With this it will be convenient to discuss the following:
Clause stand part.
No. 327, in schedule 10, page 178, line 29, leave out 'RACIAL AND RELIGIOUS HATRED' and insert
'HATRED OF RACIAL AND RELIGIOUS GROUPS'.
No. 328, in schedule 10, page 178, line 32, leave out
'hatred' and insert
No. 323, in schedule 10, page 178, line 34, leave out from 'Part' to end of line 36 and insert
'''religious group'' means a group of persons defined by reference to their religion or belief'.
No. 322, in schedule 10, page 178, line 35, leave out
'religious belief or lack of religious belief' and insert
'their religion or belief'.
No. 330, in schedule 10, page 178, line 37, leave out
'racial or religious hatred' and insert
'acts intended or likely to stir up hatred against racial or religious groups'.
No. 331, in schedule 10, page 179, line 1, leave out 'racial or religious hatred' and insert
'hatred against racial or religious groups'.
No. 226, in schedule 10, page 179, leave out lines 3 to 7.
No. 312, in schedule 10, page 179, line 4, leave out
'having regard to all the circumstances'.
No. 332, in schedule 10, page 179, line 4, leave out from 'circumstances' to end of line 7 and insert
'he recklessly risks that hatred against a racial or religious group will thereby be stirred up'.
No. 313, in schedule 10, page 179, line 7, at end insert
'or the person is reckless as to whether they are (or it is) likely to be so heard or seen or likely to stir up such racial or religious hatred'.
No. 333, in schedule 10, page 179, line 10, leave out 'racial or religious hatred' and insert
'hatred against racial or religious groups'.
No. 227, in schedule 10, page 179, leave out lines 12 to 15.
No. 314, in schedule 10, page 179, line 13, leave out
'having regard to all the circumstances'.
No. 334, in schedule 10, page 179, line 13, leave out from 'circumstances' to end of line 15 and insert
'he recklessly risks that hatred against a racial or religious group will thereby be stirred up'.
No. 315, in schedule 10, page 179, line 15, at end insert
'or the person is reckless as to whether they are (or it is) likely to be so heard or seen or likely to stir up such racial or religious hatred'.
No. 335, in schedule 10, page 179, line 18, leave out 'racial or religious hatred' and insert
'hatred against racial or religious groups'.
No. 228, in schedule 10, page 179, leave out lines 19 to 23.
No. 316, in schedule 10, page 179, line 20, leave out
'having regard to all the circumstances'.
No. 336, in schedule 10, page 179, line 20, leave out from 'circumstances' to end of line 23 and insert
'he recklessly risks that hatred against a racial or religious group will thereby be stirred up'.
No. 317, in schedule 10, page 179, line 23, at end insert
'or the person is reckless as to whether they are (or it is) likely to be so heard or seen or likely to stir up such racial or religious hatred'.
No. 337, in schedule 10, page 179, line 26, leave out 'racial or religious hatred' and insert
'hatred against racial or religious groups'.
No. 229, in schedule 10, page 179, leave out lines 28 to 31.
No. 318, in schedule 10, page 179, line 29, leave out
'having regard to all the circumstances'.
No. 338, in schedule 10, page 179, line 29, leave out from 'circumstances' to end of line 31 and insert
'he recklessly risks that hatred against a racial or religious group will thereby be stirred up'.
No. 319, in schedule 10, page 179, line 31, at end insert
No. 339, in schedule 10, page 179, line 35, leave out 'racial or religious hatred' and insert
'hatred against racial or religious groups'.
No. 230, in schedule 10, page 179, leave out lines 36 to 39.
No. 320, in schedule 10, page 179, line 37, leave out
'having regard to all the circumstances'.
No. 340, in schedule 10, page 179, line 37, leave out from 'circumstances' to end of line 39 and insert
'he recklessly risks that hatred against a racial or religious group will thereby be stirred up'.
No. 231, in schedule 10, page 180, leave out lines 4 to 7.
Schedule 10 to be the Tenth schedule to the Bill.
New clause 17—Racial and religious hatred (No. 2)—
'In section 17 of the Public Order Act 1986 (meaning of ''racial hatred''), at the end there is inserted—
''(2) The threat, abuse or insults that are relevant for the purposes of this Part are not restricted to those that are expressly directed against such a group if—
(a) he threatens those who hold a particular religious belief which is associated (wholly or partly) with the group, and
(b) the threat is likely to stir up hatred of the group.''.'.
And the following amendments thereto: (a), in paragraph (a) leave out 'he' and insert 'a person'.
(b), in paragraph (a) after 'threatens', insert ', abuses or insults'.
(c), in paragraph (b) after 'threat', insert ', abuse or insult'.
New clause 31—Racial and religious hatred (No. 3)—
'An offence under part 3 of the Public Order Act 1986 (c. 64) (Racial hatred offences) may be committed where the intention is to stir up racial hatred even though the words used refer to a religious group.'
New clause 33—Racial and religious hatred: procedure—
'Section 27 of the Public Order Act 1986 (c. 64) (procedures and punishment) is amended after subsection 1 by inserting—
''(1A) Before consenting to the institution of proceedings under this Part the Attorney General shall consider whether, having regard to all of the circumstances of the alleged offence, such proceedings are likely to be consistent with the Human Rights Act 1998, Schedule 1, in particular the rights and freedoms set out under Articles 9 and 10, and the prohibition of abuse of rights under Article 17.
(1B) In particular he shall consider whether the act or acts of the proposed defendant gave rise to incitement to racial or religious hatred so as to be likely to imperil the safety of persons of a particular race, religion or belief as set out in sections 17 and 17A.
(1C) In reaching his decision the Attorney General shall take into account such circumstances as he considers to be relevant to the proper balance between the rights contained in the Articles referred to in subsection (1A), including the way in which any speech or other means of expression is conveyed, the content of such expression, and the occasion on which it occurred.
