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Anti-terrorism, Crime and Security Bill

– in the House of Lords at 3:09 pm on 10th December 2001.

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Votes in this debate

On Question, Motion agreed to.

Clause 111 [Implementation of the third pillar]:

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Middle East), Foreign & Commonwealth Office, Minister of State (Trade), Department of Trade and Industry, Minister for Trade and Investment and Deputy Leader of the House of Lords (also Department of Trade and Industry), Minister of State (Trade and Investment) Deputy Leader of the House of Lords (also FCO)

My Lords, in Committee, I undertook on behalf of the Government further to consider the serious concern raised by many of your Lordships about the justice and home affairs enabling power set out in Clauses 111 and 112. It was clear to the Government that the power had raised a genuine and deeply felt concern—mainly over the scope of the third pillar measures that could, in theory, be implemented through secondary legislation under such a power.

For example, the noble Lord, Lord Waddington, was concerned that legislation on racism and xenophobia could be adopted in that way. No measures in the European Union's terrorism road map adopted on 20th September contain provisions against xenophobia. As the noble Lord pointed out, such provisions might arise in relation to third pillar legislation, but not under the powers in the amendments.

Other noble Lords, especially the noble Lord, Lord Pearson of Rannoch, whom I do not see in his place, were concerned that the enabling power could be used to enact the European arrest warrant, which is due to be agreed at the Laeken European Council this week. The House will be aware that several issues are to be negotiated before the European arrest warrant can be adopted, but the Government have made absolutely clear that we have no intention of implementing it through the enabling power.

The Government remain of the view that it is right to seek that power. Measures agreed by the JHA Council of the European Union make a significant contribution to the fight against terrorism. We must be able to implement them swiftly. We remain of the view that it is right to introduce such measures, which are, after all, binding agreements made at European level through secondary legislation. But we recognise that the power would be a new method of dealing with business in that area, which must be considered seriously. We have also carefully considered the views expressed by your Lordships.

We therefore propose two key amendments to address the concerns that have been raised. The first is Amendment No. 77ZA. That ensures that the power will run for six months only, until the end of June. That period will allow us to implement the key measures contained in the European Union's anti-terrorism road map. However, I want to be absolutely clear to the House that we will look for a suitable legislative vehicle before that period is complete by which to return to the issue.

The second key change is contained in Amendment No. 78, which sets out in absolutely clear and precise terms what we intend to use the power to implement. I hope that that will allay your Lordships' fears and enable all—or most—of your Lordships to support the measures. The measures covered by the amendment are part of the European Union's road map on terrorism, agreed by the Justice and Home Affairs Council on 20th September and endorsed by the European Council on 21st September. We should be absolutely clear that that constitutes Europe's response to the terrorism outrages of 11th September.

The measures include, first, the framework decision on asset freezing. For a specified list of offences, including terrorism, that measure allows orders to be enforced in the minimum possible time. The rapid execution of freezing orders could be vital in securing terrorist assets that might otherwise be dissipated or destroyed. It may therefore make the difference between, on the one hand, securing a conviction or freezing terrorist assets and, on the other, allowing terrorists and their money to go free.

The second measure is the European Union framework decision on combating terrorism. That will introduce common definitions of terrorism offences and minimum penalties across the EU. That framework decision constitutes progress, but let us be under no illusion that it is sufficient on its own. More needs to be done.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, I am most grateful to the Minister for giving way. She could materially assist her case were she able to give the House one further assurance: that the Government have no plans to introduce between now and 1st July 2002 the proposal in the White Paper on House of Lords reform that this House should lose the power to reject statutory instruments.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Middle East), Foreign & Commonwealth Office, Minister of State (Trade), Department of Trade and Industry, Minister for Trade and Investment and Deputy Leader of the House of Lords (also Department of Trade and Industry), Minister of State (Trade and Investment) Deputy Leader of the House of Lords (also FCO)

My Lords, the noble Earl will not be surprised to know that I cannot give an assurance of that nature. If I may finish the points that I wish to make, the noble Earl may find that I can give the House many assurances. I recognise his point—it was made when your Lordships last discussed the matter—but I cannot give that specific assurance now.

To return to the second measure, the European framework decision on combating terrorism, I said that we felt that more needs to be done on the matter.

The third measure is the European framework decision on setting up joint investigative teams to fight organised crime, especially terrorism, drug trafficking and trafficking in human beings. That will provide the framework for police officers across Europe to work together against terrorism and organised crime. The power will also be used to implement the 1995 and 1996 conventions related to extradition between member states.

I hope that that will allay fears that the Government will use the power to implement measures that have nothing to do with terrorism—one point that exercised many of your Lordships when we discussed the matter last week. One thing that we have learnt since 11th September is that we still have a great deal more to do—often in areas that do not immediately and obviously appear to do with combating terrorism. We need to be able to break down the barriers behind which terrorists hide: bureaucratic delays in executing court orders; procedural barriers that stop effective police co-operation; and bureaucratic delays that mean that by moving around Europe, a terrorist can always keep one step ahead of the law; nor can we allow ourselves to fall into the trap of tackling terrorism in isolation from the crimes off which it feeds. Drugs trafficking, arms dealing and the miserable trade in human beings, of which we are all too well aware, are all crimes that are inextricably linked to terrorism.

So the power will not be used for measures against racism and xenophobia—important though such measures may be; nor will it be used to implement the European arrest warrant—essential though that is. These government amendments make no attempt at what has been described as Christmas tree anti-terrorism legislation; nor will the power remain on the statute book indefinitely; rather, it will be used for a strictly limited period to implement a strictly limited—series of measures. We believe that it will be of great use in tackling terrorism across Europe.

I turn to the two amendments tabled by the Liberal Democrats.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative 3:15 pm, 10th December 2001

My Lords, I am sorry to interrupt the Minister. Before she moves on, I had the impression—which was shared by several of my noble friends—that she mentioned Amendment No. 78, which is tabled in my name. I should be interested to know whether she was actually referring to that amendment, and if so, what she said.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Middle East), Foreign & Commonwealth Office, Minister of State (Trade), Department of Trade and Industry, Minister for Trade and Investment and Deputy Leader of the House of Lords (also Department of Trade and Industry), Minister of State (Trade and Investment) Deputy Leader of the House of Lords (also FCO)

My Lords, forgive me if I misspoke, but the amendment that I meant to mention was Amendment No. 78A standing in the name of my noble friend Lord Rooker.

I shall now address Amendments Nos. 77BB and 77CB standing in the name of the noble Lord, Lord Goodhart. I assure your Lordships that we shall not between Royal Assent and the date of the sunset clause—30th June—specified in Amendment No. 77ZA introduce measures further to those listed in subsection (1A) by any means other than primary legislation.

I hope that I have been able to put some substance behind the arguments that I put to your Lordships last week. We are not trying, as I think that one of your Lordships put it last week, to Xsmuggle through" additional provisions that might not have a direct relationship to terrorism over and above the ones that we feel that we need. I hope that I have been clear in saying that we shall have to return to the issue. Nevertheless, we feel that the Government have listened very carefully to what has been said in your Lordships' House, and that we have now introduced amendments that I hope and believe will address the very substantial issues that we discussed last week. I beg to move.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister (Foreign and Commonwealth Affairs)

My Lords, I am very grateful to the noble Baroness for setting out this latest group of amendments, which we on this side of the House have examined with very great interest and care. I should say straightaway, in answer to her more general remarks, that we are united with the Government in seeking enactment of effective legislation against terrorism. We are not, however, united or enthusiastic when it comes to measures and powers that we believe have very little or nothing to do with terrorism. We are even less enthusiastic when it comes to measures in relation to which there would be completely inadequate or almost non-existent parliamentary accountability. That is our starting point in considering the amendments.

I confess that it was with a modest amount of relief that I watched the amendments coming out of my fax machine late on Friday night, which was perhaps a little late in the day. The amendments did, however, envisage a change of heart to some degree by the Government. Nevertheless, we on these Benches would like to probe a little further, to gain the reassurance that the Government mean what they say.

The proposal on a six-month cut-off date seems to be clear enough. As for the issues in Amendment No. 78A, however, we must yet again seek assurances. I have heard everything that the noble Baroness has said, and we welcome what I understand to be a firm undertaking that the European arrest warrants project will be dealt with in future, proper primary legislation—possibly in an extradition Bill, if there is one, although it does not seem to be having a very happy start. If there is such legislation, it will be handled in that manner. Whether such an arrangement would be adequate parliamentary involvement is for another debate at another time—personally, I do not think that it would be—but at least it is not being proposed that such provision should be pushed through by this Bill's provisions and the move to secondary legislation. None the less, may we be assured beyond peradventure that that matter will be dealt with in that manner, and that we shall not find in a few months that the position has changed?

If these new amendments are now the Government's proposals, we would like to be reassured that paragraphs (a), (b) and (c) in Amendment No. 78A will be the only proposals in the pipeline between now and next June and that no other matters or framework decisions will suddenly appear from nowhere. We would like an assurance that we are dealing only with these two matters and with the framework decision on,

Xthe execution in the European Union of orders freezing property or evidence, on joint investigation teams, or on combating terrorism".

Although that provision sounds a little broad, may we be assured that it will not be a holdall or a loophole for a whole lot of other measures?

We seek those key assurances, which I think that we have already been given by the noble Baroness. However, I would like her to confirm them in her reply, after my noble friends and other noble Lords have spoken to this group of amendments.

I confess that we are still left with considerable unease about this whole episode. Moreover, as the old saw goes, nothing lasts like the provisional: this legislation is provisional, but how long will it last, and what will be the arguments next June? We also face the forthcoming debate on EU arrest warrants. I note that it is now being proposed that, if Italy will not play ball, that proposal should be achieved by the process of enhanced co-operation, as authorised in the not-yet-ratified Treaty of Nice. I do not know how that process will work, but we shall have to debate it later.

It would still not be entirely satisfactory even if these truly sensitive matters of policing and criminal justice were dealt with in future, after June, in primary legislation. As my noble friend Lord Kingsland said in last week's debates, and as the Delegated Powers and Regulatory Reform Select Committee suggests in its superb report, regardless of whether those decisions are made in primary or secondary legislation, they are reached virtually irrevocably by a type of prerogative treaty process.

In theory, this Parliament decides yes or no on those matters, and, as the noble Viscount, Lord Bledisloe, said, if it is primary legislation, there can also be small changes to them. In practice, however, the whole thing is dumped on our Parliament. The process is inconsistent with the aim that Ministers and the Prime Minister have repeatedly stated, that we need to bring national parliaments more closely into the process not only of legislation, but of pre-legislation and decision making. I think that it was the noble Lord, Lord Garel-Jones, who, last week in Committee, said that inter-governmental third pillar measures should be decided by parliaments. That is not happening. It is not really happening even in relation to primary legislation, and it is certainly not happening in relation to secondary legislation.

Let us hope that my interpretation of the Government's proposals is the correct one. We shall need absolutely firm reassurances from the noble Baroness—perhaps the Attorney-General should give us these cast-iron assurances—

Noble Lords:

No!

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister (Foreign and Commonwealth Affairs)

Perhaps I shall be lucky. I am very glad to see the Attorney-General on the Bench; it gives me some reassurance. We shall need those cast-iron reassurances. When we have heard them we shall be able to take a final position on how we view the Government's amendments and how we view our own amendments.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat

My Lords, we on these Benches have two major concerns about Clause 111, the first of which is on scope, and the second on timing. This terrorism legislation is being pushed through as an emergency measure. We wish therefore to insist that it does deal only with terrorism and that it is limited to the immediate emergency. It seems that the amendments that the Government have now offered meet those concerns.

We were also concerned that the Government should not attempt at any later stage to expand for any reason whatsoever the interpretation of the narrow scope that is now spelled out in the amendments. That was the purpose of Amendments Nos. 77BB and 77CB tabled by the noble Lord, Lord Goodhart. Consequently, we shall not be moving those amendments, nor Amendments Nos. 77A, 77B and 77C.

We thank the Government for those concessions and for Friday's negotiations. That seemed to us a model way to use our time to consider the Bill in Committee and on Report. The purpose of the Committee stage is indeed to examine and discuss each clause in detail, and the purpose of the Report stage is to consider what concessions the Government are willing to make, and if necessary to vote.

That is the proper role of Parliament and it does not help if some among the Government describe the proper role of this House in terms of sabotage by naive, silly, aristocratic people. Some of us do not think that we are particularly aristocratic when it comes to it. We need reasoned debate on Bills of this complexity in which we ask the Government to justify their proposals and we do our job in holding up their proposals to careful scrutiny. Sadly, on this occasion, the other place failed to fulfil that role and it has therefore fallen to this Chamber to fulfil much more of it in its turn. When it comes to discussing further the reform of the House of Lords, it is clear that we shall have to discuss the reform of the House of Commons, too.

The noble Lord, Lord Howell, referred to the Prime Minister's declared intention to increase the role of national parliaments, which he has repeated on a number of occasions. As originally proposed, the amendment would have decreased the role of national parliaments. We on these Benches have much to be unhappy about in respect of the third pillar. Much of what is now under the third pillar we would be happier to move into the first pillar, because apart from anything else it provides a proper lengthy process through which proposed legislation moves.

When I was chairman of Sub-Committee F there were a number of occasions on which third pillar proposals moved remarkably rapidly from initial proposal through to acceptance because no careful block clauses occurred under the first pillar. The position was made a good deal more obscure by the British Government's declared opting out from the Schengen convention and subsequent opting in to a great many of the clauses under it. That may confuse the Daily Mail and it certainly confuses many of us within this House.

Having said that, however, we accept this useful clarification. We accept the careful, further assurances which the Minister gave in her opening speech on the meaning and intent of the clause. Therefore, we do not wish to move our amendments and will accept the clause.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 3:30 pm, 10th December 2001

My Lords, at this and earlier stages I have tabled amendments to delete Clauses 111 and 112 in their entirety. I want to welcome with perhaps greater warmth and enthusiasm than the noble Lord, Lord Howell, could express, the care and trouble the Government have taken to meet our concerns in their amendments. I agree with the noble Lord, Lord Wallace, that that is a most satisfactory conclusion to the proceedings of this House.

I want to ask only two questions. First, is it entirely clear from what the Minister said that the power will be used only to implement those measures which are already contained in the European Union road map on terrorism? Secondly, I want to ask the Government a little more about the European arrest warrant. I gather that last week the passage of that was defeated or delayed by the intervention or participation of the Italians. Without in any way making any form of racist remark, it is perhaps a sorry day that the British people have to look for the protection of their liberties to the Italian Government and not to their own Government.

Notwithstanding that defeat, why are the Government so keen to press ahead so quickly with a measure which is still under scrutiny by the Select Committees of both Houses of Parliament and has not been released and on which this House has already expressed its enormous concerns? It has nothing to do with the fight against terrorism and would be much better considered at proper length and with proper care. Why can that not wait?

Photo of Lord Alexander of Weedon Lord Alexander of Weedon Conservative

My Lords, my interest in the amendment is as chair of the Select Committee on Delegated Powers and Regulatory Reform. It had immense reservations about the original proposals; in fact, reservations as strong as it had on any issue in the almost seven years during which I have chaired it. I welcome the amendments, particularly in so far as they limit considerably the scope of the application to introduce third pillar measures by secondary legislation and have a tight sunset clause.

However, in welcoming them, perhaps I may say a few words about the principles. They are important and they will be important when the issue is considered again, as the Minister has said it will be, in a comparatively short time-scale. Furthermore, the committee was, as always, assisted by the careful and open memorandum put forward by the Government and their response to our report. That enables me to say with some confidence that with the help of the memorandum I hope that there is total agreement that the third pillar powers are potentially wide-ranging enabling powers, many of which have still to be exercised in ways of which we in the House are totally uncertain.

Secondly, they cover the extremely sensitive areas of policing and criminal justice. They create the potential for new offences to be introduced into our domestic law by agreement at ministerial level and punishable by very significant terms of imprisonment. That would be a novelty in our law where serious criminal offences have always been introduced by primary legislation. The Government memorandum very fairly makes clear that such regulations to implement third pillar measures would often require the amendment of existing primary legislation. In other words, there would be frequent use of Henry VIII powers across a potentially broad front. If at some stage in the future we adopted what we were initially invited to adopt, the only limit would be that we were accepting whatever fell within the broad perimeters of the third pillar.

The Government's justification, which they set out for us, was the principal one; that the European Communities Act 1972 provided a similar method of legislation in regard to directives introduced within what was then the European Community. It was, in other words, by secondary legislation. The Select Committee's report pointed out that there were very significant points of difference. The first was that the 1972 Act considered social and economic measures. It did not concern itself with policing and criminal justice which are often critically concerned with the liberties of individuals.

The second point of difference was that the European Communities Act deliberately limited itself to permitting the introduction of offences in the areas in which it was operating punishable by imprisonment of up to two years. Not so the scope of the present proposals, which provide for a potentially lengthy term of imprisonment.

The third point of distinction is that there is less democratic control over third pillar measures. European Union measures under the first pillar go to the European Parliament, with co-decision powers with the Council of Ministers, and so have a measure of democratic control. By contrast, the third pillar is simply an agreement between Ministers and there is no such control.

