Racial and Religious Hatred Bill

– in the House of Lords at 2:59 pm on 8th November 2005.

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Votes in this debate

Report received.

Clause 1 [Hatred against persons on religious grounds]:

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 3:07 pm, 8th November 2005

moved Amendment No. 1:

Page 1, line 4, at end insert—

"( ) Nothing in Part 3A of that Act (inserted by the Schedule to this Act) is to be read or given effect in a way which prevents or restricts expressions of dislike of—

(a) any religion, or

(b) any person's lack of religious belief."

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, this speech will be shorter and less rumbustious than the two previous speeches that I have made on this issue. I see the Leader of the Opposition nodding contentedly. I encourage noble Lords opposite not to spend too much time examining the exact effect of my amendments, because they are probing amendments.

Noble Lords will recall that the House agreed a number of amendments in Committee on 25 October which fundamentally changed the structure and the content of the Bill, including the introduction of a new freedom of expression exemption. In response to those amendments, the noble Baroness, Lady Scotland, generously and helpfully said that she would consider the issue further. The purpose of these amendments, therefore, is to find out the current status of the Government's consideration of the Bill.

First, will the Minister explain to the House at what specific areas of the Bill the Government are looking? Secondly, with whom are the Government discussing these issues? Finally, when does she expect the Government to be able to return to the House with concrete proposals on the way forward? I hope the Minister might feel able to give the House a response to these questions early in the debate. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, with the House's agreement, it may be convenient if at this stage I respond to my noble friend to apprise the House of where we are collectively on these issues. Indeed, I am grateful to the noble Lord, Lord Foulkes, for tabling these amendments.

The noble Lord has, I know, been a keen supporter of the Government's intentions in introducing the Bill to Parliament. He has spoken eloquently about legislation in this area both at Second Reading and in Committee. Noble Lords will know that there are strong feelings on all sides in relation to how we should move forward. The noble Lord has been kind enough to indicate that these are probing amendments, and they provide me with a valuable opportunity to update your Lordships on the progress we have made so far.

In Committee strong concern was expressed about freedom of expression. Those concerns led noble Lords to vote substantially in favour of the amendments tabled by the noble Lords, Lord Hunt and Lord Lester, the noble and right reverend Lord, Lord Carey, and the noble Lord, Lord Plant. As I indicated then, I wanted to take stock of our position and look for ways in which that deep concern could be addressed without substantially undermining the Government's stated policy aim of legislating to outlaw incitement to religious hatred, which I continue to believe is fundamentally correct.

We have considered the issues further, and I have had a number of discussions both with those who support the Government's intentions in this area and those who have deep reservations about how the legislation might operate in practice. Those discussions have been ongoing on all sides of the House. I am sure that noble Lords will appreciate that squaring this particular circle is in no way easy. If it were, I am sure that others far wiser than I would have done it a long time ago.

The time between Committee and today has not been sufficient for the Government to come to a definite resolution of the matters in dispute. There are further discussions to be had, both with the Opposition and with noble Lords on these Benches. Therefore we are unfortunately not in a position to table government amendments for the House to consider on Report. I am, however, continuing to look at how we might make headway and perhaps achieve a level of consensus. I can give your Lordships a personal assurance that we will do all we can to achieve such a consensus, as I am sure your Lordships would wish.

Four main areas of the Bill have changed as a result of the amendment that was made in Committee. I shall briefly set out our view in relation to each of these. I want to make clear that nothing is set in stone at this stage. In considering how to take the Bill forward, we will look at how our proposals can be adjusted to provide the reassurance that so many of your Lordships have indicated is required. If we are able to achieve that, we will look to table government amendments at a later stage. I hope that that will be at Third Reading.

The amendment that was made in Committee restructured the Bill so that the religious offence is entirely separate from the racial offence. There are difficulties with providing consistency between that and the existing racial offence, since it suggests—more than we accept—that religion and race are completely separate issues. I accept, however, that the House has clearly signalled its preference for the new framework. We are prepared to consider whether the new structure should remain.

The amendment also removed the words "abusive" and "insulting" from the offence, leaving only "threatening words or behaviour" capable of prosecution. As I indicated in Committee, we have real difficulties with that change. If we confine the offence relating to religion to cases in which threatening language has been used, we would limit it to a very narrow range of behaviour. In the sort of cases that have been dealt with under the racial offence, it is clear that campaigns used to stir up hatred use a range of words, some of which may be threatening but are not necessarily so. Abusive and insulting words can also be used, and they can have just as devastating an effect on the communities concerned. Therefore, limiting the offence only to threatening words and behaviour would make it far too difficult to get to the sort of material that is used to incite hatred and would severely curtail the ability of the Crown Prosecution Service to bring to justice those responsible. We have to bear in mind that those who seek to take advantage of the provisions will want to craft what they say very keenly to avoid being subject to any restraint provided by us through the law.

The most important amendment to the Bill is, I respectfully suggest, to the freedom of expression protection included at paragraph 29J to the schedule. My noble friend's amendment would remove that provision and replace it with something far more tightly drawn. That issue is at the heart of concerns raised by most of those who spoke in Committee. The wording currently contained in the Bill would cause us some difficulties in providing a workable offence for prosecutors. However, I believe that it should be possible to include something that goes some way towards that type of wording, which would be sufficiently sound and robust in defending the freedom of speech concerns raised both inside and outside Parliament. That is something that we shall continue to consider and discuss with noble Lords, with a view to coming up with a form of words that I hope will be acceptable to all.

Lastly, there is the issue of whether intent should be the only threshold for bringing forward prosecution of these offences. Your Lordships will know that that is also being looked at in the context of the Terrorism Bill currently being considered in the other place. While the wording that was used in what is known as the "likely limb" is obviously considered to be too loose by a number of noble Lords in respect of the Bill's offence, we shall want to see whether there is a form of words that will enable prosecutions to be brought without having the unintended consequences feared by many. We understand that that is a difficult road to walk, but we intend to see how best it can be done. If we are successful in doing that, we would hope to be in a position to table amendments at Third Reading, subject to the House's agreement.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour 3:15 pm, 8th November 2005

My Lords, I am sure that, like me, all noble Lords are grateful for my noble friend's elucidation of the position. However, would she agree that the Bill as it now stands fully, completely and wholly fulfils the manifesto commitment that the Labour Party made, and that to go further on incitement would risk gold-plating or lead-plating that commitment?

Photo of Lord Skelmersdale Lord Skelmersdale Deputy Chief Whip, Whips, Spokespersons In the Lords, Work & Pensions & Welfare Reform

My Lords, the Minister said that she hoped that the Government could resolve this matter and table amendments at Third Reading. Would she accept that, with regard to the Companion to the Standing Orders, that would be undesirable, and that therefore a far better plan, if this matter is to be finally settled in your Lordships' House rather than in another place, would be to recommit the Bill—and the schedule in particular?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, we do not believe that that would be the most felicitous way in which to proceed. I predicate any comments that I make on the fact that we would have to have the House's assent; but if the House were to assent to Third Reading being the most appropriate time to dispose of this matter we would be able to dispose of these remaining issues expeditiously.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I am grateful to the Minister for her exposition of what she is hoping to achieve, but we are right up against it in terms of time. Is there any way we could extend the time between Report and Third Reading? It would be terrible if the Government put down amendments the night, or a day or two, before Third Reading, because some of us would want to spend a lot of time considering the wording and the implications of those amendments.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, we understand that view. Of course the date upon which Third Reading is fixed is a matter for the business managers, but we would hope, by the time this matter came to be debated, that we would have an opportunity to consider those amendments so we could have a proper discussion. We are in the hands of the business managers, but I am sure that there are those who will be sensitive to the position in which we find ourselves.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, before the Minister sits down, I have a question that is not in any way meant to be hostile. In the days when I was in government, the business managers did not allow Bills to come before the House at any stage until policy had been sorted out. Why was it not possible to sort out the policy before deciding the date on which these matters were to be considered?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, we are sorting out the policy now. Let us look at where we are. The Government have put forward a number of propositions with which this House has comprehensively disagreed. There are two ways in which we can deal with that. We could say, "Very well. This House has spoken. We will do no more. The matter will go back to the Commons. The Commons—which, after all, has a mandate as the elected House and the voice of the people—will decide".

This is an issue of such sensitivity that there is a desire to accommodate and seek to compromise, to find a middle way. I had understood that those in this House, discharging their duty with such propriety and care as always, would, if possible, prefer to find a way through this rather difficult situation. There may be others who would rather enter into the usual fray.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, before the Minister finally sits down, and with the leave of the House, is she convinced that the Third Reading procedure, which puts so many constraints on discussion, is the right way to proceed in view of what she has just so rightly said about the importance of trying to settle the matter in this House? It does not seem quite certain to me.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, before the Minister sits down—that pleasant fiction that we all adopt—I have five points. First, the noble Lord, Lord Hunt of Wirral—I nearly said "my noble friend", because he and I are at one in the way we approach these matters—and I have to account to our respective tribes and those beyond them for any negotiations that take place. Secondly, I have confidence in the wisdom and enlightenment of the Home Secretary personally in his ability to produce a consensus for a Bill of which we can all be proud. I emphasise that not to disparage anyone else, but simply to say that about him.

Thirdly, we do need more time, because the Government have not yet shown us the colour of their money. Fourthly, the reason my lawyers talk about "without prejudice" negotiations is that it does prejudice negotiations if one talks about them in public. Indeed, when the Minister was speaking, there were one or two things she said I thought might prejudice negotiations, but in fact I do not think they will.

Lastly, if we can reach an agreement, it should be done before Third Reading by way of negotiation. Then, on Third Reading, provided that the House is content with the bargain that has been struck, we can send the Bill to the other place and avoid such ghastlinesses as ping-pong and the Parliament Act. I therefore entirely agree with the way the Government suggest that the negotiations should proceed. In the end this will save parliamentary time and produce a better Bill.

Photo of The Bishop of Oxford The Bishop of Oxford Bishop

My Lords, before the Minster sits down I would like to thank her for her statement and for the widespread consultation she has initiated and which she has indicated will continue.

We on these Benches have some sympathy with the Government's position that there is a closer relationship between racial hatred and religious hatred than many people recognise. They are both issues of identity; they are not simply matters of choice. Nevertheless, as we argued—particularly on Second Reading—more robust exchange is allowed about religion than is appropriate to the subject of people's racial heritage and background. I am glad that the Government are going to keep those elements separate.

Unfortunately, the amendment tabled in the name of the right reverend Prelate the Bishop of Southwell and myself was not properly debated in Committee. It overlapped substantially with the amendment tabled by the noble Lord, Lord Lester, but we kept in the words "abusing" and "insulting". I will therefore look with particular care at what the Government eventually come up with in this matter.

Clearly, we are all united about having adequate provision for freedom of expression at all times. We on these Benches are particularly concerned about the likelihood limb. We will carefully scrutinise what the Government come up with. I hope that the Government will respond to the noble Lord, Lord Lester, and that we can get an agreement and a compromise on this matter before Third Reading.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I do not propose to suggest that the Minister has not yet finally sat down. Her intervention was by leave of the House to respond to the desire of the noble Lord, Lord Foulkes of Cumnock, for information, which she acceded to. The matter is now open and any noble Lord who wishes to may make a contribution.

The proposal to continue negotiations in the hope of reaching a settlement and then bringing that forward to Third Reading is perfectly appropriate. I welcome that as a way forward. It is far preferable to seeking confrontation with the other place. I have never found that attractive except in the most exceptional circumstances.

I am anxious about a matter that I have raised on several occasions and which so far the Minister has not addressed. That is now further focused by the Government's proposal to have an offence concerned with the glorification of terror. My understanding—though I may be subject to correction—is that that generally takes place in the context of some religious faith or doctrine. Terror is glorified through the application of that doctrine to the circumstances in which we are now placed. If that is correct there is a danger—unless the language is very accurate—that the Bill in its previous form would cast the protection of criminal law round the glorification of terror in the context of religious belief. This matter needs to be dealt with carefully if the two matters that I have referred to are not to be confused and the relationship between them damaged.