(1D) The Attorney General shall each year publish details of each and every request for a prosecution for racial or religious hatred, showing the racial or religious groups involved, whether a decision was made to prosecute, and the outcome of any such prosecution.''.'.
On a point of order, Dame Marion, This being a clause stand part debate, I thought that the Minister should introduce the Government's intention, so that we could then respond in the usual way with a debate. Maybe it is too late to do so, but it would be a better way of going about things, with all due respect to the hon. Member for Somerton and Frome.
My apologies, Dame Marion, if I did not manage to catch your eye; perhaps it had something to do with the transition between my hon. Friend the Under-Secretary and myself.
It would helpful to speak briefly in the clause stand part debate and to set the scene, after which I will of course respond to the amendments in detail. We are dealing with a complex area. The words used in the amendments to the existing law that are set out in clause 119 and schedule 10 are fairly straightforward, but the arguments behind them are quite complex and controversial, and there are deeply held views on all sides of the debate. It is therefore important that hon. Members are able to express the breadth of the views that exist on such issues.
In that regard, I should point out that we have not come to the clause afresh. The matter has been considered at length and in various settings over the past few years. The House of Lords Select Committee on Religious Offences issued a report in April 2003, following which a widespread consultation with faith groups was conducted to consider the implications of introducing the offence of religious hatred. The various faith groups then issued a joint statement in April 2004, which was broadly supportive of the Government's proposals, and did so again on Tuesday, in advance of this debate.
I do not want to interrupt the Minister's flow, but it is only fair to say that not all faiths share the view of the statements that were issued by the group that she defines as ''faith groups''. One can always collect a group of supporters and say, ''That's the opinion of faith groups''. It might also be worth asking how much consultation on freedom of speech issues there was with people from a non-faith perspective.
I was not for a moment trying to suggest that there is universal agreement on the provisions, which is clearly not the case. There are a range of views, as the hon. Member for Oxford, West and Abingdon suggested. Humanist groups, atheists, agnostics and others with no religious beliefs have also raised issues, and their views in the consultation are of course valid. My understanding was that the consultation was wider than simply faith groups and considered a range of issues. We are trying to achieve the careful balance between freedom of expression and people's right to protection from the kind of thing that goes on when hatred is stirred up against people in our communities. That balance is difficult to achieve and we do not pretend for a moment that there is one view on the matter.
Clause 119 amends the offences in part III of the Public Order Act 1986 relating to the stirring up of racial hatred, so that they apply in addition to the stirring up of hatred against groups defined by their religion. That will put an end to the unacceptable loophole in the law whereby groups with a common ethnic background, such as Jews and Sikhs, are protected by law from hatred being stirred up against them, whereas groups that are ethnically diverse, such as Christians, Muslims or Hindus, are not.
Just as with the incitement to racial hatred, the new offence tackles a form of serious social harm. Stirring up hatred potentially causes great social unrest. It can and often does cause people to suffer abuse or to be afraid even to practice or profess their beliefs. The current law does not adequately deal with that problem. Those who stir up hatred may do so without inciting people directly to commit crimes.
A number of relevant provisions are already operative, but the crime of incitement on such grounds requires something specific, which would not be covered by the existing law. There are some lesser offences under the Public Order Act, which provide redress where there is direct harassment or threats from one individual to another on the spot. I think that the hon. Member for Beaconsfield said in a previous debate in the Committee that if somebody was standing on a street corner deliberately threatening people on the grounds of their religion, the hon. Gentleman would be happy to support the police in intervening to prevent a breach of the peace. Those circumstances may well fall under the public order provisions.
There are other circumstances, however, that are not covered by those provisions, which certainly do not cover targeting whole sectors of society and stirring up hatred against them. Those who stir up hatred are increasingly beginning to use religious identity as a substitute marker for racial hatred and to get round the law in that way. A range of amendments that we will come to later would link the racial hatred provisions with the religious provisions; no doubt when we come to explore those amendments, we will see the intricacies and sophistication of the matter.
I want to make it very clear that this is not a new blasphemy law. I know that some of the arguments have connected blasphemy with the measures. Inevitably, some of the same arguments are covered, but this is not a new blasphemy law. The new offence covers stirring up hatred against groups that are targeted for their beliefs, not hatred against those beliefs. I know that sometimes that is a difficult distinction, but I want to be absolutely clear. The provisions will protect people, not ideologies. I think it was Trevor Phillips who said at a recent meeting that ''God does not need the Lord Chancellor or the Home Secretary to be his bodyguard.'' That was a good phrase. The clause is about protecting people, not ideologies. It is even-handed.
Does the Minister agree that if the provision is not about beliefs, it will not catch people who distribute material that sets out a range of insulting and inflammatory reasons to hate Islam, but will capture those who would do the same when it came to hating people of the Islamic faith? Is that a distinction that she would make?
Throughout this debate, we will have a series of examples posed and will be asked whether they would be caught by the proposals. The proposed offence is complex, with a number of different limbs; its intention, whether the words used are threatening, insulting or abusive and whether they are likely to stir up racial hatred in the people who would be exposed to them. The courts would have to decide, looking at all the different limbs of the offence, whether the different components were satisfied in order for there to be a conviction.
The courts would have to consider whether, in the circumstances presented to them, all the different limbs were identified. One of the examples that has been given to me is whether we should use the words Islamic terrorist. If those words were used in an academic debate or in a discussion about whether that was an appropriate phrase, hatred clearly was not likely to be stirred up in that context. If the phrase, ''All Muslims are terrorists'' was used in a pub by a group of drunken people, it may well be that those words would have the likely effect of stirring up hatred on the basis of that religion. I am not trying to avoid the issue, but it is difficult for me to say what a court would decide in those circumstances. It would be for the court to decide.