The Select Committee on Delegated Powers and Regulatory Reform recognised that some measures introduced under the third pillar might be of less importance than others. We suggested that in properly drafted legislation there would be included a schedule of those measures, principally procedurally, which could be incorporated into our law by secondary legislation, and a clear exclusion of other more important measures. In his response to the Committee's report the Minister fairly recognised that point. He said:

XThe Government is satisfied, therefore, that the enabling power can be justified as part of the Government's emergency proposals. We recognise that it will be used to implement important measures and that if the Government was bringing them forward as purely national measures this would be effected by primary legislation. These measures are not, however, purely national measures. Third Pillar measures are EU level measures that are binding on the UK and have to be implemented".

That appeared to be the case in principle for implementation by secondary legislation. I do not follow that. If such matters are important enough to require parliamentary scrutiny, surely they are important enough to require the same level of parliamentary scrutiny as is given to other important measures in our domestic law.

I accept that this point will not call for further discussion on the amendment before us today, but as we shall have to return to it at a later stage, I alert the Government and the House to what I believe will be fundamental issues of principle. I would like to see pre-legislative scrutiny so that the measures can be thought through properly.

With that comment on the original proposals and hoping to be constructive for the future, I welcome the way in which the Government have responded to the Committee's report and the concerns of the House, and the way in which they have brought forward these amendments.

Photo of Lord Waddington Lord Waddington Conservative

My Lords, I am glad that the Government have gone a considerable way towards meeting the concerns expressed by so many noble Lords. My noble friend Lord Alexander of Weedon referred to the fact that the European Communities Act 1972 allowed the creation of new offences, but new offences that carry a term of imprisonment of not more than two years. Noble Lords were concerned that Clause 111 or Clause 112 allowed the creation of offences carrying unlimited terms of imprisonment.

I would like elucidation on one outstanding matter. Amendment No. 78A (1A)(c) makes reference to measures Xcombating terrorism". Even after the Government's amendments and after the considerable distance that they have gone to meet the concerns expressed, Amendment No. 78A would still allow, in theory, the creation by secondary legislation of new offences that would carry unlimited terms of imprisonment. If that is so, will my fears be allayed by the Government telling me that, although that is the case under Amendment No. 78A, there is nothing in the roadmap that will result in the creation of new offences carrying unlimited terms of imprisonment before next June?

It is extremely important that that matter is cleared up. If this amendment allows, and if the roadmap still allows, the creation of offences carrying unlimited terms of imprisonment, the point made by my noble friend Lord Alexander of Weedon is underlined. We are treading on dangerous territory and creating dangerous precedents—we may say that we have moved on from the 1972 Act—if we now seriously consider that it is correct for a government to create new offences that carry unlimited terms of imprisonment by delegated legislation. I believe that that would be a serious departure from the way in which we have always made law in this Parliament.

Photo of The Earl of Onslow The Earl of Onslow Conservative 3:45 pm, 10th December 2001

My Lords, I genuinely thank the Government for moving a long way towards understanding the concerns raised by noble Lords on all sides of the House. I know that it was a hard decision for Mr Blunkett. He made noises about an unelected House and he was especially rude about people like myself whom he has recently allowed to continue to be Members of this House.

What offences do the Government have in mind to bring in under these powers? We produced a terrorism Act after Omagh; we produced a terrorism Act in 2000 and we are dashing through a terrorism Act now. Against our will we are giving the Government powers to bring in new offences under the European aegis. What offences do the Government intend to introduce? Can the House be given some indication what new offences will be produced under this plan?

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, perhaps the Minister can clarify a point about which I have asked a question before. I welcome the concession of a sunset clause that allows us to review our position in six months' time, but what will be the status of whatever we agree at Laeken. Suppose at Laeken we say, XWe agree with this, but we would like to think about it again in six months' time", but the EU says, XNo, this is an EU decision that is reached jointly and it cannot be rescinded". My understanding is that we cannot rescind EU legislation once it has been agreed.

I refer the Minister to Clause 18(4) which allows the Secretary of State not to disclose information to a public authority abroad. He is restricted in his powers to this extent:

XA direction under this section shall not have the effect of prohibiting . . . the making of any disclosure in pursuance of a Community obligation".

Shall we be undertaking obligations which cannot be rescinded even though, after six months' experience, we decide we do not want to go along with them? I cannot believe that we are free to make a community decision and to go back on it six months later. I shall be delighted to be reassured that my concerns are baseless.

Can the Minister also tell the House whether methods of combating terrorism, as listed by the noble Baroness, include the proposals for Europol, about which I have inquired several times?

Photo of Lord Brennan Lord Brennan Labour

My Lords, I am sure that I speak for many noble Lords on this side of the House in welcoming these amendments put forward by the Minister. They seek to meet a genuine concern, which is a simple one to express. Our tradition of democracy in this country is that serious criminal law is enacted by the people's elected representatives through primary legislation. Clauses 110 and 111, as they were, sought to introduce on their face an apparent extension of government powers at the cost of that tradition. I say Xapparent" because it is clear from the government amendments tabled today that they recognise the concern and have chosen to act to remedy it. The concern will not go away. As the noble Lord, Lord Alexander of Weedon, made clear, this is a constitutional matter of great importance on which I can reflect simply.

A decision by the Council of Ministers on serious criminal law affecting the Community may be the result of unanimity. That is numerically impressive but it is not thereby endowed with democratic virtue. The virtue of criminal law enacted by the people's representatives is that it commands the respect of the people. I am sure we shall return to that debate; today is not the occasion for it.

I welcome the refocusing of this use of European law to combat terrorism in its four objectives. I said at Second Reading that the freezing of assets was a critically important method of combating terrorism. Secondly, the framework decision which the Council of Ministers has been agreeing seeks to implement that to which we as a nation have already committed ourselves, in spirit if not in letter, in the various conventions of the United Nations to combat terrorism. Thirdly, on extradition, it is, to put it mildly, totally unsatisfactory that an extradition hearing in our country can drag on for three or four years before the person is extradited. Lastly, and perhaps most importantly, there is the need to have the investigative forces liaising in this campaign.

My congratulations on the good sense of these amendments are coupled with a practical question. We have debated the constitutional significance of these clauses. We were told that they were being implemented because action was necessary. With regard to each of those four objectives, when can we expect secondary legislation—I am sure we shall readily endorse it—to aid in the fight against terrorism?

I close by noting again—I did so at Second Reading—the good sense of the opinion expressed by the noble Lord, Lord Jenkins of Hillhead, that the passing of legislation of this kind in an emergency meets the objective of the security of the people but must also meet the objective of protecting democracy. The public will forget quickly the political spats about these amendments. What they will want to remember is whether Parliament passed legislation that commanded the confidence of the country. It is by accepting concerns and putting forward these amendments that they command that confidence. I heartily endorse the amendments.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

My Lords, I wish briefly to welcome the amendments brought forward by the Government. I am not sure whether they go far enough. But I am certain of this. They have already altered the climate in which we discuss important issues, and that makes a major difference. I echo the points made by my noble friend Lady Park of Monmouth. What is the standing and worth of decisions which will now be made under these powers and before the sun sets on them? I have been concerned throughout the debates by the apparent tendency—I accept what the noble Lord, Lord Rooker, said at Second Reading—to ignore the powerful opinions and advice offered by the Delegated Powers and Regulatory Reform Committee. The opinions of that committee do not seem to have been fully digested by Ministers in another place. That committee commands huge respect. I am sure that I speak for the whole House when I say how grateful I feel to my noble friend Lord Alexander of Weedon for what he has done in the past and for what he said today. His contribution has been important in bringing about an improved climate.

I find puzzling and disappointing some of the remarks the Home Secretary is reported to have made during the passage of the Bill. I have great respect for the Home Secretary. He seems to be one of those people, rather rare in our time, who says what he thinks and means without bothering about a disagreeable, odious veneer of political respectability. However, there seem to be times when he goes dangerously far. I wonder whether some his colleagues who are Ministers in your Lordships' House might play a small part in persuading the Home Secretary that the large and massive votes of last Thursday were not brought about by energetic powerful whipping. That is a somewhat self-defeating exercise in your Lordships' House and it certainly did not have any effect on the results of the Divisions last Thursday. Nor was it the result of any forgetfulness of the horror of the events of September 11th. No one in your Lordships' House does not have those events fresh in his or her memory; nor would he or she be influenced into forgetting the appalling shock which those events gave to the whole civilised world.

I add only one comment and do so with some caution. The Home Secretary should not attribute those massive majorities on Thursday to any sudden uprush of love and admiration between the various Opposition parties in your Lordships' House.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, my noble friend Lord Howell has been accused of not being perhaps 100 per cent enthusiastic about all the government amendments to this part of the Bill. My experience is that governments are at their trickiest when they have just discovered that they are wrong. On this part of the Bill, I believe that they were most wrong of all.

We welcome very much what the Government have done. Watching a television programme yesterday lunchtime I was lost in admiration for the endurance and enthusiasm of the noble Lord, Lord Rooker. He did extremely well, busily convincing the public that the Government were doing the most wonderful thing. They have done a lot, but we shall have to wait for six months to decide how third pillar business will be implemented in this country. My noble friend Lord Alexander of Weedon—he is chairman of the Select Committee and I am a member—identified again the issues for your Lordships. However, in six months' time we shall have to decide in Parliament the difference between matters coming under the third pillar which are extremely urgent because of counter-terrorism activity and what the noble Lord, Lord Brennan, described, in a most remarkable speech, as serious law.

I wonder whether it would be possible on each occasion for Parliament to decide on a Motion whether or not business could be treated in secondary legislation. It may be that the kind of schedule the Minister foresaw will do the trick, but it will be very difficult to decide. As she has said, the line between that which is purely a terrorist matter and that which is not is very thin indeed. It may be that there is a more solid way than simply a schedule that may or may not stand the pace over the years. We are grateful, however, for what the Minister has done.

My noble friend Lord Peyton is a little unkind when he says that the Minister took a long time to say that he would do something. He did say it right at the beginning in this House and, to be fair to the Government, because of the timing the House of Commons did not have a chance to look at the committee's report when they discussed the matter. They have responded as best they can. Had they not been in such a rush, they could have done it all now and not in six months. Nevertheless, I welcome what they have said.

Photo of Lord Elton Lord Elton Conservative 4:00 pm, 10th December 2001

My Lords, the reputation of this House will not in the end depend on what people, however distinguished, say about it from outside, nor indeed what we say about ourselves today. It will depend on the work we do today and the result which it produces.

Unlike my noble friend Lady Park, I believe that the purpose of the amendment is to allow the Minister to make regulations which will be permanent for six months. They will remain permanent, and the temporary nature relates merely to the window of time in which he can make changes. The statutory instruments that come before us in the next six months will therefore be of critical importance. I am relieved to see that they are at least under the affirmative procedure, so that we shall have to consider each as it comes through. They may come rather thick and fast, because the Government have only a little time in which to act. It is reassuring, however, because it means that afterthoughts cannot be dragged in after the six months are up.

The second limb of the amendment limits not the time but the scope to the three things listed in paragraphs (a), (b) and (c). My eye has fallen with some alarm, as it did with my noble friends Lord Howell and Lord Waddington, on the very last words of the very last paragraph, Xor on combating terrorism". It strikes me as a very extensive catch-all phrase, particularly as the Government have said countless times that one cannot distinguish between terrorist crime and other crime. Given the definition used for this subject, those words embrace almost any form of criminal activity, provided it is within the third pillar.

There is some odd terminology before us. There is something called a road map, which I understand is a list of the things being considered under the third pillar at present and which may be brought forward. I shall listen with very great care to what the noble Baroness says in reply to my both of my noble friends, to her explanation of what is caught by this phrase, and what the Government will therefore be enabled to enact by secondary legislation.

Secondary legislation cannot be amended. To throw it out would be a very drastic move, and we will not be able to temper what the Government propose by secondary legislation if we think it goes too far. We will only be able to refuse it or accept it. This definition is therefore of considerable importance.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, I would prefer that Clauses 111 and 112 were not in the Bill at all. Having said that, however, I appreciate that the Government have come a long way in meeting the concerns which were rightly expressed in Committee in this House.

What concerns me most is that, had this House not had the time and the ability to scrutinise it, the legislation would have gone through. It is a matter of concern that a Bill containing 126 clauses should be sent to this House without most of them having been properly considered. It is no good the Home Secretary or any other Cabinet Minister complaining about this House, when it has done its job—a job which should have been done by the House of Commons in the first place, it having been elected to do so. It is entirely reprehensible that an elected House of Commons should have less concern than this House for the freedoms and the rights of the people of this country.

I believe that Mr Blunkett is doing a good job, is speaking his mind, guiding people along a road of less political correctness. However, he has to understand that, unless the House of Commons does its job, this House has to spend a great deal more time on the Bill—more than three times as much—and has to do the job for it.

I think that I speak for most members when I say that we would prefer to be at home in our beds than sitting here at one or two o'clock in the morning, doing a job for which the other people along the corridor are properly paid.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative

My Lords, perhaps I may press the Minister to confirm beyond doubt that any provisions arising from the exercise of Article 31 will require unanimity in Brussels. I say that because Article 31, as it stands in Title VI of the Treaty and on its own, contains no reference to whether the provisions under it will be reached by unanimity or qualified majority voting.

The article is controlled by Article 24 of the TEU, which the Government now wisely wish to leave out of the Bill, but Article 24 is itself amended by the Treaty of Nice from unanimity to qualified majority voting, if that treaty is to be ratified.

Article 34 is clearer and does appear to come under unanimity. Article 31, standing on its own as it now does, is silent on the matter and it would be very helpful to have confirmation from the noble Baroness that these new provisions will require unanimity in Brussels before they are brought here by regulations.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Middle East), Foreign & Commonwealth Office, Minister of State (Trade), Department of Trade and Industry, Minister for Trade and Investment and Deputy Leader of the House of Lords (also Department of Trade and Industry), Minister of State (Trade and Investment) Deputy Leader of the House of Lords (also FCO)

My Lords, the whole House is clearly united in seeking effective legislation against terrorism, although I am bound to say probably not quite so united in enthusiasm for the amendments which Her Majesty's Government have brought forward.

The noble Lord, Lord Howell, said that the six months sunset clause was clear, and I hope that is clearly set out in Amendment No. 77ZA. Although I am not a lawyer, I believe that I am in a position to assure the noble Lord that the European arrest warrant legislation will not be brought under this Bill. Indeed, we have made it clear that it never would be. It now cannot be brought under this Bill, because of Amendment No. 78A. Even if we had wanted to—which we did not—we now cannot. I hope that that has closed off a line of argument which perhaps has occupied your Lordships rather more than it should have done. It will be dealt with through separate primary legislation.

I turn to the points raised in regard to paragraphs (a), (b) and (c) set out in Amendment No. 78A. The noble Lord asked whether any further proposals were in the pipeline. I should say that I do not know what will happen over the coming six months; that is, whether we shall see a further terrorist outrage or an incident that might prompt further emergency legislation. Sadly, we live in such times. However, I have given a specific assurance in relation to the Liberal Democrat amendment that Her Majesty's Government would not seek to bring forward through secondary legislation any further baubles, so to speak, to add to the Christmas tree following the passage of the Bill through this House. I hope that that point is clear. Any further action that needed to be taken would be dealt with through primary legislation, excepting those matters covered by subsection (1A), which we have already discussed in relation to the Liberal Democrat amendment.

I was grateful for what was said by the noble Viscount, Lord Bledisloe. I believe that the Government have listened carefully to the exchanges in Committee. That stage is for the purpose of detailed and reasonable discussion. On this occasion, I believe that the House discharged that function in an exemplary manner.

Perhaps I may move on to the second point raised by the noble Viscount in relation to the Italian position. It is a fact that Her Majesty's Government disagree with the position adopted last week by the Italian Government. I should tell the noble Viscount that every other member state also disagrees. We shall need to discuss this further at Laeken where we very much hope to reach agreement.

Italy's position has made clear a very important point; namely, that decisions are taken by member states not, as many noble Lords fear from time to time, by the Commission or by the European Parliament. It is important that such decisions ultimately rest with member states themselves.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative

My Lords, before the noble Baroness leaves the matter of the European arrest warrant, when primary legislation is brought before this Parliament, can she tell the House whether we will be able to amend what may have been agreed at Laeken or wherever? Alternatively, is it the case that once Ministers have agreed the new European arrest warrant in Laeken or Brussels, our powers to amend it will be negligible?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Middle East), Foreign & Commonwealth Office, Minister of State (Trade), Department of Trade and Industry, Minister for Trade and Investment and Deputy Leader of the House of Lords (also Department of Trade and Industry), Minister of State (Trade and Investment) Deputy Leader of the House of Lords (also FCO)

My Lords, I cannot say that we shall be able to amend the powers of the European arrest warrant. As is the case when discussing other European treaty matters, I believe that we shall need to look at a treaty and consider whether noble Lords feel able to agree with it and, similarly, whether another place feels able to agree. The legislation will be dealt with in a way that is familiar to noble Lords.

Perhaps I may move on. The noble Lord, Lord Waddington, raised a number of points relating to the two-year cut-off point for offences. Given our amendments, the reference to creating offences with a penalty of more than two years only in practice will apply to the framework decision on combating terrorism. Even in that case it is unlikely that we shall need to impose a cut-off point of more than two years because in most cases UK law will already have in place severe penalties for terrorism. We shall do the minimum required to implement the framework decision. We are looking in particular at the need to impose sentences over two years in relation to offences committed abroad which may not be covered by existing UK law. I hope, at least to some extent, that the position has been clarified for the noble Lord.