The other point that I wish to make, because it has been raised by the right reverend Prelate the Bishop of Oxford, relates to the relationship between race and religion. I am one of those who think that there are substantial differences between the two and I see no reason why religion should be dealt with separately from race, so long as it is dealt with appropriately. One thing that needs to be said about religion is that it may inculcate practices that are themselves hateful. That may well be a matter of judgment, but it certainly is possible; whereas one would not expect that to be a consequence of race by itself. So there is room for considerable difference between the two, and merely separating them in the Bill does not seem to pose any problem in dealing appropriately with religion as well as with race.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour 3:30 pm, 8th November 2005

My Lords, I apologise to the House as I thought that it was right to put a question to my noble friend on the Front Bench before she sat down. It led to something that appeared rather abrupt. With the leave of the House, perhaps I may add that in our manifesto commitment, which is, after all, central to the Government's argument, the centre point of concern is exactly that which has been put by the right reverend Prelate—namely, what has come to be called the "likely to" test, in addition to intention. Intention is involved in incitement; a ban on incitement is what we promised. The amended Bill does that, but I understand that the Government may wish to deal with particular words at particular places, with such long amendments. However, the "likely" test and the intention test is the core of what we now have, which we should keep.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

My Lords, first, I thank the noble Lord, Lord Foulkes, for giving us an opportunity to see where we are. Secondly, I thank the Minister for suggesting that we should now, to use her phrase, "find a middle way". I am not sure exactly what that means. I prefer to see it as an intention to seek a level of consensus. That is certainly the right way forward and we will do everything that we can to join with the Government and the many noble Lords with very strong views about how we should proceed. We will certainly do everything we can to assist in meeting the objective that the noble Baroness, Lady Scotland, set out.

I particularly welcome her statement that nothing is set in stone. That was very important, because in Committee noble Lords reached a decision that was very much an expression of opinion—indeed, to coin her view, they comprehensively disagreed. We reached a decision that has been communicated to the Government and that is the way to produce good legislation—to have a Government who listen and then seek to find the right way forward.

I agree with my noble and learned friend Lord Mackay that one of the most important objectives in all this is to look at the various areas of legislation that are now proposed—he referred to the glorification of terrorism, but there are parts of the Equality Bill and other current legislative proposals which we have to see in context. I share the noble Baroness's wish to find some way through.

I strongly agree with the noble Lord, Lord Wedderburn, that we must pay attention to what was said by the Labour Party in its manifesto, but, as I have pointed out previously, the manifesto was clear in its commitment to seek,

"how best to balance protection, tolerance and free speech".

That, I hope, is how this House has approached the problems before us.

I agree with the right reverend Prelate the Bishop of Oxford that, in many ways, robust exchanges take place in the context of religion but I prefer the view of my noble and learned friend Lord Mackay of Clashfern that in fact they are very separate. The right reverend Prelate was not so convinced, but I hope that I will have the opportunity of persuading him.

Photo of The Bishop of Oxford The Bishop of Oxford Bishop

My Lords, I do not think that either the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Hunt of Wirral, and I fundamentally differ on this issue; it is just that some people are mistaken in thinking that religion is only a matter of choice. Millions of people in the world are born into a religion and other people associate them with that religion. We are not in substantial disagreement on that.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, that is exactly my position.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

My Lords, I sense that consensus is spreading; it is infectious. I am delighted that the Government have decided to accept the infrastructure which is now the Bill. To have the proposed new religious hatred offences set out clearly in their own schedule to the 1986 Act and not lumped as an add-on to existing racial offences is an important step forward. I welcome the Government's concession on that. We can certainly proceed to deal on that basis.

The change makes it much easier to understand what is proposed in the Bill. It gives us a great opportunity to get the proposals absolutely right. The change means that we can move on to those other three areas, which I will deal with briefly.

The first is the "likely limb", as it is now termed. The Minister should be aware that this is a very important point for a range of my noble friends and other noble Lords. On this side of the House we feel strongly that it is important to have the burden of proof where it is: in the Bill, as amended. We are not dogmatic about that, but we feel the need for reassurance about the likelihood of frivolous or vexatious charges being brought under this legislation, or certainly being investigated under it. We do not believe that the original Bill was watertight. I hope that the burden of proof will be firmly on the prosecution.

The other main question is the nature of threatening, insulting and—in the middle—abusive behaviour. It is important that we recognise that on this side of the House we are deeply uncomfortable with the notion that causing a sense of insult could, of itself, involve the transmitter in the sort of legal proceedings we are talking about. Insult is in the mind of the insulted person, after all. That is such an important point. If the bar is set so low, the belief rather than the believer is unquestionably being protected. That truly would be a new "right not to be offended". As it stands, "threatening" is much more ad hominem but I look forward to discussing that point with the Minister.

Finally, on the freedom of expression clause, I detect a willingness on the part of Ministers to accept what is in the Bill. After all, we have merely put into legislation what the Government have always said. Now to see freedom of expression so clearly set out is a huge advance. The amendment tabled by the noble Lord, Lord Foulkes of Cumnock, would rip the heart out of the Bill in its amended form. I know that Hearts are very dear to the noble Lord, even in these troubled times, and I hope that he will not force this matter to a vote.

Everybody will have their own view on what imperfections there may be in the new freedom of expression clause but as I have pointed out, it does no more than embody what Ministers have been saying all along.

I welcome what the noble Baroness, Lady Scotland of Asthal, has said, although I have a great deal of sympathy with my noble friends who asked for more time. We probably do need more time, whether by means of a recommitment, as my noble friend Lord Skelmersdale suggested, or simply a period of more open discussion. We need to argue our way through this situation rather than take entrenched positions. However, I very much welcome the noble Baroness's expressions of view today.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I hope that I am not out of order in responding to some of the points made. I say to my noble friend Lord Wedderburn that I did not by any means wish to be curt but others wanted to speak.

There has been much helpful discussion about where we are now. We very much take into account the comments that the noble and learned Lord, Lord Mackay, made about ensuring that we look at the broader framework within which this issue sits. He is right to identify a potential difficulty, and we are bearing that in mind as we go forward. The noble and learned Lord is absolutely right to say that we would hate to see a cloak being given to acts which should properly be dealt with by virtue of an assertion that they were made on some basis of faith. We are very alive to that point.

We are seeking a level of consensus, and therefore I am concerned in case the noble Lord, Lord Lester, feels that I have in any way trespassed into an area which would make that more difficult. I hope that I have not done so.

This is not an easy area, as I believe we have all demonstrated in our comments. I very much appreciate the remarks of the noble Baroness, Lady Carnegy of Lour, who asked whether this is the right time. We are where we are, and certainly the consensus view is that we should try to make progress, if we can, between now and Third Reading in the hope and aspiration that Third Reading can take place at a sensible time when we will have had discussions and will be able to make progress. To do otherwise would defeat the whole purpose of the debate that we are having now.

I shall deal with the issues in order. Like the noble Lord, Lord Hunt, we are absolutely determined to ensure that frivolous and vexatious cases should not be brought. That is very much part of the thrust of what everyone wishes to see and, as we all know, there is already a sift from the CPS and the Attorney-General. However, I listened carefully to the point made both in Committee and today that it is not just the charges that should be taken into account but also the nature of the bringing of investigations. I very much take that on board.

I take on board, too, comments made in relation to intent and the "likely to" test. We have had a number of discussions about whether intent simpliciter is enough or whether recklessness or other issues should be considered. I simply reassure the House that those issues are exercising our concerted efforts. I just say to noble Lords that we have to keep the benchmark which will enable proper—I emphasise "proper"—prosecutions still to be possible. I am sure that no one in the House would like us to arrive at a situation where proper prosecution of proper cases in relation to inciting racial and religious hatred were not possible because of any changes that we make. I know that that is not what anyone in this House wishes.

I hope that I have made it absolutely clear that we understand that freedom of expression is the biggest issue which has caused the most concern. Proper debate, proper discussion and proper criticism of differences in faith and religious belief should not be chilled but should be capable of continuing with an appropriate amount of vigour and vim, as would be consistent with a vibrant democracy. We understand that too. So we will look very carefully to see whether a formula can be brought forward with which all parties can feel more content.

We are seeking consensus, so it will be incumbent upon us all to move a little. We would like a situation where all would be content, if not totally thrilled. That is an aspiration that we should seek to deliver. I emphasise that many say that the Government's position as presented in Committee was the correct position from which we should not move. We understand that a whole spectrum of views have to be brought together to a position where each can feel comfortable. I know that those sitting on the opposite Benches have similar difficulties going the other way, too.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 3:45 pm, 8th November 2005

My Lords, I thank my noble friend Lady Scotland very sincerely for what she has said today, for the diplomatic and sensitive way in which she has dealt with the Bill and for the hard work under way to find a resolution to difficult issues.

I understand the noble Lord, Lord Forsyth of Drumlean, only too well. He, like myself, loves a political dogfight. On this particular issue, however, it is better to try to move forward by consensus.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I prefaced my remarks by saying that I did not want to criticise the Government. It is not a matter of having a political dogfight. It is a matter of principle that the Government should work out their policy before the Bill comes before the House. The business managers and the Government decide that. That was what I sought to explore with the Minister, who gave me a very courteous response.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, is it not wonderful to hear a Government who pay attention to what is said in a debate, take account of it and act accordingly? I find that exceptionally good. I was pleased to hear the noble Lord, Lord Lester of Herne Hill, acknowledge that in his gracious and eloquent speech.

Clearly, time is needed for discussions and consultations to take place to resolve the issue. I am looking forward, as I know all Members of the House will be, to the amendment which the Government plan to table at Third Reading. So, notwithstanding the arrow that was directed at my heart by my good friend the Opposition spokesman, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

moved Amendment No. 2:

After Clause 2, insert the following new clause—

"ABOLITION OF CERTAIN RELIGIOUS OFFENCES

The following offences are hereby abolished—

(a) blasphemy and blasphemous libel;

(b) any distinct offence of disturbing a religious service or religious devotions;

(c) any religious offence of striking a person in a church or churchyard."

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

I beg to move the amendment introducing the first new clause. The atmosphere of consensus created by the debate on the previous amendment is very welcome. I particularly appreciated the remarks of the right reverend Prelate the Bishop of Oxford, who said that there must be robust exchanges on questions of religion. I hope that that means that the Church is coming round to the view that blasphemy should, at last, be abolished. Although it is impossible to imagine that everyone on the Bishops' Benches would agree with that proposition, if several do so it could be a weighty influence in helping the Government to make up their mind. It is the Government whom we have to convince to take this matter forward after today's debate.

The last time there was a prosecution for blasphemy in England was the Gay News case of 1976, when the editor of that newspaper was sentenced to nine months' imprisonment, subsequently lifted on appeal, for a poem that appeared in the paper. The arguments for abolishing the offence have been dealt with on many occasions in this House since then: in the Blasphemy (Abolition) Bill of 1995; in the Anti-terrorism, Crime and Security Bill of 2000; the Religious Offences Bill of 2002; in the Select Committee on Religious Offences, which spent a whole year examining the matter in 2003; in the Serious Organised Crime and Police Bill in 2004; and at Second Reading of this Bill only a few weeks ago.

One of the main reasons for coming back to the proposal now is to make it clear once and for all that this Bill does not, and is not intended to, introduce a new statutory offence of blasphemy by the back door. Subject to this amendment being agreed to, one could say whatever one liked about the sacred entities or beliefs of a faith. There has been no response to the challenge that I issued at Second Reading to draft a form of words "ridiculing holy objects" that would be liable to prosecution under this Bill.

I mentioned the Ship of Fools website which ran a competition to discover the 10 funniest and 10 most offensive religious jokes. The conclusion was that the Almighty was fair game and that blasphemy was a minority concern. The so-called jokes were indeed grossly offensive and some of them were undoubtedly blasphemous in law as well as according to ordinary English usage, but they would not make any sane person hate Christians. As long as the offence of blasphemy technically exists, however rarely it is used, there is confusion between incitement to hatred of believers and hatred of beliefs themselves. We have seen quite a bit of that already on this Bill. A new argument for getting rid of blasphemy is that it will help to make that distinction absolutely plain.

There are several other reasons for abolishing this offence and your Lordships have considered them repeatedly. I refer particularly to the report of the Select Committee and, since it covers the arguments in some detail, it is necessary for me to summarise them only briefly. First, nobody can say with any confidence what is blasphemous, because the CPS and the courts may well take a completely different view today from what they did in 1976. When there was a public recitation of the James Kirkup poem, which had led to the Gay News prosecution, on the 25th anniversary of the case, the police took no action and there was no significant demand for them to do so. But the uncertainty of the law may itself lead to self-censorship or even actual censorship as it did in the Wingrove case, which is described in Appendix 3 of the Select Committee's report.

In that case, the European Court of Human Rights decided in 1996 that the British Board of Film Classification had not violated Article 10 of the convention on the basis that Lord Scarman's speech in the Gay News case had fixed the definition of the offence in common law and that the restriction on freedom of expression was within the limited margin of appreciation accorded to member states in assessing whether the interference was for a pressing social need and was proportionate to the legitimate aim pursued.

That aim was the protection of the right of citizens not to be insulted in their religious feelings dealt with by the court in the Otto Preminger case. The Select Committee concluded that the European Court had wrongly assumed that the House of Lords had clearly formulated the law on blasphemy in the Gay News case and it doubted whether the Court would have upheld the BBFC's decision to ban the Wingrove video if the facts had been correctly argued before them. That shows that our blasphemy laws have continued to have reverberations in Strasbourg within the past 10 years and that the uncertainty may well lead to further expensive and divisive litigation in the future.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, I do not disagree with what the noble Lord is putting forward, but I have some difficulty in deciding how it fits in with this Bill. Would he kindly tell me whether it does?