The Minister says that she is not seeking to evade the issue, but she raised it. She said that the proposals will not affect hatred directed against belief, but are to protect believers. She will hear later that the Liberal Democrats understand her concerns. However, I asked her a specific question; from what she was saying, I thought that the difference between the two was so clear that people could be reassured. I asked her whether she felt that the measure would deal with people distributing material, setting out a range of insulting and highly inflammatory reasons for hating Islam, but not directed against people of that faith. I would urge her to clarify whether that is the case, as otherwise the point is that the matter can be clarified only in a court of law. A series of prosecutions will then be required to sort it out, and I do not believe that that is what she is after.
No, I am certainly not after a series of prosecutions. I have discussed the matter with the hon. Gentleman's hon. Friend the Member for Somerton and Frome, and we certainly do not want to be in a position where the police are required to expend undue resources in looking at such issues. Clearly, any prosecutions will go forward only with the consent of the Attorney-General, who will have to look carefully at whether it is appropriate for those matters to proceed. People would not be convicted if material were to be distributed in a way that was abusive and insulting, but was not likely to stir up hatred against people on the grounds of their religious belief. If, in those circumstances, hatred was likely to be stirred up, there clearly would be the realistic prospect of a conviction.
Does that not highlight and encapsulate the absolute nub of the problem with the legislation? Words are perfectly acceptable when used in one context, but become unacceptable when transferred to another context. Once one has that qualification, there is no certainty for the individual as to the forum in which his words may or may not be acceptable. Furthermore, the Attorney-General will be constantly under pressure to bring prosecutions, which he will refuse to do. Thus, the law will be brought into disrepute, because many groups are clearly pinning hopes on the Bill, which, given the statement that the Minister has just made and others that we have heard, will never be fulfilled.
The hon. Gentleman must recognise that we already have provisions under the Public Order Act on stirring up racial hatred; clearly, the same provisions apply there. The court must apply an objective test to determine whether what has been said is abusive, threatening or insulting and likely to stir up hatred on the grounds of race. The court already needs to make that decision. In the Bill, we are seeking simply to replicate those provisions in relation to people who are defined in terms of religion, rather than race.
The hon. Gentleman may well take exception to court having to face the difficulty of looking at the separate limbs of an offence, but the position is exactly the same with the current public order provisions. In the past three years, 84 cases have been referred to the Attorney-General; we have had four prosecutions and two convictions, so we are certainly not in the situation of having hundreds of cases referred. Exactly the same limbs are relevant under the Public Order Act as will be relevant under the Bill.
The Minister is being generous in giving way, but is not there a world of difference between criticism of religion and criticism of race? It is difficult to conceive of a legitimate criticism of race, but it is possible to have legitimate criticisms of religion. In answer to the hon. Member for Oxford, West and Abingdon, will the Minister say whether it is possible for the offence to be committed purely through criticism of the religion itself.
The hon. Gentleman talks about criticism, but we need to be clear that we are talking about stirring up hatred. Hatred is a pretty extreme emotion. I looked it up in the Oxford English Dictionary, and the definition is ''intense dislike'' and ''ill-will'', so we are not talking about criticism. That is an important point.
The Minister provided a definition of hatred; in the context of race, there can be no objective reason for hating someone on the basis of their race. However, the Minister's problem is this. Although we try to express ourselves moderately, there are occasions on which we try to foster ill-will towards other people. For example, attitudes in mainstream political parties towards extreme parties such as the British National party undoubtedly seek to generate ill-will against members of those parties; indeed, demonstrations against them often call on them to be ostracised. That is considered—subject, of course, to people not going out and hitting members of those parties over the head with a baseball bat—to be acceptable in a democratic society. I find it difficult, on a philosophical basis, to distinguish between that and trying to foment ill-will against a religious group with whose beliefs one profoundly disagrees.
I understand the point that the hon. Gentleman makes, and I shall not seek to caricature his view, but some elements in a religion may be similar to the campaigning and proselytising elements in a political belief; there is a blurring of that line. However, I do not agree with the hon. Gentleman, because it is appropriate to distinguish between religion and politics for two reasons.
First, for some groups, their religion is not simply a matter of choice. I have heard it said that religion is a matter of choice—as is politics, unless one is born into a particular tribe or political family—but that race clearly is not. There is an anomalous situation in that respect. Members of the Jewish and Sikh communities have protection on the grounds of their religion as well as of their race; the remarks that are made about them do not have to relate to their race, but just have to stir up hatred. The fact that those concerned are part of a mono-ethnic group means that they have protection. Those who do not fall into those categories, but who are members of a religious group do not have that protection.
I disagree with the Minister about the characterisation of the Jewish community as a racial group. There might be a slightly stronger argument in relation to the Sikhs, but I cannot alter House of Lords decisions. We could equally argue that we should be using primary legislation to take the Sikhs out of being a racial category. They are, I agree with the Minister, quite a surprising exception, but exceptions just happen. If they are created by the courts, we should accept them.
I am sure that we could have another debate about the appropriate interaction between the Executive and the legislature in such circumstances.
I understand where the hon. Member for Beaconsfield is coming from. However, my point is different. I am grateful that the Minister answered the question, and acknowledge that, in some contexts, saying things that might make somebody hate a religion or belief might be the equivalent of stirring up racial hatred against those who hold that belief. I understand the circumstances in which she might think that that applies.
However, what about people who think that a certain belief is evil? Some religions think that other religions are evil. Sometimes, it is a defining feature of a religion that its followers feel strongly about other people's religions, even if they try to get on as individuals. However, one can expect to hate nothing more than something that is evil. Therefore, if one believes that a religion is evil, does it not fall into the category whereby it stands a real risk of being prosecuted for inciting hatred against its followers? We are taught to hate evil. That is where the difficulty is in the way in which the legislation is framed.