I was very grateful for the contribution made by the noble Lord, Lord Alexander of Weedon. I hope that the noble Lord will recognise that my noble friend Lord Rooker and I have asserted from the beginning that we recognise the well-argued reservations of the Delegated Powers Committee. My noble friend made that point clear in the debate on Second Reading and I hope that I did the same in Committee. I am also grateful to the noble Lord for alerting Her Majesty's Government to the fundamental matters of principle which were laid out in the report of the Delegated Powers Committee. I can assure the noble Lord that we wish to discuss this matter again with the committee before any further legislation is brought forward. I believe that one of the strengths of your Lordships' House is its capacity to undertake such tasks. We are grateful for the wisdom that the noble Lord's committee is able to bring to bear on such issues.

The noble Earl, Lord Onslow, asked what we had in mind to bring forward under Amendment No. 78A. The 1995 and 1996 extradition conventions will simplify the extradition procedures between EU member states. The noble Earl may be interested to know that the United Kingdom is one of only five member states not to have implemented those conventions. That will have to be achieved through what I believe a noble Lord described as the Xwindow of opportunity" we shall have over the coming six months. Indeed, secondary legislation on the extradition conventions will be brought forward next week.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I believe that we are in danger of getting into a serious muddle. As I understand it, over the coming six months we shall have new primary extradition legislation. We have said that we shall not have the European-wide extradition warrant. Now we are saying that, yes, there will be a certain amount of extradition law introduced under this arrangement. Can the noble Baroness tell the House exactly what that will be? I am in a serious muddle over this and I hope that I am not unique.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Middle East), Foreign & Commonwealth Office, Minister of State (Trade), Department of Trade and Industry, Minister for Trade and Investment and Deputy Leader of the House of Lords (also Department of Trade and Industry), Minister of State (Trade and Investment) Deputy Leader of the House of Lords (also FCO) 4:15 pm, 10th December 2001

My Lords, the extradition conventions were agreed in 1995 and 1996 by the then Conservative Government. We have an obligation to bring forward those conventions by the end of this year. That may be seen as stepping through the window of opportunity created by the legislation over the coming six months. We have an obligation in respect of those two conventions to complete the process before the end of the year.

The point made by the noble Baroness, Lady Park, concerned whether we would then be in a position to retreat from the legislation. It is the opportunity for taking such secondary legislation which would then close down as a result of the sunset clause, as was kindly pointed out by the noble Lord, Lord Elton. However, the secondary legislation so created will not die with the sunset clause. I hope that that answers the point made by the noble Baroness and endorses the issue spotted by the noble Lord, Lord Elton. Furthermore, I hope that that answers the point put forward by the noble Earl.

I turn now to the convention on mutual legal assistance which will enable us to provide video evidence. That will prove extremely useful if a witness is unwilling to travel or if we do not want such a witness to travel. It offers a clear advantage as regards expediting proceedings against terrorists either here or abroad. Furthermore, there are other issues as regards the framework decision on asset freezing. I hope that those three bundles of issues at least give the noble Earl an idea of the kinds of matters that we shall be bringing forward.

I hope that I have responded to the points put forward by the noble Baroness, Lady Park, in relation to the sunset clauses. They provide an opportunity to bring forward the secondary legislation that will close on 1st July of next year. Thereafter we would introduce further legislation. We would not turn our backs on secondary legislation that, it is hoped, will be created during the period between now and 1st July of next year.

The noble Baroness also raised a point with regard to Europol. I have asked Home Office Ministers to write to the noble Baroness in answer to her question. Again, I shall return to the attack on behalf of the noble Baroness.

I thank the noble Baroness, Lady Carnegy of Lour, for the compliment she paid to my noble friend who, perhaps I may say, richly deserved it. As I indicated in response to the points made by the noble Lord, Lord Alexander of Weedon, we shall consider carefully the robust points that were put forward in the report of the Delegated Powers Committee. I hope that we shall have an opportunity to discuss them.

I hope that I have answered the substance of most of the points raised by the noble Lord, Lord Elton. He went on to ask what constituted an act of terrorism. We have covered this ground in the past few weeks. Amendment No. 78A is specific on the sorts of issues that are covered, such as decisions on,

Xfreezing property or evidence, on joint investigations teams, or on combating terrorism", for acts of terrorism with which we are becoming all too dismally familiar. It is important, for example, that the placing of bombs—sadly seen so recently—is specifically covered as an act of terrorism.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister (Foreign and Commonwealth Affairs)

The phrase, Xcombating terrorism" at the end of proposed new subsection (1A)(c) continues to create a little unease. Can the Minister assure us that the enabling powers brought forward during this limited period will be confined to terrorism, or are the Government still mired in the difficulty that they cannot define where terrorism ends and other forms of crime begin, so that they cannot give undertakings on the matter?

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Middle East), Foreign & Commonwealth Office, Minister of State (Trade), Department of Trade and Industry, Minister for Trade and Investment and Deputy Leader of the House of Lords (also Department of Trade and Industry), Minister of State (Trade and Investment) Deputy Leader of the House of Lords (also FCO)

To some extent the noble Lord is right. We are talking about freezing property, evidence and other matters closely related to terrorism. That brings us back to the discussion we have been having in the past few days. Her Majesty's Government thought that it was right to have a broader definition so that we would not get into legalistic arguments. Your Lordships said that that was not satisfactory and would prefer something that was related to terrorism. So the Government sought to meet that point. The reference is to the Council framework declaration; that is all that the amendment is intended to be. The measure has been more narrowly drawn, as your Lordships wanted, but I freely acknowledge that there are a number of ways in which it could be interpreted. That is the crux of the argument we have been having in our debates.

The noble Lord, Lord Pearson of Rannoch, who is now in his place, raised another point. All the measures listed in Amendment No. 78A will be decided under Article 34, so they are subject to unanimity. I hope that that is a satisfactory answer.

I appreciated the remarks of the noble Lords, Lord Peyton of Yeovil and Lord Stoddart of Swindon. We have tried to enter into the genuine spirit of what a Report stage should be, listening carefully to what is said and trying to answer the points raised rationally and sensibly. We aim to meet the genuine concerns that have been expressed by your Lordships. In that spirit I hope that we can proceed in agreement on these amendments and clauses.

On Question, amendment agreed to.

[Amendments Nos. 77A and 77B not moved.]

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Minister of State (Middle East), Foreign & Commonwealth Office, Minister of State (Trade), Department of Trade and Industry, Minister for Trade and Investment and Deputy Leader of the House of Lords (also Department of Trade and Industry), Minister of State (Trade and Investment) Deputy Leader of the House of Lords (also FCO)

moved Amendment No. 77BA:

Page 66, line 7, leave out from Xunder" to Xor" in line 8 and insert Xany third pillar measure"

[Amendment No. 77BB, as an amendment to Amendment No. 77BA, not moved.]

On Question, amendment agreed to.

[Amendment No. 77C not moved.]

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

moved Amendment No. 77CA:

Page 66, line 11, leave out Xthe third pillar" and insert Xany third pillar measure"

[Amendment No. 77CB, as an amendment to Amendment No. 77CA, not moved.]

On Question, amendment agreed to.

[Amendment No. 78 not moved.]

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

moved Amendments Nos. 78A and 78B:

Page 66, line 15, leave out subsections (2) and (3) and insert—

X(1A) For the purposes of subsection (1), the following are third pillar measures—

(a) the 1995 Convention drawn up on the basis of Article 31 of the Treaty on European Union on Simplified Extradition Procedure between the Member States of the European Union,

(b) the 1996 Convention drawn up on the basis of Article 31 of the Treaty on European Union relating to Extradition between the Member States of the European Union, and

(c) any framework decision adopted under Article 34 of the Treaty on European Union on the execution in the European Union of orders freezing property or evidence, on joint investigation teams, or on combating terrorism."

Page 67, line 14, leave out Xthe third pillar" and insert Xany third pillar measure"

On Question, amendments agreed to.

[Amendment No. 79 not moved.]

Clause 112 [Third pillar: supplemental]:

[Amendment No. 80 not moved.]

Clause 113 [Use of noxious substances to cause harm and intimidate]:

Photo of The Duke of Montrose The Duke of Montrose Conservative

moved Amendment No. 81:

Page 68, line 25, at beginning insert XIn England and Wales or Northern Ireland,"

Photo of The Duke of Montrose The Duke of Montrose Conservative

This subject was touched on at Second Reading by my noble friend Lady Carnegy of Lour on the suggestion of the Law Society of Scotland. I have the feeling from what the Minister said at col. 719 on the fourth day of Committee that he is also aware of the issue of the common law of Scotland.

This group of amendments seeks to disapply Clauses 113 and 114 from Scotland. Clause 113 creates a new statutory offence in relation to the use of, and threats involving dangerous substances. It offers as a penalty a maximum prison sentence of six months, a fine not exceeding the statutory maximum, or both on a summary conviction, or imprisonment for a term not exceeding 14 years, a fine, or both, on conviction on indictment. Clause 114 creates a new statutory offence in relation to hoaxes involving noxious substances, with equal penalties.

These are suitable subjects to be included within the framework of legislation when dealing with modern terrorism. Presumably they are seen as providing strength to the statutory law of the United Kingdom. The problem for Scotland is that these activities are all capable of being regulated under the common law, and in this case under a charge of fraud or breach of the peace. The penalty for being found guilty under this offence is a maximum of life imprisonment or an unlimited fine.

The common law is a far greater deterrent, and unless the Government feel that terrorists in Scotland should be dealt with more leniently than at present, I submit that these amendments are required. The other irony of the situation may be that statistically one might find a larger number of people angling to be charged as terrorists after a rowdy night out in Scotland because they feel assured that there is a fairly low penalty if they are found guilty. I beg to move.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

The Law Society of Scotland is probably right. I imagine that the drafting needs some attention as I think that there needs to be a consequential amendment to Clause 126. I hope that the Government will accept the amendments.

Photo of The Earl of Mar and Kellie The Earl of Mar and Kellie Liberal Democrat

During the devolution debates, I stressed the value of devolution in giving Scots law, and Scots criminal law in particular, its own Parliament. I am therefore inclined to support the amendments proposed by the noble Duke, as this type of legislation would be better dealt with by the Scottish Parliament. Both offences can be classed as breaches of the peace and the almost unrestricted punishments would be more effective.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, the Scottish Parliament debated and agreed the way forward proposed in the Bill on 15th November. To remove Scotland from the Bill in the way proposed would cause problems. The whole of the United Kingdom will be affected by those who use noxious substances to cause serious harm. The effects would be felt in Edinburgh, Belfast and Cardiff as equally as they would be in London. Bearing in mind that the Scottish Executive has agreed the policy, which was agreed by the Scottish Parliament after the debate on 15th November, I hope that noble Lords will think twice about pressing the amendments.

Photo of The Earl of Mar and Kellie The Earl of Mar and Kellie Liberal Democrat

My Lords, the debate was as to whether or not a Sewell Motion should be passed rather than a full debate on the contents of the Bill.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, perhaps I may ask the Minister—the noble Lord, Lord McIntosh is looking very cross with me—whether it is the case that the Scottish Parliament had asked Scottish Members of the House of Commons and noble Lords—particularly on the advice of noble Lords based in Scotland—to do what they think is best? It is a perfectly legitimate request. I thought perhaps the Government might accept it.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, the Government are not accepting it. The policy has been agreed by the Scottish Executive and the Scottish Parliament. Whichever way one looks at it, they have agreed the way forward proposed in the Bill.

Photo of The Duke of Montrose The Duke of Montrose Conservative

My Lords, as I understand it, the Scottish Parliament has asked us to debate what should be in the Bill. We have the power to put in and take out whatever we want. The amendments do not remove Scotland from anything other than Clauses 113 and 114. However, if this is not clear, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

In moving Amendment No. 82, I shall speak also to Amendments Nos. 83, 84 and 89. I shall be extremely brief.

As drafted, it is not precisely clear in the Bill that Clause 113 would cover the circumstances where an action set out in subsection (2)(a), (b) and (c) has been disrupted before it has had chance to take effect—for example, where the police intercept a package of anthrax spores designed to kill the recipient before it reaches its target. It is obvious that such cases must and should be caught by the offence. Amendment No. 82 seeks to clarify this by providing that the action need be only Xlikely" to have the effect. Amendment No. 84 is a consequential amendment; Amendment No. 83 is necessary to ensure consistency; and Amendment No. 89 is necessary to ensure consistency with Clause 114. I beg to move.

Photo of Lord Elton Lord Elton Conservative

My Lords, we need to get this right. If the substance is intercepted it will not be Xlikely" to have the effect that we are trying to prevent. Therefore, surely, the wording should not be Xis likely to have" but Xis intended to have"? The noble Lord will perhaps think about this matter between now and the next stage.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, we are always in thinking mode. I shall not rewrite the amendment on my feet. I am fairly confident that I could have explained this from the longer and extensive note that I have and could have used. However, if we have it wrong, we have tomorrow to put it right.

On Question, amendment agreed to.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

moved Amendments Nos. 83 and 84:

Page 68, line 31, leave out Xfalls" and insert Xhas an effect falling"

Page 68, line 37, leave out Xis likely to induce" and insert Xinduces"

On Question, amendments agreed to.

[Amendments Nos. 85 and 86 not moved.]

Clause 114 [Hoaxes involving noxious substances or things]:

[Amendments Nos. 87 and 88 not moved.]

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

moved Amendment No. 89:

Page 69, line 25, leave out Xlikely to"

On Question, amendment agreed to.

[Amendment No. 90 not moved.]

Clause 37 [Meaning of racial hatred]:

[Amendment No. 91 not moved.]

Clause 38 [Meaning of fear and hatred]:

[Amendment No. 92 not moved.]

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

moved Amendment No. 92A:

Page 20, line 16, at end insert—

X(8) The Attorney General may issue guidance as to conduct in respect of which he will not institute proceedings for an offence under Part 3 of the Public Order Act 1986 (c. 64), or consent to the institution of such proceedings, on the grounds that the conduct consists of the legitimate expression of religious belief."

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, in moving Amendment No. 92A, which stands in the name of my noble friend Lord Rooker, I shall speak also to the other amendments in the group which relate to Part 5 of the Bill.

The effect of Amendments Nos. 93 to 98 would be to remove a substantial part of Part 5 from the Bill. I shall recap, first, why the Government sought to introduce Part 5, recognising as I do so that, by not moving Amendments Nos. 91 and 92, it is accepted in the House that at least part of what the Government have done is acceptable.

Some noble Lords previously suggested that Part 5 had nothing to do with 11th September and that it was not a measure in response to those events. But we cannot and should not forget that ordinary people in our streets face hatred and harassment because others hold misguided prejudices about their beliefs. At the weekend, the Guardian outlined some individual cases: the Muslim schoolteacher, in a headscarf, who was asked on a Manchester train, XDo you think you will live until 9 o'clock tonight?"; graffiti on a wall reading, XAvenge USA—Kill a Muslim Now!"; a child in Cambridge attacked because his mother was wearing hijab; leaflets posted through letter-boxes across the country claiming that Islam stands for intolerance, slaughter, looting, arson and the molestation of women. It is a sad indictment of our society, but it is also the reality that faces many people today.

There is a weakness in our law because it deals with racial groups, not religious groups. As I have previously noted, some religious groups—Jews and Sikhs—can also be considered as racial or ethnic groups, and, as a result, are protected by the additional safeguards of the Public Order Act 1986 and the Crime and Disorder Act 1998. The current situation is anomalous. On a website run by a disreputable and hateful organisation, there could be the same message about three different groups—the Sikhs and the Jews, which would be prosecutable as incitement, and the Muslims, which would not be. That is an anomaly which needs to be resolved, and the events of 11th September require that resolution quickly. That is why these provisions were included in the Bill and that is why they should remain in the Bill.

Let me identify some of the support that there has been for these provisions being in the Bill. The Muslim Council of Britain, the leading Muslim representative organisation, issued a statement confirming its support in principle for both incitement to religious hatred and religiously aggravated offences. The Board of Deputies of British Jews—although, as I have indicated, the Jewish people are considered a racial group—also supports the extension of the law to religious groups. It noted that in the month after 11th September the number of anti-Semitic incidents recorded by the Jewish community in Britain doubled. Justice, in its paper to the Home Affairs Select Committee in another place, stated that it broadly supports the extension of incitement to racial hatred to cover religious hatred. It said that this will act as an important measure to protect vulnerable minority communities. The Law Society paper to the Select Committee on Home Affairs welcomed in principle the proposal to create an offence of religious hatred. The second report of the Joint Committee on Human Rights stated at paragraph 58:

XThere would be little difficulty in establishing a pressing social need for action".

The United Nations Human Rights Committee, in its concluding observations earlier this month on the United Kingdom's latest periodic report, noted the recent upsurge in religious harassment and attack and urged the UK, among other things, to extend its criminal legislation to cover offences motivated by religious hatred.

In Committee, the proposal received support from the right reverend Prelate the Bishop of Southwark, who is in his place today, and the right reverend Prelate the Bishop of Blackburn. I hope that we shall hear at least from the right reverend Prelate the Bishop of Southwark today.