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, it is not for me to argue with the learned Clerks who allowed this amendment to be tabled as they did in the other place. I am satisfied that, if there were any question about whether the amendment fell within the Long Title, your Lordships could deal with that at Third Reading or perhaps when the Bill goes back to the Commons.

Secondly, the law protects the Christian faith and arguably only the Church of England, which your Lordships will agree is intolerable in a society that believes in equality before the law, and is contrary to Article 14 of the ECHR on the prohibition of discrimination. As long as this law exists, other faiths may well continue to argue for equal treatment. As your Lordships may know, many Muslims originally believed that the main proposal in this Bill was designed as a substitute for a universal blasphemy offence. Conversely, repealing the offence of blasphemy would make it clear that Parliament does not intend to shield any religion from robust or even offensive criticism.

Thirdly, because of the Human Rights Act, any prosecution for blasphemy today would be likely to fail either on the grounds of discrimination or through the operation of Article 10.2 of the ECHR which allows restrictions on freedom of expression only to the extent that it is necessary in a democratic society for public order reasons. The court would have to consider, first, whether any speech or publication subject to the prosecution was intrinsically blasphemous and then whether restricting the freedom to use those words was proportionate to the aim being pursued. In outlining the case for repeal—which I hasten to add was only one possible course of action that it discussed—the Select Committee concluded that, even if a prosecution were successful, it is likely that it would eventually be overturned on appeal either by the higher courts in the United Kingdom or by the European Court of Human Rights on one or more of the grounds that it is discriminatory, uncertain and a law of strict liability. On that argument, repeal would save the considerable expense of proceedings that might well go to Strasbourg.

Finally, the law is objectionable because, as I said, it imposes a strict liability on a person who wants to publish a document or make a verbal statement about a Christian belief or sacred entity but who has no way of knowing whether he will be committing an offence.

Some of the witnesses who testified before the Select Committee would have none of those arguments, believing as they did that the prohibition of blasphemy in the Ten Commandments should be part of our domestic law. One cannot have a sensible conversation about any law with people who think that our conduct in the England of the 21st century should be regulated according to instructions supposedly given by God or Allah to individuals living in the deserts of the Middle East in the distant past. We are now living in a multi-religious society where no religious group has the right to impose its rules on the rest of us. Although it is usually best to exercise restraint in speaking about things that are considered sacred, there must be freedom to criticise or attack customs and practices that are said to be sanctioned by religion.

Scotland and Northern Ireland have survived without blasphemy laws since the middle of the 19th century. Belgium and Spain have no such laws. In Australia, a common law jurisdiction, the Supreme Court of Victoria could not decide whether blasphemous libel was an offence known to the law and, in 1998, threw out the only such case known to have been prosecuted in the whole of the previous century. In Pakistan, on the other hand, blasphemy law is alive and well. As the Foreign and Commonwealth Office states in its human rights report this year, that has fostered an atmosphere of religious intolerance and eroded the social and legal status of religious minorities.

The Bill deals with the real evil of stirring up hatred against people because of what they believe or practise. Our ancestors hated each other, sticking labels on Lollards, Catholics, Protestants and Jews. That led to the burning of heretics, religious wars that cost thousands of lives and to the Holocaust. Hatred was never brought to an end by hatred, so let the rivalry between faiths, including secularism, be conducted by means of argument or even by mockery and derision. Let poets, novelists, comedians, playwrights and broadcasters say what they please. If God exists, He does not need the protection of this or any other law. I beg to move.

Photo of Lord Renton Lord Renton Conservative

My Lords, I am thoroughly opposed to the new clause. It abolishes offences that have been part of our civilisation for generations. Indeed, they have been statutory for a long time. To take blasphemy, civilised behaviour should not legalise blasphemy. To take,

"disturbing a religious service or religious devotions", that would be contrary to religious freedom, which we all support. To abolish religious freedom in that way is uncivilised. The final item in the new clause is the abolition of,

"any religious offence of striking a person in a church or churchyard".

In our civilisation, we abolished striking of a person. We are totally opposed to it. How the noble Lord can suggest that striking is justified on religious grounds is beyond my comprehension. I hope that all your Lordships will criticise and vote against the new clause.

Photo of The Bishop of Oxford The Bishop of Oxford Bishop 4:00 pm, 8th November 2005

My Lords, I see that I have the pleasure of following the noble Lord, Lord Renton, because clearly he is a very fit man. I read an interesting piece in today's Evening Standard. Apparently the noble Lord, Lord Renton, managed to run faster than his noble friend Lord Pilkington, who is only in his seventies, in order to catch a cab. I look forward to sprinting against the noble Lord myself.

I approach Amendment No. 2 with somewhat mixed feelings. It is clearly motivated by a genuine desire to remove the vestiges of religious discrimination from our law and I certainly support the principle of a level playing field and equal respect for all religions. But I do raise the question whether this is the right time and the right Bill for such an amendment.

I should make it clear that I do not wish to defend the present law of blasphemy and blasphemous libel, and I suspect that that goes for all the other Members on this Bench. I could not agree more with the noble Lord, Lord Avebury, that God does not need a law to protect Him. For myself, there is first the question of what might constitute blasphemy. If blasphemy is defined as what "grieves the heart of God", I submit that this is above all about human cruelty: unkindness, injustice and all that defaces the image of God in humanity; that violates his children. Personally, I find a very great deal in our society which is lewd, vulgar and distasteful. Some of it is directed to religion. I would rather we lived in a more civilised society which did not display such signs of decadence, but I do not think that such things count as blasphemy in the same way as torture and cruelty.

So there is the whole question of what actually counts as blasphemy. On a more technical point, as the majority of the Law Commission argued in 1985, the meaning of these offences is legally uncertain in the place that they give to intention. They are unacceptably discriminatory in protecting only the Christian religion—and possibly only the tenets of the Church of England, as the noble Lord, Lord Avebury, pointed out—and for these and other reasons they are a dead letter. In recent years the Church of England has expressed a willingness in principle to assent to their repeal.

However, we have advocated a step-by-step approach to deal first with the problem of religious hatred and then to tackle blasphemy. It is asserted that to abolish blasphemy at this point would send a clear message that this Bill is not an extension of the blasphemy law. It is important that such a message should go out and be received. But to deal with blasphemy now runs the risk of sending exactly the opposite message, or at any rate a confused one. If religious hatred is nothing to do with blasphemy, let the two be dealt with separately.

On the question of disruptive behaviour in church services, places of worship or burial grounds, it is true that Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 reflects an historical situation which no longer obtains. It would be desirable to reform the law to reflect the needs of a multi-faith society. The Law Commission recognised this in proposing two new offences: the disruption of communal worship and the desecration of places of worship. But such a reform of the law would require very careful consultation and thought.

As I have said, I think that I can speak on behalf of all the Members on this Bench in not wanting to oppose an amendment like this in principle, but we have to ask whether this is the right time and the right Bill for it.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, my name is down in support of this amendment and, indeed, it is supported by our Front Bench. I should declare a personal and professional interest long past in that I appeared in the Salman Rushdie case when an attempt was made by Mr Choudhury to extend the law of blasphemy to protect Islam against insult. It is right that I should declare it and a little later I shall be saying something about that case and what one may learn from it.

My task is briefly to explain where I think we are at the moment on the law of blasphemy because the situation now is untenable. The leading English case on the common law of blasphemous libel was decided by the Law Lords in 1979, in the Gay News case. By a majority of three to two, and without the benefit of the framework of the Human Rights Act 1998 or full argument on the issues of free speech, the Law Lords breathed new life into what had been regarded until then as an anachronistic and arbitrary relic of Tudor and Stuart times when draconian powers of censorship had been exercised by the Ecclesiastical Courts and the Court of Star Chamber until they were taken over by the common law courts. As Lord Diplock, one of the dissenting liberals in the Gay News case, observed:

"In the post-Restoration politics of 17th and 18th century England, Church and State were thought to stand or fall together. To cast doubt on the doctrines of the established church or to deny the truth of the Christian faith was to attack the fabric of society itself: so blasphemous and seditious libel were criminal offences that went hand in hand".

Mrs Mary Whitehouse brought a private prosecution against the editor and publishers of Gay News alleging that they had,

"unlawfully and wickedly published . . . a blasphemous libel concerning the Christian religion namely an obscene poem and illustration vilifying Christ in His Life and in His crucifixion".

For the previous 50 years, the offence had disappeared from the criminal calendar and was regarded as having become obsolete.

The Gay News defendants were tried at the Old Bailey and convicted. The editor was sentenced to nine months' imprisonment, suspended for 18 months, and fined £500. The publishers were fined £1,000. The Court of Appeal dismissed their appeal and so did the House of Lords. The only member of the Appellate Committee who referred to free speech was Lord Scarman, who explained that he wished not only to give new life to the offence, but also to extend its reach to protect all religions. In the Irish Supreme Court's judgment in Corway, where it effectively abolished the law of libel, it referred to what it described as Lord Scarman's "remarkable" rationale for the existence of an offence of blasphemy. Your Lordships will be pleased to know that I will not read out exactly what Lord Scarman said, but in conclusion, he said:

"I will not lend my voice to a view of the law relating to blasphemous libel which would render it a dead letter, or diminish its efficacy to protect religious feelings from outrage and insult. My criticism of the common law of blasphemy is not that it exists but that it is not sufficiently comprehensive. It is shackled by the chains of history".

That is an extraordinary statement from a very enlightened judge.

The previous trial for blasphemy had taken place 50 years previously in the case of Gott. John William Gott was indicted for having published a blasphemous libel by selling to the public two pamphlets entitled Rib Ticklers, or Questions for Parsons and God and Gott, satirising the biblical story of the entry of Jesus into Jerusalem, from Matthew Chapter 21, verses 2 to 7, which is based on a literal interpretation of the prophecy that the King of Zion would come,

"riding upon an ass, and upon a colt the foal of an ass", which is Zechariah Chapter 9, verse 9. One man in the crowd said, "You ought to be ashamed of yourself"; one woman said, "Disgusting, disgusting". Nothing further occurred. Gott was convicted and sentenced to nine months' imprisonment with hard labour, even though he was suffering from an incurable disease.

In dismissing Gott's appeal, the Lord Chief Justice, Lord Hewart, said:

"The appellant has been three times before convicted of publishing blasphemous libels, and he had ample knowledge of what he was doing. It does not require a person of strong religious feelings to be outraged by a description of Jesus Christ entering Jerusalem 'like a circus clown on the back of two donkeys'. There are other passages in the pamphlets equally offensive to anyone in sympathy with the Christian faith . . . Such a person might be provoked to a breach of the peace . . . If the appellant is in ill-health, the hard labour will not be enforced so as to injure him. In fact, a sentence of hard labour will cause the prison authorities to pay even greater attention to his health than they would otherwise do".

The harsh sentence aroused great public indignation, with strong criticism of the press and condemnation by a number of clergymen. But there was no condemnation or criticism by any of the Law Lords in the Gay News case. In fact, Lord Scarman described as "relevant to British society today" the statement of the Home Secretary, Edward Shortt, when pressed to remit Gott's sentence. The Home Secretary said:

"The common law does not interfere with the freedom of expression of bona fide opinion. But it prohibits, and renders punishable as a misdemeanour, the use of coarse and scurrilous ridicule on subjects which are sacred to most people in this country. Mr Shortt could not support any proposal for an alteration of the common law which would permit such outrages on the feelings of others as those of which Gott was found to be guilty".

In the wake of the Gay News case, the Law Commission reviewed the subject and, after a detailed study, its report was published 20 years ago in June 1985. It recommended the abolition of the common law offences of blasphemy and blasphemous libel. It identified three main defects in the common law. First, it stated:

"The law is to an unacceptable degree uncertain".

Secondly:

"In so far as the law requires only an intention to publish the offending words and not an intention to blaspheme, the offence is to an undesirable extent one of strict liability".

Thirdly, it stated:

"In the circumstances now prevailing in England and Wales, the limitation of the offence to the protection of Christianity and, it would seem, the tenets of the Church of England cannot be justified".

I shall omit the differences of view but I note that Brenda Hoggett—now the noble and learned Baroness, Lady Hale of Richmond, a very distinguished Law Lord—was one of those who recommended total abolition.

Finally, in the case of Choudhury a challenge was made, with the support of many Muslims, to the publication of Salman Rushdie's novel The Satanic Verses, seeking to prosecute Mr Rushdie and his publishers, Viking Penguin, for blasphemous libel. Reliance was placed upon what I have read to your Lordships in the Gay News case and on the European convention. I acted for Viking Penguin. It was a painful experience because it illustrated the great danger of retaining blasphemy as a criminal offence. The great danger was—and remains—that followers of other faiths seek a blasphemy law to protect their faith against gross insult. One religion's faith is, of course, another religion's blasphemy. The Divisional Court rejected the application. It agreed that extending the blasphemy law would be impossible, as did the European Human Rights Commission.

