic to give them. That is because the new offence is like an unguided missile—no one can be entirely sure who it will hit. That is why an unlikely alliance of writers, comedians, lawyers, secular groups and religious interests are combined in their opposition to the Government's proposal. Interestingly, none of those groups has been deterred by what the Government claim is a compromise and none has been put off their course by the Government amendments.
Like many hon. Members, that broad coalition is not satisfied by the Government's proposals and is less satisfied by the Minister's lukewarm assurances that our safety lies in guidance or legal interpretation. When a Minister relies on that argument at the Dispatch Box, we know that he is on weak ground, however good a man and however well intentioned he may be. If I may be allowed a brief aside in a serious speech, any man with a direct relationship with "Postman Pat" must be a decent fellow.
The Government have floundered on two particular matters, which I shall briefly reprise before sitting down so that other hon. Members can contribute. First, Mr. Marshall-Andrews pointed out that it is impossible to understand how the Government can reconcile recklessness, which is extreme carelessness, with intent or intention, which implies a deliberate decision to act.
In the past, recklessness has always been used to deal with a mischief that has already taken place, such as grievous bodily harm. For the first time, recklessness will deal with a mischief that has not yet taken place, which is a new concept in British law.
My hon. Friend is a distinguished lawyer and an even more distinguished human being, so I am guided by his expertise.
Secondly, the person in the world of religion and politics who has not suffered abuse or insults and who has not accepted that that is part of the package is not being entirely truthful or does not exist.
The Lords amendments are reasonable. It is a widely held view that it is the Government who are acting recklessly and so I hope that the whole House will support the Lords amendments and oppose the Government.
We are into the last half hour of several months of debate on the Bill, and several problems and difficulties remain unresolved. In a brave attempt to explain the Government's position, the Minister has tried to address those problems, but particularly in relation to proposed new section 29K, where the language is opaque and the argument circular, his reassurances are not substantial enough to justify supporting the Government.
The Minister has placed a great deal of stress on the guidance, but as has been said, these laws are very serious and the offences carry a seven-year prison sentence. Guidance does not have the force of law, and we can be concerned only with what is on the face of the Bill, which will be the law of the land.
The Minister has also placed a lot of confidence in the fact that the courts will decide such matters. However, I am surprised that there have not been more references in the debate to the state of Victoria in Australia, where similar legislation has been on the statute book for several years, but the courts are asking the Government to relieve them of it. Our courts are set up as criminal and civil courts, not as theological courts capable of making such distinctions. They will be asked to do an impossible job: to make judgments that they have neither the competence nor the will to undertake.
The Minister said that we should leave such matters to the good sense of juries, but by the time that we get to the juries—who will probably take the same view that the jurists in Australia are taking: that they do not want to be involved because they do not have the necessary competence—the damage will have been done by what has been referred to tonight as the "chill" factor. The damage is done as soon as an offence is reported; that is when the suppression of views takes place.
Nobody disputes that the Government have the perfectly good and fair intention of creating a level playing field in these matters. However, in not accepting the idea of creating a "negative" level playing field by abolishing the law of blasphemy—the Minister offered no explanation as to why they did not accept that idea—they may, I fear, have done exactly the reverse of their intention. The level playing field that they have created will consist of mischievous prosecutions and accusations. All Muslim organisations in this country, other than the Muslim Council of Britain, recognise that this legislation is deeply flawed, and almost all Muslims in this country understand that they will be as much the victims of it as anybody else. There will be a rash of mischievous and extremist accusations, attempted prosecutions and reports to the police. We will have a level playing field, but it will be one of misery.
This legislation does not protect Muslims, who will be as vulnerable as anybody else. It is deeply confused and wholly unnecessary in this form, and I fear that it will be very counter-productive.
This is one of those Bills whose face is liberalism, but whose heart is oppression. The society in which we now live is unrecognisable from the freedom that we knew only a few years ago. We are not in danger of being shanghaied off to the Lubyanka, but we are in danger of the police knocking on the door or ringing us up and starting an investigation against us not on the basis of what we have allegedly done, or of threats that we have allegedly uttered, but merely on the basis of a view that we have expressed.