The second general point raised by noble Lords and others is that Part 5 will limit freedom of expression and will stop criticism of religions and hinder religious discussion and debate. My noble friend the Minister and I have sought to explain existing law and the safeguards in the Bill. I shall trespass on your Lordships' indulgence and mention them again and then return to Amendment No. 92A.

The first of the six safeguards is that the law requires that before an offence has been committed, a person must use threatening, abusive or insulting behaviour. Secondly, there must be a mental element—an intention to incite religious hatred or a likelihood that the conduct or words will do so, coupled in that case with an intention that the words should be insulting, threatening or abusive.

Thirdly, the offence is directed at hatred—a strong word. The dictionary definition Xhatred" is not defined in the Bill—is more than contempt or ridicule. Fourthly, the offence deals not with hatred of a religion but of a group of people who are defined by their faith or lack of it.

Fifthly, the conduct has to enter the public domain. The offence is not directed at purely private expressions of any sort. Sixthly, no prosecution can be brought unless it is instituted by the Attorney-General or with his consent.

The Government do not underestimate the concern expressed in this House and in the other place that a person should not be prosecuted for expressing a legitimate religious belief. I have made that clear, as has my right honourable friend the Home Secretary. In Committee, I undertook to consider how best to ensure that such prosecutions do not occur. We carefully examined the amendments tabled in Committee and in another place but concluded that they would not be effective. The difficulty is that providing exclusion from prosecution or a specific defence—where, for example, a person cites a religious text—creates a loophole that could be exploited by persons who deliberately seek to incite hatred and who are the very people we want the legislation to catch.

We have seen examples where extremists have used quotes from holy books out of context to incite hatred. It is not difficult for the devil to cite scripture for his own purposes. Amendment No. 92A will provide guidance, which will give reassurance, on the kind of conduct that, by being a legitimate expression of religious belief, is not likely to amount to an offence of inciting religious hatred. I hope that that provision, in conjunction with existing safeguards, will reassure those persons who feared that expressing truly held beliefs could inadvertently lead to them being prosecuted.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 4:45 pm, 10th December 2001

My Lords, guidance is obviously important when dealing with a new criminal offence that will interfere with freedom of expression. Will the House see that guidance before concluding its proceedings on the Bill this week, so that it will know how prosecutorial discretion will be guided one way or the other?

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I hope to persuade your Lordships that the offence should be left in the Bill. The intention is that the offence will come into effect once Royal Assent is given. It is important that guidance is available by that date, so that the public know the consequences. I am hesitant to promise that the guidance, which has not yet been drafted, will be available by Thursday. I shall give thought to that question as I continue.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, does the Attorney-General agree that it is important, as a matter of parliamentary accountability, that Parliament knows what it is doing before creating a controversial offence? Would it not be in the interests of democratic, responsible and accountable government for the House to see the guidance that the Government contemplate?

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, it is guidance that I shall give as the prosecuting authority—as the prosecutor with the authority to say whether or not an offence should be committed. That is not the same as government guidance amending, in any way, the offence. I shall consider further the noble Lord's comments. I thoroughly share his views about the importance of democratic accountability. I shall return to the question of precise timing.

Amendments Nos. 95 to 97 deal with the penalties for incitement to racial or religious hatred. Amendment No. 95 would retain the proposed increase from two to seven years but only for racial offence, not religious offences. Amendments Nos. 96 and 97 would remove the provision.

The Government believe that the penalty for the existing offence of incitement to racial hatred as well as the new offence, if it is included, of incitement to religious hatred should be seven years—which would match the penalty set by Parliament for racially aggravated offences in the Crime and Disorder Act 1998.

Amendments Nos. 94 and 98 relate to aggravated offences, where there is a criminal element already but the crime is made worse by being aggravated by a racial element. It is not acceptable to use violence to cause harassment or to damage property because of hostility towards a person's religion. It is one thing to dislike a person for their religion; it is one thing to dislike the religion itself; it is quite another thing to punch a person because they hold a religious belief that one does not like. Sadly, those kinds of offences have increased since September 11th and we need to send a message now that that is unacceptable.

Noble Lords will recall that there was support from both the Conservatives and the Liberal Democrats for this measure in 1998 when racially aggravated offences were introduced in the Crime and Disorder Act. Both parties opposite called on the then Home Secretary to include religiously aggravated offences. The Government undertook to keep that under consideration and that was happening when September 11th occurred. Those events made clear that religiously motivated offences are a reality and that we need to act now. That is why we have brought forward Clauses 40 and 43. Therefore, I hope that noble Lords will support the inclusion of those offences.

In conclusion perhaps I may quote an Attorney-General, albeit an American, Robert Kennedy, who said in 1963,

XWhat is objectionable about extremists is not that they are extreme, but that they are intolerant. The evil is not what they say about their cause, but what they say about their opponents".

The Government's position is clear. We need to protect our communities and the people in this country from religious hatred. The provisions in Part 5 of the Bill will do that. We are not creating something entirely new. We are expanding existing offences with the same criminal thresholds and safeguards that have been in place for years. Where there have been concerns we have listened, examined the possible options, and in the case of Amendment No. 92A, we have brought forward a solution.

My right honourable friends the Prime Minister and the Home Secretary have both made it clear that the United Kingdom has no argument with Islam or Muslims. The vast majority of British Muslims are law-abiding citizens who condemn terrorism in all its forms. It is unacceptable in our society for innocent people to be subjected to hatred simply because another person equates their religion wrongly with terrorist activity. The Government believe that this part of the Bill strikes the right balance between ensuring freedom of speech, which we prize dearly in this country, and ensuring that innocent and law-abiding people are able to practise their religion and to go about their daily business without being subjected to hatred or threats.

With the support for this provision and the safeguards for it, I believe that there is no good reason to oppose it. It was described by Mr Oliver Letwin in another place as being introduced by the Government with Xnoble motive". To protect vulnerable religious communities is a noble motive. I hope that noble Lords will now want to join in sending a clear message that this House wants to protect those people, the young woman in Manchester, and British people against unjustified threat and intolerance. It is an opportunity to send a message of tolerance and inclusiveness. There is no justification for hiding behind delay and procrastination.

My right honourable friend the Home Secretary did the right thing in including this noble provision in this Bill. The House would do wrong to vote it out. I beg to move.

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative

My Lords, the noble and learned Lord has made a gallant defence of an inclusion in the Bill that is not a part of the fundamentals of the battle against terrorism. His proposition rests on the assertion that it is. Indeed, it would be wrong of me if I were not say that there is justification for legislation in this field. The question is whether this is the right legislation, the right time and whether the legislation itself is entirely correct.

I shall try to follow the pattern that the noble and learned Lord has followed in his remarks because it might lead me to follow a logical progression, otherwise my thoughts might tend to be slightly scrappy. The noble and learned Lord rightly listed those bodies which support this legislation, such as the Muslim Council of Britain the Jewish Board of Deputies, Justice, the Law Society in principle, and the Joint Committee on Human Rights which says that it will have little difficulty in supporting legislation in this field. The right reverend Prelates have also supported the principle of this legislation. That is a powerful argument with which we do not quarrel.

The question which I do not believe has been answered by all those bodies is whether in fact they have said that this legislation must be passed now and in this form. With the possible exception of the right reverend Prelates who, by the good fortune of their presence here, have been able to express their view, I doubt whether the other bodies have expressed their support in those specific terms.

We come to the definition of the offence. As the noble and learned Lord said, before an offence takes place there must either be threats or abuse or insults; there must be an intention to incite religious hatred; there must be an intention to insult. The offence must be to create hatred of a group and it must be public and not private.

Those are all valid arguments. I believe I am also right in saying that they are also offences likely to cause a breach of the peace. Under existing law, if it were correctly applied—unfortunately today it is more honoured in the breach—these matters could be dealt with. The question whether the amendments would or would not work I leave to one side.

The noble and learned Lord said that offences under this new part of the Bill would be subject to his ruling as to whether or not they were offences. He intends to issue guidance as to what would or would not be an offence in this matter. I do not wish in any way to call into question the integrity of the noble and learned Lord when I say this. I hope very much that he will not take it that way. But the fact of the matter is that guidance is entirely discretionary. It is not binding. It can be set aside, changed, and it is not subject to parliamentary approval.

To return to the question asked by the noble Lord, Lord Lester, even if we have the guidance before us it is not certain that it is necessarily the guidance which will apply three or five years in the future when the noble and learned Lord has perhaps gone on to greater things and some other person is doing his job. So there will always be a question over guidance.

Furthermore, I am not satisfied that we are anywhere close to a proper definition of a Xreligious group" or a Xreligion". I have two ways of asking the question. We do not have any particular problem in this country with regard to Mormons. More questionable is the Church of Scientology. I think of a group such as the Baha'is. They are seriously religious, but is Baha'i a religion?

If one thinks back to the early days of the Non-Conformist Church, how should we have dealt with someone like Wesley? He Xtook on" the established Church in order to establish a new church. These remarks may seem somewhat odd, but the legislation that we pass—subject only to sunset clauses that we may apply to it—will be permanent, unless it becomes the subject of subsequent legislation. So there are deep and serious long-term issues wrapped in these simple little clauses which have been included in the Bill to fulfil a short-term political need.

We do not quarrel with the principle behind the Government's approach; but the method is wrong. It is still wrong, despite the noble and learned Lord's remarkably clear advocacy. I hope that when the time comes the House will support the following amendment in this group, which seeks to remove the clause from the Bill.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 5:00 pm, 10th December 2001

My Lords, in speaking to this amendment, perhaps I may speak also to the other amendments in the group, especially Amendment No. 93, and therefore speak only once. It is appropriate that we are discussing this sensitive issue on Human Rights Day, when we are concerned with the rights and freedoms of everyone in the country—majorities and vulnerable minorities. The Government's proposals are directed at protecting vulnerable minorities in this country, as the Attorney-General has explained.

As long ago as 1994, during the debates on the Criminal Justice and Public Order Bill, I sought to persuade this House and another place to abolish the common law offence of blasphemy, which is truly anomalous and is part of the problem connected with this proposed new offence, in line with the recommendations of the Law Commission, made after detailed consultation. I shall briefly explain the significance of that in a moment.

The Attorney-General was kind enough to refer to the Second Report of the Joint Committee on Human Rights on the Bill and on this offence. In the report we said that we shared the view of the Constitution Committee that the inclusion of non-emergency measures is inappropriate in emergency legislation required to be considered at speed. We observed also that this was not a proper or sensible way to make legislation. Those observations apply in particular to the proposed offence of incitement to religious hatred. The offence as it has been explained would apply not only to the spoken word but also to the written word, to public performances of plays and to all forms of broadcasting.

Unlike the new statute in the Republic of Ireland, the offence will not cover other forms of hatred—notably hatred expressed against gay men and lesbian women. Ireland has sensibly legislated beyond race and religion to cover that other most vulnerable group in our society.

At paragraph 60 of its report, the Joint Select Committee noted:

XWe were ... pleased to learn that the Home Secretary is not committed to the view that the present state of the law of blasphemy is in tune with the equality-based and respect-based arguments which would be likely to be used to justify the interference with freedom of expression potentially occasioned by the provisions of the Bill on incitement to religious hatred".

The trouble is that the Home Secretary has explained that he does not consider it appropriate to abolish the vague common law offence of blasphemy in emergency legislation designed to counter the serious threat of terrorism. But he does think it appropriate to create the new offence of incitement to religious hatred as a matter of emergency. There is no evidence before Parliament that there is any emergency or pressing social need to justify creating this new statutory offence in such extraordinary haste without dealing with the underlying anomalies in existing law.

There are two underlying anomalies to which the Attorney-General has not referred. The first is that the law does not deal with religious discrimination; it deals only with racial discrimination. It does not deal with incitement to religious discrimination; it deals only with incitement to racial discrimination. The second anomaly is that the Church of England is uniquely protected in its tenets by the ancient common law offence of blasphemy against gross forms of insult. That anomaly was abolished by the Supreme Court of Ireland—of all places—a couple of years ago in a judgment in which the Supreme Court said that the ancient crime of blasphemy existed to protect the Church of England, but the Church of England was not the same as the Catholic Church; that in Ireland no such offence was needed and it was too vague to be capable of enforcement.

But the problem is that, to many Muslims in particular, the existence of a common law offence that protects Christianity against gross insult, and Judaism as a branch of Christianity under the curious law that applies to blasphemy—since Judaeo-Christian tenets are lumped together for this purpose in a complicated way—is grossly insulting. As counsel for Viking Penguin in the Satanic Verses case—where it was sought to put people from Viking Penguin and Salman Rushdie in prison for blasphemy in insulting Islam—I learnt that the sooner we get rid of the offence of blasphemy, the sooner we remove a source of legitimate grievance from the Muslim community; and the sooner we stop people who do not believe in freedom of expression, whether they are Muslims, Jews or anyone else—including Christians—from seeking to use arguments based on mere insults of a gross kind as a justification for criminal prosecution.

I am very glad that I shall never be Attorney-General. Whatever guidance he produces, he will be in a catch-22 situation. In the first place, if we do not get rid of the offence of blasphemy, we can be perfectly sure that pressure will be brought to bear on him by some sections of the community to use this new offence when he does not consider it appropriate to do so. If he authorises a prosecution, we shall be in a catch-22 situation. I can say that with confidence because I have worked in race relations since the early 1960s and have watched what happens to the offence of incitement to racial hatred. If a prosecution is mounted and it succeeds, the danger is that one makes a martyr of the person who has uttered evil thoughts in public. If the prosecution fails, the danger is that one legitimises the evil utterances as those who purvey such views are able to say, XA jury has acquitted and this was the speech that was thought to be forbidden or punishable by law".

I do not say that it follows from any of that that we should be opposed to this new offence in principle. Indeed, I am on record as saying, and have said since 1994, that, if we abolish the offence of blasphemy, we need a new, narrowly drawn criminal offence in its place. I agree with the Attorney-General that, if one were to get rid of the other anomalies to which I have referred, this would be an acceptably, narrowly drawn criminal offence. What is proposed here is what has obtained in Northern Ireland. However, it is never used there because neither of the communities has behaved in the same way as have some on this side of the Irish Sea. It is also similar to a measure that exists in the Irish Republic, although, as I say, it has had the good sense to move beyond race and religion to cover other vulnerable groups.

I hope that I have said enough to make it clear that this matter is very complicated and very sensitive. It requires proper consultation and should not be rammed through via an emergency procedure in Parliament in this ridiculous way. The Law Commission spent a long time in its consultation and, by a majority, came to the view that not only should blasphemy be abolished but nothing should be put in its place.

From what the Attorney-General and the Home Secretary have said, I do not believe that a new manifestation of religious intolerance has arisen since September 11th. I agree that before September 11th there was a continuing manifestation of such intolerance, as we saw in the riots in the cities in the north of this country. I agree that there is widespread racial intolerance, sometimes expressed in religious form, and I entirely agree with the urgent need for effective legislation to counter religious as well as racial discrimination.

Although I would not have expressed it in the same way, I also entirely agree with much of what the Home Secretary said yesterday about the need for social cohesion and the need for everyone to rally round basic civic and political values in this country. Those include the values of a liberal society in relation to free expression as well as mutual respect and tolerance for others and equal treatment without discrimination. I know that the Attorney-General and the Home Secretary share those values. But, speaking with more than 40 years' experience, I shall say to the Attorney-General, who is brilliant but much younger than I am, that it is not sensible to legislate in haste on these complicated matters. Even though I sympathise very much with a large part of what he said about the need for a new offence, let us deal with it properly and not in this hasty way.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative 5:15 pm, 10th December 2001

My Lords, I want to suggest a somewhat different approach. I am afraid that it involves leaving out Clause 39. I am encouraged by the remarks made by Mr Blunkett over the weekend in various interviews when he spoke about the problems that we face in this area. I want to suggest that it is extremely unwise of the Government to highlight religion as the root of the problem when in fact it is a cultural problem. It is the problem that some of our citizens have in coming to terms with being a part of this country, rooted as it is in centuries of a Judaeo-Christian culture. It is rooted also in the problems experienced by others, whose ancestors have lived here for many years, as the immigrant population begins to join in and they see our culture respond to that.

In my view, to highlight this as a religious problem is likely to be counter-productive. We are free in this country to practise and celebrate our own beliefs and religions. But the culture here—a culture rooted in our history, albeit one which evolves as history moves on—provides the setting in which we all live our lives and the setting for our freedoms, whatever our religion.

It is not easy for any of our people to come to terms with and express a cultural problem in terms of religion. It compounds the issue and makes the situation much more difficult if we attempt to do so. The confusion will be compounded even more should the first high-profile case under such a law happen to involve an alleged offender who is a Muslim.

I believe that the Government would be very wise to emulate what the Scottish Parliament has done. I can understand why it has done so because I have received 35 letters, some from south of the Border, but mostly from Scotland and very many from the Highlands and Islands. A shot asylum seeker in Glasgow followed by a church burnt down caused the Scots Parliament to pause for thought. I believe that the Government would be very wise to think again on this matter. I do not believe that the idea of the Government giving us the conditions under which legislation would not be made would help. I believe that that would be a fundamental error.