Having had the appalling experience in that case of a major division between, as it were, white liberals like me, on the one hand, and people of genuine, strong Muslim faith who wanted a blasphemy law, on the other, I quite see that there is no equal protection of the law in their eyes—and there is not—so long as Christianity is given special protection against gross insult and other religions are not. The answer, surely, to the problem is not to seek to extend blasphemy law or to misuse the Bill that we are currently discussing and debating, but at last to bury, as has the Irish Supreme Court, the completely outmoded, almost mediaeval, crime of blasphemy.

Unfortunately, in a Written Answer of 24 February 2005, the Minister indicated that the Home Office does not apparently regard the offence of blasphemy as dead. In a further Written Answer the noble Baroness, Lady Ashton of Upholland, stated:

"If material or conduct is gratuitously offensive to Christians, and is prosecuted as such, a finding of blasphemy may be the appropriate response by a court to ensure that the rights of others under Article 9 [of the convention] are protected".—[Hansard, 3/3/05; col. WA 40.]

I protest at that. An official statement of that kind can only encourage bodies such as Christian Voice and the Christian Institute in their bigoted campaign against the BBC and the regional theatres to prevent public performances of "Jerry Springer—the Opera".

Whether the offence is abolished in this Bill or soon thereafter, it will not be abolished until the Bishops tell the Home Secretary that they are willing to see it abolished. I believe they have moved strongly in that direction and I very much hope that they will be able soon to give the green light so that we can legislate as we should do.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour 4:15 pm, 8th November 2005

My Lords, the amendment goes wide of the purposes of the Bill. In no way do I dissent from the fundamental arguments that have been adduced in favour of the amendment, but I remain to be convinced that the noble Lords who tabled the amendment have chosen the right vehicle. The measure being considered is highly important, and I do not dissent from the view that the purpose of the amendment is also important, but I am not convinced that this Bill is the right vehicle.

The noble Lord, Lord Lester, said that the present situation is untenable, and I agree with him. He seemed to concede in his concluding remarks that perhaps another Bill should be introduced. I wholly agree with that. I was very interested in what he had to say, but it was totally irrelevant. We should aim at dealing with the issues in this Bill.

It is entirely open to the noble Lord, Lord Avebury, to come forward with another Bill, which I should welcome. But to choose this Bill is entirely misconceived, as I have sought to adduce in this short intervention. I believe that the Bill is aimed at dealing with an immediate situation and should not be confused with the issues that the amendment seeks to deal with.

Photo of Lord Crickhowell Lord Crickhowell Conservative

My Lords, I have listened to the debate with considerable interest, and I shall not argue that a case cannot be made for the abolition of the current blasphemy law. I shall not even argue that it cannot be done in this Bill—it may be within the scope of the Long Title.

Earlier this afternoon we had a debate about timing, and when it was appropriate for amendments to be introduced and considered by the House. We are on Report and a pretty fundamental amendment has been tabled. It covers not only the basic issue of blasphemy but in the proposed new subsections (b) and (c), as the right reverend Prelate the Bishop of Oxford, said, it deals with other matters, such as the disturbance of religious services. We need to consider carefully appropriate legislation to deal with such offences, not only in the Christian religion but in others, too. I sense that the noble Lord, Lord Lester, is conscious of the strength of the arguments because I, too, noticed the manner in which he concluded his remarks. He spoke about the Bishops coming forward at some point and giving a green light to legislation. He then said that it could not be this afternoon or at this stage in the Bill's proceedings.

It has been an interesting debate. It is perfectly sensible for this matter to be raised, and for a signal to be given that we should consider it in a more appropriate way in the future. However, it would be totally wrong to move forward with the clause as it stands at this stage when there will be no proper opportunity to consider the wider implications or whether any substitutes are needed to avoid disturbance of religious services. For those reasons, I could not support the amendment.

Photo of Lord Plant of Highfield Lord Plant of Highfield Labour

My Lords, as one of the authors of the amendment, I should like to say a brief word in its favour. As the noble Lords, Lord Avebury and Lord Lester, have pointed out, the social basis of the blasphemy laws has been entirely eroded. They developed as a common law offence to protect religious belief when it was thought that religious belief, particularly Christian belief, was part of the essential social glue, underpinning the law and the monarchy. Whatever the social glue of a modern society is, it is not generated purely by one religion or one denomination. It seems clear that the doctrines and formulae of the Church of England are given special treatment under the blasphemy laws, so the social basis of the laws has been eroded.

There are three important arguments, particularly given what my noble friend Lord Clinton-Davis said about whether this was relevant to the Bill. If, as the noble Lord, Lord Lester, said, we go back to the Gay News trial, Lord Scarman argued that the blasphemy laws, or something like them, should be extended to cover all other religions. The danger is that the Bill will be seen by many people as doing that; it is not what the Government or Parliament intend, but a lot of people think that that is what is being done. To remove or rescind the blasphemy laws would make it crystal clear that we were not following Lord Scarman's injunction of extending the blasphemy laws to all other religions.

Secondly, abolition would clarify the nature of the Bill. The Government have argued that it is not an extension of the blasphemy laws but there is little doubt that some Muslim leaders have thought that that is what they are going to get. The abolition of the blasphemy laws would make it crystal clear that that is not the case and would therefore clarify the nature of the Bill. I support the amendment because I think it makes the nature of the Bill much clearer.

Finally, the Government have argued all along that the Bill as it was first conceived, and still to a very large extent as amended, draws a distinction between belief and believers. For the reasons I gave at Second Reading, that is not a distinction I find very convincing; nevertheless, it is what the Bill turns on. Given that, the blasphemy laws protect beliefs and not believers. Therefore, we would have two pieces of protective religious legislation on the statute book—the Bill, if it becomes an Act, and the blasphemy laws—both embodying contradictory principles. The Bill emphasises the distinction between belief and believer and protects the believer, not the belief. The blasphemy laws protect the belief and, via the Bill, would also protect the believer. However, the blasphemy laws in themselves protect the belief.

It would clarify the nature of the Bill and the distinction between beliefs and believer to accept this amendment. It would not do, as a way of trying to resist the amendment, to say that the Human Rights Act has made all this irrelevant, otiose or redundant. If it is redundant, we might as well get rid of it because it gives us too many reasons for people to be dissatisfied by what they think of as unequal treatment before the law, depending on which their religious beliefs. For those reasons, I put my name to the amendment. Unlike my noble friend Lord Clinton-Davis, I think that it is central to clarifying the nature of this Bill.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, although I do not think that anyone would accuse either the noble Lord, Lord Avebury, or the noble Lord, Lord Lester, of being excessively brief in their remarks, they said absolutely nothing about either subsections (b) or (c) of their amendment, which would abolish a "distinct offence", whatever that may mean,

"of disturbing a religious service" and a,

"religious offence of striking a person"— whatever that phrase may mean.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, I specifically said that I did not want to go over the whole of the ground that was dealt with by the Law Commission. If the noble Lord would like to refer to the report of 1985, he will find that this formulation of words was recommended by the Law Commission 20 years ago.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, I am most grateful to the noble Lord, but that is perhaps not a great help to those who are being asked to decide on this matter at this moment.

As the right reverend Prelate the Bishop of Oxford said, it may well be that we need a new offence of disturbing religious services of any kind rather than merely Christian services, to which I suspect—though I know not—this amendment only applies. However, surely no one can doubt that religious services and religious devotions are entitled to a greater degree of protection against disturbance than, let us say, public meetings at Hyde Park Corner. Surely to propose to abolish, without any words of explanation, the present offence of disturbing a religious service without putting anything in its place is asking the House to do something ridiculous. For that reason, and because the amendment contains subsections (b) and (c) as well as subsection (a), I suggest to the House that this amendment must fail.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, I nearly put my name to this amendment, but, through a failure of timing, it does not appear. The crime of blasphemy, in its medieval origin, is very understandable, but it has shrunk, should shrink further, and should be disposed of by your Lordships, if necessary, today. Of course, I quite understand the argument which Professor Francis Cornford called the principle of unripe time in his little book, Microcosmographia Academica, which was written for fellows of a particular college who engaged in academic politics. He suggested that such readers, when met by the principle that the time is not ripe, should say, "That is to say that the just and right thing should not be done now for fear of doing more just and right things in the immediate future". For all the reasons given by my noble friend Lord Plant, it is plainly appropriate and sensible to deal with this matter in this Bill.

Very little has been said, except by the noble Lord, Lord Lester, about the nature of blasphemy. It began as a denial of the truth of the Christian religion, the Bible, The Book of Common Prayer or the existence of God—I summarise from the best textbook. That was understandable as a medieval offence, but everybody felt uncomfortable with it as the 19th century began to edge out that summary of the cases between 1514 and 1841. The courts began to say that the offence was not quite just because it was a manifest block on sensible freedom of discussion, a concept that the 19th century began gradually to understand. They came to say that it was such a thing only if it led to a risk of breach of the peace. Lord Sumner said judicially that blasphemous words were punishable,

"for their manner, their violence, or ribaldry, or, more fully stated, for their tendency to endanger the peace, then and there, to deprave public morality generally, to shake the fabric of society and to be a cause of civil strife".

Of course, there are plenty of other crimes that punish people for causing civil strife or the like. Those words were said in 1917, but that was not an easy position to maintain.

So we come to the modern cases, where they tend to say—again, this is a summary—that it is blasphemy if the words are couched in indecent or offensive terms likely to shock and outrage the general body of Christian believers in the community. Now, even those who sit on the Benches of the right reverend Prelates are not so easily outraged now as when that summary was first given many decades ago. There are, of course, always traps for the unwary. In the case that Mrs Whitehouse brought against Gay News, that formula was put forward in rather strong terms. When we look at it now, we think that those involved in Mrs Whitehouse's case, in 1979, perhaps discussed things in a way that is not appropriate to modern times.

It is surely time to say that this particular privilege for the Christian religion has gone away and officially gone a distance that is far from modern mores and thinking. That particular privilege should not be on the statute book for that religion. I said "the Christian religion", but it is not at all clear that it covers the whole religion. The better view appears to be—I see my noble friend Lord Lester nodding, and on this he is indeed my noble friend—that only the Church of England can make use of that particular crime.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 4:30 pm, 8th November 2005

My Lords, I believe—I am out of my depth for, as the House knows, I am not a believer in any of the Abrahamic faiths—that the position is that the Old and New Testaments are covered, as the Old Testament is plainly regarded as part of the Christian Church's faith, but it is the Anglican Church. The Irish Supreme Court pointed out that but for the Church of England, there would be no such crime in this country. There is no Church of England in Ireland, therefore they said it was not enforceable in Ireland.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, I am happy to accept that further summary of the position from the noble Lord. I was going to say that I had hoped today for a roar of welcome from the Benches of the right reverend Prelates, because they are so near to saying "Yes". The right reverend Prelate indicates that he gave a roar of welcome in principle, for which I am glad, but he too relied on the principle of unripe time to say that we should do it not today but at some future occasion.

The Church of England should be anxious to get rid of this privileged position. As a secular humanist, I generally support the position of the Church of England. To abolish blasphemy is not to take a step down the road to disestablishment. I would resist disestablishment strongly—I do not say this as a joke; not being an adherent, I may get things wrong, and I apologise if I do—because the Church of England is not a Church that attempts to seize more and more temporal power. There are Churches of that kind, which tend to disapprove and enforce their disapproval of what goes on in the bedroom, tend to tell you that you have got to believe in myths that seem to evolve, decade on decade, with bodily ascensions and all sorts of other stories, and are very fierce with you—at least in theory—if you do not believe in and do not do what they say in the privacy of your life.

The Church of England has developed, like the rest of law and practice, into a very modern position. It has freed itself from the wish to impose controls of that kind, and it has come very close, even within itself, to accepting the equality of women, which is one of the most important developments of our time. I am very happy that it brings to such problems a broad and liberal mind. It has a bit of a way to go, and I shall judge it as having achieved its final or near-final step on that road when it demands from the BBC that "Thought for the Day" on Radio 4, to which I am sure all your Lordships listen avidly every morning, includes regular contributions from such noted thinkers as Professor Richard Dawkins and Dr Jonathan Miller, whose programme on disbelief I am sure that your Lordships enjoyed last night.

The general position of the Church of England is consistent with and promotes a discussion about freedom of expression. It is my hope that your Lordships will express a view—if invited to do so tonight—and that we shall be with the Bishops when they come to vote in the Contents Lobby, as I believe that the vast majority of this House and the other House would, if given the opportunity. Let us give them the opportunity and settle the matter, which we all know should be settled now.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I oppose the amendment tabled by the noble Lord, Lord Avebury, and supported by the noble Lords, Lord Lester of Herne Hill and Lord Plant, which would abolish the common law offence of blasphemy and other offences that recognise the particular place that the Christian religion has in our constitution and history.