There have been some ludicrous examples and some dangerous examples. I do not often stand up for the Prime Minister and I shall not make a habit of it, but perhaps the most ludicrous occurred when the Prime Minister made a rather disobliging comment about the Welsh to his own television set. It was deemed to be worthy of investigation by the North Wales constabulary. You could not make it up, Madam Deputy Speaker, but it actually happened. Then, there was the much more serious example involving Lynette Burrowes, who is a respected children's writer. She expressed the view that she had reservations about the adoption of children by same-sex couples. That same view was freely expressed by Members in this House, and without any danger of police proceedings, when we debated the law in question. [Interruption.] My colleagues are right to say that we are okay—that we are protected. However, Lynette Burrowes had the police on the phone to her.
There is an even worse example. A couple living in Lancashire asked their local council if they could display Christian literature—they did not say anything in public—alongside material from the council promoting civil partnerships. If the council had simply said no, that would have been one thing. Did it? No, it called in the police. The couple were interviewed in their own home by the police for an hour and 20 minutes. That should frighten any Member who is seriously concerned for the liberties of this nation. There is the further example, often quoted tonight, of Sir Iqbal Sacranie. He did nothing more than elucidate Muslim teaching, yet he was immediately investigated by the police because somebody made a complaint.
All those examples have one thing in common. Someone somewhere decided to take offence at what had been said. That person made a complaint to the police, who believe—erroneously, in my view—that it is sufficient for a complaint to be made for it to have to be investigated. If they apply this Bill's provisions in that way, there will be an immensely oppressive impact not only on Christians and Muslims, but on anybody who says anything that somebody else decides is worthy of police investigation.
I would go along with such a provision if we narrowed it to intent, because nobody is going to say that one should "intend" to stir up religious hatred. But this is not about intent; it is about subjective judgments such as abuse and insults. As I have said before, Rev. Ian Paisley should be allowed to say, if he wants to—he has mellowed a bit recently, so he might not want to—that I have signed up with the Antichrist. He should be allowed to say, if he wants to, that when I go into a church in which there are statues, I am practising idolatry. He should be allowed to say, if he wants to, that when I take part in the sacrifice of the mass, I am committing blasphemy. He can say all those things, and yes, I will find them insulting, but I am 58 and I have often been insulted in my life. I have no doubt whatever that I will be insulted again, but I shall not think that the remedy for feeling insulted is to go off whingeing to a policeman.
It is regrettable that we have only three hours for this important debate. I accept wholly that there have been previous stages of this Bill, but the other place has made some very important amendments that need careful study. We already live in a society in which things that would have been unthinkable a few years ago are a daily reality: a society in which, if one simply speaks to a viewpoint, one can end up on the wrong end of a police investigation. That is not the Britain that I want to live in, and this Bill makes it more likely that that effect will be increased, not decreased.
As my hon. Friend the Minister knows, I have genuinely worked hard in trying to support the Bill, even up until yesterday evening. If today's vote was on whether the Minister is a good man, we would have no need for a Division. If the question was whether his assurances can be trusted, there would be no need for a Division. If the question was whether there are good intentions behind the Bill, there would be no need for a Division.
It is a source of regret, by the way, that we have to discuss such issues on the basis of whipped party votes. Whatever view the House comes to, the outcome would have far more legitimacy in the eyes of the public and of all the groups affected by this legislation if they could feel that we had reached it on the basis of genuinely open judgments of our own. We, as a House, do ourselves a huge disservice when we treat such issues in this way.
A central issue that I and others have wrestled with has run through the entire debate surrounding the Bill from the very outset: is it possible to give additional protection to believers for the reasons that have been adduced, while at the same time avoiding giving unwarranted protection to beliefs?
I started off by thinking that it would be almost impossible to do that. I wanted the ability to say that I hate religious bigots. I do hate religious bigots. Hatred means intense loathing. I have intense loathing of religious bigots. In fact, I want to go around urging other people to hate religious bigots. The world would be a better place if we all hated religious bigots, and I am instinctively anxious about a piece of legislation that makes it in some respects harder, and in other respects illegal, to go around saying that I hate religious bigots.
However, I was prepared to examine the case to see whether we could achieve a balance. When I asked the Minister about these things before, he assured me, and he has done his best to redeem the pledge, that he would try to find the correct balance and to insert a savings clause in the Bill guaranteeing the free speech that we were worried about. In the immensely difficult task of squaring the circle, he was helped hugely by what the other place has done.
