My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Amendment No. 1 stands in my name and in those of the noble Lord, Lord Lester of Herne Hill—the principal architect of these important clauses—the noble and right reverend Lord, Lord Carey of Clifton, and the noble Lord, Lord Plant of Highfield. For the convenience of the Committee, it may be useful if I speak also to Amendments Nos. 2, 31 and 32, which I believe are consequential to Amendment No. 1.
I make it clear that we yield to no one in the degree to which we all abhor, deprecate and deplore the very idea of hating someone because of his religion. It is a thoroughly bad thing if anyone attempts, through whatever medium, to inspire or instil such hatred in others. We must not, however, fall into the trap of what Rowan Atkinson described last week as thinking, "Oh yes, religious hatred. That sounds like a bad thing. Let's have a law against it". Why? Because it is the bedrock of any tolerant, liberal and free society that we must all learn to live according to certain first principles. One of the most fundamental of those is that, from time to time, we must tolerate other people expressing sentiments or engaging in activities that we find unappealing or, indeed, distasteful.
The right to cause offence is infinitely more important and fundamental to our way of life than any right not to be offended. As English PEN put it in what I consider to be an admirable campaign: free expression is no offence and should not become one. Of course, certain lines must be drawn between what is acceptable and what is unacceptable to the vast majority of citizens. There is now widespread acceptance of the principle that offences can be aggravated if they are motivated entirely or in part by sentiments that are generally regarded as repugnant, extreme and unacceptable. We all know and accept that. However, it is the mark of a tolerant, civilised and mature society that discordant, disagreeable and even dissident voices are heard and freely challenged in rational debate and not silenced by the courts.
"For centuries, the United Kingdom has had a tradition of religious tolerance and, at the same time, a tradition of extremely robust religious disputation . . . religious freedom and free speech have co-existed.".—[Hansard, Commons, 23/5/05; col. 439.]
The best remedy for evil ideas is more speech, not less speech. You cannot promote tolerance by limiting freedom of expression. Tolerance and freedom of speech buttress one another. They are inseparable siblings, not alternatives.
Our debate is beautifully augmented by the publication only yesterday of the report on this Bill by the Joint Committee on Human Rights, which raises important questions about the implications of the Bill. The committee's considered view is that,
"without amendment to make specific reference to advocacy of religious hatred that constitutes incitement to hostility, violence and discrimination, we have concerns about the potential adverse impact of broad offences on freedom of expression, including their compatibility with the principles of legal certainty and proportionality anchored in Article 10 of the Convention.
As they stand, without amendment, the new offences could arguably have an adverse effect on free speech. We draw this matter to the attention of both Houses".
I thank their Lordships for producing those timely comments because they strengthen our belief that in its present form the Bill goes far too far. We thought that the Government were beginning to recognise that. Certainly 80 per cent of the speeches at Second Reading stressed that. We are therefore disappointed that no government amendments are proposed.
I even offered two weeks ago to sit down with the Government—Ministers, officials and parliamentary draftsmen—and my colleagues to see if we could agree the necessary changes. Sadly, until today, no one has been in touch with me to accept that offer. So, thanks to the skill of the noble Lord, Lord Lester of Herne Hill, we are now presenting the Committee with this group of amendments. We have come to the conclusion that rather than amending Part III of the Public Order Act 1986, which relates to racial hatred, it would be far more sensible to leave it untouched. Instead, we are now seeking to add an entirely new schedule to that Act to deal with religious hatred. That vastly improves the Bill before us in two important ways.
At a stroke, it makes the Bill far more comprehensible and readily understood for the expert and the lay person alike. It also delivers a clear Bill dealing specifically with religious hatred and not interspersed with racial hatred, just as the Labour Party promised in its manifesto earlier this year. So we enable the Government to fulfil that commitment and, indeed, to do so in much more specific terms than originally set out in the Bill. In other words, we believe that we have created a far better opportunity to do what Ministers say that they want to do; protecting the person and not the belief.
We have therefore tabled amendments that would maintain the criminal offence of threatening, but would remove the words "abusive" and "insulting" from the proposed offence and move them into the proposed freedom of expression defence. Let me explain why. Ministers say that they wish to defend people as opposed to their beliefs. Is it possible, however, to defend them from hatred as people while also preserving the right of others to criticise their beliefs? In other words, is it possible to draw a distinction between a group of people who share a religion or an ideology and the natural desire to protect them from hatred and on the other hand the religion or ideology itself? If someone insults my beliefs, I can perfectly well argue that they insult me too. They/we can amount to the same thing, especially in religious matters.
Similarly, if someone is abusive about my beliefs, once again I should be free to argue that they are abusing me too. Therefore, if we wish to apply criminal sanctions to protect people from feeling insulted or abused when someone criticises or attacks their beliefs, it is obvious that the beliefs themselves as well as the individual who feels insulted or abused are being protected. In both cases it can be impossible to separate the person from the belief.
Protecting an individual from such an offence with regard to his or her race is entirely reasonable. I have always strongly supported such moves, which I believe to be sensible and admirable. Beliefs are different, however, not least because we are entitled to change them and do change them from time to time. We choose them; they do not choose us. They have a life of their own, as it were. Ministers say that they want to protect the person and not the belief, and threatening someone on account of their beliefs is clear-cut. It deserves to be a criminal offence and we accept that in these amendments. However, if these amendments are accepted the Bill will indeed apply clearly, straightforwardly and exclusively to the person and not to the belief. It will protect people, as Ministers quite rightly say it should. These amendments do not affect the essence of the Bill; they seek only to provide much highly regarded and much needed reassurance to protect freedom of speech, which will benefit not just a minority and not just a majority but every single one of us.
I will leave it to my colleague, the noble Lord, Lord Lester of Herne Hill, to go into the amendments in greater detail. However, I shall add that we have repeatedly been told that the Bill is not intended to affect performing artists, preachers and the like, but Ministers have never adequately explained why that is not made clear and explicitly guaranteed in the Bill. We now give them the opportunity to do that. In fact, in the other place many amendments were tabled from all parts of that House and by different parties to guarantee the freedom of expression that Ministers say they want, but none was accepted. I hope that that position will change today. We will continue to ask Ministers to explain how the reassurance about which I speak can be gained without explicit and express protection.
What are the guarantees against the encroachment not only of religious thought police but also of self-censorship, which is perhaps the greatest expression of free expression in a liberal democracy? We have to face the fact that if we make it a criminal offence to stir up hatred against a group of people, then we create a climate within which people will think twice about even criticising it. In turn, people will surely run shy of saying anything that might stir up hatred of the ideology or religion itself and also develop a fear of being critical of it, satirising it or even poking the slightest fun at it. It is no good Ministers claiming that there is no slippery slope to self-censorship because we all know that there is. Someone will also push out the boundaries of this type of legislation.
In any case—and I am sure that we will hear a lot about this in the debate—race and religion are different. To criticise the colour of someone's skin is irrational. To criticise someone's religion or politics is a wholly different matter. I could go so far as to say that it is a fundamental human right that we are able to do so. Of course there will be a price to pay in terms of freedom of expression should this legislation be passed in its present form. The question is whether it is a price worth paying. That is the case that Ministers need to make today. They must come out of simple bland denial and start giving us a much more specific argument. They have not done so up to now.
Let me explain why we need that in this debate. Our crucial fear is that the Bill is unnecessary and potentially damaging because it is more likely to inflame hatred than to subdue it. No government or parliament can legislate hatred out of existence however hard they try. But alongside this basic argument, we are entitled to ask why this legislation as presently drafted does not explicitly protect and entrench one of our oldest rights and freedoms, namely freedom of speech and expression. Can there be a greater responsibility on all of us than our responsibility to defend basic freedoms, and freedom of expression above all else? We all know that we live in dangerous and tense times. The weekend's events reminded us of that. But we must take care not to pass legislation which is likely to exacerbate our problems rather than diminish them. If any measure is brought before this House and this Parliament that may in any way inhibit our most cherished freedoms then, surely, there is a massive onus on its supporters to prove that the benefits dramatically, overwhelmingly and unarguably exceed the likely costs. At the moment, Ministers and their Bill palpably fail that test. I beg to move.
We on the Liberal Democrat Benches are delighted to stand shoulder-to-shoulder with the noble Lord, Lord Hunt of Wirral, and the Conservative opposition; with Labour Back-Benchers such as the noble Lord, Lord Plant—who serves with me on the Joint Committee on Human Rights—and with Cross-Benchers such as the noble and right reverend Lord, Lord Carey of Clifton, who regrets that he cannot be here this afternoon. It is a great coalition across this House, and well beyond, seeking to make the Bill fit for the Government's stated purpose.