I do not agree with the hon. Gentleman. He is seeking to elide two of the limbs of the offence. That is to say that words that are abusive, threatening or insulting against a religion would automatically constitute the offence. I have tried to make it clear that there might be words that are threatening about somebody's religious belief, but the second limb must also be present: the likely effect has to be to stir up hatred against individuals, not against the religion. Therefore, one can have the most deeply held views about a religion, but if one expresses them either with the intention or with the likely effect that to do so will stir up hatred against people who are defined by virtue of that religion, that is wrong. It should not take place in the kind of society in which we want to live, and in which we want to promote good and tolerant relations between different communities. If the hon. Gentleman and I simply disagree, we will find the issue hard to resolve, but I should not like him to elide the two limbs of the offence. That would be wrong.
Let me have one more stab at this, because I know that the Minister wants to make progress and she has been very generous. The point that I was making was that the expression of what might be considered to be a legitimate criticism of belief might be so strong—that is what religion is: strongly held views—that it could have no consequence other than to stir up hatred; we are taught to hate things that are evil.
Let us take a cult, say Satanists, who might define themselves as loving evil. I am not an expert in the area, but Satanism is an evil cult, so is it not a reasonable thing for people to hate it, and therefore to hate its followers, without necessarily falling foul of this measure? It is reasonable for people to hate the followers of the BNP, but they should not take violent action against them—even though they have a set of beliefs that I think are hateful. However, there is a distinction between that and incitement to racial hatred, as long as the initial criticism is of belief and not of people themselves.
I appreciate the hon. Gentleman's tenacity in seeking to put forward his point of view. I do not accept it. I do not think that it is impossible to express intense feelings without necessarily crossing that borderline into stirring up hatred against groups of individuals. He also failed to address the point that at the moment certain people have protection under our law and other groups do not. That is an important element of the legislation. That is why we tried to frame the provisions so that they were narrow and targeted at the mischief that we have identified. I know that some of his later amendments seek to widen the operation of the conditions. I am keen that in promoting this offence we try to circumscribe it so that it does not simply act as a catch-all provision, because I know that there are concerns about that.
The Minister is, no doubt, an extremely good and benevolent person and she can see the distinction between a religion and those who adhere to it, but the test is the effect that will be had on any person. She is making her case worse by the distinction that she is drawing between the two limbs of the offence. To people who are less well disposed than she is, saying that one hates a particular religion may well have the effect of making them hate those who adhere to it. It is a distinction that the courts will find extremely hard to make—if there is a distinction.
I have made the point that the courts and the Attorney-General will need to consider the offence as a whole, and to see whether all the separate components are fulfilled and it is appropriate to proceed to court.
I am sorry to press the Minister on this point, but she is asking Parliament to pass a piece of legislation that will place in the hands of the Attorney-General the discretion, not to decide whether the law has been breached, but to decide whether a prosecution should be brought in a particular case. The truth is that the outcome will be that prosecutions will be limited to a minimum. Is it not in fact bad law? It leaves the average citizen totally unclear about what is and is not acceptable. It is unable to establish the boundaries of behaviour and it creates a climate of uncertainty. The law will be brought into disrepute. The pressures will build and be expressed publicly, with calls for prosecutions and for cases to be tested before juries when the Attorney-General will never grant permission for that to happen.
I was not involved in this area when the original public order provisions were passed, but I am sure that many of these arguments would have been raised at that time. It would have been argued that it was the Attorney-General who had the discretion, that he would have to see whether the limbs of the offence were fulfilled, and that people would not know what the limits of acceptable behaviour were. Yet over the past eight years, since those offences were created, 84 cases have been referred, four prosecutions have been proceeded with and two have resulted in convictions.
It is fair to say that the vast majority of people in this country have a reasonable common-sense idea of what is acceptable and what is beyond the bounds. I think that it was Trevor Phillips who referred to the fact that Bernard Manning has not been subject to prosecution, despite some of the language and jokes that he has promulgated. Jim Davidson has never been subject to a prosecution. Clearly, robust satire, ridicule and humour are undertaken in these areas every day of the week, and yet we do not have the kind of doomsday scenario outlined by the hon. Gentleman.
I have no doubt that these are serious and complex matters, but I do not share the misgivings that have been articulated by the hon. Gentleman because I think that we will have a common-sense way of proceeding with these matters and that the provisions fill a current loophole in the law. No hon. Member has indicated how they would seek to have a level playing field and parity for the different religious groups in this country, many of whom do not currently have the protection of the law.
I will be brief. I just want to reassure the Committee that the threshold for the new offence is high. We need the Attorney-General's consent, there are various elements, and we have a subjective and an objective test—we will discuss that when we come to the amendments on recklessness, which will be interesting.
The final issue that I wanted to raise is that when the courts decide cases, they have to decide them in a manner compatible with the European convention on human rights, and two convention articles are relevant in this case: articles 9 and 10. Article 9 deals with freedom of thought, conscience and religion, and article 10 deals with freedom of expression. The court—if it gets that far after the matter has been considered by the Attorney-General—will have to consider both sets of rights and, where necessary, balance one against the other. The courts have a great deal of experience in carrying out that delicate balancing act and considering the way in which those provisions interact, and they will continue to do in this area as they do in many others.
The provisions are necessary in order to provide justice and parity for the range of different religious groups in our society, and they have the support of many of the faith groups. I am sure that other hon. Members will refer to the people who do not support the proposals. I shall be more than happy to reply to all the amendments at the end of the debate.
I am grateful to the Minister for the way in which she presented the Government's case and for taking so many interventions. I shall set out as briefly as I can—because I am conscious of the passage of time—the reasons why I have such deep anxieties about the legislation. I then want to introduce new clause 17, which is a possible way that we could consider the matter in a slightly different light, albeit one that I shall not press to a vote.
There are also numerous, very interesting amendments tabled by the Liberal Democrats. Although they would change the wording of the Bill, I am not entirely clear at the moment whether they would change the outcome. Doubtless, one of the Liberal Democrat Members will be able to explain them, and we can consider the matter in the round.