I should be very interested to know the right reverend Prelate's view on this matter. I have discussed it with a number of his colleagues north of the Border who do not disagree with me that it would be very much better to pause and to return with a Bill which gets to the root of the matter. They agree that we require a Bill which tackles the question of how we live within the existing culture of this country and how we let it evolve without trouble. Religion is linked to culture but it is not the root problem. I ask the Government to consider that.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I ask your Lordships to consider whether it is acceptable that the Attorney-General—there is nothing personal about this—should issue guidance as to the conduct in respect of which he will not institute proceedings or consent to the institution of proceedings as proposed by this amendment. I am concerned only with Amendment No. 92A. Is there any precedent for this situation—a foretaste of the discretion which is exercised by the Attorney-General and which is owed to the whole of Parliament and not to a party? Is there any precedent for that?

Is this not a plain pre-emption of the issue which your Lordships are about to consider as to whether Clause 39 should stand part? If it does not stand part, this amendment is otiose and in the air. We have not yet considered whether Clause 39 should be included in the Bill. If, in your Lordships' opinion—I do not pre-empt this—Clauses 39, 40 and 41 should not stand part, what are we talking about when we consider this amendment?

If it is not acceptable that Clause 39 stand part, the Attorney-General should have no discretionary power to administer the unacceptable. In a sense this pre-empts the situation and is an ingenious Xfudge" for want of requisite particularity on the face of the statute. It is a departure from the manner in which I have always understood that legislation is and should be presented. The noble Lord, Lord Rees-Mogg, wrote in The Times today:

Xwe might as well get the Bill right now".

Surely the noble Lord is right. Surely that is our duty. What on earth are we doing talking about the discretion of the Attorney-General for which there is, as far as I am aware, no precedent?

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I support the remarks of the noble Lords, Lord Dixon-Smith and Lord Lester of Herne Hill. I voted for the Bill at Second Reading. I believe that governments are entitled to be given support in the kind of circumstances which prevailed. I do not in any way resile from the support I gave the Government then.

Over the weekend suggestions were made about the Home Secretary. He was described as bullying and scaremongering and was accused of driving on some sort of illiberal and authoritarian agenda. Anyone who knows the Home Secretary—I have known him since our days together in local government in two different northern cities—knows that those descriptions are as implausible as they are offensive. He argues, and I agree with him, that,

Xto limit a Bill tackling world-wide terrorist networks to the mechanics of causing a terrorist act, rather than the funding, the drug smuggling and the criminal activity behind it, renders it useless".

I am certain that he is right about that. However, this clause on religious hatred falls into none of those categories.

The noble Lord, Lord Campbell of Alloway, mentioned the article which appeared this morning under the name of my noble friend Lord Rees-Mogg. In that article my noble friend also argued that the Bill is effectively hybrid because it contains so much, and that it is not really about emergency legislation or necessary in the circumstances in which we find ourselves today. I believe that there is a compelling case, therefore, for a separate measure to deal with this sensitive question, one with which I believe the Attorney-General dealt with great sensitivity from the Dispatch Box earlier on. It is precisely because he showed such sensitivity that he recognises—I think we all do—that wise deliberation and reflection are necessary here.

The noble Lord, Lord Lester of Herne Hill, was right when he said that no emergency issues are at stake. The Attorney-General spoke of the young woman in Manchester. All noble Lords would agree with him that the kind of remarks made to her were vicious, outrageous and unacceptable in any free society. However, during the past four weeks I have been in Oldham, Bolton and Burnley. There, I have met people who are engaged in education at various levels. I repeatedly heard them arguing for a deepening of commonly-held central civic beliefs, alongside tolerance of different cultural and religious beliefs. I heard no call for measures of this kind. I doubt that this new law will do anything to realise the objective which the Attorney-General has laid before us today, or that it would have prevented last year's riots in Oldham, the recent reprehensible attack in Bolton or the continuing level of one in five votes cast just two weeks ago for a British National Party candidate in Oldham.

By contrast, the painstaking approach, which I saw at first hand in Liverpool, of ecumenism, where first the denominations of the Christian faith work together and subsequently the great faiths have painstakingly worked together in promoting religious toleration and co-existence, seems to me to be a better and longer-term way to proceed. Legislation on religious hatred may simply be used as an excuse to stifle perfectly proper debate about, for instance, forced marriage or female circumcision. Surely, those have to be regarded as legitimate areas for discussion and debate. They are odious practices and words such as Xdiversity" or Xpluralism" become misnomers when used to defend them.

The Home Secretary spoke yesterday about norms of acceptability. If Clause 5 were to be enacted, would he be free any longer to speak in such terms, let alone the rest of us? Earlier today he was accused of offensive remarks because of what he said yesterday. Are we really to force our politicians and other commentators into a form of Trappism because they ask whether arranged marriages are acceptable or whether British citizens should be able to communicate in English?

Our best prospect is to move as Australians and those in the United States have done to the fostering of common civic values, while accepting diversity in religious belief; diversity of dietary codes or the celebration through food, dress or music of an individual's mixed origins. As John Casey wrote in the Daily Telegraph on 4th October 2001, this legislation fails to grasp that,

XBelief in the divinity of Christ or the prophetic mission of Mohammed involves love and reverence, not mere intellectual assent".

Such beliefs can, by their very extraordinary nature, cause outrage and upset, but should that constitute a crime? Every citizen has the right to expect that the law will protect him or her from bodily harm. But the law must also safeguard people's rights to express their views freely and worship in whichever way they wish. The Attorney-General has said that there are people from the Muslim community who have spoken in favour of this provision. But there is disagreement within that community too and opinion is divided. Many Muslims recognise the threat which this legislation poses to the free expression of devoutly-held religious belief. In a memorandum to the Home Affairs Select Committee, Dr Zaki Badawi of the Muslim College, Dr Syed Aziz Pasha of the Union of Muslim Organisations and six other leading Muslim organisations have declared that,

XThe extension of incitement legislation at this particular time is unlikely to protect Muslims. We have grave reservations about the introduction of legislation at this particular time".

They argue that the legislation will have,

Xa deterrent and 'chilling' effect on the legitimate free speech of Muslims".

The genuine fears and concerns that have been expressed by the Muslim community and the numerous letters which many of us have received from a variety of Christian denominations, as mentioned by the noble Baroness, Lady Carnegy, indicate that we should tread very carefully in this area. Therefore, the noble Lord, Lord Lester, was right to say that we should not proceed in haste. The people who are expressing the very fears I have mentioned are the same people the legislation is supposed to protect.

Among Catholics there has been much debate about the toleration of the right of minority faiths to attack Catholicism in Catholic states. In Britain the state once forbade attacks on the established Church, but also persecuted Catholics for not being members of the state Church. That led to James II introducing a more tolerant rule, with the Declaration of Indulgence. Happily, we have come a long way since those days. I would mention in parenthesis that just 40 years ago the Second Vatican Council's declaration on religious liberty, Dignitatis Humanae, occasioned a change of emphasis with its re-affirmation, as one Bishop put it in January 1998, at a meeting of the Royal Society of Edinburgh, that while error may have no rights, those in error certainly do have rights, including the right not to be unjustly coerced.

Among Anglicans, Bishop Lesslie Newbigin, who referred to the XIslamic mission" in his Gospel and Culture lecture on 1st December 1995 at King's College London, stated:

XIf it means discrimination that you make claims and counterclaims with regard to truth, then it destroys all possibility of inter-faith dialogue".

For once I also find myself in the unusual situation of agreeing with the Guardian columnist, Polly Toynbee. She is right to express concern that legislation might be used to stifle religious debate or criticism of religious practices and beliefs. We already have laws decriminalising defamatory libel, obscenity, sedition and blasphemous libel. Those are still in force, but rarely invoked. Laws against racial hatred are rarely invoked. For example, five men who were arrested a year ago for allegedly distributing anti-Semitic literature in the ultra-orthodox area of Stamford Hill were freed after the Director of Public Prosecutions decided not to proceed with charges of racial hatred. The Jewish Chronicle reported that the police said that the charges were dropped because the material was targeted only at a local Jewish community with little likelihood of any civil unrest. Surely, we should be seeking to enforce existing laws, with suitable revision where necessary, rather than hurriedly introducing ill-defined legislation which will serve only to encourage those who seek to undermine the free expression of devoutly held religious belief.

I turn to my last point. I am sorry to have detained your Lordships. If we are to encourage greater religious and racial tolerance in our society, it will be done through proactive laws which celebrate citizenship, not through reactive laws which demonstrate a failure to appreciate the true nature of religious belief.

Two years ago, while giving the Roscoe lecture at Liverpool John Moores University—I declare an interest, as I hold a chair there—Jack Straw, the then Home Secretary, said that new Britons do not come together as do new Americans to celebrate the bestowing of citizenship. He said:

XWe should be doing more to celebrate citizenship, to value those who take on the rights and responsibilities of citizenship by naturalisation and acquisition as well as by birth".

He was right. There are many ways in which we could celebrate and underline the full nature of citizenship, especially the opportunities we enjoy in this country for free speech and religious worship. Jack Straw said that there should be,

Xa proper ceremony to mark such a key rite of passage".

Perhaps the taking of an oath to uphold our democratic institutions and the rule of law might underline the significance of becoming a British citizen. But these are big questions which are worthy of proper debate in a Bill which is capable of proper reflection, scrutiny and amendment following widespread discussion. This is not the way to do it. As this part of the Bill is not crucial to the Home Secretary's central objective, I hope that the Government will think again.

Photo of The Bishop of Southwark The Bishop of Southwark Bishop 5:30 pm, 10th December 2001

My Lords, there may be three main reasons to support the group of amendments, Amendments Nos. 93 to 98, which seeks to remove Clauses 39 to 43 from the Bill. I do not find them convincing.

First, there are those of your Lordships who do not believe that incitement to religious hatred should be outlawed because they feel that religious belief should not be given that kind of protection. I do not agree with that position. For many citizens of this country, their religious belief is one of the most precious things that they possess. That is particularly true for some minority groups which fear that their culture, including their religion, is under threat today.

There are those who do not wish the legislation to go forward because of its damaging effect on freedom of speech; those who feel that the ridicule and criticism of one's own or another faith would be hampered; and those who suspect that the legitimate evangelism of any of the faiths would be constrained. Those are real fears which have been expressed in the House today, but they can be overcome.

It should be recalled that in this legislation we are dealing with hatred. We are not dealing with humour, comedy or even strident criticism. Nor are we dealing with the unfortunate, the accidental or the arguably deliberate misinterpretation of another faith. Words spoken in sincerity by one faith community need not imply hatred of another. A religious service or the desire to convert others, to share the blessings of one's faith with another, is not an occasion to call up loathing, unless it is seriously abused.

The noble Lord, Lord Dixon-Smith, need have no fear; a modern day Wesley would not have incitement to religious hatred among his armoury, any more than did his illustrious ancestor. Amendment No. 92A standing in the name of the Minister addresses that anxiety. The amendment makes the Bill much easier to support.

Secondly, there are those of your Lordships who feel that the proposed legislation would have their full support if it was separated from the anti-terrorism Bill. It certainly can be argued that the incitement to religious hatred did not commence on September 11th and is not contained by its aftermath. The members of the Inner City Religious Council of all faiths have been arguing for just such legislation for a decade or more.

Nevertheless, since September 11th there are those who have not been slow to stoke up faith tensions for their own reasons. The noble Lord, Lord Desai, at Second Reading suggested that supposed religious hatred is in fact racially motivated and that our existing laws are therefore sufficient. I fear that some racist groups are now more sophisticated than noble Lords might surmise. In my capacity as co-chair of the Interfaith Network for the UK I have received reports of white racist groups seeking meetings with Sikhs or Hindus, using the message:

XOf course you are good citizens, it's the Muslims which threaten us all".

Such white racist groups are more than ready to use religious hatred in their divide and rule policy for weakening minority ethnic communities.

For those reasons, I believe that the proposed legislation can legitimately be found in a Bill dealing with anti-terrorism. But even if I did not believe that, I would agree with the views expressed by the noble Lord, Lord Ahmed, at Second Reading that the legislation is better found here than nowhere.

I cannot follow the noble Lords who, like the noble Lord, Lord Lester, support the proposed legislation but not in the Bill. We should grasp this opportunity for much needed reform which has been illuminated more clearly since September 11th.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am very grateful to the right reverend Prelate for giving way. As he was good enough to mention my name, perhaps he can deal with one of my main objections: the anomaly of the offence of blasphemy and the way in which that can distort this new offence unless it is abolished first.

Photo of The Bishop of Southwark The Bishop of Southwark Bishop

My Lords, I thank the noble Lord. I shall come to that matter before the end of my speech.

In pressing your Lordships to go ahead, I am encouraged that the view that I have expressed is also the viewpoint of the main-line religious leaders of all faiths in this country. As co-chair of the Interfaith Network for the UK, I am perhaps in a position to help the noble Lord, Lord Dixon-Smith, when he questions whether such faith leaders have in fact given their full support. For example, Mr Iqbal Sacrani, the general secretary of the Muslim Council of Great Britain, Mr Neville Nagler, the Chief Executive of the Board of Deputies of British Jews, Mr Indarjit Singh, director of the Network of Sikh Organisations, Mr Om Sharma, the president of the National Council of Hindu Temples (UK) and Mr Paul Seito, the co-ordinator of Buddhist organisations in the UK, have been consulted during the past week. They all support this legislation.

Of course there are those who argue contrary to that, but most of the representative religious leaders are of a common mind. It would be remarkable if they were not because for many years they have sought such legislation.

Thirdly, there are members of your Lordships' House who believe that the proposed legislation, limited as it is to incitement to religious hatred, is not adequate; and that it should be withdrawn and become part of a wider Bill which also includes religious discrimination. I totally agree that the legislation before your Lordships' House does not do everything that could be desired, but it is a major first step along the way. The workings of the legislation will give us invaluable experience in the years ahead as it is followed by further legislation tackling religious discrimination. I also add that in such legislation there would be space to deal with the blasphemy law. Its day indeed may have come. It would certainly be easier to view its departure were the clauses regarding the incitement to religious hatred already on the statute book. Certainly, we, from the Church of England, would view the departure of the blasphemy law with much easier hearts were that so.

I conclude by reminding your Lordships that the Bill deals with behaviour and not belief. A wise friend of my acquaintance says of those who mock his ancestry, XIt's not them I dislike; it's their behaviour I find difficult". This legislation is about divisive and anti-social behaviour—the incitement to religious hatred. It is not about belief. With that in mind, I hope that your Lordships will not support the amendments seeking to remove these clauses.

Photo of Lord Dholakia Lord Dholakia Party Chair, Liberal Democrats

My Lords, we heard and rehearsed the arguments for and against incitement to religious hatred at Second Reading, in Committee and in a debate instigated by the noble Lord, Lord Campbell of Alloway. Many of us receive a large number of letters and telephone calls on the subject. They demonstrate that, whichever side of the argument one listens to, the general public—including some members of the ethnic minorities—are adamant that the Anti-terrorism, Crime and Security Bill is not the place for such legislation.

The Attorney-General cited some cases. May I ask him why it was not possible to prosecute when many of them breached the Public Order Act 1986? Some breached the Protection from Harassment Act 1997. My noble friend Lord Lester of Herne Hill has the appropriate bible—if I may use that expression—from which to cite all the examples.

At the heart of the debate are a number of important issues. They include the blasphemy laws—as ably demonstrated by my noble friend—the limits of free speech, cultural pluralism and the place of minorities in British society. Many of them are part of an on-going agenda, but that is not to argue that free speech should be valued more or less highly than civil order or racial harmony. That confirms that a public debate and consultation process are necessary before we legislate. That consultation has not taken place.

If we cannot take the public, including the ethnic minorities, with us, the law is bound to fail. That is why, while we broadly support the need for incitement legislation, we believe that it should follow detailed public consultation and take into account matters relating to religious discrimination. We are concerned about matters relating to cases in which the hatred is directed against groups abroad. That will immediately bring the Government into the politics of the sub-continent and the Middle East. As I asked at Second Reading: do we really want those battles to be fought on the streets of London?

The concession that the Attorney-General would be responsible for the decision whether to prosecute does not answer the question of why it is necessary to include it in emergency legislation of this kind. The record on incitement to racial hatred has been poor. In a debate on 21st November, the right reverend Prelate the Bishop of Oxford pointed to the difficulty that since 1988 only 42 defendants have been successfully prosecuted and in 1999 there were only four prosecutions, resulting in only three convictions. We are now being asked to pass legislation that could have no better outcome.

One argument that is often forgotten, but of which the noble Lord, Lord Desai, well reminded us, is that an extremist hell-bent on violence is not going to ask about one's religious beliefs. We have seen that not only the Muslim community but almost all visible minorities are victims of vile attacks perpetrated by extremists who will circumvent the law so that they can carry out their propaganda against vulnerable communities.

The Home Office must accept that including incitement to religious hatred in this emergency legislation is resented by members of the Muslim community. Despite the Government's denials, they give the impression that that faith is intrinsically tied up with the events of September 11th. That is quite the reverse of what the Government intended, but they have only themselves to blame.

When will the Home Office learn that these measures are resented not because they are inappropriate but because they patronise ethnic minorities, and the Muslim community in particular? The Home Office should understand that religious hatred is not new. I could have told the Minister about that when I came here in 1956. As early as then, when I was living in Sussex, the Sussex Racial and Religious Preservation Society was formed.