I am grateful to Ministers and their advisers for having met me on several occasions during the past year. That includes the Minister, the Attorney-General and most recently the Home Secretary. Yet I cannot admire the way in which this sensitive issue has been handled by the Government. I am sorry to say that the Government have played politics with religion and race; a dangerous game that they may come to regret. Having promised me that there would be full consultation after the recent general election, they made it a manifesto Bill. They used it as a means of persuading Muslims to vote Labour and introduced it without the promised consultation—almost as an emergency measure, driven, no doubt, by a Prime Minister who is now in such a hurry. They have lacked a sense of proportion, using the sledgehammer of a sweepingly broad array of new speech crimes to deal with what they admit to be a minute gap in the existing law protecting public order.
Ever since Mr. Blunkett introduced the original version, after the barbarous atrocities of 9/11, Ministers have refused to contemplate any significant change to the content or the way in which the proposed laws are written. The Home Office has worked mechanically, simply reading the race hate law literally into the very different context of religion and belief. Worse still, almost, the Government have even threatened this House with use of the Parliament Act to ram the Bill through if we do not do their bidding. That would be done in spite of the fact that—as the Law Lords made clear in deciding the hunting ban appeal, and as the noble and learned Lord, Lord Hope of Craighead, then said—trust will be eroded if the Parliament Act procedure is used to enact measures which are, as the noble and learned Lord, Lord Steyn has put it, exorbitant or not proportionate.
The Bill would criminalise abusive or insulting speech, as well as threatening speech. As Rowan Atkinson points out, it promotes the idea that there should be a right not to be offended when the right to offend is far more important. Because it suffers from the twin vices of over-breadth and vagueness, the Bill threatens—as the noble Lord, Lord Hunt, has explained—to chill free expression and to encourage self-censorship.
The Government have won political support from the Muslim Council of Britain, but have aroused deep anxiety and strong opposition among many British Muslims—as I know from appearing on a broadcast on Islam Channel some months ago—as well as opposition from people from all faiths, people without religious beliefs, from English PEN, from Index and from the Fleet Street lawyers' association and the creative writers, broadcasters and entertainers whom they represent. The Government have aroused the ire and hostility of the Church of England, of evangelical Christian associations and of the National Secular Society. It is a remarkable achievement to unite such a broad and disparate cross-section of British society in opposition to their proposals.
In a Home Office press release on
"will not rule out criticism of religion, or outlaw the telling of religious jokes. It is about protecting individuals from hatred, and the fear of violence and harassment".
In the same press release, the Attorney-General, the noble and learned Lord, Lord Goldsmith, said that the Bill is about protecting people from hatred, not faiths from criticism. The Home Office press release explained that the Bill would not prohibit people, including artists and performers, from offending, criticising or ridiculing faiths. It is a measure of the vagueness of the Bill that its reach has had to be explained in Home Office press releases to limit its loose language. That is not the way to give fair warning to the citizen of what conduct will or will not risk breaking the law.
Only this afternoon, I was given a letter from the Minister with an account of Home Office guidance that would be given to try to patch up the defects of the Bill. I urge Members of the Committee to read those documents, because they both make matters much worse, as I shall explain soon. One cannot patch up serious criminal law with ministerial guidance after it is enacted. The principle of legality and legal certainty requires otherwise, as Glanville Williams pointed out years and years ago.
Our amendments are designed to give effect to those ministerial explanatory statements by introducing essential safeguards to increase legal certainty, to prevent the new offences from sweeping too broadly and to deal with the chilling of free expression. We seek to reduce tension and intolerance between different ethnic and religious groups through our amendments. Unlike the Bill as it stands, the provisions of which the Committee can understand only by studying the Public Order Act 1986, as amended, our amendments have the merit of being capable of being understood as a self-contained code on inciting hatred on grounds of religion or belief.
They contain three safeguards that we regard as essential. No doubt in her reply, the Minister will tell the House whether the Government agree that they are essential to secure compliance with the rule of law and respect for human rights. The first safeguard is to confine the new offences to using or publishing threatening words, as distinct from abusive or insulting words. That is not the case in respect of existing race hate offences, but it is necessary for religious hate offences, because the extension of that part of the Public Order Act reaches into matters of belief and practice, religious and otherwise, where it must be permissible—must it not?—to use abusive or insulting language in criticising religions and belief systems. By omitting "abusive and insulting words", we give effect to Mr Goggins's statement of intent, because we protect individuals from hatred and the fear of violence and harassment by forbidding the use of threatening language.
The second safeguard is to require the prosecution to prove that the defendant had a specific criminal intent. As a general rule, every crime requires a mental element, the nature of which depends on the definition of the crime in question. The mental element required to constitute most serious crimes is an intention to bring about the elements of the crime in question. Such crimes can be committed only by intention and it is for the prosecution to prove the necessary criminal intent. That is not the position in respect of race hate crimes, where it is for the defence to prove the absence of criminal intent but, because of the potential adverse impact on freedom of expression, including the chilling effects of the new offences in encouraging self-censorship, and because the offences are so serious as to be punishable by seven years imprisonment, we believe that the normal rules should apply and that it should be for the prosecution to prove the necessary criminal intent.
In the Minister's detailed letter, which, as I said, I saw only just before coming into the Chamber, there is the most extraordinary statement on the last page, which makes matters much worse. It is a deeply reactionary view of the criminal law. The letter states:
"Our current view is that the likely limb"— that is, the limb that says that you do not have to prove criminal intent—
"is needed because when it comes to something as serious as stirring up hatred, people should be held to account for the effects of their conduct".
I remember once, as a special adviser to Roy Jenkins in the Home Office, saying that, in relation to rape, one should not have to prove intent. The Home Office officials said to the Home Secretary—and they were right—"Mr Lester is a deeply reactionary adviser in advocating anything of the kind". I never thought I would see, on the face of a letter written probably 35 or 40 years later, the same thing coming out of the criminal justice wing of the Home Office. It is a deeply reactionary view to say that one does not have to prove specific intent because wrongdoers should be brought to account without having to show that.
The Minister may say that the Government have simply extended the scheme of racial incitement to cover religious incitement and that they wish for consistency, but they cannot say that because the Home Office has already recognised, in introducing the concept of religious harassment in Part 2 of the Equality Bill, that concerns for free speech considerations require them to apply the civil law differently when tackling religious as distinct from racial harassment. They have left out the religious harassment provisions from the goods and services provisions, even though the race equivalent is included.
I submit that it is even more necessary to treat religion differently from ethnicity when one creates new speech crimes of a political nature. The first safeguard is of the fundamental right to freedom of expression. We may perhaps be assured by the Minister in her reply that the Human Rights Act and Article 10 of the European Convention on Human Rights sufficiently protect free speech without the need for our amendment or that it is sufficient to include a reference to Article 10 or a reference to the importance of free speech—rather softer than our proposal. But that would not suffice. It would not suffice because it would not deal with the chilling effects that such broad and vague offences would have on freedom of speech, discussion, debate and the free flow of opinions and information in whatever form. It is essential to write the stated intention of Home Office Ministers into the Bill so that the Bill is reasonably certain and proportionate, making the least sacrifice of freedom of expression needed to meet the Government's aims.
We hope that the Government and the House will commend this approach by supporting the amendments. If they are approved, we also hope that there will then be urgent consultation with the Government about further improvements that may be made in the remaining stages before the Bill returns to the other place. By approving the amendments today, we shall establish the framework for discussion, including each of the three safeguards. We hope that the Minister will be able to tell the House in her reply specifically that the Government accept that these safeguards are necessary even if they might wish to express them somewhat differently after taking the advice of the admirable parliamentary counsel.
I wish to say two things as a member of the Labour Party, as I have been since the age of 17—technically that was illegal because one was not supposed to join until one was 18—and as a Member of this House since 1977. I support the sentiments of the amendment moved by the noble Lord, Lord Hunt, and I shall explain why. I also wish to explain why, if he forces the matter to a Division today, as I hope he does, I shall not be able to vote this time in the Contents Lobby.
Before that I have two points to make. First, it has been said to me by many of those who have joined us recently that there is a convention not to have Divisions in Committee. I know of no such convention and I know of no such custom. It is a habit that in the past three years has been indulged in and it does not apply in any way to what noble Lords each choose to do. I say "each" because this is an important debate which raises matters of conscience and deep attitudes to other human beings.