I say to the Minister at the outset that I do not think ill of the Government in their attempt to legislate in this area—I am aware that they have good intentions. However, I am afraid that the road to hell is paved with good intentions, and in this case I am not persuaded that we are not taking a seriously wrong turning. I am open to persuasion, and if there are possible ways in which the legislation can be altered to remove its key problems I am happy to consider the matter further, but at the moment I remain unconvinced. I have a feeling that it is not an easy piece of legislation to amend in order to remove the problems.
Let me return to what I said in my intervention on the Minister. Is it permissible to hate people? That is a good starting point for the debate because the Minister highlighted the fact that the race relations legislation had not led to prosecution of individuals for satire at the expense of the cultural values of others. Those were the illustrations she was citing when she referred to people such as Jim Davidson. That is not what the Race Relations Act 1976 was designed to do, and it is not what the Public Order Act 1986 was designed to do.
The Public Order Act was designed on the premise that as people's racial characteristics are irrelevant—if I can put it that way—to their humanity and, as the Minister pointed out, are not of their own making, if one advocates hating someone on the grounds of their colour or race, one will fall foul of the Act. Indeed, I think the Minister will agree that the circumstances in which individuals have been prosecuted under the existing provisions for race are precisely where they seek to incite hatred of others because of their race, not by ridiculing or criticising cultural values that they may have.
I return to the point that I made earlier about the BNP because it seems a wonderful illustration of the way democracy can work. Politicians express themselves quite frequently in terms concerning members of the BNP that show great hostility towards them because of their beliefs. Indeed, they go further than that and call on individuals to ostracise them. There are demonstrations calling for them to be ostracised. Those certainly do not fall foul of existing law. Public figures make speeches about those individuals emphasising the desirability that they be marginalised in our society, and that is considered to be part of normal political discourse.
Indeed, it is quite successful. On the few occasions that constituents of mine who have extremist views have come to me, one of their complaints is that they consider themselves to be ostracised and it makes them angry. Sometimes their ostracism takes the form of their inability to book public meeting halls where they wish to hold meetings to peddle their views. All that is considered permissible.
However, in the Bill, the Minister wishes to say that beliefs that come under a religious heading cannot be criticised in the same way. That is the nub of what we are discussing. I suppose that what would happen if the legislation is passed is that the BNP would declare itself to be a religious movement to get the protection of the law that it does not currently enjoy.
We talked about mainstream religious faiths. I agree with the Minister. I am a Christian and a practising member of the Church of England. I can think of no basis on which I wish to revile or incite hatred towards those of other mainstream faiths, but as was rightly said by the hon. Member for Oxford, West and Abingdon, if devil worshippers set themselves up in my local community, made calls saying that they wished to carry out unpleasant practices, and wanted to get the law changed to sanction those practices, they would be likely to incite many people to make extremely intemperate comments. Is that to be prevented?
Where is the boundary between comment that is critical and comment that seeks to reduce the quality of life of people who are the object of that comment? We seek to reduce the quality of life of BNP members when we say that they should be ostracised. People may wish to say the same thing about people in religious groups. So, the nub of the issue is that while, of course, none of us wishes to see Muslims, or for that matter Christians, subjected to vitriolic abuse, once we start departing from the principle that, short of falling foul of the criminal law by sanctioning violence against people, we should be allowed to criticise in strong terms, including expressing hatred for other people's beliefs, we are on a slippery slope that is difficult to stop. To my mind, it is difficult to provide a rational philosophical justification for why we can criticise the BNP in certain terms but cannot say the same about devil-worshippers, Muslims or Christians.
My hon. Friend is making a powerful case. A moment ago, he said ''expressing hatred for other people''. However, under the terms of the Bill, it is not necessary to go as far as that. Any words or actions that may be insulting are outlawed. As the Minister said, the point is the effect of the words on other people. The words may be only insulting but if they have the effect on any other person of stirring up hatred, that would bring the person concerned within the ambit of the Bill, even though what they had said was only mildly insulting.
My hon. Friend is absolutely right. That is one of the serious drafting weaknesses in the legislation. The reason for having it in those terms is, as the Minister explained, that the measure would be subject to the Attorney-General's discretion. I am quite prepared to accept that in reality only cases of hatred will ever come to court.
My point is not about devil worshippers, but about hate. The hon. Gentleman will recall Aneurin Bevan's comment that members of the Conservative party were lower than vermin. Will he comment on the words of one of my constituents to one of the hon. Gentleman's colleagues, who unwisely canvassed my constituent during the last election and received the retort that he would not be voting for him, even if he could, because he hated him. He called him, ''you Tory,'' then used a word that I shall not repeat here? He went further and said, ''I recall your father, and he was also a Tory . . . ,'' and again used a word not to be mentioned here. This definition of hatred is interesting, because my constituent clearly felt rather strongly about the hon. Gentleman's party.
Will the hon. Gentleman also say whether we are actually talking about incitement rather than hatred?
It is clearly incitement, because that is what the Bill is all about. If someone calls someone else vermin in the presence of other people as opposed to in a one-to-one dialogue, the possibility of inciting other people to regard the other person as vermin must be present.
The hon. Gentleman's example delightfully highlights one of the arguments against this legislation, because when Mr. Bevan suggested that the Conservatives were lower than vermin, they set up the Vermin club. I have a Vermin club badge in my home, which was worn on a lapel around the streets. It shows a bug in a top hat looking toff-like with a cane under his arm. The badges were much worn in London in the months after the speech.
On the whole, I believe that the individual who made the remark rather regretted it, because it backfired politically. It is one of the great protections in a democratic society that if people express themselves outrageously or intemperately and in a way that does not strike a chord with public opinion, there tends to be retribution against them at the polls and certainly in the media for what they have said. This was going to be my concluding remark, but that illustrates the fact that society is not without protection in this matter, because public opinion of and public opprobrium towards those who use intemperate language are probably just as good a regulator of the way in which people behave as legislation is.