The Lords delivered to us a Bill which, if it did not completely square the circle, did it as well as it was humanly possible to do. I would have been very happy to support it on that basis. We would have fulfilled our manifesto commitment, but we would have done it in a way that did not damage the traditions of free speech that are essential to our society. I regret the fact that the Government have not felt it possible to accept what the other place has done. They have put into the Bill a savings clause, but they have done that in a way that cuts it away again. That is the difficulty.
I am a rebel, but a very reluctant rebel. I did not want to oppose the Bill, because the Government are introducing it for the right reasons, but we should be wary about crossing a boundary. Whichever view people take on what we are doing, we are crossing a boundary tonight as we move from believers to beliefs. I do not feel comfortable crossing that boundary. I do not feel comfortable giving protections to belief systems, which is essentially what we are doing. In doing that, we are cutting against what we think is the tradition of an open society.
The only values that we should seek to protect in law are the values that protect our democracy itself. One of those values—the key value—is the ability to attack other people's belief systems with all the vigour that we can command. In so far as we depart from that and depart from it knowingly, we do damage to the democratic system itself.
It is independence of mind that is under assault in the Bill before the House this evening. If the Government get their way and their amendments are carried, we will see not only a significant curtailment of freedom of speech in this country, but perhaps the most significant undermining of religious liberty since 1688. I mention the 17th century advisedly, because that was the last time in this country when questions of political and religious strife put lives at risk on the mainland of the United Kingdom. During that period of the 17th century, one of our greatest writers, Milton, even at that time of strife, made a heartfelt plea for liberty in his work, "Areopagitica". Milton pointed out that truth did not need the law to suppress falsehood in order to prevail. In open debate, those who are confident of their beliefs will not want the state to intervene on their side, because the confidence in their beliefs will be enough to sustain them.
It is significant that almost all the religious groups in this country which are organised and respectable are opposed to the Bill. They have sufficient confidence in the strength of their own beliefs not to pray the state in aid. It is striking that there are only one or two significant exceptions to that rule. One of them has been the Muslim Council of Britain. Its head, Sir Iqbal Sacranie, has throughout his career been a doughty fighter against prejudice against those whom he represents.
I would happily acknowledge that there is much that can be done by Government and by all politicians to fight prejudice and racism against Muslims and other minorities, but I suspect that in the past few weeks Sir Iqbal and others have begun to realise how dangerous it is to criminalise free speech in this country. As my right hon. Friend the Member for Maidstone and The Weald pointed out, Sir Iqbal himself was on the receiving end of the attentions of the police for words that he uttered on Radio 4—words that I find offensive, but which I believe that he has every right to utter on whatever platform is given to him. Because of that intervention in Sir Iqbal's right to speak freely, we can all see the dangers of criminalising speech.
Sir Iqbal was referred to earlier by Mr. Prentice in the context of the debate about "The Satanic Verses". It is appropriate that we consider for a moment the controversy that surrounded the publication of Salman Rushdie's novel. If we imagine that the law that the Government intend to pass today were in place then, I submit that "The Satanic Verses" would never have been published by Penguin.
Let us look at proposed new section 29K and the references to abusive and insulting behaviour and to recklessness, and ask ourselves this question: if we had been executives at Penguin and had read that text and calculated the effect that it was likely to have on the Muslim community in this Britain, would we have calculated that it would abuse the Muslim faith? We would certainly have made that calculation. Would we have known that individual Muslims would be insulted? Of course we would have recognised that. Would we have known that, by publishing, we could have been accused of recklessness? We would have been aware that that accusation would be flung at us.
Would we therefore have taken the risk of publishing? I suspect that we would not, and that, to me, would have been not just a loss for freedom of speech, but an attack on the creative spirit and a loss of what makes us a distinctive and cherishably free country. That chill factor, which would have applied to "The Satanic Verses" if the legislation had been in place, has been mentioned by several hon. Members. It is a worrying curtailment of liberty and an ominous extension of state power.