The legal notion of blasphemy dates back many centuries, as has been pointed out. It is part of a Christian heritage that formed our constitution, and I am of the view that it cannot be considered in isolation from our entire constitutional settlement. The Christian heritage of this country goes back much more than 1,000 years, and its legacy is still very much present in our national life. I take issue with the noble Lord, Lord Wedderburn, who said that it would not harm any of it to do away with the blasphemy law. If we chip and chip and chip away, in the end what will we have?

The head of state is the Supreme Governor of the Church of England and Defender of the Faith. The coronation oath is sworn by the new monarch and is profoundly Christian. The Church of England and the Church of Scotland are by law established. Both Houses of Parliament start their proceedings with daily prayer.

Photo of Lord Crickhowell Lord Crickhowell Conservative

My Lords, as an Anglican, I worship in a disestablished Church—the Church of Wales. One must understand that there are parts of the United Kingdom where the Church is not the established Church.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I am very aware of that fact and thank my noble friend for bringing it to my attention.

There are things that are required by the law of our country, such as Christian teaching and assemblies at schools. Remembrance Day services are an essential part of public life. When national disasters happen, they are always marked by a Church service, as we saw recently. In the United Kingdom, our culture, laws, democratic institutions, architecture, literature, art and science have all been profoundly influenced by Christianity and cannot be understood without reference to it, no more than any of us could understand Chinese art or any of the buildings that you see in Thailand without reference to Buddhism or the Chinese religions. The Christian faith has played a major part in the many great social reforms of our history, such as the creation of schools and hospitals, the abolition of slavery, the improvement of working conditions and the protection of children.

Along with the coronation oath, the blasphemy laws are an important expression of principle: that the name of Jesus Christ is above any other name. As the Bible records, God exalted him to the highest place and gave him the name that is above every name. Moreover, the blasphemy laws today are essentially a defensive measure. No one will be put in prison for breaking them, unlike the religious hatred offence proposed in the Bill.

It is the symbolic nature of the blasphemy laws that secularists object to. If that were not so, they would not show such interest in repealing the law on blasphemy, given that it is rarely used in practice. I sometimes fear that the campaign to remove the blasphemy laws is part of a wider agenda to remove all association between the state and Christianity and any reference to the only true God in public life.

It is sometimes wrongly claimed that a law on blasphemy is incompatible with the European Convention on Human Rights. In fact, several unsuccessful challenges to blasphemy law have come before the European Court of Human Rights in recent years. In the 1996 case of Wingrove v United Kingdom, the court held that this country's blasphemy laws were compatible with Article 10(2) of the Convention. The court stated:

"The extent of insult to religious feelings must be significant, as is clear from the use by the courts of the adjectives 'contemptuous', 'reviling', 'scurrilous', 'ludicrous' to depict material of a sufficient degree of offensiveness. The high degree of profanation that must be attained constitutes, in itself, a safeguard against arbitrariness".

We are right to have a blasphemy law. There is good evidence that many ordinary people identify with the Christian faith and many Christian moral values. I have said on several occasions in your Lordships' House that the 2001 census found that 72 per cent of the UK population identified themselves as Christian. Clearly, the state and individuals have embraced secular values and beliefs in many areas, but the UK is not a secular state, and its people are generally theists who believe themselves to be Christians. Even the Guardian newspaper's editorial, following the publication of the census, stated on 28 February 2003:

"This is a Christian country simply in the unanswerable sense that most of its citizens think of themselves as Christians".

The truth is that every society that seeks cohesion has laws that enshrine its most fundamental beliefs. Blasphemy law falls into that category and protects our shared values. Any reform or abolition of the blasphemy laws cannot be looked at separately from the constitutional role of Christianity in the state. I oppose the noble Lord's amendment.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

My Lords, it is extremely rarely that I disagree with the right reverend Prelate the Bishop of Oxford, but I shall do so briefly this afternoon. I hope that he will reconsider some of the main strands of his opposition to the amendment so clearly and well moved by my noble friend Lord Avebury.

The right reverend Prelate said that he did not see a connection between religious hatred and blasphemy and that therefore it was inappropriate to make the amendment to the Bill. There is a connection, in that blaspheming is one way of expressing and fomenting hatred. He also said that this was not the time to introduce this reform into the Bill—the noble Lord, Lord Wedderburn, spoke about that at some length—but I believe that this is the time.

The law of blasphemy, as the right reverend Prelate admitted, is more or less a dead letter. It is nearly 30 years since we last had a prosecution, and when we had one it promoted more confusion than light. As a Low Church ecumenical Anglican, I believe that, if anything, the law is now an encumbrance to the Church, and against the spirit of the age, which is one of extreme liberality of view and expression of view. In a strange way it works against the Church, in that it gives some people the notion that it cannot stand on its own feet and fight its own corner as other faiths and organisations have to do. I see no good argument for keeping it in place except the traditional one. I am a traditionalist: a good tradition knows when to steal away.

For those of us who find the Bill as originally drafted unacceptable in creating an offence of promoting religious hatred, this is a perfect opportunity for the Church to sacrifice this legislative bauble to the greater cause; to find a common position with other faiths, particularly Islam at this time; to claim no special protection; to say that we stand with you, the same under law as you are; and to proceed from there. There are public order laws to prevent the worst infractions of order and decency. Such a gesture would resonate throughout the Church community and among the public at large.

Photo of The Bishop of Oxford The Bishop of Oxford Bishop 4:45 pm, 8th November 2005

My Lords, before the noble Lord sits down, I would like to reiterate that I agree with him in principle. Would he not agree that, although what he said applies to paragraph (a) of the new clause, paragraph (b), which states that,

"any distinct offence of disturbing a religious service or religious devotions", could not be simply be abolished? Much wider consultation with people of other faiths would be required to consider if it should remain in some amended form.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

My Lords, I am grateful for that intervention. I apologise for not making it clear that my remarks were addressed to the first part of the amendment.

Photo of Lord Renton Lord Renton Conservative

My Lords, the noble Lord did not refer to the third item here:

"the abolition of any religious offence of striking a person in a church or churchyard".

What are his views on that matter?

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs

My Lords, I am grateful to the noble Lord, Lord Renton, for his intervention. I repeat: my remarks were addressed to the first part of the amendment and not the section to which he refers.

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, may I add one voice to the amendment? I did not add my name to fourth place because I hoped that someone from the Benches not represented by those who tabled the amendment would do so. I believe there is a broad consensus outside the House for change.

My noble friend Lord Plant gave far more eloquently than I can all the reasons why the amendment ought to be supported. I understand the point made by the right reverend Prelate the Bishop of Oxford on timing. I ask the Minister to tell us what the Government can say in respect of consultation with the bishops and others on the matter?

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

My Lords, I give way to the noble Baroness, Lady Flather.

Photo of Baroness Flather Baroness Flather Conservative

Thank you. I had not intended to speak to the amendment, but having listened to the debate I need to say something.

First, the blasphemy law is out of date. Would we sit down today to consider a blasphemy law for any religion? No, we would not. Secondly, the Church of England does not require the law. The Church is strong enough and important enough not to need such protection. This is a Christian country. Its religion is accepted by the state. It is not a secular state, although there are many people in this country who do not realise that there is a state religion. We are moving towards a loosening of the ties between state and Church. That will benefit both bodies. There was a time when the state and the Church badly needed each other to keep order. That is not the case today. The Church of England does not need this archaic blasphemy law to protect it.

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

My Lords, I am usually on the side of the noble Baroness, Lady O'Cathain, but not on this occasion, I fear, because if this question of blasphemy is not dealt with, and dealt with now, there will be a continual niggle between the Christian Church and other Churches. It is important that that niggle is removed. Only by removing the blasphemy laws can we remove it.

A number of speakers, including the noble Lord, Lord Clinton-Davis, have said that this Bill is not the right vehicle for these amendments, but if it is in order within the Long Title, it is a perfectly legitimate thing to do. All sorts of Bills are amended in the Commons and in this House because amendments can be got in within the Long Title. Noble Lords should not be seduced by the view that the Bill is not an appropriate vehicle. It is. The amendment is perfectly legitimate, and now is the time for this matter to be settled. As the noble Lord, Lord Wedderburn, said, that would then give the House of Commons the opportunity to have a go at it, too.

There is another reason why we should deal with this matter tonight. We all welcome the remarks and the position set out by the right reverend Prelate the Bishop of Oxford. He has indicated, as did the noble and right reverend Lord, Lord Carey, the former Archbishop of Canterbury, that the Church of England itself is ready for abolition of the blasphemy law. It is true that they say, "Not yet, not through this Bill", but if they agree in principle with abolition, and that that would assist in achieving peace, if I can put it that way, between the religions, why not consider it and vote for it today? I realise that there are only two Bishops on the Bishops' Bench, but perhaps a few telephone calls could go out to bring in others to support the amendment. I hope that we can reach a conclusion on this matter and we should thank the noble Lord, Lord Avebury, for introducing the amendment.

Photo of Lord Slynn of Hadley Lord Slynn of Hadley Crossbench

My Lords, I am not persuaded by what has been said so far: that the crime of blasphemy no longer performs any useful purpose. But it is wholly unacceptable that it should be confined to the Christian religion and, perhaps, it is even more unacceptable if it is confined to the Anglican Church.

The stronger arguments at the moment are not in favour of abolishing the crime altogether, but considering its application to at least the three Abrahamic faiths. That is the issue that should be debated in depth, not simply abolition. For that reason, although I do not often disagree with the noble Lords, Lord Avebury and Lord Lester, I oppose the amendment.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, before the noble and learned Lord sits down, perhaps he will clarify his position. Would he therefore exclude any similar criminal liability in respect of those who do not have faith in any religion? Would they be in an unequal minority?

Photo of Lord Slynn of Hadley Lord Slynn of Hadley Crossbench

My Lords, that is exactly the sort of question that could be discussed if we were looking at the expansion of the crime.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, is the noble and learned Lord aware that that argument was considered and rejected by the three-judge divisional court of Lord Justice Tasker Watkins and by the European Commission of Human Rights in the Salman Rushdie case, on the ground that it would be divisive, arbitrary and anomalous and capable of causing division between Muslims and Christians to extend an obsolete offence to all religions?

Photo of Lord Slynn of Hadley Lord Slynn of Hadley Crossbench

My Lords, from many years at the Bar and as a puisne judge, I am used to my arguments not being accepted by a member of the Court of Appeal.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, the noble Lord, Lord Wedderburn, spoke of the doctrine of "unripe time". That has a place in some situations, but it is particularly important not to try to do too much in one Bill. It has been generally recognised that there has been a good deal of confusion about exactly what the Bill proposes. If the amendments tabled by the noble Lord, Lord Avebury, are encompassed in the Bill, the confusion will be even greater.

In so far as the point made by the noble Lord, Lord Plant, is concerned, it seems perfectly possible for people to understand that the reason for rejecting the common law offence of blasphemy, were this amendment agreed to, was that the Bill replaces that law, whereas the Government have been very careful to point out as often as they can that it is quite different. The other point is that the foundation of the argument advanced on behalf of those not protected by the racial discrimination law is that it protects Sikhs and Jews in a way that it does not protect the other religions, including Christianity. That is one of the bases on which this Bill has been put forward.

Those issues are not simple, and to complicate them in this way would be highly undesirable. I feel certain that if this amendment were agreed to, many would think that we had embarked on a very different course from that on which the Government believe they have embarked and on which we spoke earlier. I may be wrong, but I had the impression that this was the Government's view in dealing with suggestions of amendments about blasphemy before.

The second and third branches of these amendments require a good deal of consideration. One of the most damaging offences committed at the moment is desecration of religious cemeteries. Although the offences referred to in the amendments are not quite that, they are quite similar. I counsel caution in extending the scope of this Bill at this juncture.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, is the noble and learned Lord aware that the common law offences in paragraphs (b) and (c) have not been used within living memory and that plenty of modern offences exist that enable the prosecution of people committing acts of desecration and violence in cemeteries or churches?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I am very well aware of that. I am also aware that there is a statutory position for getting rid of obsolete legislation—by means of a Law Commission recommendation. All I am saying is that the amendment risks causing confusion.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative 5:00 pm, 8th November 2005

My Lords, another advantage of the Bill in its amended form is the ease with which we can discuss an issue as important as blasphemy. We are greatly indebted to the noble Lord, Lord Avebury, who has long campaigned on this issue, in delivering what I thought was a tour de force, aided and abetted by the noble Lord, Lord Lester, with his tour d'horizon.

We have had a very balanced debate. Some wise words of caution have been uttered. We have heard a powerful case for arguing that the rather aged law against blasphemy should be reviewed as part of the new settlement in this troubled area of the law. Does the Minister believe that the law of blasphemy can now coexist with the freedom of expression clause in this amended Bill or, indeed, with any slightly improved version of it?