Before the hon. Gentleman finishes, I must ask him about his analogy between the BNP, political ideas and religion. Does he agree that there is an important distinction in that ideas are much more flexible? One usually thinks up one's political ideas for oneself, changes ones mind and adopts a different view. Very rarely are views inherited. Someone joked that there were some political dynasties, and I know that the hon. Gentleman's father was an MP. They are certainly not inherited as ideas en masse as part of a group's cultural heritage, but religion is inherited. If one insults an eight-year-old Muslim girl on the basis of her Islamic faith, one insults her on something that is as inherently part of her being, as her race is, particularly at that age because she has not had the time to explore the possibilities of changing her faith in any way. It is for such mischief that the Government are seeking a cure.
The hon. and learned Lady makes a perfectly good point. I do not want to widen the scope of the discussion, as we are straying on to very dangerous territory, but quite apart from any inherited political characteristics, there is evidence that we also inherit all sorts of emotional characteristics, although all that is tempered by free will and the ability to change their views that human beings clearly have. I accept what the hon. and learned Lady said, which was that in reality religious practice, if not belief, and adherence to religious precepts is conditioned for many, particularly the young—they do not have much option in the matter.
I take my children to church. That is not a matter on which there has been a huge amount of consultation, and doubtless there may come a moment when they tell me either that they will no longer go or that they will continue to go. That will be the point at which they start to make their own free choices, but I accept the hon. and learned Lady's point.
I accept that the issue is difficult and there are no simple answers. That leads me on—I want to move speedily—to the question of the Attorney-General's discretion. I accept that there are other laws that are uncertain in scope. We give the Attorney-General all sorts of discretions on other matters and even encourage him to have them. However, I am worried that we are creating expectations with the Bill that will prove to be not only unfulfilable, but undesirable to fulfil.
One recent example is the theatrical production in Birmingham concerning the Sikh gurdwara, which, on the face of it, was undoubtedly insulting. For a person of firm religious conviction, it is insulting for a play to suggest that rape takes place in a holy place that is associated with that person's faith and which furthermore suggests—I infer this, although I did not see the production—that there are cultural norms in the group frequenting that place that might encourage such a thing to happen. That would be really insulting for a Sikh. However, there was never any possibility of that production being the subject of a prosecution, even though the law clearly could have operated so as to bring such a prosecution, because of the Sikhs' particular and somewhat unusual classification as a racial group.
To make a pragmatic comment, I foresee similar things happening concerning other faiths that could excite enormous passion and which could lead to similar calls for prosecution. Indeed, talking to some people from faith groups who support the Bill, I am alarmed to discover that many of them see such situations as precisely the sort of circumstances in which they would expect a prosecution to be brought. That worries me very much, because I think that we are deceiving them and I have said so. I do not believe that a prosecution will be brought in such circumstances and that makes me even more worried about the nature of the legislation that we are putting on the statute book.
I turn briefly to our new clause 17, which was an attempt to see whether there is a halfway house between the Government's position and my anxieties. New clause 17 attempts—I am always hesitant about whether or not I have succeeded—to identify whether it is possible to provide added protection to racial groups if, in reality, the threats being uttered against religion are clearly targeted against them, given the context in which they are made. New clause 17 is limited in its scope.
I note the amendments that the hon. Member for Oxford, West and Abingdon has tabled. If they were accepted, they would reverse exactly the limited intention that I was trying to achieve in the first place—not that that would be necessarily wrong, but our intention is to target threats specifically.
Threats are a key issue. It is one thing to insult or abuse somebody, and of course insults and abuse can threaten people. However, as the legislation operates it is not necessary to threaten somebody, only to insult or abuse them. Threats can be of a general kind—if I said, ''If we ever came into government we would deport all this religious group or deprive them of citizenship,'' or, ''We would prevent them from getting employment,'' that would be a threat, but such statements are different in nature and quality from being merely abusive. I put in the distinction because I thought that it might aid the debate. Let us not pretend that what I propose is a perfect solution; it is there simply to concentrate our minds.
I want to give others an opportunity to speak. I may seek to catch your eye later, Dame Marion, in respect of the Liberal Democrat amendments.
This might be a convenient point to mention what I was trying to do in the amendments to the new clause. I was suggesting not that the new clause was necessarily wrong but that the hon. Gentleman should defend why he talks about threat, abuse or insults in the first line of subsection (2) of the new clause, then ditches them. Secondly, there is a hanging ''he'' which is not sufficiently defined; that is what my amendment (a) sought to rectify. I wanted to ensure that the Government could not dismiss the hon. Gentleman's arguments on the basis of the drafting of the new clause. I was not suggesting that there was anything innately wrong in the approach that he and Liberty, which provided some of the wording, were taking.
The hon. Gentleman is quite right. Liberty provided some of the wording. It has been extremely helpful throughout our debates on the Bill. ''He'' means ''she'' in drafting legislation, as the hon. Gentleman will know. I did not put in a person because I had not thought of corporate bodies being liable under this type of public order offence, but it is a matter on which the Minister may wish to comment. As for the other points, I think that I have explained myself. I deliberately put in ''threat, abuse or insult'', but added the requirement that such statements threaten. There is a difference between threatening somebody and simply abusing or insulting them: a person may be angry about the one, but put into a state of fear about the other. I thought that distinction might have some merit.
As I said, none of my proposal is perfect, but I remain very doubtful and anxious about the provision. While I will listen carefully to the debate and reflect on it as we move on to Report, it will take a lot of persuasion for me to find a way in which I can support the measure.
It is such a long time since I started my remarks on the clause—[Laughter.] I shall be brief because my hon. Friend the Member for Oxford, West and Abingdon has a large of number of amendments that he wishes to introduce. I shall simply give an overview of the Liberal Democrats' position on what is generally agreed to be the most difficult part of the Bill.