There are two other areas that I shall cite briefly where the state extends its power in an ominous way in the Bill. First, there is an unwarranted and ominous extension of Executive power in the reliance that the Minister places on guidance to the prosecuting authorities and to the police. As nearly every hon. Member who has referred to the guidance has pointed out, we all have complete faith in the Minister to frame guidance that would be sensible and proportionate, but whatever our beliefs about the immortality of the Minister's soul, we know that he will not be permanently in office. We cannot trust future Ministers and future Governments necessarily to frame guidance that will be proportionate and correct. It is quite wrong for us to trust the Executive to decide what prosecutions could and should be brought in the future. We should decide now and write that into the Bill as we discuss it.
There is one final area where the state arrogates to itself unwarranted power in the Bill—that is, in the very definition of what constitutes religion. It is wrong that the state should be able to extend to any group of believers a privileged status by saying that they constitute a fit and proper religion. If we consider recent reports about what happened in the Navy when an individual officer claimed for himself, on the basis that he was a Satanist, a safe religious space in which to enact his rituals, we can see that the present Government and future Governments may extend to all sorts of cults and other unsavoury groups the protection that is in the Bill.
I have no hesitation in saying, safeguarded by privilege as I am, that I regard Scientology as an evil cult founded by an individual purely in the interests of enriching himself and sustained by those who are either wicked or wayward. But if the Bill were to pass and I were to repeat those comments outside this House as an ordinary civilian, I would lay myself open to prosecution simply for having sought to point out the dangers of a fraudulent organisation masquerading as a religion.
I have pointed to three dangers—three extensions of state power—which are three very good reasons why I believe that the Government should withdraw their amendments and we should accept the wisdom of the other place.
I have my name on a bewilderingly large number of amendments that would have the effect of putting the Lords amendments back into force. I say straight away that I put my name to those amendments somewhat unwillingly. It is an awesome and awful thing to put one's name to an amendment that is critical of one's own Government. That is the first matter that I take on board.
The second is that at the outset, when the Bill began its passage through this House on Second Reading, I was one of those who believed that it was ill-conceived and should fall. I have changed my mind on that, which is why I have signed the amendments as they stand.
It is relevant to consider why I took that view. I am one of those who believes that there is a profound division between race and religion and that the sentry posts that man that division are the moral imperatives of "ought" and "should". Nobody can say to me that I ought to be black, white, Chinese or Russian, but there is no shortage of people outside this House, and some inside it, who would have no hesitation in saying that I ought to be Christian, Islamic, or Jewish, particularly if I chose to marry into that faith.
For 300 years, we have from time to time issued edicts to protect minorities on the ground of race—the Race Relations Act 1976 was not the first example of that. I tried to discover one that is a particular favourite of mine in the statute book, but I was unable to do so. I know that it exists, so Members will have to take it from me. It is the enactment in the vagabond legislation that a man should not be taken to be a vagabond simply because he is Scottish.
However, we have always set our face against the protection of faith by statute. The reason for that is very simple. Because of 200 years of religious intolerance, which led to nothing but bigotry and death, we have always understood that one cannot protect the faith without protecting the fundamentalist and the bigot who lie within it. Indeed, the legislation that we pass has precisely the reverse effect because the people whom we protect most are those who come close to committing the offences that we are attempting to place on the statute book. We end up with a gloomy vortex whereby I loathe bigotry and those who preach against any faith, and then those people say that my loathing them makes me liable under the very legislation that we have passed. We will create not a tolerant society but a legislative and cultural bear pit.
The thing is made infinitely worse by importing the concept of recklessness. Recklessness is the bastard part of intention. It has caused more trouble in the English criminal law than any other single concept. It is so wide as to be practically devoid of definition. If I may bore the House for a moment, there are two classic cases. The first is the so-called firebreak case, whereby a man who perceives that there may be a small danger sets up a firebreak that destroys the forest, city, town or whatever he perceived to be in danger. His motives were good, but he was undoubtedly reckless. The second concerns the bus driver who loses his way in a double-decker bus, approaches a low bridge, and says, "I don't know whether I can get this bus under there; I might not be able to but let's have a go anyway." He does not intend to kill all the passengers on the top deck, but he is undoubtedly reckless.
I say that in order to demonstrate just how wide this test is. We have heard excellent examples today concerning the cartoons about the Prophet. Those would undoubtedly be caught by the Bill—it would not be a question of how one construes the law or of worrying about the courts, judges or juries bringing in perverse verdicts.