Secondly—I can assure the Committee that I make no point ad hominem in this respect—if noble Lords look at the Companion, as I am sure they do each night, at paragraph 4.29 on page 60 they will see that it reads as follows. I must read it all or I shall be accused of selection:
"The House has resolved that the reading of speeches is 'alien to the custom of the House and injurious to the traditional conduct of its debates'. It is acknowledged, however, that on some occasions, for example ministerial statements, it is necessary to read from a prepared text. In practice, some speakers may wish to have 'extended notes' from which to speak, but it is not in the interests of good debate that they should follow them closely".
Only over the past few years has that provision in the Companion been rather ignored. I put it to your Lordships because it is necessary to do so and because we are in Committee on the Bill, which needs to be debated. Of course, from time to time we all sin against the Companion. On another occasion I shall outline my own sins, but not tonight. When I first came to this place in 1977, I was sat down for an hour by the much-loved Chief Whip of the day, Baroness Llewelyn-Davies of Hastoe. She explained that so long as I read the Companion from time to time, things would go well. Indeed, when we observe its provisions, this self-regulating House proves every time that it does not need further instruction from someone sitting on high. While that issue must be left for another day, I say simply that the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, laid by the Clerks on the Table, to our great benefit, deserves more recognition than it has had over the past two to three years.
I come to the questions raised by the Committee. I support the sentiments expressed in the amendments and I shall set out in headline three or four reasons why. I shall do so because I spoke at Second Reading and the Committee is not the place in which to repeat one's Second Reading speech. But before I do so, let me say that however reformed we become, we do not have the legitimacy of the elected Chamber down the Corridor. That must always be kept in our minds. Different arrangements, customs and procedures apply here because of the importance of the democratic Chamber. But Amendment No. 1 and its allied amendments, moved and spoken to so persuasively by the two noble Lords who have already spoken, answer many of the questions that people like myself and my comrades who have chosen to attend the debate today feel must be answered before we could even think of approving of the Bill as it stands. Currently it is a bad Bill and the Government should reconsider it. As I have said, I shall give merely the headline reasons for why I say that.
I stress that my position is a matter of conscience, and I believe that that conscience is shared by many of my colleagues on these Benches. First, there is the question of separation. The amendments rightly separate the issues of incitement to hatred on racial grounds and incitement to hatred on the grounds of religious belief or lack of religion. Merely to state that makes all the difference. It would be ludicrous to have a provision talking about incitement to hatred by reason of a lack of racial ethnicity or the like.
I am all in favour of keeping in place the provisions of the 1986 Act, which I am sure that Members of the Committee have looked at and which would be amended by this Bill. That Act is available in the Library. I am all in favour of keeping in place a very strong law on incitement to racial hatred. It is an abomination. I take this opportunity to say that, as a secular humanist, I am sure the Committee shares in my disgust at the abominable racist attack recently perpetrated against the most reverend Primate the Archbishop of York, whom we are soon to welcome into this Chamber. It was a vile attack and it is quite right to maintain an extreme criminal penalty against such behaviour.
My second point is that the Bill goes much further than some people think. As it stands, the Bill goes far beyond incitement to hatred on religious grounds. Incitement involves intention, and the amendments are right on that point. Incitement is about intending something whereas, as I said at Second Reading—I merely repeat the main point—the Bill extends to insulting words that might be understood by any person, whether reasonable or not—one is tempted to say whether sane or not—to be a criminal liability. I will vote and vote again against such criminal liability being introduced into our law.
I have other criticisms, of course. The Bill refers—as does the 1986 Act—to the "stirring up" of religious and racial hatred. I do not like the phrase "stirring up". In the words of Polonius, it is
"an ill phrase, a vile phrase".
I would prefer that it went, but I can live with it if the liability is reduced to incitement.
This leads me to my third point, which is that protection against incitement to religious hatred is what we promised. Everyone on these Benches is committed by the election manifesto to introduce legislation on incitement to religious hatred. We did not say that we were going to introduce legislation which made you liable criminally if you said something which might be understood by any person, no matter who they were, to contain grounds for religious hatred.
These amendments fulfil the Labour Party manifesto in a manner which is strictly correct. The Bill goes much further—it is an extreme Bill—and that is why the Government have lost the argument in both Houses so far. As noble Lords will know if they read the debate, brave comrades in the other place made a staggeringly good case against the Bill on that ground. Our manifesto commitment states:
"It remains our firm and clear intention to give people of all faiths the same protection against incitement to hatred on the basis of their religion".
Incitement requires intention to incite. It is perfectly easy for the prosecution to prove it—although some people may say, "It is terribly difficult to do so"—because that is what lawyers are paid for.
We should not legislate for this vast area of criminal liability as it stands in the Bill. People everywhere—from actors to commentators to Muslims of my acquaintance—regard it as quite extraordinary that the Government should introduce a Bill with this width of criminal liability. No doubt some noble Lords will say such people are all middle class and intellectuals. Maybe they are, but it does not alter the fact that some Muslim circles are not pleased with the extent of the Bill.
Whether knowingly or not, Ministers, the Mayor of London and various other people have inaccurately sold the Bill as though it deals with incitement to religious hatred and no more. But it goes much further than that, and that is why the paper in the Library, giving a Keeling schedule of how it would read if inserted into the 1986 Act, is so important. I hope noble Lords have read that and will not mistake the effect that the Bill would have over a very wide area.
Finally, merely as a comment, I have not received the paper from the noble Baroness or my noble and learned friend the Lord Chancellor, to whom I wrote, but of course it is right that there are problems about human rights. You do not have to be an expert—you do not need lawyers in these matters—because all noble Lords can read the European Convention on Human Rights. If they do not then see the problem, I suggest they read it again.
I urge the Ministers to look favourably on the amendments. There are those of us who cannot vote in conscience for the Bill as it stands and those who will not vote against the Whip tonight. It is much to my regret that this is a matter for the Whips; it should not be. It is a fundamental issue of human decency, standards and human rights.
The reasons why I cannot vote for the amendments are these. If we pass the amendments—I am sure that they will be passed, if put to a Division, and I hope that the mover has the courage to do so—the complaint will be made in another place that that creates a different Bill, and that it is not right to make such a vast amendment to the Bill—I am doing my best to make a case I do not believe in—at one blow. That is important. This is a revising Chamber, and it may be that making such a vast amendment to the Bill in Committee might be criticised as showing a lack of manners towards the other place. We must somehow ease the Bill's passage from error into light by the gradual pressure of our arguments and by having the Government look at it again.
There is a Minister who has shown what brave and courageous Ministers can do—someone with whom I have often disagreed—the right honourable Member for Hull West and Hessle, Mr Alan Johnson. He was given a brief to settle the pensions problems in the public sector, to save £13 million, if I apprehend rightly, and avoid a strike. He triumphed in doing so, because he was a bold Minister. Ministers here should go back to whomever they speak to and say, "You really must confine this Bill to our manifesto commitment".
Everyone knows that the Bill goes further. My right honourable friend the Secretary of State is a talented product of King's College, Cambridge, someone than whom you could hope for no better in this discussion. He knows perfectly well that the Bill goes beyond incitement and that there are problems concerning freedom of speech. I do not need to repeat them in Committee, because I assume that noble Lords will have read the debates here and in the other place.
The Government must be asked to revise this and to come back to the Chamber with a Bill that is confined to incitement to racial hatred, which is what the manifesto promised. For their part, having been around the track so many times, the Government now face the fact that they cannot get their Bill through as it stands, except by heavy whipping. That is most unfortunate. It is no way to put this Bill on the statute book. I want the Government to come back on Report, for those of us on these Benches who will not vote tonight, much though I welcome an expression of the House's view, for those who are not under a Whip on the matter.
For that reason, although you may want a constitutional crisis about something else, it would be the nonsense of all time to have one about this Bill. When the Minister comes to answer, I hope that she will take account of such a view from her own Benches, not through some antique disposition on a struggle more worthy of the 17th century before the Glorious Revolution, but as a practical matter of how the Government might proceed.
I wrote to my noble and learned friend the Lord Chancellor but have not had a reply. I sent a copy to the Minister, but I quite understand why she has not replied. She has been in all sorts of difficulties in the past few weeks, and we are happy to see her return safely to the Chamber.
When the Government come to answer, please will they offer talks? They cannot just go on for ever taking the people behind them for granted. They have discussed it with the Tories; they have discussed it with the Liberals; I should like a bit of discussion now and then, as would a lot of my noble comrades. The Government must discuss confining the Bill, as the amendments would, to the manifesto commitment.