The Government are shortly to produce a consultation document on Article 13 which will take into account discrimination based on religion. The matter needs to be considered not in a piecemeal fashion but as a comprehensive measure that will take into account the prohibition of direct and indirect discrimination on grounds of religion or belief. We need not worry about the statutory definition of religion or belief because practices that are contrary to human rights as guaranteed by the Human Rights Act 1988 will not be lawful. The Minister would have our full support if legislation were separated from the Bill. That would allow us seriously to consider what was appropriate and how we could command the respect of all our citizens.

For that reason, we support the amendment. We are not alone. Even the Commission for Racial Equality argues that a distinction can be made between anti-terrorism measures that can be justified as necessary in the current situation and those that have wider implications and should be given greater consideration in Parliament.

Photo of Lord Peston Lord Peston Labour 5:45 pm, 10th December 2001

My Lords, I rise—paradoxically, now—rather reluctantly. I wrote to my noble friend the Minister when the provisions first appeared to say that I could not possibly support Part 5 and would vote against it; I intend to do so in its entirety today.

I rise because I regard myself as belonging to a great political party. It would be appalling if, when the history of our time is written, at least one voice did not speak out against what I regard as a thoroughly illiberal measure and one totally alien to the history of the party of which, as I say, I am proud to be a member. At least one voice from our side must say that the Bill is a mistake.

I must admit—this is where I differ from some noble Lords with whom I hope to be voting later—that I would oppose such legislation more generally. I can think of no appropriate form of the legislation in respect of which I could put my hand up and say that it is compatible with liberal parliamentary democracy or the open society. Indeed, the main thought in my mind as I listened to those supporting the provisions is that the terrorists have won. If we pass this part of the Bill, we will undermine a fundamental principle of parliamentary democracy. That is the business that the terrorists are in: the destruction of parliamentary democracy.

Further than that, returning to my early days as a student, when I had the great honour of being taught by Karl Popper, I believe that the open society is the essence of what we, the Americans and others do. The crime of religious hatred—whatever that means, and I still have great difficulty following my noble friends' explanations of what it means—is incompatible with the open society.

The provisions have nothing to do with the protection of individuals against abuse, threats, and all that sort of thing. We have a legal system to do that; we have people who speak up for such people. I agree that sometimes, especially in the case of race, not enough is done. The lesson to learn from that is that we should enforce our existing laws properly, not invent this one.

Finally, Amendment No. 92A, which I know that my noble and learned friend proposes honourably and with a desire to help, really gives the game away. My right as a citizen of this country cannot possibly depend on what the Attorney-General—and I do not mean this specific Attorney-General but the office—decides are grounds for conduct that consists of the legitimate expression of religious belief. I decide what I regard as a legitimate expression; I do not require the office of the Attorney-General either to tell me or to be in a position to tell me.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I shall be so brief. I hate a caste system, which condemns someone to be a hewer of wood or a drawer of water, that is religious-based. I hate the concept that a widow can be forced to commit suttee. I hate forced marriages. I hate female circumcision. I hate the concept that people should be stoned to death for adultery. I hate that hands should be chopped off because of thieving. I hate that people should be forced to wear burkas so that they cannot be seen. I hate the rantings of Protestant extremists against the evil of sodomy. I hate the Wahhabite system of law. I hate all of those because they are wrong. I also think that it is wrong that I should be criminalised for hating, and encouraging others to hate, something that is held to be religious by a large group of religious people when I know those things to be wrong.

The Attorney-General shakes his head and says, XNo, that's not it". If that is not the point, what is the point? Will I be able to say that I hate a religious doctrine? That is the dilemma that faces us all. Let us leave it to the laws of harassment, sedition and offensive behaviour; let us not pursue these religious lines. The issue is too difficult. Let us also remember that the Pope rescinded the Great Papal Bull Regnens in Excelsis, which absolved all Roman Catholics from loyalty to the United Kingdom, only in 1967, or so the noble Lord, Lord St. John of Fawsley—a totally reliable source—told me.

Let us be very careful about making things that I hate illegal to hate.

Photo of Lord Taverne Lord Taverne Liberal Democrat

My Lords, I shall give one very brief example, which appears in the current edition of the Economist, to demonstrate the dangerous territory that the Bill is entering into. There is apparently a radio station called Premier Christian Radio, against which a complaint was made by the Mysticism and Occult Federation. The Radio Authority, which judges such complaints, found some of the federation's criticisms valid, and it criticised the radio station for referring to other religions as full of superstitions and absurdities; for derogatively referring to non-Christian faiths as XBuddhism, Hinduism and rheumatism"; and for publishing an advertisement from a Church promising certain listeners deliverance from Xoccultism".

The Radio Authority is not concerned with religious hatred, it is concerned with good taste and decency. The above example, however, shows how difficult it is, both currently and in the future, to draw a line between hurting feelings and what amounts to inciting hatred. It could well be that, when feelings run high, regardless of the guidance that is issued by the Attorney-General, those who make certain types of statement will be prosecuted, freedom of speech will be suppressed, and the type of situation that we saw when a fatwa was issued against Salman Rushdie may well be repeated.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I want briefly to comment on Amendment No. 92A. The fact that the Attorney-General moved the amendment demonstrates that he is not 100 per cent confident that the Bill's current definition is clear to everyone who might be affected by it. It is an indication that, so far, the Bill's definition of the crime in question is not very adequate. I am sure, as has been said more than once, that it is a very difficult issue. The Law Commission examined the issue and concluded that it would be wise to have no provision at all to address it, although it reached that conclusion against the background of a different time and in considering whether the law of blasphemy should be removed from our common law.

I want to put one question to the noble and learned Lord the Attorney-General—whose thoughts on the issue must be fairly right, as he said that guidance would have to be available when this emergency Bill receives Royal Assent. I am sure that your Lordships recollect the debates that we have had over the years on various provisions on abortion. The most recent such debate was on the Human Fertilisation and Embryology Act 1990, the scope of which made it possible for the first time to include this type of amendment in a government Bill.

The difference between those who agree with abortion and those who disagree with it is a religious one. Generally, those who disagree with it have the view that human life exists from the time of, or very shortly after, conception. That is in the nature of a religious belief. Those who are against it hold the view that those in favour of abortion are killing babies by the hundred. I think that most people would regard killing babies by the hundred as a fairly hateful matter. Therefore, if I say that those who are in favour of abortion are in fact promoting the killing of babies by the hundred, surely I am inciting hatred against them as a group, as those who perform the abortions are said to be murderers, and those who agree with abortion are said to be supporters of murderers. The example demonstrates that we are seeking to legislate on a rather difficult subject.

It may be that the Law Commission, having long and very carefully considered the matter, has reached the right conclusion after all. Regardless, it seems that we cannot properly go down this road as quickly as an emergency Bill would seem to require.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

My Lords, I should like to follow up the remarks of the noble and learned Lord, Lord Mackay, by drawing attention to Amendment No. 92A, which states:

XThe Attorney General may issue guidance as to conduct in respect of which he will not institute proceedings for an offence . . . or consent to the institution of such proceedings, on the grounds that the conduct consists of the legitimate expression of religious belief".

That is an extraordinary power to confer on an office-holder. The Attorney-General can issue guidance, and presumably he can amend his guidance. If he can issue it, he must be able to say, XI have changed my mind" and revoke it. Therefore, we are effectively saying that the scope of the operation of these provisions depends on the opinion that is formed from time to time by the Attorney-General. That cannot be a proper way in which to legislate. If we wish to express something as being a criminal offence, we should be capable of defining it. It is totally unacceptable, and to my knowledge unprecedented, to allow the definition or scope of provisions of an Act of Parliament to depend on the opinion from time to time of a single officer.

Photo of Lord Desai Lord Desai Labour

My Lords, I rise to support Amendments Nos. 93 to 98. As I have consistently made clear, I do not like Part 5 of the Bill. The noble and learned Lord, Lord Neill, put his finger on my primary concern about Amendment No. 92A: the lack of clarity on whether future guidance from the Attorney-General will expand the scope of the provision although we do not agree to expand it.

I am not concerned about specific individuals. As we know, however, British tabloids can drive us to a political frenzy, such as on the issue of dangerous dogs. I can very easily imagine a situation in which, as in the Salman Rushdie case, there is frenzy-driven tabloid propaganda saying that the Attorney-General must immediately take a given course of action. There will be no stopping once we start down such an illiberal road.

I still believe that, if we want to stop attacks on Muslims or any other minority, we shall have to find a better way of defining those groups than by resorting to the label of religion. That is the wrong label. However, we can do that only if we put together all the religious issues—for instance, discrimination, blasphemy and hatred—and perhaps have a special committee of your Lordships' House to examine the matter in detail. After that, we should return to the legislation and deal with it properly. Bad legislation in this respect will be extremely harmful.

Photo of Lord Elton Lord Elton Conservative 6:00 pm, 10th December 2001

My Lords, the noble and learned Lord, Lord Neill, and my noble and learned friend Lord Mackay of Clashfern seem to have torpedoed completely the palliative Amendment No. 92A, which was intended to persuade your Lordships to go down this route.

I rise as a loyal member of the Church of England in order to try to persuade the right reverend Prelate to have at least a moment of doubt about what he advises us. There are only 24 hours—perhaps a few more; 30 hours—in which an alternative amendment can be tabled. Under ordinary procedure, not only would we have had weeks of discussion between stages so that our positions could have been fully realised, but we would have a full three days in which to carry out further discussions in order to find an alternative palliative amendment.

Therefore, while I agree with the right reverend Prelate that something must be done, that is far from saying that anything will do. I do not believe that this will do and under this procedure I do not see how we can arrive at anything which will do. It follows, does it not, as we have been saying all along, that this is the wrong place for this provision? It should comprise a Bill of its own and not be in this one.

Photo of Baroness Richardson of Calow Baroness Richardson of Calow Crossbench

My Lords, I am well aware that many of our faith community leaders are in favour of the legislation being passed. However, it has been expressed to me on the basis of half a loaf being better than none. It is said that it will go some way towards helping against what they feel to be an injustice; that some parts of the community are protected and that they are not. I am not convinced by that argument. Our faith communities and all religions deserve better than to be put in that negative light. We have consistently said that the events of 11th September and the conflict are not religiously based, so I cannot see the justification for including the provision in an anti-terrorism Bill.

I hope that we shall pass the amendments. The Government are committed to examining religious discrimination, which involves religion and belief. That covers an area wider than simple religious understanding. I hope that we shall have considered reflection of, and be able to put in a more positive light, the role that religions play in our community. We should carefully consider how that can be protected as a force for good within our common life.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I do not want to delay the House and I do not want to disagree with the Home Secretary just when he is coming around to agreeing with me. However, I believe that the clause is out of place not merely in the Bill but in any legislation. Perhaps I may respond to a point which arises from what was said by the noble Baroness, Lady Richardson.

The followers of bin Laden are undoubtedly acting as they do out of a religious belief. I have heard a number of Ministers who could be held to be guilty of causing religious hatred of the followers of bin Laden because of what they do. Those followers say that they do what they do because of their religion . That immediately goes to the definition of a religion. I notice that the Bill contains a reference to a religious belief or a lack of religious belief. However, the amendment tabled by the noble and learned Lord the Attorney-General refers only to

Xthe legitimate expression of religious belief".

Straightaway, at this stage in this hurried procedure through which we are going, we find inconsistencies in the legislation that is before is.

What is an expression of non-belief? What is an expression of irreligious belief? Are they different? What of cults? Are they protected? Would we think it right to be protecting the local chapter of a Haitian voodoo group? I believe that we are rapidly getting ourselves into a great muddle. It is a great muddle into which we do not need to get.

We can escape all those difficulties simply and easily without requiring any of these definitions; without requiring any discussion of whether a fringe comedian at the Edinburgh Festival could infringe the law; without relying on the whim of successive Attorneys-General to tell us what the law is. We should return to the common sense use of prosecuting for the use of insulting words or behaviour whereby a breach of the peace may be caused.

If we were to increase the penalties for such behaviour to, say, seven years, we would have the perfectly flexible and useable weapon; that is, if a comedian went beyond the bounds of good taste or if someone in a pub among his friends of similar quirky beliefs was insulting about people who would never hear what was said, it could all be ignored. But if a hooligan of some kind went into a place where there were members of a religious group and chose to insult them and stir up hatred against them, we could proceed easily and simply with law that has been used for years and is well understood.

We no not want this proposed legislation and we should get rid of it. It is a mess; it is a danger; and it is a disgrace to the legislation which should come from this Parliament.

Photo of Lord Parekh Lord Parekh Labour

My Lords, I am afraid that mine will be a slightly dissenting voice because I have the feeling that many noble Lords are already persuaded by the amendments. However, that is the other side to the story and I hope that your Lordships will allow me to say it.

In the debate on the issue there are four important questions. First, should there be an offence of incitement to hatred? I believe that the answer is yes. Secondly, should incitement to religious hatred be an offence? The answer seems to me to be yes. Thirdly, as no definition of religious hatred is ever perfect, do we have it just about right? The answer seems to me to be broadly yes. Fourthly, are we right to make it part of an anti-terrorism Bill? Again, in my humble view, the answer seems to me to be yes.

Perhaps I may briefly explain those views. Our democracy is based on the principles of rational debate and dialogue. Obviously, it is incompatible with intimidating and aggressive utterances. That has become particularly urgent because of our multi-cultural society which requires the sense of a dialogue between civilisations and cultures. It is crucial therefore to save the parameters of the public debate and to ensure that our public life is free of inter-ethnic or inter-religious hatred. Hatred is the enemy of dialogue and declares a war on a section of our citizens.

We must also bear in mind that almost all forms of racial hatred grow out of religious hatred. For centuries, for example, Jews were attacked on religious grounds. Their religion was condemned and they were accused of deicide. It was argued that they were therefore objects of legitimate hatred. That kind of evil way of thinking created a climate whose consequences were exploited by the Nazis in the 1930s. The same was true of the Hindus whose so-called animalistic religion was condemned and whose people were declared legitimate objects of hatred.

In your Lordships' House and elsewhere it is sometimes said that this clause relating incitement to religious hatred, is a sop to Muslims, that it singles them out for special treatment and may even prove counter-productive. I do not see the clause in that way at all. The clause protects no one and no particular community; it protects only our democratic system by banning utterances that are likely to poison relations between different communities. Such inciteful utterances may come from Muslims, as in the past they have tended to do, and so they will face the full rigour of the law. If they come from other groups, those groups, in turn, will receive the full rigour of the law.

Sometimes it is said that the Bill will curtail freedom of expression. Again, I do not see why. The Bill is clearly directed to stop certain kinds of behaviour—not utterances. It deals with utterances only in so far as they are action-oriented.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I thank the noble Lord, Lord Parekh, for giving way. Am I right in thinking that in the Joint Committee on Human Rights he made clear in his questions to the Home Secretary that his position is that the Salman Rushdie novel, The Satanic Verses, should have been prosecuted as a criminal offence? I ask the question because the noble Lord says that this Bill would not threaten free speech. Am I right in saying that that is his position?

Photo of Lord Parekh Lord Parekh Labour

My Lords, I shall come to that point in support of my argument. The Home Secretary made the matter clear in his evidence to the Joint Committee on Human Rights. In answer to a question of mine he said that the Bill would not have stopped Rushdie's The Satanic Verses. He also said that those utterances that are designed to demean, offend or degrade others are left completely untouched by the provisions of the Bill. In other words, the Bill is concerned with only those utterances that are likely to lead to certain forms of hatred and that are likely to precipitate action against certain groups of people. Therefore, I believe that the Government's intentions are broadly liberal and that any court dealing with the matter would want to take into account the kind of evidence that the Home Secretary gave to the Joint Committee.

Many noble Lords have asked why Part 5 should be included in a Bill dealing with terrorism. I may be totally naive, but I like to believe that the connection is absolutely clear. Terrorism springs from hatred. Of all forms of hatred, religious hatred is the worst because it breeds fanaticism and justifies itself in the name of no less a personage than the Almighty. We have seen that in the Middle East and elsewhere. Religious hatred needs to be stopped or at least discouraged. Hence I see Part 5 as part of a campaign against terrorism in general.

Questions have also been raised about what constitutes a religion or a religious group. Similar questions were raised in the mid-1970s when we were talking about incitement to racial hatred. After all, if race and ethnicity have not proved difficult to define, I do not see why religion should pose a problem. In short, the Bill is directed against religious groups and not against religions. It defines hatred in fairly narrow and tight terms and as far as I can see it has safeguards against indiscriminate use of the provisions of the Bill. Therefore, I am inclined to support the Bill and to reject the amendments.

Photo of Baroness Buscombe Baroness Buscombe Conservative 6:15 pm, 10th December 2001

My Lords, I shall be brief. I have a few points to add to the debate and I want to speak to Amendment No. 93 standing in my name. The prospect of a new law on religious hatred has attracted criticism from a wide range of groups. The Home Secretary is most concerned to protect Muslims with a new offence, yet Muslims are divided on it. As the noble Lord, Lord Alton, has already said, in a memorandum to the Home Affairs Select Committee in November, several Muslim groups have expressed grave reservations about the prospects of such an offence. Some of them may have been persuaded by the Home Secretary and the current wording of the Bill, but others have not. Given time, consultation and careful drafting, their fears may be allayed, but as it stands this new offence is still a cause of grave concern to many Muslims, let alone Christians and those of other faiths or no faith.