If we pass this Bill in its present form, we will regret it for many years to come. I urge the Government now, before it is too late, to remove the concept of recklessness. Ultimately, we will all agree that an avowed or explicit intention to cause or stir up religious hatred is something that may justifiably be impugned. Anything else will be an incursion on our freedom of speech of historic proportions that will be regretted for generations to come.
In common with many Members, I think that if the Bill was about threatening behaviour, actions or words it is unlikely that there would be any requirement for a Division. But, again in common with many Members, I think that the scope of recklessness and the subjectivity of abuse and insulting behaviour mean that almost anyone could be charged with this offence. We have heard several examples—there will be many more—that could fall foul of this. Hon. Members have made the case that it is likely to lead to a large number of spurious cases being brought on the basis of a handful of complainants in any given circumstance.
I am concerned about the impact that the Bill will have on Scotland. As the Minister said, it extends only to England and Wales. New paragraph 29H(2) in the Lords amendments would allow for a sheriff to have a warrant to search a premises in Scotland, presumably after a suspect had been charged on a warrant for his or her arrest issued in England. The Government amendment removes the possibility of such a search warrant being applied for. That may leave us in the ludicrous situation whereby a warrant is issued in England for the arrest of somebody in Scotland, the warrant is exercised and the person is arrested and charged, but no search can be performed on his premises to produce evidence in court.
That is a contradiction, irrespective of whether one supports the Bill. We know that it will be possible for an English warrant to be exercised for someone furth of England for a crime committed in England. The excellent counsel's opinion cited by Mr. Carmichael makes it clear that the cases of the Crown v. Harden in 1963 and the Crown v. Manning in 1998 will allow that to happen. We could end up with a situation in which someone who is subject to an arrest warrant issued in England is living in Scotland, having committed a crime in England but not in Scotland.
That is deeply troubling. In the Criminal Justice (Scotland) Act 2003, Scotland has already passed legislation to tackle religious hatred based on a joint cross-party report on such matters and after public consultation.
The relevant section states that an offence is aggravated by religious prejudice if immediately before, during or after the offence the offender evinces malice and ill will based on the victim's membership or presumed membership of a religious group or of a social or cultural group with a perceived religious affiliation. Equally, an offence is aggravated by religious prejudice if it is motivated wholly or partly by malice towards the same group. In such circumstances, the court must take action on the aggravation and the sentence must be different from the sentence that would have been passed if no religious aggravation had occurred.
It is therefore peculiar that someone acting wholly innocently in Scotland could be the subject of an arrest warrant in England for a crime that exists here but would not be deemed a crime under similar legislation in Scotland. The cases that legal counsel cited as especially worrying relate to broadcasting, journalism and so on.
According to legal counsel, newspapers would have to obey both current Scottish law and the English religious hatred law for any editions that were sold in England and Wales. For example, The Scotsman could publish a report that was legal in Scotland but could be censored in England. An English distributor could also be found guilty under the Bill while a distributor in Scotland would not be prosecuted.
The same logic would apply to a Scottish publisher selling books to bookshops in England or to English customers ordering books via mail order or the internet. Once publication or distribution occurred, people could be arrested and prosecuted under the Bill. There are several similar examples and concerns are widespread. Broadcasting, publishing, entertainment and so on that is perfectly innocent and legitimate under Scottish legislation could be prosecuted under English law.
The Under-Secretary can intervene if he wants to tell me that none of that could happen and that a warrant could not be issued, under any circumstances, for the arrest of someone in the circumstances that I outlined.
All the examples that have been given, from the mild-mannered Christians, to whom a spokesman on the Tory Benches referred, to Polly Toynbee in The Guardian today, suggest that the Bill goes too far and satisfies almost no one.
I shall speak briefly from the perspective of three passionately held beliefs. First, I believe in the Labour party. As a Labour loyalist, I carry a pocket edition of the manifesto. However, it is the responsibility of all Labour Members to deliver the manifesto. We said that we would legislate to outlaw religious hatred but we also said that we would balance protection with tolerance and free speech. I suspect that the vote will be close and I plead with my hon. Friend the Under-Secretary to accept, even at this late stage, the House of Lords position, which delivers our manifesto pledge.