I spoke early in the debate because, having been here for 29 years, I thought that for once I could intervene early and explain a decision that is not merely personal to myself but is shared by many of my friends on these Benches.
I thank my noble friend for drawing the attention of the Whips certainly not to the content of his speech but to the advice in the Companion on timing for interventions. If everyone who feels passionately on either side speaks at great length, beyond the guidance in the Companion, we may have a problem.
I shall keep well within the constraints of the Companion. I wish to make one point, in supplement to the extremely able and eloquent case advanced by the two noble Lords whose names are on the amendment.
I speak about the possible chilling effect of the legislation. Sympathetic though I am in some respects to the intentions behind the proposed new law, I believe that it could easily have a rebound effect and create more resentment than enlightenment on the part of the public. I shall add just this: we in this House and in the other place have legislated a deluge of new law over the past few years, including 14,000 pages last year. Without question, there is in the country a combination of bemusement and resentment about the quantity and complexity of that law.
I shall detain noble Lords with one short example of how new law can be seriously misconstrued and in the process create antipathies that it certainly was not intended to create. My daughter has just enrolled her two and a half year-old son in a nursery, where she was asked to sign a disclaimer against what she was told was the current law of the land, which will allow those who run the nursery to pick up the two and a half year-old if he falls down and hurts himself. Without that signature and that disclaimer, the staff of the nursery maintained that they would be acting unlawfully. In fact, they are wrong—but I put it to you that this new law is a classic of the sort that will be misrepresented in the public bars the length and breadth of England. Far from achieving the meritorious purposes behind it, it will stand in danger of achieving a chilling effect that will in turn create resentments that currently do not exist, exacerbate tensions that do exist and hence, in toto, be counter-productive.
I do not deny that the Bill has a good purpose, but I should feel much happier if the amendments spoken to so eloquently by the noble Lords, Lord Hunt and Lord Lester, were carried. The sort of thing that I wish to be able to say, or to quote, is a remark made some nine centuries ago by Frederick II, stupor mundi, by most estimates the most intelligent Holy Roman Emperor, at least of the Middle Ages. He said:
"We are, I fear, at the mercy of three impostors: Moses, Christ and Mohammed".
I wish to be able to say that, even if I do not agree with it and even if I do not recognise or acknowledge the source. For that reason, I support with enthusiasm the amendments that have been proposed.
I am a little perplexed, because I am used to Committee stages with to-ing and fro-ing, interruptions and questions being asked—so this comes amiss to me. I accept the advice of the noble Lord, Lord Wedderburn, and I shall read the Companion regularly each night from now on; I am sure that my sleep will be better as a result. I should love to have intervened during the speech made by the noble Lord, Lord Hunt, but my colleagues tell me that that is not done in this place. It would be a much better debate if—
I thank the noble Lord. What a great fellow he is. I shall see him in the bar afterwards and reward him.
It seems that the people who are motivated to get up—although we do not catch the Speaker's eye—are those who disagree with the Government. I can understand that, because everyone assumes that the Government are pushing the Bill on and the only way we can stop them is for all of us who are against it to get up and say so. I think that all of those who think that the Government are right ought to say so more often, not just on this Bill but at Question Time and other occasions. The Government are not always wrong. They are very often right, and we should say so.
I found it strange when the noble Lord, Lord Lester of Herne Hill, said today that the Government had brought party politics into something like this. The noble Baroness with the lovely Irish name—I was going to say, "the lovely Baroness with the Irish name"—which I promise to learn to pronounce, mentioned party politics. Well, of course party politics comes into all this. We are pulling wool over our eyes if we do not accept that.
A number of people have said that legislation does not change minds, so why should we bother? Legislation changes the framework in which we work. It can make sure that the kind of appalling things that happen—they do happen—involving incitement to religious hatred are less likely to.
Then we have had a number of statements—again and again, today and at Second Reading—such as that made by the right reverend Prelate the Bishop of Southwark, who said that Christians demonstrating outside were looking for assurances that they could preach the gospel. There is nothing in the Bill that will stop people preaching the gospel. The noble Lord, Lord Peston, said that it would reduce freedom of expression, and that was said again today. People can keep on asserting that the Bill will do that, but there is nothing in it that will. It is a misunderstanding of the Bill.
I will give you a clue as to why people are misunderstanding it. I am glad that the noble Baroness, Lady Gardner of Parkes, is here, because again and again people have referred to the legislation in Australia as if it was exactly the same as the legislation that we are considering. It is not. In Australia, the legislation says that it outlaws activities that lead to serious contempt towards or ridicule of a religious group. We are not talking about ridicule. If we did have "ridicule" in the Bill, Rowan Atkinson would be right. It is not in the Bill, however.
I am grateful to my noble friend. We will get back to a little more of what he likes. I happen to have made a certain study of the Australian legislation in the state of Victoria. Will my noble friend accept that those who do not particularly like the exact formula of the legislation have concluded that legislation of this kind is the sort of thing that small groups of religious zealots, of all kinds, have been waiting for in order to stop arguing among themselves and start litigating? That is the problem.
I understand that, but in Victoria it was a religious vilification law. We are talking about incitement to hatred. "Hatred" is very strong, and incitement is a specific action, which is also very strong.
I do. That is a key point of the amendment. I am grateful to the noble and learned Lord, Lord Mackay of Clashfern, for giving me the opportunity to say that there is a lot of merit in the amendment. When it was proposed by the noble Lord, Lord Hunt of Wirral, however, we got all the arguments of two weeks ago—all sorts of arguments—recycled, instead of going into the specifics of "intent". We should look at that.
I will of course support the Government today. We will have many opportunities—on Report and Third Reading and when it goes back to the House of Commons—for the Government to consider the amendment. I hope that, given time, they will do that. However, I also think that we have to answer some of the points that have been made. I feel strongly about one point. People say that religion is a matter of choice and race is not. Of course that is true; I do not argue about that. However, that implies that if someone is inciting hatred against you because of your religion you have the option of withdrawing from that religion. That is the implication of what is being said, and I think that people ought to understand that. There is also a contradiction in the whole argument whereby some people say that the legislation is unnecessary, but the same people say that it inhibits freedom of speech. This is the third time that we have considered this legislation.
It is the fourth. Different arguments were put against it previously. The Government are getting nearer and nearer to exactly what they ought to be doing, and they deserve our support tonight.
My Lords, the noble Lord, Lord Foulkes, has underlined the fact that we have discussed this proposal four times. I make no apology for intervening in the debate, because—like the noble Lord, Lord Wedderburn—I feel an attack of conscience coming on. But my conscience tells me that the Government are right and that my party is wrong. I feel that I have to explain why; otherwise people might think that I was simply being frivolous in opposing my party just for some trivial purpose.
I believe that the enactment of a law on incitement to religious hatred is vital and I would ask your Lordships who disagree with that proposition to look at what was said before the Select Committee on Religious Offences. I am dismayed that neither on Second Reading nor on this occasion nor any other time that this matter has been looked at recently has anyone bothered to refer to the Select Committee. It is as though it never existed, and yet the matter was thoroughly canvassed there. We had evidence from the police, the Director of Public Prosecutions and the Attorney-General showing why a law of this sort was necessary. I would refer your Lordships in particular to what was said by the police about the riots in Bolton when the extreme right had very good legal advice and were distributing documents. I refer the noble Lord, Lord Wedderburn, to that. I hope that he has had a chance to look at what was said and to look at the pictures of the documents which were displayed in the Select Committee's report. There is no doubt that this is a way in which the extreme right is escaping from the consequences of the existing law on incitement to racial hatred, by disguising itself as attacking its victims because of their religious beliefs. Therefore it is necessary, vitally necessary, that we should have this legislation.