The Home Secretary has one rather eccentric success in that he has managed to unite atheists and religious believers with comedians and journalists who have come together to condemn this new offence because of the potential effect on freedom of speech. While we all deplore religious hatred, this is not the way in which to deal with it. Many religious people have a real concern that the new religious incitement offence will cause more harm than good. Instead of protecting them, they fear that the new law could be turned against them. Religious people should be free to argue passionately in support of their beliefs as should those with no faith. Free speech and robust debate that pose no danger to anyone risk being caught by the new offence.

Photo of Lord Avebury Lord Avebury Liberal Democrat

My Lords, is the noble Baroness aware that under legislation relating to Northern Ireland there is a provision that is almost word for word the same as may be enacted if Part 5 is put on to the statute book and that in 14 years there have been only four prosecutions?

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I am very aware of that. I shall quote directly from the Christian Institute which has said:

Xwe know about anti-religious sentiment. We deal with cases of individuals who are mistreated because of their beliefs. To silence those who disagree with us we could easily make use of this new law if it is passed. But we do not believe it would be right to do so".

We are moving in dangerous territory. This issue should be left out of the Bill altogether. These provisions touch on such a sensitive area of our national life and they cannot be dealt with properly in the highly pressurised setting of a Bill on terrorism that is being raced through Parliament in time for Christmas. I entirely agree with my noble friend the Shadow Home Secretary, Oliver Letwin, MP, to whom reference has been made by the Attorney-General. The Government's motive is noble, but with respect, their actions are misguided. The House does not need to oppose or to reject Amendment No. 92A; instead I urge your Lordships to support Amendment No. 93 through which we can remove the offence of incitement to religious hatred from this Bill.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I know the hour is late and I sense the mood of the House, but I want to speak to a few points as there is confusion. I respect some of the views that have been expressed and, with respect, I consider some of the views to be misguided.

Does this House believe that such conduct should be prohibited or condoned? I understand, with few exceptions, that the House is of the view that conduct involving the hatred of individuals because of their beliefs is not appropriate and should not be condoned. Therefore, one has to ask whether it is right to outlaw such behaviour as a criminal offence, in what form and when?

I invite noble Lords to pay the closest possible attention to the views that have been expressed by the right reverend Prelate the Bishop of Southwark who has spoken on his own behalf and on behalf of others. Within the past week he has obtained the views of representative leaders of the British religious communities, including the Board of Deputies of British Jews, the Muslim Council of Britain, the Network of Sikh Organisations, and the National Council of Hindu Temples. The noble Lord, Lord Alton, referred specifically to the Muslim Council of Britain and to the appendix put in to the Home Affairs Select Committee in another place. In that memorandum the views expressed by the signatories was that at the moment they did not want to see legislation. As I told noble Lords, the Muslim Council of Britain has now changed its view on that. After reflection, having seen the provisions—the paper was written before the Bill was published—it has agreed the statement which I mentioned earlier. That is confirmed in what the right reverend Prelate the Bishop of Southwark said.

I also ask noble Lords to pay the closest attention to the words of my noble friend Lord Parekh. The views expressed in his study in relation to multiculturalism in this country deserve, I suggest, the closest possible respect.

I respect the view of the noble Lord, Lord Alton, and it is important to note it. He spoke of the need for deepening our culture and cultural inclusiveness. I entirely agree with that. However, sadly, the people whose conduct we want to prevent are not susceptible to that deepening of culture and certainly not in the timescale of which we speak.

Let me deal with specific topics. First, are the ingredients of the offence sufficiently defined? I have been at pains at Second Reading, in Committee and today to identify the ingredients of the offence. They are the same ingredients as existing offences: the offences of incitement to racial hatred. They have not been dreamt up for this Bill. Those ingredients are there and it is important to focus on them. I shook my head at the remarks of the noble Earl, Lord Onslow. He talked about violent disagreement with the tenets of a religion. As I sought to make clear, the ingredient of the offence is inciting hatred of a group of people not of the religion. That is clear from the provisions of the Bill. The noble Lord, Lord Tebbit, and other noble Lords shake their heads. Because of the suggestion of the noble Lord, Lord Thomas of Gresford, I had placed in the Printed Paper Office a copy of Part 3 of the Public Order Act 1986, as it would be amended, which identifies what is meant by religious hatred. It is on the face of the Bill. It means hatred against a group of persons defined by reference to religious belief not to religion. The noble Lord, Lord Parekh, was right in relation to that.

Photo of Lord Elton Lord Elton Conservative

My Lords, will the noble and learned Lord tell us how that would bite on the case of the Muslim woman which he cited at the beginning of his speech? From his example, I understood that the hatred was directed at her.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, the hatred is against a group of persons of which she is a part because she is a Muslim. I hope that that helps the noble Lord.

Noble Lords:

Oh!

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I do not understand noble Lords' amusement. I have obviously said something which I should not have done.

Photo of Lord Elton Lord Elton Conservative

My Lords, I think that it was a comment on my ability to take in what the noble and learned Lord was saying.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, at least the noble Lord has not been accused of being too young to understand what the Bill is about. I suppose that I should be grateful that I was not accused of not being a lawyer. That is the other criticism which has been made.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am not accusing the Attorney-General of anything. However, is not the Muslim woman in the case he cited already adequately protected by existing criminal law, including the protection against harassment legislation which we enacted only recently?

Can the noble and learned Lord also deal with the point raised by the noble Lord, Lord Tebbit, that his guidelines will not cover those who have no religious belief?

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, let me deal separately with those questions. First, when the noble Lord, Lord Lester, said that no events had occurred since 11th September, I was going to intervene to ask whether he had read the appendix to the report of the Select Committee on Home Affairs. It sets out incident after incident attributed to events since 11th September. The first state-funded Islamic school, Islamia Primary School, in Brent was forced to close after threatening telephone calls since the incident in the USA on Tuesday 11th September. A school secretary wearing a hijab was abused verbally while out shopping. On Monday 17th September, girls in hijabs were spat on. There are examples after examples. Noble Lords who read the appendix cannot doubt that those events have occurred since 11th September.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, are those incidents not punishable under existing criminal law?

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, perhaps I may pick up on that point. Would not Section 4 of the Public Order Act deal with those very allegations? It states:

XA person is guilty of an offence if he . . . uses towards another person threatening, abusive or insulting words or behaviour, or . . . distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting".

Making those kinds of abusive comments to a woman in the street wearing a veil would be an offence under that section.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, Section 4 of the Public Order Act makes a person guilty of an offence if he uses threatening, abusive or insulting words,

Xwith intent to cause that person to believe that immediate unlawful violence will be used against him . . . by any other person", or that person is likely to believe that such violence will occur. It is a victim orientated offence.

The reason for proposing the amendment was not because the ingredients of the offence are insufficiently defined. It was for another reason. With respect to the noble and learned Lord, Lord Mackay of Clashfern, it is not because I have doubts as to what the offence meant but for this reason. In another place, Sir Brian Mawhinney raised the question whether or not it would be possible to find a way of putting a reference to legitimate expression of religious belief in the Bill. In this House a similar point was made. The proposal was to help in this respect.

I make two points about the position of the Attorney-General. It is already the position, as it is under a number of Acts of Parliament, that the consent of the Attorney-General, and in Scotland the Lord Advocate, is required for certain offences to be brought. It does not mean that the Attorney-General identifies the ingredients of the offence. That is for the court. Nothing I say could ever make criminal conduct which is not within the words of the statute. The consent—it has been inserted by Parliament on a number of occasions—filters out cases, to prevent them from going to court, where it is not in the public interest for them to be brought to court. It is a question of public interest not an executive decision. I do not say this because of the accusation of youth. But some noble Lords may recall that in 1924 a Labour Government fell because the Attorney-General of the day gave and withdrew a consent for a prosecution which was believed to have been motivated by political considerations. Ever since that day it has been an absolute tenet of faith to successive attorneys-general that the decision as to whether a prosecution takes place—for example, I give consent to explosive substances cases—is given entirely on the basis of public interest not political consideration.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, every noble Lord, by and large, knows about the powers of the Attorney-General. Can the noble and learned Lord say whether there is any precedent for the type of administrative power sought under the amendment to be put in the hands of one man, the Attorney-General?

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, it is not an administrative power. It is a statement that I was offering to publish guidance, to police and prosecutors, as to the circumstances in which I would consent to or institute proceedings. I shall come to precedent. I cannot change the Act. I do not seek to do so. It is not an administrative power to change the ingredients of the offence. It is to give some assurance on what I have said repeatedly in this House: that legitimate expressions of religious belief are not, in my view, criminal and will not be prosecuted. It is for that reason only.

I turn to the third question. Is it necessary to do so now? I was surprised to hear the noble Lord, Lord Lester of Herne Hill, suggest that it was not necessary to do it now. I have read to noble Lords what the Joint Committee on Human Rights said about this being a pressing social need, noting that the United Nations Human Rights Committee had urged us to introduce such legislation.

Although coupling it with the question of blasphemy, the noble Lord is on record as saying that reforms would protect minority groups such as Jews, Sikhs, Muslims or Hindus from serious public order offences without unnecessarily interfering with freedom of speech and that such a law would not threaten satire and powerful criticism of religious beliefs or the lack of them.

It is said that the Law Commission formed the view that it did not think such an offence was necessary. That is not right. In paragraph 2.35 of the report in 1985 the Law Commission said that,

Xif such attacks appear to be or become a real social problem, the appropriate response in our view is not to extend the law of blasphemy but rather to adapt the present offence, penalising the publication of matter likely to arouse hatred towards persons on account of their race, so that it would penalise publication of matter likely to arouse hostility to others on account of their religious beliefs".

In other words, the Law Commission took the view a number of years ago—this is not a new issue—that if there was a pressing social need, then the right way to deal with it would be to introduce some fairness of this sort.

Ultimately, the question is whether to do it now. I urge noble Lords, despite the expressions that I have detected during the course of this debate, to follow what the right reverend Prelate the Bishop of Southwark said. It is now that we can protect our community. It is now that we can send out a message that we want them not to be vulnerable; that we want to be inclusive. To throw this out now would be sending exactly the opposite message. I urge your Lordships not to send that message.

On Question, amendment agreed to.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I beg leave to speak also to Amendment No. 94 and Amendment No. 95.

Photo of Lord Carter Lord Carter Chief Whip (House of Lords), HM Household, Lords Chief Whip (HM Household)

My Lords, if it would help the noble Lord, I think that the House wishes to reach a decision on whether Amendment No. 93 should be dealt with. I think that the House wishes to come to a decision on that now and then, if he wishes to speak to the other amendments in their place on the list, of course he can do so.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I am obliged to the noble Lord. The essence of the problem—

A Noble Lord:

No!

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, Amendment No. 93 has not been moved other than by myself.

Photo of Lord Carter Lord Carter Chief Whip (House of Lords), HM Household, Lords Chief Whip (HM Household)

My Lords, if it would help the noble Lord, the debate has taken place around the virtues or otherwise of Clause 39. The House now wishes to reach a decision on whether Clause 39, as amended, should remain a part of the Bill. After the House has taken that decision, it can then move on to the other amendments to which the noble Lord wishes to speak.

On Question, Whether the said amendment (No. 93) shall be agreed to?

Their Lordships divided: Contents, 240; Not-Contents, 141.

Division number 1 Private Parking: Ports and Trading Estates — Anti-terrorism, Crime and Security Bill

Aye: 238 Members of the House of Lords

No: 139 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 40 [Religiously aggravated offences]:

[Amendment No. 94 not moved.]

Clause 41 [Racial or religious hatred offences: penalties]:

[Amendments Nos. 95 and 96 not moved.]

Clause 42 [Hatred and fear offences: penalties]:

[Amendment No. 97 not moved.]

Clause 43 [Saving]:

[Amendment No. 98 not moved.]

Clause 53 [Powers of entry]:

Photo of The Duke of Montrose The Duke of Montrose Conservative 6:45 pm, 10th December 2001

moved Amendment No. 98A:

Page 26, line 21, leave out from XScotland" to Xis" in line 22 and insert Xthe sheriff"

Photo of The Duke of Montrose The Duke of Montrose Conservative

My Lords, I am glad to have the chance once again to bring this amendment before the House. It is a particular pleasure to find that I am joined by the Minister, who has been able to reconsider the matter. I am acting merely on the advice of the Law Society of Scotland, but the Minister has the benefit of very distinguished advice. It appears that all are now in agreement. I am sure that tonight I shall receive a more positive response than was the case with my last group of amendments.

In my view, the earlier answers I received to my questions raised a fundamental issue as regards what is to happen when legislation is subject to a XSewel Motion" in the Scottish Parliament. The noble Lord responded by making it sound as though the Scottish Parliament merely had to agree to what the government of the day proposed, whereas it is my understanding that the Scottish Parliament would ask for and accept that the Parliament at Westminster will agree the wording that is appropriate. Thus we do have a right to consider the issues.

Speaking, I hope, with some support from the Minister, it would be good to think that the Scottish Parliament does not have a monopoly on consultation and co-operation between the parties, which they so often like to emphasise.

The amendment would ensure that in Scotland only a sheriff and not a justice of the peace would be entitled to grant the search warrants referred to in the clause. I am advised that the power to grant such warrants should extend only to sheriffs. Often a justice of the peace will not be legally qualified and may be unfamiliar with the criteria needed to grant such warrants. In the interests of justice, therefore, this matter ought to remain within the sole ambit of the sheriff. I beg to move.

Photo of The Earl of Mar and Kellie The Earl of Mar and Kellie Liberal Democrat

My Lords, I should like to speak in support of the amendment. I certainly prefer the use of the 120 full-time sheriffs rather than justices of the peace. The authorities will find it much easier to get hold of full-time territorial law officers.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I believe that justices of the peace have a somewhat different role from that envisaged in the Bill, so I support the amendments. On the question of the Scottish Parliament, my noble friend on the Front Bench is right that it asked Westminster to do the job. Although we hope not to do anything that the Scottish Parliament would not want to implement, it has given us the job. It is up to the Minister to keep in touch on what the Scottish Parliament wants. I take it that he has consulted on the amendment.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

I do not know whether noble Lords are trying to convince me to accept the amendment. If your Lordships really want a long debate, that is fine, but we listened to what was said in Committee, thought about it, decided that it was a good idea, and had another think about it. I do not know why I am being criticised for that. We heard your Lordships' views, we listened, and we have changed our minds. We do not want to get into a constitutional debate on who likes the measure in Scotland. We like it down here; it is a reserved matter and we accept it.

While I am on my feet, I shall speak to the other two amendments that are in my name. Amendment No. 99 is a technical amendment. It tightens up the effectiveness of the operation of the Bill by removing a potential source of confusion. It could cause confusion if it were not absolutely clear under which provision a search warrant was being sought or granted. Deleting the reference to Xconstable" will remove the potential for confusion.

Amendment No. 104A is a drafting amendment to include Part 6 with those other parts of the Bill that will come into force on Royal Assent. Part 6, which creates very serious offences, should come into force as soon as possible. We intended to have a commencement order and another order relating to Part 6. There was an oversight in the original drafting as Part 6 should have been in the same list as the other parts that come into force on the day on which the Bill is enacted. I hope that that meets with your Lordships' approval.

Photo of The Duke of Montrose The Duke of Montrose Conservative

My Lords, I am grateful to the Minister for his agreement.

On Question, amendment agreed to.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

moved Amendment No. 99:

Page 26, line 24, leave out Xa constable or"

On Question, amendment agreed to.

Schedule 5 [Pathogens and toxins]:

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, this amendment is straightforward. On the list of Xnasties" in Schedule 5, white pox is not really necessary because it is a form of smallpox. Although smallpox is not listed, it is covered by the entry in the schedule for variola virus. I beg to move.

On Question, amendment agreed to.

Clause 62 [Information about persons with access to dangerous substances]:

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

moved Amendments Nos. 100 and 101:

Page 30, line 34, leave out X(if any) as may be" and insert Xas is"

Page 30, line 37, leave out Xand" and insert Xor"

On Question, amendments agreed to.

Clause 65 [Directions requiring denial of access]:

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

moved Amendments Nos. 102 and 103:

Page 32, line 3, leave out from Xpart" to Xso" in line 4 and insert Xof the premises as is"

Page 32, line 6, leave out Xand" and insert Xor"

On Question, amendments agreed to.

Clause 80 [Prohibition of disclosures in relation to nuclear security]:

[Amendments Nos. 103A and 103B not moved.]

Schedule 8 [Repeals and revocation]:

[Amendment No. 104 not moved.]

Clause 125 [Commencement]:

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

moved Amendment No. 104A:

Page 73, line 25, leave out X5" and insert X6"

On Question, amendment agreed to.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

moved Amendment No. 105:

After Clause 125, insert the following new clause—

XEXPIRY

(1) Subject to subsections (2) to (5), and without prejudice to any other provisions of this Act—

(a) Parts 3, 4, 5, 10, 11 and 13 of this Act shall cease to have effect at the expiry of two years from the date on which the Act is passed; and

(b) Parts 1, 2, 6, 7, 8 and 9 of this Act shall cease to have effect at the expiry of five years from the date on which the Act is passed.

(2) If the Secretary of State considers that it may be appropriate that any Part of this Act should continue in force without amendment beyond the expiry of its specified period, he may consult such persons as seem to him appropriate to obtain their views as to whether that Part can safely and properly continue in force without amendment.