I speak secondly as a practising Catholic and, thirdly, as a strong believer in free speech. For me, the debate turned on my hon. Friend the Under-Secretary's interview on "Today" this morning. He said that there was a small problem with existing legislation and a gap to fill. Not unreasonably, he was asked to give one example from the past four years of a case in which existing law was deficient or that the Lords amendments would not cover. He attempted to give an example and I have been asking people about it all day. He cited a horrendous poster about the Muslim religion.
There have been plenty of lawyers around the place to consult today. They include lawyers from the National Secular Society and the Christian Alliance, and those representing actors. I have even rung several friends who are lawyers but belong to none of those groups. All agreed that the example that the Under-Secretary cited was exactly analogous to the 2003 Norwood case, in which a similarly offensive poster featured. Prosecution occurred because a policeman saw it, a public order offence was brought and a conviction was secured.
If we are to endure the deleterious consequences of the Bill, it is not too much to ask for examples. My hon. Friend Mr. Winnick was not his normal confident self today. He said that we may live to regret the Bill. He also said that he did not believe that we would, but when such a defender of free speech says, even when backing the Government, that we may live to regret something, it gives me cause for concern.
As a Catholic, I simply say that free speech is the best defence of any religion. My religion has been persecuted and has also persecuted people. Free speech is the best defence. Given the freedom of speech defences that the Government have included in the Bill, it is regrettable that they are stymied and reduced basically to saying, "This is not an offence if it is not an offence." Such tautology is not good enough. I plead with my hon. Friends on the Front Bench to withdraw their objections to the Lords amendments, which satisfactorily fulfil the manifesto on which we stood for office.
I should like to say a few words with reference to what has been said by Miss Widdecombe. I am glad to be able to say to her that, when we come into this House every day, we have prayers and that the "Book of Common Prayer" is opened, and that everything that I believe is in that book, although I am a Presbyterian. The right hon. Lady can work that out in her own way.
I believe in the integrity of the Ministers on the Front Bench, and I believe that they would like us to put our faith in them. But when this matter comes before the courts, they will not be there. It will not matter what they have said; we could bring 10 pages of Hansard and read them out in court, but they would not be accepted. We are making the law in the House tonight. I must say honestly that, when I listened to the Minister arguing, I realised that he was arguing in a circle and that he could not get out of that circle. That is the crux of the matter. If we want to unite our nation, we should go for free speech. We should say, "Look, we are all different, but we must be allowed to express our differences, not to stir up strife but to maintain the principle of freedom." I say to the House tonight that that freedom was bought at a terrible price; please do not sell it, or we shall all regret it.
It being three hours after the commencement of proceedings, Madam Deputy Speaker proceeded to put the Questions necessary to conclude the proceedings on the consideration of the Lords' amendments, pursuant to Order [this day].
Lords amendment agreed to.
Lords amendment: No. 2.
Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Paul Goggins.]
The House proceeded to a Division.
On a point of order, Mr. Deputy Speaker. In the light of the House's decisions this evening, I think it appropriate to inform the House—if that is acceptable to you—of how we see the position at the moment. [Interruption.] The Bill will now proceed to Royal Assent as it stands. That means that the debate between the House of Commons and the House of Lords will be about threatening behaviour, but will not include insulting and abusive behaviour; it will concern intent only, not recklessness; and it will deal with a wide-ranging freedom of expression clause.
Despite this evening's defeat for the Government, I am delighted that we are introducing legislation to deal with the issues that we must address. There have been substantial arguments in both the House of Commons and the other place—[Interruption.]
Order. The Home Secretary is trying to address the House and the Chair on a point of order, which I must hear fully. I do not think that this barracking helps.
Is it in order, Mr. Deputy Speaker, to say clearly that the Government accept the House's decision this evening, that we are delighted that the Bill is proceeding to its Royal Assent, and that we are delighted to have a Bill that deals with incitement to religious hatred? We regret that the agreements and discussions in the other place did not happen, but I hope, Mr. Deputy Speaker, that you will accept our determination to carry the Bill through.
I must tell the Home Secretary that that developed into rather more than a point of order, but it is on the record. The House has made its decision tonight, and people will reflect on that.