When the noble Lord, Lord Thomas of Swynnerton, says he believes that the legislation will inhibit freedom of speech—we have heard a lot of that this afternoon, as we did the other day—he is talking rubbish. This Bill does not override the Human Rights Act. A much better lawyer than I am—the noble Viscount, Lord Colville of Culross, who is the chair of the Select Committee—guided our committee into pointing out that what we are looking at here is a very narrow range of conduct. It is no good the noble Lord, Lord Wedderburn, shaking his head. This was one of the few matters on which the Select Committee was agreed. On the one hand we have Article 10 of the Human Rights Act: it circumscribes this offence because nothing which is permissible under the Human Rights Act would be an offence under this Bill. On the other side we have the law on incitement, both the common law which makes it a criminal offence to incite someone to commit a criminal offence, and then a variety of statute law such as the Offences Against the Person Act 1860, which was in fact recently used in a very interesting case which I have mentioned before. It was the case of a preacher who incited his congregation to go out and kill Jews, Hindus and Americans. The preacher made the mistake of recording his sermons—if you can call them that—and sold them outside the mosque, so the Special Branch was able to buy copies and use them for the prosecution. The interesting thing about that case was that the man got seven years under the Offences Against the Person Act, but was given an additional two years for incitement to racial hatred. Your Lordships will appreciate that if he had chosen other groups to attack, and had said Christians rather than Jews, the extra two years could not have been awarded by the court. That illustrates how stupid the law is.
As the noble Lord has mentioned me twice, I hope that he will not feel aggrieved if I ask him a question. I feel aggrieved to be on the opposite side of anything that the noble Lord says. I have never known an occasion when we disagreed on such matters.
I have had a quick look at the matters to which the noble Lord referred me—I had them in my notes and did not mention them, but of course they are important—but the examples and discussions that took place in the Committee on Religious Offences were in toto about incitement. We do not need a new law to make people liable for inciting people to kill others. To that extent the law covers it.
The issue is about incitement. Does the noble Lord agree that if a Bill is introduced to make incitement to something a crime, it is about intentional acts? People on the far right know very well what they are doing. The Bill goes so far beyond incitement, and that is what people are worried about. The amendment reduces the scope of the Bill to intentional incitement.
I do not understand the noble Lord's argument as the Bill is about incitement. That is what we talked about in the Select Committee. On the issue of the Bill going far beyond incitement, and the remarks made by other noble Lords about there being no intent in the proposal, I wonder what they have been reading. The intent is already in the Public Order Act. One need only get a copy from the Library, or read the schedule that has been kindly provided by the Government to see that in every section—
We have been told by the Chief Whip that she does not want long speeches, and I have already been on my feet for far too long. I do not want to trespass on the patience of the Committee, and I have only one more thing to say, which is about intent.
Section 18(5) of the Public Order Act refers to:
"A person who is not shown to have intended to stir up racial or religious hatred".
Nobody has argued that the phrase is wrong in relation to incitement to racial hatred clauses; everyone says that they welcome it and have loved it all along—ever since the 1976 Act. If they think we are wrong about intent, we are also wrong about intent on incitement to racial hatred. Even though some of those who have taken part in today's debate and on Second Reading are distinguished lawyers, I can only believe that they have not done their homework. They should read the Public Order Act again and look at the key new schedule. They will see that there is intent, which is the safeguard that they want.
Before the noble Lord sits down, to say that one has not done one's homework is a very grave charge. The noble Lord cites Section 18(5) of the 1986 Act. I have it here. He stresses that time is short, so I shall not read it to your Lordships. His summary of subsection (5) was wrong in law. It says that if you did not intend to do it you are not liable only if you are not aware that it might be regarded by some person as threatening, insulting, or the like. I hope that the noble Lord accepts that his law is wrong.
It really will assist the due process of House procedure if we do not have "dualogues" during the debate. My noble friend chose his own words for his speech at the beginning of the debate. That allows one to say things first, but, unfortunately, it allows others to speak afterwards. I am not the Chief Whip; I am not seeking to curtail debate; I am not seeking to influence the content of debate. But noble Lords should be aware there is body language from other parts of the House that is expressing some concern.
I would not rise again if it were not for the fact that the noble Lord said that I was wrong. He is wrong.
It is not a question of simply being "not aware". Perhaps I may read the words that come before that. They state:
"if he did not intend, his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting".
I intend to speak briefly in support of these amendments, because they are not wrecking amendments—which some noble Lords seem to believe—they are properly focused. I congratulate the noble Lord, Lord Lester, and my noble friend Lord Hunt on a helpful amendment, because at least it can be read as a whole. It is a matter for the Government how to amend the Bill, if they are willing to, but to fillet out religious hatred from racial hatred and to recognise their important distinctions is very valuable.
The first important distinction is that the first requirement of the Bill should be that a citizen should be guilty of the offence of stirring up hatred on religious grounds only if he or she actually intends to stir up religious hatred. It will not be difficult to recognise those far-right activities to which the noble Lord, Lord Avebury, objected. They will be well and truly caught by the amendment. What will not be caught, nor should be caught, is the much vaguer concept as to whether something is "likely" to stir up racial hatred. That is too vague. The evil people whom the Bill rightly seeks to catch are people who intend to stir up racial hatred and usually there is not the slightest doubt that that is their intention, and British juries will find it perfectly easy to recognise them and convict them.
The second reason that I strongly support the amendment is that it tackles, in paragraph 29J of the amendment, the need to protect both freedom of speech and freedom of religion. It expressly states that, "discussion, criticism" and even,
"dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents", are expressly permitted, provided that one is not "intending", to the satisfaction of the jury and the court, to stir up racial hatred. Furthermore, "proselytising", for one's own religion, and urging others to turn away from their religion is also expressly permitted. That is what the preaching of the Gospel and the contents of many sermons rightly seek to do. They usually do it in measured language in circumstances where no one would dream of bringing a prosecution—but occasionally the language may become more inflammatory and we do not want the chilling effect on public discussion, whether from the pulpit or in the bar or anywhere else, of an excessive Bill.
Although the amendments might seem sweeping in some ways, they focus on those two points: intention, freedom of speech and freedom of religion. The Government can have their Bill. They will be able to prosecute correctly those who genuinely intend in an evil way and in a threatening manner to stir up religious hatred, but the amendments will not catch what we wish to avoid them catching and I strongly recommend them to the Committee.
I support the amendment and I strongly agree with the sentiments expressed by the noble and learned Lord, Lord Lyell, when he reminded us that the purpose of the amendment was to deal with the question of intention or incitement. The whole Chamber should recognise that a valuable and helpful attempt has been made by the noble Lords, Lord Lester and Lord Hunt of Wirral, in laying this new framework before us. It will provide a new framework should the amendment be agreed. There is sense, therefore, in having a Division in Committee. We were rightly reminded by the noble Lord, Lord Wedderburn, that we are entitled to do so if we wish although in recent years it has not always been our practice. If we are to put a new framework for the Bill in place, now is the time to do so. If it needs to be changed in ways such as those outlined by the noble Lord, Lord Avebury, who made his usual thoughtful, consistent contribution on this issue, we shall be free to do so on Report. There is merit, therefore, in reaching today a conclusion on the amendment.
There are good reasons for agreeing the amendment, not least because at Second Reading many noble Lords expressed the wish that the Bill had not been brought forward. We have to recognise some of the realities expressed by the noble Lord, Lord Foulkes, and others that because it is a manifesto commitment the Government clearly will see the Bill on to the statute book. Therefore, we have to recognise that there will be legislation and we have to do what we can to make it workable.
That is the spirit that the noble Baroness adopted—we are pleased to see her back in her usual place—in the letter circulated to Members of the House earlier today. We have already received at least one briefing note contesting four of the points in the letter. I shall happily let the Minister have sight of that note if she has not seen it. Nevertheless, I recognise in the final paragraph of the Minister's letter a willingness to continue in discussion and dialogue with those who are willing to seek to make it a better Bill and to achieve the purpose for which the Government say it is intended.
Anyone who followed the events in Burnley mentioned by the noble Lord, Lord Avebury, or those in Birmingham this weekend, knows that there are deep issues of alienation which we have to address. However, many of us believe that the Bill may be the wrong remedy and that legislation is not the way forward. I was struck by the words of the right reverend Prelate the Bishop of Liverpool—he is in his seat—in an article published on
I was also struck by a letter I received since Second Reading from the chairman of the Metropolitan Police Safer Neighbourhoods Multi-Faith Forum, Dr Stuart Burgess. He said:
"It is the case that faith communities hold divergent views and there are circumstances in which these differences are aired even in situations where this may be seen or heard by members of other faith communities. However, there is a need to maintain a clear distinction between debate founded on mutual respect and the expression of hostile views with the requisite intent to cause offence or generate hatred. It is the view of this forum that the legislation as it appears in its current form fails to maintain this distinction".
The noble Lords, Lord Hunt and Lord Lester, seek to draw again that distinction through the amendments. My fear is that vexatious litigation will be generated by the legislation. The noble Lords, Lord Foulkes and Lord Wedderburn, mentioned the situation in Australia. There is a purely vexatious case before the courts in Australia on not identical but similar legislation. They have taken to court clergymen in Australia who have been running the Alpha course which is comparable to courses being run throughout this country.