As noble Lords will know, some saw in the Government's original Bill a vehicle not for abolishing the law of blasphemy but for extending it to religions other than Christianity. I believe that that shadow has now passed, and it is entirely right that we should now consider what settlement is appropriate and sustainable in this area in a highly diverse and liberal society. I am not saying that blasphemy has had its day but, in view of the clear view already expressed in this House on the question of freedom of expression in religious matters, I think that the burden of proof is now with those who wish the blasphemy laws to remain rather than those who would abolish them.

We have heard some very persuasive speeches on either side of the argument. My noble friend Lord Renton made a very good point about paragraph (c) of the amendment, which concerns,

"any religious offence of striking a person in a church or churchyard".

The right reverend Prelate the Bishop of Oxford referred to paragraph (b) concerning,

"any distinct offence of disturbing a religious service or religious devotions".

I am sure that the noble Lord, Lord Avebury, is right to say that other areas of the law cover that, but I think that the fact that he seeks to abolish not only blasphemy and blasphemous libel but also these other offences justifies my noble and learned friend Lord Mackay of Clashfern in saying ,"Let's tread carefully".

The noble Lord, Lord Clinton-Davis, had a point when he talked about taking time and proceeding with caution in such a traditional area. My noble friend Lord Crickhowell made some very good points to justify pausing for a few moments before proceeding, and the noble Viscount, Lord Bledisloe, also made a number of valid points. The noble Lord, Lord Wedderburn, summarised the position by referring to the doctrine of "unripe time"—a phrase that has been mentioned several times. It is a wonderful, glorious phrase. It is actually a complete paradox or oxymoron because time is never ripe, although many who have expressed views in the past have thought that it is.

My noble friend Lady O'Cathain made a very well argued speech, pointing up a number of issues that we must consider. Although the noble Lord, Lord Phillips of Sudbury, referred only to paragraph (a) and implicitly conceded that we also have to think carefully about paragraphs (b) and (c), I think that, mainly due to the intervention of the right reverend Prelate, the balance of argument has been on the side of consultation.

Although my noble friends will be voting in accordance with their conscience on those matters, there is some merit in pausing to consider what, in essence, the right reverend Prelate enunciated—namely, a red signal to this amendment but a green signal to the principle. We have to pause for a moment to try to work out what that means. I suppose it means that we should take a little time carefully to think through what we are doing; or it could mean that the Bishops' Bench want a little time to think through what their advice will be.

I do not think the argument that this is not the Bill holds up. In its truly amended form, it deals with this issue. Therefore, the noble Lord, Lord Avebury, has every right to say that this is the moment on which we have to reach a decision. Speaking for myself, however, I find it difficult to vote in favour of the amendment in the face of the red light from the Bishops' Bench and, indeed, some of the good speeches made by my noble and learned friends. On balance, therefore, I would side with caution and consultation, just as we went with caution and consultation about the whole text of the Bill a few moments ago.

I hope that consultation can be meaningful and speedy. The Government have said that they want their Bill, and that they have instanced the manifesto commitment. Surely, however, particularly in the light of this debate, there is a good argument for saying that we ought now to take the time to get this Bill right before we return it to the other place. I do not see the need of rushing to a date for Third Reading. Rather, as my noble friend Lady Carnegy of Lour said earlier, there is an argument perhaps for having a recommittal of the Bill, to go through it line by line in Committee. Why is there this rush? It is surely much more important that we get this right than we move speedily to get it wrong.

These issues are so important that I hope that the noble Lord, Lord Avebury, having initiated a good debate, will be content to wait for a further period of consultation before moving to a vote. In the mean time, I leave it to my noble and learned friends to exercise whatever decision the House may be asked to take on the grounds of their own conscience.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I am glad that I did not rise to my feet more quickly. I did just as the noble Lord, Lord Hunt of Wirral, wanted—I paused. He has just summed up this debate with great skill, and saved me, I hope, the burden of inflicting what I would have said upon the House.

I agree with the noble Lord about caution and consultation. However, I say as clearly as I can: not in this Bill. The noble and learned Lord, Lord Mackay of Clashfern, was right when he emphasised the Government's clear desire that this Bill should not be seen as a substitution for the blasphemy laws. There would be a deal of confusion if the two became conflated in the way that is suggested.

We have had an interesting and extensive debate. The hour and 20 minutes we have spent enjoying this debate has been well spent. We have ranged over the full course of the dispute. The noble Baroness, Lady O'Cathain, clearly said that it is needed. Others said that it may be needed, but that it needs to mutate. That is clear from the speech of the noble and learned Lord, Lord Slynn of Hadley, and the comments made by the right reverend Prelate the Bishop of Oxford, among others. If we know one thing about this area, it is that we do not currently have agreement. That says something very powerful. The Government recognise the importance of these issues but, like the right reverend Prelate the Bishop of Oxford, do not believe that this is the appropriate time to consider the abolition of blasphemy.

For the purposes of completion, I say to my noble friend Lord Clinton-Davis that blasphemy was, in fact, ruled out of scope in the Commons. It came back in because, as noble Lords will know, amendments are not discussed in that way. There is an issue as to whether it is in or out of scope, therefore, but it is quite proper that we debate it at this stage. So while we are grateful for the consideration given to this matter by all noble Lords today, by noble Lords in the Select Committee in 2003 and earlier by the Law Commission, we are aware that there has not been wider consideration of this matter. It is particularly important, given the emotive nature of the issues, that they receive full parliamentary scrutiny, especially in the light of the fact that public opinion is also divided on the subject.

My right honourable friend the Home Secretary has also made it clear that the Government are not prepared to legislate on blasphemy without first consulting with a range of faith and other interests. Many leaders from faiths not protected by the law on blasphemy see the symbolic protection for religion as important. My right honourable friend the Home Secretary is also keen that any legislation in this area should take place with the full involvement of the Church of England. In the past, there has been confusion between incitement to religious hatred and blasphemy and we should try to put an end to that confusion. Therefore, I am keen that we do not add to it by addressing both issues in the same Bill, especially as we try to chart a rather tortuous path through some of the difficulties with which we are currently faced.

The Government believe that incitement should be bedded down before moving on and looking at the detail of blasphemy. Therefore, although I am extremely grateful to the noble Lord, Lord Avebury, for raising these issues, I say, in the words of my noble friend Lord Wedderburn, that the time is not ripe. On this occasion, the phrase is correct. We have moved a long way, but we cannot quite say that we have considered all views and that this is the time for the abolition of blasphemy. I hope that the noble Lord will not find it necessary to test the opinion of the House, either now or before the Bill leaves this House.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, at the risk of boring your Lordships, I would like to clear up the question that has been raised by several noble Lords on the offences in paragraphs (b) and (c). The noble Lord, Lord Renton, the noble Viscount, Lord Bledisloe, the right reverend Prelate the Bishop of Oxford, in an intervention and the noble Lord, Lord Hunt, in winding up all mentioned these two common law offences which have fallen into disuse for centuries. I referred to the Law Commission's report of 1985 and I remind your Lordships that it refers to statements in Hawkins' Pleas of the Crown to the effect that,

"'all irreverent behaviour' in churches and churchyards has been regarded as criminal. More specifically there is authority, by no means strong, for the proposition that it is an offence at common law . . . to disturb a priest of the established Church in the performance of divine worship and also, it seems to disturb Methodists and Dissenters when engaged in their 'decent and quiet devotions'".

The cases referred to are R. v Parry of 1686 and R v Wroughton of 1765.

The report goes on to mention that it is an offence,

"to strike any person in a church or churchyard".

The cases referred to there are Wilson v Greaves of 1757 and Penhallo's case of 1590.

The offences in paragraphs (b) and (c) fell into disuse centuries ago and have been replaced in modern times by statutory offences such as common assault, for example, in the case of striking a minister in the churchyard. I hope that that will dispose of the point raised by several of your Lordships. I could also refer to the Select Committee's report, at paragraph 21, but I will not bother to quote that in detail because the point has been sufficiently made. However, your Lordships should allow that it was reasonable to put these other common law offences up for abolition at the same time as blasphemy.

I am most grateful to all those who have taken part in this debate. It is right for me to observe that only the noble Baroness, Lady O'Cathain, and possibly the noble Viscount, Lord Bledisloe, opposed the proposition that blasphemy should be abolished outright. Every other speaker, including the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Hunt, speaking from the Conservative Front Bench, has said that it is ridiculous still to have this offence, but this is not the right place to abolish it.

The Minister repeated what the Home Secretary has said elsewhere: that he does not want to move to legislate on the matter until there has been proper consultation. I do not know what we were doing for a year in the Select Committee. We took evidence from everyone: the Church of England, the Catholics, the Methodists, the Muslims, the Sikhs, the Hindus—you name it, they all came. We spent a whole year examining just this question. Now the Minister wants us to start on another round of consultation. That is an excuse for procrastination.

As St Augustine said in The City of God,

"da mihi castitatem . . . sed nomi modo"—

"give me chastity, but not yet". The Minister says, "This is a wonderful idea, but we are not going to do it now". She invited me not to test the opinion of the House, but there has been sufficient interest in this debate for me to do so now.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 113; Not-Contents, 153.

Division number 1 Private Parking: Ports and Trading Estates — Racial and Religious Hatred Bill

Aye: 111 Members of the House of Lords

No: 151 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, perhaps I may be allowed a comment on that vote. I believe that the Minister will agree that it was worth putting the amendment to a Division because it demonstrated a radical change in the opinion in your Lordships' House since we last debated blasphemy. It is moving in the direction that I would like to see—that of total abolition—and we probably would have got there had there been a free vote on the Government's side of the House as there was on this side. I will leave the Minister to reflect on that and on whether it is appropriate to embark on yet another round of consultation to substitute for the work that has already been done at such great length by the Select Committee, as she acknowledges.

Of all the statutory offences against religion that are left over from the 19th century and examined by the Select Committee on Religious Offences, the only one that has been used in recent years is Section 2 of the Ecclesiastical Courts Jurisdiction Act, which forbids,

"riotous, violent or indecent behaviour in a church or chapel of any denomination, or in any place of worship certified under the Registered Places of Worship Act 1835".

It is also an offence under this section to,

"molest, let, disturb, vex, or trouble . . . any preacher duly authorised to preach therein".

That extends also to ceremonies held in a churchyard or burial ground.

The question is not whether churches, mosques or gurdwaras need the protection of the law against people who might disrupt their services or other religious activities but whether they should have some additional safeguards which are not available in secular premises, and, if so, whether this elderly statute is the right answer. As far as non-Christian places of worship are concerned, they do not appear to see the ECJA as useful considering that only a very small fraction of them have registered under the 1855 Act. It has never been used, to the best of our knowledge, in relation to any place of worship other than a church of the established Church. The Select Committee found it extremely difficult to obtain any statistics and the Home Office acknowledged that its figures were unreliable because of errors in the procedure for coding offences in the courts.

The Home Office was unable to identify any of the cases behind the statistics. Separate inquiries by the Select Committee unearthed details of two convictions which were classified as ECJA but where charges of criminal damage had been preferred at the same time and the courts had ultimately convicted under that heading. The third case where details were available was the very well known one of Mr Peter Tatchell, who was prosecuted in 1998 for causing a disturbance in Canterbury Cathedral, I believe while the Archbishop was preaching. The stipendiary magistrate fined him £18.60, showing neatly what the court thought of the case. But if disturbances were considered serious enough to justify prosecution, they could be dealt with under the Public Order Act and, if the offence was found to be religiously aggravated, the offender would be liable on summary conviction to a sentence not exceeding six months' imprisonment.

Since the Select Committee's report, the data for 2003 have been published showing that there were three prosecutions and one conviction during the year. Assuming that the initial charge was correctly recorded, the conviction may well have been for some other offence, as with the 2002 cases I have mentioned. We have no means of knowing. The Home Office is obviously not interested or it would have taken steps to collect the information when it was put on notice of the difficulties that were experienced by the Select Committee. The data for 2004 have yet to be published—they are due on 17 November—but the Home Office has kindly allowed me a preview and I can tell your Lordships that so far this year there have been 15 prosecutions, resulting in 10 acquittals, four findings of guilty—in two cases a fine was imposed, in one a community sentence and in one imprisonment—and one under the heading "otherwise dealt with".

Churchwatch, an organisation that monitors offences of all kinds on church premises, believes that the ECJA is a convenient means of dealing with disrespectful conduct falling short of actual criminality, such as eating or smoking in church, men wearing hats or going bare-chested, or skateboarding in churchyards. Some churches have printed notices with the text of Section 2 and their own explanation of the meaning of the word "indecent", which they give to people engaging in such activities and ask them to leave the premises. They find that often this works. But they also acknowledge that the same result might be achieved by using printed copies of Section 4A of the Public Order Act.