I start by saying that none of us on the three Front Benches differ over the intent—we understand what the Minister is trying to do. She is trying to cure a mischief in the present legal framework that, in effect, allows incitement to racial hatred to be carried out under the proxy of religion. It enables people to make comments that are essentially incitements against a particular race under the pretext that they are directed against a religion, which is identified with that race. As a result there is a difficulty in prosecution. We are sensible to recognise that the number of offences that are aggravated by race and religion since we passed the—I cannot remember the name of the Act—
I am most grateful to my colleagues. The number of such offences is increasing and we seem to be living in an increasingly intolerant age. I deplore that and like everyone else I am anxious to remove the potential for that. On that much, we agree with the Government.
The question that we are debating is not whether it is right to stop people abusing other people in such a way as to incite racial hatred through the proxy of religion, but whether the proposed measure is the right way to do it and whether it will accomplish what the Minister wants it to accomplish. More important—this is the crux of the debate—is whether the formulation that she has chosen will result in effects that are foreseeable but not intended in terms of its practical implementation.
We can go further in terms of consensus in saying that although we may wish to stop this particular brand of incitement to hatred, we do not wish to stop people from either believing in or pronouncing upon their religious beliefs. We do not wish to stop people proselytising their religion in appropriate ways. We do not wish to stop people exercising the right of free speech in drawing attention to, criticising, or perhaps ridiculing the activities of religious groups. We do not want to stop people telling jokes with a religious content. We do not wish to stop people writing plays or books, or engaging in learned discourse in forms which might, in a perverse way, cause some other people to form an adverse opinion of a religious group. That is the consensus. I do not think that anyone here believes anything else.
The question is, does the Minister's proposal address that? I understand two things which are at the base of her argument. First, she says that the offence is aimed against inciting hatred against a group of people, not a religion. I understand that. I was brought up as a good west-country liberal non-conformist and we were taught always to hate the sin, but love the sinner. That is the message that the Minister is trying to get across: it is perfectly proper to be critical of religious practices but it must not be extended to inciting hatred of the people who follow those practices and who hold that set of beliefs. The second key element of the Minister's argument is the requirement for the Attorney-General to sanction any prosecution. Assuming that we have an Attorney-General who behaves properly, as the House would wish, there is a clear lock on any future prosecutions.
That argument falls down on several points. First, there are huge problems of definition, which is a difficulty in itself. We have not managed to get to the bottom of the problems of definition in the debate so far. Secondly, there is a huge gulf in understanding of what the legislation means. I agree with what the hon. Member for Beaconsfield said: there are people out there who, whatever the Minister says, believe that this is a blasphemy law. I heard a Member of the House of Commons discussing the circumstances surrounding the play in Birmingham about the Sikh temple, saying that once the Bill went through the problem would be solved. It will not. I have heard others suggest that the Bill provides perfectly proper legislative provisions for dealing with books that are satirical or are considered to make adverse references to religious beliefs. It does not. Salman Rushdie will not be prosecuted under the proposed law as I understand it and as I hope that it is formulated.
Salman Rushdie will not be prosecuted under the law because, presumably, the Attorney-General will not permit it. However, would he fall within the scope of the law so that he might be prosecutable? The answer must be that he would, by view of the response of those of the Muslim faith who were outraged by him.
I am not sure whether the hon. Gentleman is right about that, but it is because I am not sure that I have such deep anxieties about the legislation. I am not sure that he is right because the test is not whether somebody feels that they are more likely to be hated, but whether somebody else is more likely to hate them, which is not quite the same thing. It is not the object of the hate who supplies the test of the efficacy of the legislation.
''In response to extremists within a faith community making repeated threatening statements stirring up followers to look for ways to make trouble for unbelievers saying that God would never ever allow unbelievers to be pleased with them and created them to be enemies.''—[Official Report, 7 December 2004; Vol. 428, c. 82WS.]
If that is a tenet of people's faith, we are approaching the point where somebody who professes the faith of Islam will be the first object of a complaint and an investigation, because they have professed their faith. That worries me deeply, because I can envisage the measure being used in a perverse way.
I can envisage the legislation, if it is passed as framed, being used by every person who wishes to put complaints to the police and start investigations. Yes, the cases will be dismissed by the Attorney-General in due course as not appropriate for prosecution, but such complaints could be made against everybody who such people feel has in any way disparaged their faith or written, spoken or made jokes about their practices. That will not be right, it will not be what the Minister intends, and it will not be the intention of the law, but that is what will happen. The first effect of such an outcome will be to make life extremely difficult for a lot of people. Secondly, it will disappoint a lot of people. Thirdly, it may have the perverse effect of leading to self-censorship by people who will seek to avoid causing any potential offence or any potential for anybody to bring a complaint against them. I do not believe that we should intend such an outcome. I hope that through sensible discourse in Committee, on Report and later we can reach a different form of words that will achieve the Minister's objectives. In its present form, I suspect that the provision will do a great deal of harm to the relations between different groups in this country rather than improve them.
My last point is that other things need to be done to improve the lot of faith groups in this country. In some areas, measures against harassment and discrimination in day-to-day life will have massively more effect than the legislation—which will rarely be used by the Attorney-General to bring prosecutions—ever could. I hope that we will move back to that agenda if we are serious about dealing with discrimination, harassment and incitement to hatred of religious groups, rather than having well-meaning but misdirected legislation.
I rise to speak to amendment No. 226 and the consequential amendments that appear in my name alone. They are designed to remove some of the problems that have been identified with the proposal. Before that, however, I shall comment on the generality of the Bill.