I accept the noble Baroness's point. I said in my preliminary remarks that there is a difference. However, my key point is that legislation has generated vexatious actions. Such legislation will be inciteful: it will generate from different groups complaints against other groups. It will create sectarianism where perhaps none existed hitherto. That is the real danger of this kind of legislation.
The Committee will also want to take that issue into account as it considers how we should proceed. I have said enough. I think that this is a good amendment. It honours the commitment that many entered into at Second Reading to try to find a way forward, recognising the political realities that pertain. I hope that even if the Government resist the amendment today, they will enter into the dialogue offered earlier by the noble Lords, Lord Lester and Lord Hunt.
I think that, in many ways, the Government have offered the Committee a laudable Bill, but I share the view expressed by many that this is not the right approach. I speak as someone who has seen how the fascists operate, and we are playing into their hands.
I can make a very brief contribution to the debate. This House should ensure that good law is passed, but I cannot come to the view that at present this Bill is good law. Intentions are irrelevant. We must decide whether the law should be as stated by the Government, and I am afraid I do not think that it should.
The criticism broached tonight is not, in my view, party political. There is a division of views on whether the Bill will intensify or subtract from the deeply difficult situation that we face. I disagree with the noble Lord who has just spoken. I think that the Government should be given a further chance to think about this matter. What has been presented to the Committee today should certainly not be the last word. But if the advice that has just been given is followed, this House will get itself into real difficulty.
Therefore, in my view, the Government should be given an opportunity to think again about what has been said. That involves perusing the speeches that have been made, the intention behind them and what has been said by the noble Lord, Lord Foulkes, with whom I usually agree a great deal. That is vitally important as well. I do not happen to agree with it but I think that it should be taken into account. It is vitally important that we should be able to think again on Report, but we should give the Government, perhaps with our help, the chance to come to their own conclusions in the interim.
If the Government are going to agree with the noble Lord, Lord Clinton-Davis, then I suggest that we do not press the amendment. If they say, "Yes, it is flawed"—which most people are saying it is—"We will take it away and introduce a lot of amendments more or less along these lines on Report", then I think we should give the Government the chance to do that. If, however—I have a terrible feeling that this will be the alternative—they are going to dig their heels in like the shield wall at Thermopylae and say, "They shall not pass" (mixed metaphors and battles), then I think that we should press the amendment because, as my noble and learned friend Lord Lyell said, unless it is in the Bill, it cannot be made better on Report.
I wanted to say a briefer word to support the noble Lord, Lord Clinton-Davis. This is a bad Bill. The Government should be given a chance to take it away and think again. It is difficult to improve a bad Bill with amendment. It can be done, but there is one aspect—I am giving only one—of the amendment that I could not possibly support. It was raised by the noble Viscount, Lord Colville of Culross. It relates to the practicalities, the difficulties and the directions to the jury; the problems of enforcement. They are serious and they have not been truly debated or discussed.
We do not want law that is not properly enforceable and we do not want to be rushed into it. If there is a Division I shall abstain, but what I do is of no importance to anyone. However, it is of some importance that the Government should be given another opportunity to take away a Bill that has been severely criticised by my noble and learned friend Lord Mackay of Clashfern and by the right reverend Prelate the Bishop of Winchester.
As one of the signatories to the amendments I would like to say a few words. I agree with what the noble and learned Lord, Lord Lyell, said and I do not have much to add to the positive case for the amendments. He put it much better than I could have done. I am sure that the Government are entitled to a Bill on incitement to religious hatred. It was a manifesto commitment. But as we see already in the debate over the Bill to deal with tobacco smoking, there is more than one way to meet a manifesto commitment.
The division that would emerge from these amendments between the racial hatred legislation and the religious hatred legislation would enable the Government to meet their aims more effectively than the present Bill. The other relevant factor is that we all have to accept, whether we support the Bill or not, that there is a great deal of confusion about what it entails. Many people say that it does not abridge or have a chilling effect on freedom of speech; other people think that it does. Part of that confusion is itself the result of the rather complicated statute that would emerge through merging the two pieces of legislation. It would be better and less confusing.
It is curious that, according to Ministers and Government supporters, some of the brainiest lawyers in the House—I am not a lawyer; I have been called many things in my time, but not a lawyer—seem incapable of understanding the Bill. If that is true of such eminent lawyers, how much more evident is it going to be to people outside this House who are dealing with these matters at a less elevated level? There is a case for clarifying the nature of the Bill and the amendments would do a great deal to achieve that.
Will my noble friend help to clarify his Amendment No. 31? If it has already been done by one of the other signatories I apologise, because I had to slip out for a minute or two. In proposed new paragraph 29B in Amendment No. 31 it states clearly that there has to be an intention to stir up religious hatred. Sub-paragraph (3) states that,
"A constable may arrest without warrant anyone he reasonably suspects is committing an offence".
That seems a step much further than the general arguments in favour of the amendment. The amendment seems to say that a constable can decide whether there is an intent to stir up religious hatred and then can proceed to make an arrest. That is going a long way further than many of the arguments that the supporters of the amendment have made.
Can I come back to that in a moment because I want to make three more general points? The first is that the amendments would enable the Government to meet their aims more effectively. The second is to clarify the nature of the offences that the Bill will give rise to and I realise that my noble friend's question relates to that. However, I will make the third general point first. The Joint Committee on Human Rights, of which I have the privilege of being a member, in both this and the previous Parliament, argued in the previous Parliament that the Bill is compatible with the Human Rights Act. I accept that. I was party to that decision, and I am not in any sense resiling from it. But the Human Rights Act does not specify that this is the best Bill that could be produced. There could be another Bill, or an amended Bill on incitement to religious hatred that would be better than the Bill that was found to be compatible with the Human Rights Act. I do not resile from the Committee's adjudication, as it were, at that stage, but I think that, for the reasons I have given, this would be a better way forward on the Bill.
Three elements of the amendments are very important. The first is the point about intention that has been made many times this afternoon and which is agreed to, as I understand it, by my noble friend Lord Foulkes, who is not enamoured with the overall strategy of these amendments. It is extremely important, because if we are looking at effects rather than intentions, there is an almost an incentive for those who feel aggrieved by some public utterance to turn its hatefulness into harmfulness. There is an incentive there. We ought to be able to prove intention to make that point.
I accepted the point made by the noble and learned Lord, Lord Mackay, when he intervened, but subsequently the noble Lord, Lord Avebury, made the point that it has not been necessary to include intention in relation to racial hatred, so why should it be included in relation to religious hatred?
Because the point that I was making as my noble friend stood up arises. In the case of religious hatred there is a great deal more ambiguity about what is being said, what is being understood by what is being said and what is being read into what is being said. There is therefore an incentive for the person who claims to be disadvantaged or threatened by what has been said to over-exaggerate. I do not think that that degree of ambiguity is present in the case of racial hatred.
It is important that in our amendments we have stuck with the idea of threatening language because that is much more objective than insulting language. Finally, we have a provision for—
For the record, what I actually said was that intent was present in both offences. It is in Section 19(5), of the Public Order Act 1986, for example, and all the other sections have an equivalent provision. Therefore, we were treating intent as a necessary ingredient in incitement to racial and to religious hatred.
I think my noble friend is overlooking the fact that the burden on the prosecution to prove intent normally—
I do not think we can have interventions on interventions.
I have one final point to make regarding the protection of freedom of expression. Noble friends around me are assuring the Committee that there is no problem here. If there is none, I cannot see why it should not be in the Bill—and if there is no problem, why do so many people think that there is? That is due to confusion about the nature of the Bill, which would be sorted out by the amendments.
On my noble friend's point about the constable, I assume—with all due deference to other colleagues on the Committee, for I am not a lawyer—that the constable may arrest without warrant anyone who, he reasonably suspects, is committing it. "Reasonable suspicion" would include suspecting the intention of the person.
I want to make one brief point. There seems to be a big problem with the Bill, as I have said on several occasions. There is a problem also with the Bill outside, which nobody has mentioned this time. We have had protests and newspaper articles; our postbags prove it. At Second Reading, the noble and learned Lord the Lord Chancellor said:
"it will not stop the telling of jokes about religion or the ridiculing of faith. It will not close down debate about religious beliefs or stop artists from dealing with religious subjects".—[Hansard, 11/10/05; col. 163.].