These minor breaches of good taste and decency have to be seen in the context of a general deterioration in standards of behaviour, including respect for places of worship and ministers of religion, and a steep growth in crimes against persons and property belonging to churches, which, sadly, has led to many being locked except during services. That is not a problem that we can deal with here by legislation, and certainly not by the archaic language of the ECJA, which is unfamiliar territory to most prosecutors and the public.

The ECJA has been superseded by modern laws on criminal damage and public order. It is hardly ever used, as I have demonstrated, and it is not of sufficient consequence for the Home Office to bother keeping reliable statistics or enabling the cases to which they refer to be retrieved. This is a good opportunity for Parliament to remove a piece of clutter from the statute book. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I thank the noble Lord, Lord Avebury, for raising this issue. As he has identified, Section 2 of the Ecclesiastical Courts Jurisdiction Act provides protection from low-level public mischief taking place in churches of the established Church to other registered places of worship. As a point of information, it is important that we recognise that 1,587 non-Christian places of worship were registered under the Religious Places of Worship Act 1855 at the time of the Select Committee's report. Therefore, they, too, are eligible under the ECJA for protection. Unlike blasphemy and a number of the other offences to which the noble Lord has referred in the past, this provision is used, as is demonstrated by the figures cited by the noble Lord.

The Select Committee on Religious Offences heard evidence from the Director of Public Prosecutions that it provides a route to prosecution for some forms of undesirable behaviour which would not be covered by other parts of the law. So it is not otiose. Although prosecutions have been few in recent times, the Director of Public Prosecutions told the committee—I am sure the noble Lord will remember this—that it was used sufficiently regularly for it to be considered a useful offence. We are dealing with a single-issue Bill today and, as with blasphemy, we are very keen to have a single message and to convey it with clarity. It is for that reason that we consider it unhelpful to cloud the issue with further matters which may cause unnecessary confusion. It is quite right that these and some of the other issues to which we will turn shortly may well be properly the subject of further discussion, but not in this Bill.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, the Minister is right to cite the DPP's assertion that this offence provided a means of dealing with offences that were not covered by other parts of the criminal law. However, she omitted to add that the DPP, when challenged, also was unable to provide the committee with details of a single case where someone had been prosecuted for the offence. As I have said, when we looked into the matter we found that some of the offences were misclassified because the code number used by the courts began with three digits, which applied to some 50 or 60 other miscellaneous offences, and the clerks entering the details into the computer frequently made mistakes. Also, as I have explained, prosecutions under the ECJA were accompanied by charges brought under some other statute, and the statistics collected by the Home Office do not reveal what the ultimate conviction was for; they reveal only what the charges were. So if a person is charged with two different offences, and the main one happens to be under the ECJA, the figures are not corrected to cover the changes that may have been made during the proceedings.

I continue to assert that not only is the offence used very rarely but that, where it is used, it could very well be dealt with by some other provision in the criminal law. I can see, however, that I am not going to persuade the Minister of that today. I shall reflect on what she said and I may well come back to the matter at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

moved Amendment No. 3A:

Page 3, line 10, at end insert "and shall include the desecration of symbols or sacramental objects that are important to such a group of persons"

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

The amendment is to the schedule and would extend the meaning of religious hatred. The schedule states that,

"'religious hatred' means hatred against a group of persons defined by reference to religious belief or lack of religious belief".

My amendment would add the need to take into account the desecration of sacred objects.

I say at the outset that my amendment does not reflect my party's policy, but I want to explain my concern about recent events that have done serious harm to the religious beliefs of our different faith communities. Two recent events demonstrate how inadequately we deal with hatred of this kind. Last week we learned that more than 40 Muslim graves were desecrated in Birmingham. It is easy to deal with such matters as criminal damage, or to use other legal means, but the underlying hurt does irreparable damage to our faith communities. The shockwaves of what happened in Birmingham were felt across the whole country.

The second incident was reported in our national newspapers only yesterday. I am aware that the matter is under investigation by the Metropolitan Police, but suffice it to say that an allegation has been made by a Muslim man that a police officer desecrated his Koran by throwing it into a rubbish bin when arresting him. The incident is alleged to have happened last Monday in south London, and the man also alleges that he was assaulted while being detained at his home. Muslims believe that a copy of the Koran is sacred and must be treated with respect. Throwing it in the bin could be viewed as a grave insult amounting to desecration. I shall not go further into that case, but we await the outcome of the investigation undertaken by the Metropolitan Police.

There are other examples that are hurtful to the community. All of us are aware of the alleged mishandling of the holy Koran where the US military confirm that it had identified five incidents in which the holy book was mishandled by American personnel at the Guantanamo Bay prison camp. The report sparked protests across the Muslim world. In Afghanistan, riots resulted in at least 15 deaths. I do not believe that we shall ever find out whether the holy Koran was flushed down the toilet, but it is not disputed that such incidents create extreme hurt to our Muslim community.

There are incidents of pig heads being left outside mosques. It is only recently that prison officers who deal with Muslim inmates have understood how to handle the holy book. It is not uncommon that even the most gentle inmates become violent when their religious beliefs are hurt.

Another incident relates to some Christian fanatics who vandalised a Hindu temple. Two young white men reportedly intruded into a temple service in Ealing Road, in London. One of the men snatched the microphone and shouted that there was only one God and that the congregation was stupid to worship a stone. They then shook the idol until it was broken. The Hindu community was deeply offended that its sacred images were desecrated by those two persons. Of course we could argue that there are powers to deal with religiously aggravated criminal damage cases. In this case the Hindu community said that it had lost confidence in the ability of the CPS to prosecute such cases. The community has a list of regular incidents from 1993 in which temples and festivals have been vandalised. Very few of such incidents have resulted in prosecution. Jewish cemeteries are regularly vandalised. Synagogues have been painted with swastikas and headstones covered with anti-Semitic graffiti.

There are powers to deal with religiously aggravated criminal damage, but they fail to take into account the wider insecurity of communities that feel that their hurt is never clearly understood or dealt with. The Government were keen to tell the Muslim community about the Racial and Religious Hatred Bill, and we all know about the letter sent by the Home Secretary to the mosques in this country prior to the election. I very much hope that the Home Secretary will write a further letter to the mosques and temples saying what the Home Office is doing to protect the beliefs of religious minorities in this country. I beg to move.

Photo of Lord Desai Lord Desai Labour 5:45 pm, 8th November 2005

My Lords, I have great respect for the noble Lord, Lord Dholakia, but I am not sure that I support the amendment. I do not like the Bill, as is well known. It was supposed to be about believers, not about belief. We are trying hard not to overstep the mark by criticising or obstructing people's dislike of religion, but we want to stop them hating those who hold certain beliefs.

The line is difficult to draw, but we know precisely the sort of thing that can happen. Once we start down that road it is hard to say what objects are held sacred. As a former Hindu I can imagine that a number of objects could be held sacred by a Hindu; there is no precise limit. Because of my lack of religious belief, I do not want to privilege books which, to me, are only books. They may be holy books to some people, but they are merely printed paper to me. If someone says that such printed paper is holy, sacred and so on, and that I cannot do something with it, my right to handle such books will be restricted because they happen to be religious books. I may want to do something that others may find insulting, but to me it would be only a book.

Let us stop and think a little further. Are there not laws on the books already that allow people to be prosecuted for vandalising temples or destroying icons and figures? If someone feels deeply insulted by the way in which the holy Koran is treated, it may be a matter to consider, but it does not constitute hatred of a religious person. I do not want to go in that direction. Let us keep the Bill fairly restricted and narrow because it is bad enough as it is.

Photo of Baroness D'Souza Baroness D'Souza Crossbench

My Lords, perhaps I could remind your Lordships of the time in the early 1990s during the height of the Rushdie affair when Muslims thought it right and proper to burn copies of his novel The Satanic Verses and effigies of Salman Rushdie himself. Where would such actions fall under the amendment? It suggests that the amendment needs greater definition. Of course we all deplore the desecration of the graves that we have heard about recently, but the amendment is still too broad.

Another area that might come under its aegis, which again is contentious, and which has certainly been tested in the US, is flag burning. I remember going to great lengths, along with many other people—some of whom are in your Lordships' House—to defend the burning of flags. It may be that we would fall on the wrong side of the law if the amendment were agreed to.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, the amendment is undoubtedly well intentioned, but your Lordships owe some respect to the English language when legislating. How on earth can religious hatred include desecration? Hatred is a state of mind; desecration is a physical act. To say that hatred includes desecration is such a gross perversion of the English language that, however well intentioned the amendment, your Lordships should not put that remarkable phrase on to the statute book.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

My Lords, I have considerable sympathy with the amendment moved by the noble Lord, Lord Dholakia. If we want the clearest possible evidence of religious hatred, it is the destruction, or desecration, of symbols or sacramental objects. I was party to meetings in Ealing about the experience the noble Lord mentioned. I am very well aware of the very strong sense of hurt that was felt about those actions because of the nature of belief and the nature of the objects which were destroyed and damaged.

Given the debate in this House and elsewhere about how to define religious hatred, this is the most tangible way in which we can demonstrate that it occurs. For that reason, I hope that my noble friend will in her reply give careful consideration to the arguments. What causes frustration and a feeling that society and the criminal justice system care little about these matters is the fact that the only charges that could be brought under these circumstances are fairly minor ones of criminal damage, with no indication of the severity of the hurt that has been caused and no understanding of the feelings of the communities concerned about the hatred that is being expressed towards them and their beliefs.

I have respect always for my noble friend Lord Desai. The Bill is designed to protect individuals rather than their beliefs. However, the amendment is not about beliefs but about the impact that those acts of desecration have on a large number of individuals. Having heard the very strong views expressed by several hundred people at the meeting I attended, I think that the Government need to look at this very carefully.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, there is no doubt that the offence of desecration arouses extremely strong feelings. We had plenty of evidence of that in the Select Committee. We must consider whether, as my noble friend hinted, the problem is one of adequate penalties under the existing law or of the difficulties that the police have in bringing cases to court. Criminal damage attracts a penalty of 10 years' imprisonment for the basic offence, which can go up to 14 years if the offence is religiously aggravated. The problem is not one of the inadequacy of the penalties that are available but of the difficulties the police have in catching the perpetrators of the offences described by my noble friend and bringing them to court.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

My Lords, part of the difficulty is the way in which the courts react to issues of criminal damage. The examples cited at the meeting I attended were about the very minimalist penalties imposed on people who had committed acts of criminal damage which had caused enormous offence.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, the Home Office collects figures of offences that are racially or religiously aggravated and publishes them from time to time, but they are very difficult to get at. I have spent many a weary hour looking for them on the Home Office website. Can the Minister find some way of giving the statistics greater prominence so that the communities which are affected, as my noble friend described, have regular bulletins of information showing how many offences of this kind have been reported to the police, what happened to them and what sentences were passed?

We know from the figures that I have already given your Lordships on the Ecclesiastical Courts Jurisdiction Act 1860 that the Home Office collects these figures. It can say how many cases were prosecuted and what penalties were imposed but it cannot describe the individual ingredients of particular offences. I urge the Minister to see whether something cannot be done to collect that information and make it more widely available so that at least some reassurance can be given to the communities which are affected that proper efforts are being made by the police and the Crown Prosecution Service to bring the culprits who do these horrible things to justice.

Photo of The Bishop of Newcastle The Bishop of Newcastle Bishop

My Lords, I, too, support in principle the amendment of the noble Lord, Lord Dholakia. It is important for the message and the recognition that this will give to our various religious communities up and down the land. Although the wording may need closer definition, it would be enormously reassuring to many people from different religious communities were the amendment to be included in the Bill. I give it my support and hope that the Government will look kindly on it.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

My Lords, I thank the noble Lord, Lord Dholakia, for giving us an opportunity to make absolutely clear our sense of revulsion at the evil acts that he described and our determination to root out that vile behaviour from our society. This has been an important opportunity to make our views clear.

It might be helpful to see what would happen if the words proposed in the amendment were added to the Bill. New Section 29A, entitled "Meaning of 'religious hatred', would read:

"In this Part 'religious hatred' means hatred against a group of persons defined by reference to religious belief or lack of religious belief and shall include the desecration of symbols or sacramental objects that are important to such a group of persons".

That emphasises the point made by the noble Baroness, Lady D'Souza; we must be very careful about adding these words in the context in which they are proposed. That point was also made by the noble Viscount, Lord Bledisloe.

Although I sympathise with what has been said by the noble Lord, Lord Harris of Haringey, I fall back on the wise advice of the noble Lord, Lord Desai. We may be straying beyond the intention for which the right reverend Prelate the Bishop of Newcastle quite rightly expressed his sympathy, but in considering these words, we would be extending protection—dare I even mention it?—to the swastika and various other evil symbols of a decadent past civilisation. I caution the noble Lord about the wording of the amendment while expressing total support for his objective, which I strongly endorse.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I echo the comments of the noble Lord, Lord Hunt, on the sense of revulsion one has about such attacks. It is important that the noble Lord, Lord Dholakia, has expressed his personal view on these matters, because it underlines why we all recognise the importance of dealing with hatred, whether it is stimulated by virtue of race or religious belief. It is important, therefore, that we view the amendment in that light.