(3) If, following such consultation, the Secretary of State certifies that no substantial grounds have been advanced as to why that Part should not continue in force, he may by order provide that that Part of the Act shall continue in force for a specified period not exceeding five years.

(4) Where any Part of this Act is extended by virtue of subsection (3) it may be further extended in like manner as set out above.

(5) An order made by the Secretary of State under subsection (3) or (4) must be made by statutory instrument and may not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, after that brisk, delightful canter, we now come to the question of sunset clauses. The concern that the Bill has been pushed through with extreme haste has been patent throughout our debates. There has been no time for reflection and discussion, or for interested parties or those who can impart knowledge to input matters into our thoughts, as would happen in more normal proceedings.

It should be a principle that one does not legislate in haste. If one has to do so, the matter should be reconsidered in a relatively short time, and the Bill should be impermanent so that issues can be properly revisited. To that end, two alternative sunset clauses have been tabled, one of which is in my name and the other in the much more distinguished names of two Opposition Front Benchers.

I shall explain the difference between the two in a moment but, first, I shall deal with the necessity of having such a sunset clause. The Home Secretary said that he would review the Act after a while to see how it was working. I am sure that that should be done, and I have no possible objection to it. If criticisms are made, even if they appear to have some force, the battle will still be whether anyone will find the time to legislate on them. It is necessary to have a provision that the Bill will lapse after a certain time and then the Government can re-enact such parts of it as are efficacious and without problem, and alter those parts that are undesirable.

My amendment specifies two separate periods. The more worrying parts will expire after two years. It is fair to say that that is fairly academic in relation to Part 13 because the House has accepted the Government's earlier sunset clause for that part. Other parts would expire after five years. I readily confess that I have made the split merely to follow the amendment tabled by the noble Lord, Lord Dixon-Smith, and others. I have not applied my own mind to the segregation.

When this matter was debated in Committee, the Minister spoke to certain parts of the Bill which he suggested were unlikely to be objectionable and, therefore, did not need a sunset clause. He may have been right about some of those parts; he may have been wrong. My attitude was ideally summed up by the noble Lord, Lord Bach, last Tuesday, when he said:

XWe are attempting to deal with the problem. Whether this course provides the right answer, only time will tell".—[Official Report, 4/12/01; col. 744.]

That is the truth of the matter. There may be parts of the Bill which the Minister or, indeed, some noble Lords, think are unlikely to be objectionable; they will probably turn out to be the ones that give rise to the worst problems. There are parts of the Bill about which people have expressed great concern; it may be that some of those concerns will prove to be unnecessary. But we do not know—and that is the product of hasty legislation.

My amendment differs from the one proposed by the Opposition Front Benches in that I have suggested that if the Secretary of State wishes a particular part or parts of the Bill to continue in force, and, as far as he is aware, there is no reason why that should not be done without amendment, then he shall, if he wishes to pursue that course, consult the appropriate people to obtain their views as to whether that part of the Bill can safely and properly continue in force without amendment. By pure chance, that ties in very well with the proposal for a review, because the review will constitute the consultation and reveal whether or not there are objections to that part of the Bill.

If, following that consultation, the Secretary of State is in a position to certify that no substantial grounds have been advanced as to why that part of the Bill should not continue in force, he may continue it through secondary legislation. On the other hand, if there have been any substantial objections to it, he will have to proceed by way of primary legislation. So the contentious will come back to Parliament through primary legislation—as is intended in the amendment of the Opposition Front Benches—but, in an attempt to satisfy the point made to me by the Minister, my amendment would give the Government power to continue without primary legislation those parts of the Bill to which, after experience, no one takes any real objection.

I hope that this will accommodate the points made by the Minister when we debated sunset clauses on the previous occasion. I see the force of the argument that there is no point in Parliament re-enacting measures which have proved to be wholly unobjectionable. I hope that my amendment will prove to be a suitable compromise and will appeal to the Minister. I beg to move.

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative 7:00 pm, 10th December 2001

My Lords, the noble Viscount has advanced the cause of Amendment No. 105, with which my Amendment, Amendment No. 106, is grouped.

The essential difference between the noble Viscount and myself is that he believes that following an informal review—which may or may not produce a fully valid answer—where no questions are raised about certain parts of the legislation, those parts may be continued by affirmative order. He believes that that may be a satisfactory conclusion. We, having filleted the Bill slightly differently, if I may put it that way, have concluded that, because of the emergency process we will have to go through to put the Bill on to the statute book—which is what we are all determined to do—the only way this legislation should continue is through the full parliamentary process.

I do not need to speak for long on this matter. We have always made it plain that this is an emergency Bill, the principles of which we accept and agree. We have disagreed with the detail that was inappropriate for such legislation and we have disagreed with the process. Even now, after seven consecutive days, with a one day interval, this is still an ill-considered piece of legislation. We go to Third Reading tomorrow, for which amendments have to be tabled by midday. After seven solid days of debate on this matter, if we have time to think seriously of what we are about I would be extremely surprised.

Whatever happens after the Bill leaves the House, the chance of any further detailed consideration is remote. We believe that a more severe examination, in due time, is appropriate. That is our reason for tabling Amendment No. 106, which, in relation to the more controversial parts of the Bill, requires a short sunset clause. The less controversial parts of the Bill, in common with the noble Viscount's amendment, could last for a somewhat longer period.

The principle of Xsunsetting" the Bill is, in effect, accepted by the Minister's right honourable friend the Home Secretary. The concessions that he has made in this area are welcome but they do not go far enough. It is with that in mind that we have tabled the amendment. I hope that it will be supported when it comes to a vote and that the noble Viscount will not press his amendment.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, I support the noble Lord, Lord Dixon-Smith. We believe, in principle, that emergency legislation—unless it is very simple indeed—should have a sunset clause. That is why, for example, the Football Disorder Bill, which was enacted a couple of years ago, is coming back next week in a new form of primary legislation. We believe that is the right course for that legislation, and even more the right course for this Bill.

The more contentious a provision, the sooner the sun should set on it—and aspects of this Bill are very contentious. We have had lengthy debates on such aspects at Second Reading, in Committee and now at Report stage. While the noble Viscount, Lord Bledisloe, has analysed the problem correctly, he has come up with not the most attractive solution. Unfortunately, when it comes to the issue of consultation, the Home Secretary can, of course, choose the people with whom he consults. No doubt he can find helpful people, both in your Lordships' House and elsewhere, with whom he can consult and who can say, XAll is well". I shall not suggest the names of those whom he may choose for that purpose.

We believe that it will be much better to take the simple and direct course and to have proper reconsideration of this legislation in Parliament, where we will have a proper opportunity to consider the parts that are contentious and the parts that turn out not to have worked well. We should do that in due course and in proper time. If provisions turn out to be unobjectionable, it will not take any time to put them back on the statute book. If any are contentious or remain objectionable, they need proper consideration—particularly in the other place. We strongly support Amendment No. 106 in the name of the noble Lord, Lord Dixon-Smith, which is more or less identical in its effect to an amendment jointly tabled by our parties in the other place. I echo the noble Lord in hoping that the noble Viscount, Lord Bledisloe, will not press Amendment No. 105 but will allow the House to go straight to a vote on Amendment No. 106.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, before the noble Lord sits down, what would happen if the Opposition did not like another Bill and chose this measure as a pretext for attacking it? That is possible in either House.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, I am not sure that I follow the problem that the noble Lord sees. If the Bill or parts of it come back in new legislation, it will be debated. I do not see how it would be relevant to consider other Bills when dealing with further consideration of the Bill before us.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, the noble Lord has not been in the House as long as I have. I have seen governments and oppositions use legislation for purposes not directly connected with a Bill. It may be that the current Opposition, faced with a general election that may be only a year away, would see some advantage in a debate when they would not have one otherwise. I believe that the Opposition should not be so rewarded.

Photo of Lord Renton Lord Renton Conservative

My Lords, it has been customary for years, when emergency legislation has been in the national interest, to ensure that such a measure does not become a permanent part of our law—more especially so, if it had to be rushed through. That is true of most emergency legislation to my recollection, which goes back rather a long way. As I said in Committee, it would normally be highly desirable for members of all Front Benches to agree something. If that has not and cannot be done, it will be necessary to accept a suggestion of the kind proposed by my noble friend Lord Dixon-Smith, which seems ideal in the circumstances. I hope that Members of all parties will be glad to accept it.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration) 7:15 pm, 10th December 2001

My Lords, this is the first time since I entered the House that I have witnessed a Cross-Bencher being so squeezed by the two Opposition parties. It is for the noble Viscount, Lord Bledisloe, to decide what to do with his amendment, which should not be for the convenience of the Conservatives or the Liberal Democrats. Not that I am encouraging the noble Viscount to press his amendment.

Amendment No. 105 may not fit parliamentary niceties but it is more intelligent than Amendment No. 106. That is not to disparage the Conservative Opposition—far from it. However, Amendment No. 105 is more practicable because implicit in it is that a good part of the Bill should remain permanently in force.

The amendments would virtually time limit the whole Bill. As the measure has progressed through both Houses, we have introduced two major sunset clauses that time limit the detention and justice and home affairs powers. The amendments would commit Home Secretaries to keep returning to Parliament with new legislation. The big pressure in future will be for more than one Bill. The complaint has been made that the measure's content should extend to two, three or maybe even four Bills—exactly as was said by my noble friend Lord Clinton-Davis. The Act would be used as a proxy to fight other legislation. That tactic is well known in the other place but I imagine that does not happen here.

I am sure that we would want to retain the power in Part 9, which deals with aviation security, to remove intruders from airfields. It beggars belief that towards the end of the sunset, persons should be able to say, XSoon we will be able to get on to airfields because the authorities will not have the power to remove us". We are making sure that civil nuclear sites will be secure from terrorist attack. But will we lift that protection in 2007?

The Bill also outlaws aiding and abetting persons to make nuclear weapons. It is inconceivable that we would want to remove that measure in three, five or 10 years. Is it being suggested that while technicians who work with the Ebola virus will be checked out between now and 2007, we should flag up in advance that we shall not be bothered after then but may try to find some parliamentary time? I shall give way if the noble Lord, Lord Elton, insists.

Photo of Lord Elton Lord Elton Conservative

My Lords, I wonder whether it has occurred to the Minister that 2007 might be high time to close the loopholes found during the intervening period.

Photo of Lord Rooker Lord Rooker Minister of State (Asylum and Immigration), Home Office, Minister (Home Office) (Asylum & Immigration)

My Lords, I do not think that that is a serious suggestion. All Bills are amended from time to time. I have said that we took stock across Whitehall to make precautionary moves to close gaps in legislation in the light of terrorists rewriting the rule book on September 11th. Before that, there had been many little niggles in various legislation but there had been no massive push for parliamentary time.

We acknowledge that the Bill introduces powers that must strike a fine balance between individual liberty and the security of the state. No one would say that the Bill is perfectly drawn, so we have introduced safeguards. There will also be a review of the mandatory powers in Part 11, if they are ever used. We want to go the voluntary route on data retention but if we go the statutory route that has its own built-in review.

We have included a review of the asylum and detention powers after 15 months, then annually thereafter. Any part of the Bill that amends the Terrorism Act 2000 will therefore be reviewed annually as part of that legislation's requirements where a report on the Act's operation must be laid before Parliament at least once every 12 months. The noble Lord, Lord Carlile of Berriew, has been appointed to undertake those reviews.

We are not convinced of the need for more sunset clauses covering parts of the Bill or the whole measure. However, the speed with which this legislation is being passed must be recognised by the Government.

As I have said before, eight days would probably have been par for the course, plus or minus two days. I accept that the root cause of the problem is the gap between the stages of the Bill. As far as Ministers are concerned, the Bill is bad enough without the Opposition getting at it in terms of keeping track of the process between stages where there is no such gap.

Therefore, having the whole Act reviewed is a matter which we wish to take forward and I hope that it will meet with approval. I would not like to be tied to what I say next, but the words are the best I have at the moment. Between 9.30 a.m. and 12 noon tomorrow, noble Lords on all sides of the House will be able to table amendments for Third Reading, which I now discover is a very useful lifeboat in legislation, although it is not available in the other place.

I am proposing a new clause which will sit somewhere in the latter part of the Bill, probably Part 14. but before Clause 122, as it is now. There will be a statutory review of the Act in addition to all the other Xsunset" clauses and reviews which already appear on the face of the Bill. It is a small, new clause. The Secretary of State shall appoint a committee to conduct a review of the Act. He will seek to secure that at any time there will be no fewer than seven members of the committee. It may be more, but seven is the minimum. Every person on that committee will be there only if they are a member of the Privy Council.

The committee will complete a review of the operation of the Act with full access to all the information including that from the security services and so forth. A report will be sent to the Secretary of State not later than two years after the Act is passed. The Secretary of State will be bound on the face of the Act to lay a copy of that report before Parliament as soon as reasonably practical. We shall then say from the Dispatch Box in this House and the other place that we shall guarantee that the business managers will arrange dates and days in both Houses when the report will be debated. It will be detailed.

It will be no use anyone saying, XWill you accept the recommendations?" That cannot be said at this point. If such a report is laid with suggestions for amendments to the Act, if they are not accepted the Ministers concerned will need to have very good reasons for not doing so, bearing in mind that people will have had access to all the relevant information and had a good review of the operation of the Act over the period of two years. It will then be for both Houses to make a judgment on the content of the recommendations.

Subject to any drafting changes, tomorrow we will introduce a new clause to that effect. I hope that will meet your Lordships' desire. We are rushing the legislation and there are no gaps between the stages allowing for mature consideration of the issues raised. However, in the small gaps, such as over the weekend and not sitting on Friday, we have managed to meet some of the issues raised in debate. We hope to have further proposals to meet some of the conclusions reached last Thursday by your Lordships as regards the defeats that the Bill suffered. On some aspects we are seeking a reversal, but we also hope to bring forward what we believe to be a positive modification of some of the key proposals. We have not completed our conclusions; I do not know whether we shall be able to lay amendments tomorrow in this House or later in the other place. We have not completed our discussions and review.

Therefore, I hope that I have said enough to enable noble Lords not to press either of the amendments and to accept our best endeavours to make sure that the Act receives a thorough review and that both Houses have adequate time to debate the conclusions reached by the review in a reasonable period of time.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, I am most grateful to the Minister for that reply. He said that there are offences in the Bill—for example, invading airfields—which we shall undoubtedly need. The answer to that point was made by the noble Lord, Lord Elton. We shall want some kind of protection of that kind, but it is doubtful whether the clause in the Bill at the moment will be right. That is why the matter needs to be thought through again.

Obviously, it is helpful that there should be a review of the Act of the kind indicated by the noble Lord. He further indicated that there would be a debate in the House about it. But what he did not indicate—and I am sure that he is not in a position to do so— is that the criticisms then made will be brought forward in legislation. The difference between a review and a Xsunset" clause is just that. If there is a Xsunset" clause it is inevitable that the matter will have to return to the House—unless the noble Lord likes my amendment which he was kind enough to describe as Xintelligent" and which enables him to re-enact more simply matters which were not controversial.

No one will be surprised to hear that I still believe that my amendment is better than that advanced by the Front Benches opposite. Quite frankly, the objection made by the noble Lord, Goodhart, that the Minister could just decide who he consults was fanciful. Quite obviously, he would have to consult Justice, the Law Society and so forth. But pride of authorship will not drive me to pressing my amendment because what is vital is that we should continue to insist that we have a Xsunset" clause. It can well run with the review, which we are delighted to have. For the moment, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Photo of Lord Dixon-Smith Lord Dixon-Smith Conservative

moved Amendment No. 106:

After Clause 125, insert the following new clause—

XEXPIRY (NO. 2)

(1) This Act, apart from Part 12, shall (subject to subsections (2) to (5)) cease to have effect at the end of the period of one year beginning with the day on which the Act receives Royal Assent.

(2) The Secretary of State may, subject to subsections (3) to (5), by order provide—

(a) that a provision of the Act which is in force (whether or not by virtue of this subsection) shall continue in force for a specified period not exceeding twelve months;

(b) that a provision of this Act shall cease to have effect;

(c) that a provision of this Act which is not in force (whether or not by virtue of this subsection) shall come into force and remain in force for a specified period not exceeding twelve months.

(3) Parts 1, 2, 6, 7, 8, 9 and 14 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of five years beginning with the day on which this Act is passed.

(4) Parts 3, 5, 10, 11 and 13 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of two years beginning with the day on which this Act is passed.

(5) Part 4 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of one year beginning with the day on which this Act is passed.

(6) Any order made by the Secretary of State under subsection (2) must be made by statutory instrument and may not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

On Question, Whether the said amendment (No. 106) shall be agreed to?

Their Lordships divided: Contents, 200; Not-Contents, 128.

Division number 2 Private Parking: Ports and Trading Estates — Anti-terrorism, Crime and Security Bill

Aye: 199 Members of the House of Lords

No: 126 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Lord Carter Lord Carter Chief Whip (House of Lords), HM Household, Lords Chief Whip (HM Household)

My Lords, now that we have completed our consideration of the Bill on Report, the debate on the Unstarred Question can be extended to one-and-a-half hours. Save for the noble Lord, Lord Renton, opening and my noble and learned friend Lord Williams replying—whose time allowance remains as set out—the Back-Benchers now have 11 minutes each, except for the noble and learned Lord, Lord Howe of Aberavon, who is speaking in the gap and who therefore gets four minutes.