Although he clearly believes that to be true, it is not written into the Bill. Surely the Government therefore cannot object to an amendment that would put it beyond doubt.
I happen to be one of those on these Benches who have mixed feelings. On the one hand, I feel extremely sympathetic to the Bill. However, realising that the Bill contains deep ambiguities, I am also sympathetic to the amendment tabled by the noble Lords, Lord Hunt of Wirral and Lord Lester of Herne Hill.
I support the Bill for a variety of reasons. People have talked freely about the Australian legislation; they tend to forget that India has had similar legislation, which has been fairly successful in spite of occasional hiccups. I also recall that a similar debate took place in 1976 or thereabouts, when we were discussing the Race Relations Act and whether there should be incitement to racial hatred. The same kinds of arguments, about the chilling effect and so on were made. Happily, we know that those arguments have turned out to be wrong.
I also welcome the Bill for the simple reason that we cannot have a society in which people are at liberty to provoke or incite hatred against a group of their fellow citizens, especially those who are weak, marginal and vulnerable. We simply cannot sustain a spirit of common belonging if incitement to hatred is a common practice. Although not a lawyer myself—I am certainly open to criticism and direction here—I also support the Bill because I have often thought that it all depends on how "intention" is meant. In matters as important as inciting hatred of one kind or another, intention, in the sense of deliberately wanting to do something, is not crucial. If, for example, I were to shout "Fire!" in a theatre, as a result of which a few people died, it would be no defence on my part to say that I did not intend that. I can think of countless situations where I might do something without intending its consequences, and yet the consequences might materialise. If they were so significant as to involve life and liberty, I might rightly be held culpable.
I should have thought that if "intention"—I do not know how the lawyers use the term; I speak as a philosopher for a minute—is understood in the sense of deliberately wanting something to happen, then, of course, it is not crucial. It is enough if I could have anticipated the consequences of my action, or if it is something that I could have foreseen with reasonable care.
For those and other reasons, I am prepared to support the Bill. However, I have two reservations. First—I understand that this is against the advice given to the Government by people whom they consulted—the term "religious hatred" is deeply ambiguous. It is unlike the term "racial hatred", which simply means inciting hatred of a particular racial group. By contrast, "religious hatred" will mean inciting hatred of a body of beliefs, a religion, or of a religious group. Given the ambiguity of the term "religious hatred", which makes it asymmetrical with racial hatred, I wish that the Bill had not used it. It should have been called "hatred of a religious group".
There is also the danger, given that so many able lawyers disagree, that there is a deep ambiguity in the Bill and that those who are in charge of implementing it are likely to be confused—as are those who are likely to be affected by it—about what is forbidden and what is not. Given that, I very much hope that we will give a fair wind to the amendments, because they are not wrecking amendments. They are designed to clarify and, in places, to rectify some of the ambiguities and puzzles of the Bill.
First, I confess that I have not read our manifesto. Indeed, I am not sure that I read many of them, even when I finished up in government. Like my noble friend Lord Clinton-Davis, I have had some experience and hate racial and religious hatred terribly—like, I am sure, everyone on the Committee—but I have great worries about the Bill.
I understand that we do not usually vote on Second Readings, but I hope that we will give the Government time to think again. I would be prepared to do that if my noble friend, for whom I have great regard, tells us that the Government are genuinely proposing to think again. If I do not get that assurance, I would certainly be prepared to vote for these sensible amendments, and I hope that they would be carried. The Government could still then think again. That is an important consideration and it is why, unless I get that offer of serious consideration from my noble friend—to whom I offer my sympathies for what happened recently—I am sorry to say, I will have to vote against the Government.
The proposal that, if the Government are willing genuinely to think again, the amendments may not be pressed is reasonable. On the other hand, we await the response of the noble Baroness. I am delighted that she is able to be back with us again.
First, there is absolutely no doubt that the Bill is not dependent only on intention. The Home Secretary was asked about that at Second Reading. At first, in reply to a question, he said that intent was crucial, but, when he was taken up on the matter a little later, he pointed out that there was an additional provision in the Bill that did not require intention. Therefore, in my view, it is not strictly speaking an incitement to religious hatred. The amendments would create that.
One difficulty about how the Bill is constructed is that Ministers have said to me and to others that the Bill is about protecting believers, not belief. The problem is that if you insult my beliefs and I am a real believer, you insult me thereby. It is difficult to make that distinction in relation to insult or abuse. It is much easier to make it in relation to threatening language. That is why the word "threatening" is the centrepiece of the amendment.
The Home Office has kindly sent out indications about the guidance that would be given on the Bill if enacted. In reference to a point made by the noble Lord, Lord Dubs, last time, I notice that the Home Office memorandum states that consultation will be carried out about guidance and so on. It says that among the people who will be consulted are bodies representing the main faith communities. Involved here are communities other than the main faith communities—those who are interested can see how the noble Lord, Lord Dubs, described them at Second Reading but I shall not repeat that now. We must remember that people have all kinds of religious beliefs. There is an important religious belief that no less an authority than the Prime Minister described as a perversion of Islam. Is it intended to cover and give the protection of the criminal law to that, if the Bill becomes law? If not, why not?
I am loath to intervene because I want to hear what the Minister has to say, but I have a couple of points to make. I hope that Members of the Committee do not think that I am a creep, but I say to my noble friend Lord Foulkes that I like the way we conduct ourselves in this House. We do not shout at each other; we take it in turn to speak; and, believe it or not, we listen to each other. My basis for comparison is not the other place, about which I know nothing, but academic life, which is very different.
I want to echo three or four points that have been made. I entirely agree with the noble Lord, Lord Alton. I wish that we had never had this Bill in the first place, but we have it and, therefore, our duty as a revising chamber is to revise it and improve it. There is no doubt about that. I also find it hard to see this matter as party political. I cannot see the connection between this and being a true member of the Labour Party. I have been a member for a long time so, to me, opposing the Bill is not attacking the Labour Party in any way, but that is by the way.
Of the utmost importance is the fact that, for me as a layman, the Bill, which I have great difficulty following in its original form, would become something that I can understand with the amendments. When the amendments are added, I can follow the line of reasoning, which I could not when I first read the Bill. It seems to me that there are only two possibilities: one is that the Bill says what the amendments say, in which case the Government should accept the amendments because it is important that some of us should be able to understand the Bill; alternatively, the Bill does not say what the amendments say, in which case the Government should make the amendments, because the Bill should say what the amendments say.
My final point is on procedure, and here I am very much with the noble Lords, Lord Clinton-Davis and Lord Barnett. Whether it is a convention, new or old, it seems to me, particularly on a matter of such importance, that the Government should be given a chance to think again. That should be the case when we argue on anything, but certainly on a matter as important as this. If the Minister says that she has listened to the arguments, she really must think again and come back to us. If she does that, the Committee will be satisfied. If the Minister simply says at the end of her speech, "No way"—perhaps the Committee will forgive the vernacular—we might as well get the voting over and done with now, as it will put us all out of our misery. This may be the introduction that my noble friend wants, and I very much look forward to hearing her response.
I have tried to resist the temptation to rise too early because I know that this debate is extremely important and I wanted the benefit of listening to it. I do not stand before the Committee saying that there is no possibility of change whatever. I shall explain the Government's position.
Along with many speakers in the debate, the Government abhor any form of hatred, whether it is founded on race or religious belief, and I think that that view resonates in this place as it does in the other House. It is right that we have been down this way before in relation to these matters, and the noble Lord, Lord Avebury, was absolutely correct to remind us of the evidence that was put before the Select Committee, the importance of this legislation to people in this country and the need to address the issue. But I am disappointed that a number of noble Lords have said that they do not think this legislation should have been brought before the House now, or that the issue can postponed; it really cannot.
There are, however, clear differences of view. We all agree on the outcome we want to achieve, but the method by which it is achieved is a matter of concern and dispute. Noble Lords know well, because it was eloquently expressed at Second Reading by my noble and learned friend the Lord Chancellor and replied to by my noble friend Lord Bassam, that the Government's view is that in order to have parity of treatment between all groups, it would be right and proper to amend this Bill in the way we have proposed, and in the way it has come from the Commons.
But we were listening while the Bill made its way through the Commons and we continue to listen now, both at Second Reading and here in Committee. There are issues which we find difficult. The first and by no means the least is that of truncating the offence to restrict it simply to "threatening". The reason is that a number of substantive offences can be satisfied already with the mere use of threat. We believe that the words "insulting and abusive" add particular importance to this offence. That is because a person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of the offence if he intends thereby—this is an important qualification—to stir up racial or religious hatred. However, I appreciate that of course it is the religious hatred point on which we rightly concentrate.