I say with the greatest delicacy that to proceed with dealing with racial and religious hatred in a way that impacts on individuals, we need to be quite clear about separating objects from people. There are already a large number of offences which would bite on such acts of desecration and criminal damage, also enabling the court to deal much more trenchantly and effectively with the perpetrators. We have done that by giving the courts the ability to attack such behaviour if they believe it is racially or religiously motivated in an improper way. There is of course an issue about how to express our distaste for that in the way in which the courts deal with it and in sentencing. The Sentencing Guidelines Council will be empowered to look at all those issues. That may be the most appropriate place to deal with the matter.

The amendment would effectively create a statutory offence of incitement to the desecration of religious objects. As I have said, to incite another to such activities could already be prosecuted. It would be very difficult to make the argument in public that it is people whom we really want to protect by virtue of this offence and not religion per se. While we believe that a maximum sentence of seven years' imprisonment is appropriate for those who seek to pit entire communities against each other, we doubt whether it is appropriate in the case of objects to give a similar protection.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 6:00 pm, 8th November 2005

My Lords, am I right in saying that the gangsters, the thugs—however one might characterise them—who desecrated 40 Muslim graves can, if caught, be prosecuted for a whole series of different offences and that, if they are convicted, their crimes could be regarded also as racially or religiously aggravated, for which they could be charged as well?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, the noble Lord is absolutely right about that. I am grateful to him for mentioning that a whole series of graves has been desecrated. We were deeply wounded by the number of Jewish, Muslim and other graves that were desecrated. All those desecrations cause great alarm and great fear in the affected communities because those graves are the graves of loved ones and should be the more precious for that.

So I absolutely understand, bearing in mind particularly the events of the past few weeks and days, why the noble Lord brought this important matter before the House for debate, but this is perhaps not the most appropriate Bill for it, not least because, as the noble Lord, Lord Lester, quite rightly said, there are other means by which we could properly address this really quite disgraceful behaviour.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

My Lords, I am grateful to the Minister for her explanation and to all noble Lords who have participated in this debate. I am particularly grateful to the noble Lord, Lord Harris, who explained the feelings that are generated in communities by actions of this nature. It is not my intention to go further in this case, but I shall look in future legislation for an amendment of some kind that deals with the situation far more effectively than do existing powers. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

moved Amendment No. 4:

Page 3, line 10, at end insert—

"(2) In this Part—

"religion" shall mean belief in a god or supreme being and worship of that god or supreme being, and "religious" shall be construed accordingly;

"threatening" shall mean deliberately subjecting someone to justifiable and immediate fear of violence."

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

My Lords, I hope that I may be forgiven if I briefly say before I turn to my amendments that when the two Front Benches swap pieties at a difficult moment, I always feel that I am going to be lost and will probably be faced with a Bill and certainly with consequences which I do not welcome. I am sorry to say this to the noble Baroness, whom I admire immensely, but at the end of her remarks she left me nourishing the dark suspicion that where she was heading was back to the old Bill and presenting us with the Government's original intentions as declared in their manifesto.

I have only one more comment to add to that: I have never been able to subscribe to the idea that any party manifesto deserves the status of holy writ that is normally accorded to them. They are dreadful documents. I recall with pain having once had something to do with one. I remember the aching boredom and the total frustration that accompanied the process. That anybody should elevate the results of a manifesto to the status of holy writ is beyond my imagination.

Perhaps I may proceed very briefly to the amendments and say to your Lordships that, after this afternoon's proceedings, I hope to endear myself to your Lordships at least by my brevity. The amendments owe a great deal to the unfailing kindness of the Public Bill Office. I was extremely uncertain about the definition of "religion" and I am extremely grateful to the Public Bill Office for its usual courtesy, co-operation and help.

I take the subject of the amendments very seriously indeed. If I am right in thinking that religion is part of man's age-long search for a better understanding of God, it is therefore surely an area which governments should enter only with the utmost caution and with greater respect than they are normally accustomed to showing to anyone except themselves.

I have four points. First, I regard the fettering of expressions of opinion in any event as an encroachment on freedom which is usually wrong and almost always counterproductive. Secondly, to plead that it has been done previously, as did the noble and learned Lord the Lord Chancellor, compounds rather than excuses the offence. When the Lord Chancellor started to talk about gaps in the law, he made me think of a rather over-zealous dentist looking round the teeth of a patient to see whether any holes need stopping.

Thirdly, the lack of a definition in the original Bill worried me. It contained expressions such as "likely to". The repetition of "likely to" in as little space as a single line made it too horrible a piece of legislation for me to wish to dwell on. I regard vagueness in legislation as asking for trouble. I hope that the Government, whatever else they may do, will not attempt to repeat phrases such as "likely to" in their next version of the Bill.

I turn to the last of my detailed points. If discussion is going to be stifled, does one stifle it everywhere or just in some places? Does one leave Members of either House of Parliament free to say whatever they want and to be reported however likely to disturb their words may be, or is it intended to stifle discussion in your Lordships' House and another place?

I conclude with this single comment: for a government—even a government who see themselves as wholly secular—to intrude and make criminal the expressions of opinion which were originally uttered or printed without any intention to provoke anybody is a monstrous intrusion and a piece of arrogance which I would find very hard to forgive. I await with some interest, and a little hope, the Minister's reply. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I have considerable sympathy with the amendment of the noble Lord, Lord Peyton of Yeovil, but I am going to be very careful in what I say for this simple reason: I do not want to say anything which is likely to make it more difficult to reach an agreement with the Government along the lines that were suggested earlier today. Therefore I will make only a couple of points. Firstly, one should not seek to define religion by Act of Parliament. The Human Rights Act 1998 did not do so; neither does the European Convention on Human Rights. If this definition were to be regarded as appropriate to theistic religions, it would not be regarded as appropriate to, for example, Buddhism. As I understand it, that is not a theistic religion. That may be a boring and technical reason, perhaps an important one, but it is one which anyone who has followed the Charities Bill will understand. The Government eventually changed the whole approach on the meaning of religion in the Charities Bill to make clear that it included non-theistic religions, especially Buddhism.

That is beside the point, because the main point which the noble Lord makes is that one should only criminalise freedom of expression where, in his words, there is,

"justifiable and immediate fear of violence".

That was the approach of Oliver Wendell Holmes, of Justice Brandeis and of Justice Cardozo in all the great American free speech cases. On one reading, it is also the approach under the European Convention on Human Rights. I have great sympathy for that point, and for limiting the scope of what we have to a justifiable and immediate fear of violence, or something resembling it. However, I believe that the amendments passed by your Lordships' House in Committee strike a fair balance between freedom of expression, freedom of religion, the right to equal treatment without discrimination, a fair criminal process and the principle of legal certainty and proportionality, and so on.

I hope that the Minister will respond fully to the important speech made this evening by the noble Lord, Lord Peyton. However, speaking for myself, were the House to divide and accept the amendment, it would make it that much more difficult to secure overall agreement within the principles—and the three essential safeguards—that your Lordships' House has already approved.

Photo of Lord Desai Lord Desai Labour

My Lords, I am reminded of the remark recently made by Madonna; that Tom Cruise could do what he liked, even if he wants to worship a turtle. It does not bother her if some people worship turtles as superior beings. The noble Lord, Lord Lester, anticipated something that I wanted to say. This definition of religion certainly does not cover Buddhism, Sikhism or Jainism. None of those three belief systems would be covered by a belief either in God or in a supreme being. In the case of Sikhs, they might actually worship a book—the Guru Granth Sahib—or, in the Jain case, a number of gurus. If we are to have a definition of religion, and whether we do is a matter for the Government to choose, I would wish for the definition to be cast much wider than it currently is. Certainly, it should cover all religions.

I was once asked by someone, in an application for the Charity Commission, whether I supported Scientology being a religion. Since I believe anything can be a religion, I said "Yes". Therefore I wrote a definition that a religion was, more or less, a coherent set of inconsistent, irrational beliefs about the nature of the universe. The scientologists objected to my definition and asked me to withdraw the letter in their support. But there is, possibly, some point in defining religion, provided we can do it broadly enough so that all religions can be covered by it.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative 6:15 pm, 8th November 2005

My Lords, I rise strongly to support my noble friend Lord Peyton of Yeovil, who made some important points. I think that even he would admit that it is difficult to find a perfect definition. The noble Lord, Lord Lester, reminded me that in the Charities Bill—which we shall shortly be discussing—the Government attempt to define religion. Clause 2(3) of that Bill states that religion is to include:

"(i) a religion which involves belief in more than one god, and (ii) a religion which does not involve belief in a god".

It is difficult to find the right definition, as my noble friend has conceded. But that in no way detracts from the valid points that he made in a commendably brief and remarkably succinct speech—which, as I say, I strongly support. His reference to "likely to" was a particularly important intervention.

I hope that my noble friend is wrong, and that the Minister does not still hanker after the old Bill. As I understand what she said earlier today, she is prepared, in a spirit of compromise, to accept the new infrastructure of the Bill—which has been agreed by this House in Committee—and will now seek ways in which to improve the wording. I hope she will be able to tell my noble friend that she accepts many of his points, and that they will be included as we deliberate on the best way forward. The noble Lords, Lord Desai and Lord Lester, are quite right. We must be mindful of those who so strongly believe in Buddhism, Hinduism, Jainism and a number of other key religions. My noble friend admitted that we must proceed with the utmost caution. Yet it is important that his points are answered in this debate, and continue to be answered in the discussions which lie ahead.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, the noble Lord, Lord Peyton, has set me a difficult challenge. I am to avoid piety and agreement in an egregious manner with Members on the opposite Bench and still answer his questions. I hope to be able to do that in a way which satisfies him. The Deputy Chief Whip tells me that it would be almost a physical impossibility for a Home Office Minister, of whatever complexion, not to hanker after the old Bill. But I can tell your Lordships that it is a temptation which I find very easy to resist, because I am a total realist and pragmatist about where we now find ourselves.

The most important thing now is to try to chart a way through this issue and bring consensus. I hope that I outlined clearly in my comments earlier today that we have accepted the construct and framework set out by the view expressed by the Committee when we dealt comprehensively with those matters. We are looking with a great deal of purposeful energy at how we can express better the freedom of expression criterion so that it does not do violence to our ability to prosecute these offences. It should honour the real concern which was expressed all around the House—just as volubly, indeed, from our own Benches—that freedom of expression has to be preserved and promoted in a way with which others will feel content. There are more difficulties, and I have set out what they are. My hope and aspiration is that we will be able to mediate a way through them to arrive at consensus. That is certainly what we—each of us, as I understood it—have set our minds to achieving. So I hope that in that sense we shall be able to satisfy noble Lords.

The noble Lords, Lord Lester and Lord Hunt, have already referred to the reasons why we believe that a definition would be unhelpful in this regard, and unnecessary. I am sure, as the noble Lord, Lord Hunt, made clear, that the noble Lord, Lord Peyton, accepts that his definition does not cover all the religions that are recognised as the major religions—and Buddhism has been mentioned among others.

I agree with what was said about the European Convention on Human Rights. The definition advocated in this amendment is not as comprehensive or rigorous as the approach to the meaning of religion adopted by the courts in relation to the convention. That approach requires a religion that contains a coherent set of beliefs. All those are things with which I believe that we probably agree—and I know that the noble Lord's amendment is a very piercing probing amendment to ensure that I do not slip off the straight and narrow. I assure him that I know the direction of travel in which we shall have to go to settle this matter—if it can be settled—in a way that is honourable, fair and delivers what we would all wish to see.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

My Lords, after such graciousness I can hardly keep my feet—I am slipping all over the place. I am grateful to all noble Lords who have spoken. On a point of definition, I have never been proud of any definition that I have expressed yet; this one was borrowed from the Public Bill Office, and I thought that it did awfully well for the occasion—it was quite enough. But as it is not likely to be immortal, I see no reason to apologise for it.

I have one comment to make to the Minister, who is always so nice. She spoke about "we" looking with "purposeful energy". I could contemplate the Minister herself looking with purposeful energy at me or almost anything else, but the idea of some of her colleagues looking at things with purposeful energy frightens me greatly. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

had given notice of his intention to move Amendment No. 5:

Page 3, leave out lines 21 and 22.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

My Lords, with this amendment, I had in mind a police constable—not necessarily a man of gigantic intellect—being confronted first with the legislation and having to puzzle out its meaning, forming a clear conclusion that an offence had been committed or was likely to be committed and then arresting someone without a warrant. That seemed to me a most improper and undesirable procedure and very dangerous for the police constable. In the circumstances, I hope that the Minister will reflect on what I have said.

[Amendment No. 5 not moved.]

[Amendment No. 6 not moved.]