I turn now to the issue also rightly highlighted by the noble Lord, Lord Avebury, raised by Section 18(5) of the Public Order Act 1986, which refers to a person who is not shown to have intended to stir up racial or religious hatred. He would not be guilty of an offence under the section if he did not intend his words, behaviour or written material to be so, or was not aware that it might be threatening, abusive or insulting.
I understand the concern expressed by many noble Lords about the need to show intention. I understand also that the reason noble Lords say that is because they do not want a flippant and inconsequential aside to be used in a pernicious and destructive way to bring about a criminal conviction. That point has been made very clearly. But we have to approach this matter with a degree of calm. My noble friend Lord Parekh was absolutely right to remind us that when the previous legislation went through both Houses, similar concerns were expressed about the chilling effect that such legislation would have on race. I hear what the noble Lord, Lord Lester, said about the difference between race and religion. One is able clearly to identify the one, but the other is by nature more nebulous and less distinct. Race and religion are quite often imparted at birth and can be essential to identity. We have to understand that.
Concerns have been expressed about self-censorship. People say, "Forget about the legal position, will people behave differently?". Self-censorship was also a matter of concern in relation to racial hatred. The racial incitement offence, which covers nationality, has been in place now for nearly 20 years. It covers the Welsh, the Japanese and those who, like me, were born in Dominica; it covers Australians and the Irish—the noble Baroness, Lady O'Cathain, is right to remind us of that. But it also covers Jews and Sikhs as well as the colour of a person's skin.
I stand before the Committee as a woman of colour, as someone who was born in another country—I am Dominican—and as a woman of resounding and immovable faith. Those three items define who I am. If you utter words of hatred against me in relation to my race, you can be dealt with; if you utter words of hatred against me in relation to the place from whence I hail, you can be dealt with; if you utter words of hatred against me because of my colour, complexion and hue, I can do something about it. But if you generate hate against me because of my faith, I have no means of redress—although I would have a means of redress if I were a Jew or a Sikh. That is the position. There is no evidence—
Before the noble Baroness continues, am I not right in thinking that it is attacks on the racial element of Judaism and Sikhism which are subject to criminal prosecution, not the fact that Jews and Sikhs believe in whatever they believe in? It is not the religious side, which is what we were told in this House before, but the racial element.
It is because it is seen as a mono-ethnic religion which brings it within the racial and religious dimension. A race which is identified by its religion is where the combination arises.
Is it not the case—this is illustrated by a certain pending prosecution against the BNP at the moment—that the reason Jews and Sikhs are protected, as the noble Earl indicated, is because of their ethnicity, not because of their religious beliefs? Therefore, if, for example, a Muslim of Asian origin was to be attacked in precisely the same way because of his or her ethnicity, the same would apply.
I have listened very carefully to the Minister. Am I right in saying—it is vital to know this before we decide what to do—that so far she has rejected two of three essential safeguards? First, she said that threatening alone will not do; and, secondly, she said that specific intent is too narrow. I am waiting to hear what she has to say about free speech, other than the Human Rights Act.
In relation to the first limb, the noble Lord is right. Our current position—and I stress that it is our current position because we are thinking very hard indeed about how the gap that seems to have arisen, and which divides us, could or should be bridged—is that if the Committee was to ask today whether I am able to bridge that gap, the answer is no. If the Committee was to ask whether I may be able to bridge it by Report stage, I would say that that might or might not be the case, but I shall certainly look at the issue and I am going to try. If we move on to the second—
I apologise to the Minister if she has not finished with the point. If she has, I ask her a different short question: of the qualities she applied to herself, is there not a difference between the first group, such as where she was born and being a woman—a distinguished woman—of colour, and the last? She can change her faith, as I could change mine, although I do not think she will. I cannot alter the fact that I was born in Deptford and I am white.
The point we are trying to address is the hatred that can be directed towards an individual in relation to those different defining things that may affect identity.
I will explain where the Government are in relation to the other two. I understand people's concern over "likely to", although not because there is any distinction between the racial and the religious. I understand too the concern expressed by the noble Baroness, Lady O'Cathain, among others, about whether it is clearly understood that the Human Rights Act and all its terms apply with equal force to this legislation. I see the noble Lord, Lord Lester, shaking his head, but I am seeking to deal with the concerns that have been raised by a number of noble Lords, and I need to do so.
The Human Rights Act—I am sure I have heard the noble Lord say this on innumerable occasions—is the means through which we tend to preserve the proper balance of freedom of speech and other rights. We have to get the balance right.
The thrust of what many in this House have said is "why not have something on the face of the Bill that gives that clarity, and gives voice to the fact that the Human Rights Act provision—the signature that we put on the front of the Bill—actually bites?". We have listened to that, and are considering how we could better address that concern. Our answer has been, as was said by the noble Lord, Lord Avebury, that it is there, in Article 10 and all the way through. However, that is an issue we will consider between now and Report.
In relation to either of those last issues, I do not have amendments or proposals that I can put before the Committee that would be capable of reassuring your Lordships and/or of being the foundation of debate. The whole purpose of the Committee stage is for us to discuss, debate and listen, and then hone what is being proposed so that we can vote on it on Report, if that need arises and we have not resolved it.
So that is where we are now. I do not say that the Government will not think again, but I say clearly that I do not have amendments or suggestions this afternoon that I can put before your Lordships that you can consider. I may be in a better position to do so by Report.
This has been such an important debate. I hope your Lordships will forgive me if I do not seek to answer the many important points that have been made, but merely conclude the debate by saying to the Minister: if only she were in charge of the Government, I would have much greater confidence that this whole matter was going to get resolved properly. That is a genuine tribute to her, because in all my experience she has always been prepared to listen.
The conclusion of the debate is that we disagree about the means but we agree about the ends, so we are as one in the intent. I hope that we have been able to explain that these amendments do just four things. First, they make the whole offence much easier to understand; secondly, they clarify the position over intent; thirdly, they separate the person from the belief, which many noble Lords have emphasised is so important; and, fourthly, they guarantee freedom of expression. I know the noble Lord, Lord Lester, will point out that Article 10 does not do that in the terms of the amendment.
I say to the noble Lord, Lord Barnett, that I have a copy of the manifesto here; and I say to the noble Lord, Lord Wedderburn, that he did not finish the quotation from the manifesto. It concludes with the words about the Government's determination to work out,
"how best to balance protection, tolerance and free speech".
That is really what we are seeking to do.
I received from the Minister the letter that several noble Lords have quoted, and I want to accept her promise. She said:
"if there is a solution that attracts widespread support .. I will of course give it very serious consideration."
That is why I am sure that today we should test the opinion of the Committee. But I give this undertaking to the Chamber: that I am perfectly prepared, as are my colleagues, to sit down with the Minister and other Ministers, the officials and the parliamentary draftsmen, in the time which lies between now and Report, to work out ways in which we can improve—
Why cannot the noble Lord give the Government an opportunity to have second thoughts now? A vote would be irrelevant today, in many ways. Why does the noble Lord not want to give the Government an opportunity to think again about this vital issue?
I must say to the noble Lord, Lord Clinton-Davis, that it has been five years since this whole idea was first explored. There was a promise of consultation but, sadly, the Government decided to introduce this Bill and to seek to force it through. The present position, which the Minister has not changed, is that the Government are determined to force the Bill through in its present form. That is why it is important that we respond to the Minister's invitation to see whether these amendments have widespread support. I wish to test the opinion of the Committee.
moved Amendment No. 2:
Page 1, line 6, leave out paragraph (b).
On Question, amendment agreed to.
The Committee has agreed to Amendments Nos. 1 and 2, which are paving amendments for Amendment No. 31. Amendment No. 31 will remove the schedule to the Bill and replace it with a new schedule dealing with religious hatred only. The Government will, therefore, not today oppose Amendment No. 31.
Amendments Nos. 4 to 30 are to the existing schedule, and the final decision on the schedule will not be made until Amendment No. 31 is reached. Strictly speaking, Amendments Nos. 4 to 30 and Amendment No. 3, which is to Clause 1 are not pre-empted and must be called by the Chairman.
Any of those amendments may be debated. It is of course a matter for Members of the Committee who have tabled them to decide whether they wish to move them in the light of the decision that the Committee has just made.
I beg to move that the House be now resumed for the Statement.