The Government resisted those proposals—they came from Liberal Democrats as well as Conservative Members—all the way down the line. They seemed not to have a problem in drawing a distinction between racial and religious offences, and that gap in the law persisted for three years. By putting racial offences into an aggravated category unaccompanied by religious offences, the Government may have made the position of religious groups worse than it had been before the passage of the 1998 Act. In the end, to give the Government credit, they saw sense and included aggravated religious offences alongside the others, but there was no problem when that legislation was being passed of the sort that the Minister has described today, and that situation persisted for two years.
What was proposed then was different from the offences that we are discussing today, because the concept of a racially or religiously aggravated offence applies where another offence has already been committed and where the racial or religious hostility aggravates the original offence. In most case, one imagines that the offence will be one of assault or something of a similar nature, but it could be any type of offence that has a religious or racial motive. However, another, separate offence has to be committed before the question of racial or religious aggravation comes into play. That is quite different to the provisions of clause 119, where we are talking about the creation of an offence in itself.
I come now to the amendment, which centres on my concern about how wide the Government are casting the net. We have the Minister's assurance that prosecutions will be subject to the decision of the Attorney-General, but I cannot take that assurance as seriously as I would like given the width of the net that Government seek to cast, particularly on the question of intent.
We would do well to remember that the proposed offence is a serious offence, carrying up to seven years' imprisonment. It is important that the Committee considers the distinction between section 18(1)(a) and (b) of the Public Order Act 1986 as amended by the Bill, because there are to be two ways in which the new offence can be committed. New paragraph (a) deals with intent; the person concerned, the offender, must have the intent to ''stir up . . . religious hatred''. That is clear. Thus, religious hatred is slipped into the existing legislation. New paragraph (b) is an alternative, but it is every bit as serious as new paragraph (a) and the offence carries the same penalty. It creates an offence that can be committed in the absence of the intention to stir up hatred. New paragraph creates an offence where a person uses threatening, abusive or insulting words or behaviour, or displays material of that nature, and
''having regard to all the circumstances the words, behaviour or material are . . . likely to be heard or seen by any person in whom they are . . . likely to stir up racial or religious hatred''.
That is the effects test to which the Minister referred. However, the individual committing the offence does not have to have any intent of the type envisaged in paragraph (a), so the offence can be committed without the intent to stir up religious hatred.
In passing, I notice that whereas new paragraph (a) involves merely slipping the word ''religious'' into the words of section 18(1)(a) of the Public Order Act, new paragraph (b) rewrites section 18(1)(b) of the Act. Why have the Government decided to make such a change in the wording paragraph (b), but not paragraph (a)? What is the significance of that change? Now, an offence will be created where,
''having regard to all the circumstances the words, behaviour or material are . . . likely to be heard or seen by any person in whom they are (or it is) likely to stir up racial or religious hatred.''
I repeat, ''any person''. We would like an explanation of why that change has been made to the original wording. Is this another example of the net being cast wider?
I note what the hon. Gentleman says about the word ''likely'' and the absence of any need for intention, and I must say that I have never liked that. Is not it correct to say that the wording in the provision follows exactly the wording in the earlier provision, except that that was about racial hatred? Is not it also correct to say that in all the other public offences related to threatening, abusing or insulting behaviour, ''likely'' is available as a test, unsatisfactory though it may be? Is not ''likely'' quite a strong test? It is not that if someone does something, certain consequences may follow, but that they are likely to follow. It might be hard for someone to be in a situation in which racial hatred is likely to follow without appreciating that. Might not there be a subterranean intent in there?
I shall come to the distinction between ''religious'' and ''racial'' in a minute. However, there are clear differences in the wording of the provisions in the 1986 Act and the new provisions. One is that, although the word ''likely'' is still used, but the wording of paragraph (b) in the Act was
''having regard to all the circumstances racial hatred is likely to be stirred up thereby.''
The new wording is,
''having regard to all the circumstances the words, behaviour or material are . . . likely to be heard or seen by any person in whom they are . . . likely to stir up racial or religious hatred.''
Some new wording has gone in and I think that the hon. and learned Lady would agree that the Minister needs to tell us why such a change has been made, and in particular why the expression ''any person'' has been slipped in. Does that widen the provisions? We need explanations from the Minister about all those things.
I cannot explain for the Minister, although it is very interesting to work out what is going on. Is not the test narrower? The hon. Gentleman suggests that by changing the wording has opened the gate more widely. Hitherto, if someone did something that was likely to stir up racial or religious hatred, that was it. Now, under the new wording, they have to be within range of someone else—someone must be likely to hear or see something—and that person must be likely to be incited to racial hatred. Is not that narrower and more specific?
Something that is, say, broadcast or put in a book will go out to a very large number of people and the reference to ''any person'' might thus widen the potential offence because it includes persons of any sensibilities or propensities who might feel racial or religious hatred. However, we need to hear the Minister explain why the change has been made. Why not just stick with the existing wording?
My concern is that the new offence of inciting religious hatred—[Interruption.] The hon. Member for Greenock and Inverclyde (David Cairns) will have a chance to make his own contribution, if he wishes. It is correct to say that the new offence of inciting religious hatred is qualified by the provisions of section 5 of the Public Order Act, which relate to the offence of inciting racial hatred. That states that a person is not guilty of an offence if he is not shown to have intended to stir up racial hatred—if he did not intend his words, behaviour or written material to be, and was not aware that they might be, threatening, abusive or insulting. Reading that in conjunction with new subsection (1)(b), it seems that a person could be guilty of an offence under that subsection if he was aware that his words or actions might be threatening, abusive or insulting, and their effect was to stir up religious hatred in any person. That is quite a wide provision. An offence can be committed without intent to stir up hatred, or without any intent at all—just awareness that the words might be insulting if they have the effect that is described.
Is not the test one of recklessness—being aware of the risk that one's words will do something, and carrying on all the same? Recklessness is a very well grounded basis for criminal liability in English law.
The word ''reckless'' is not used here, the word that is used is ''aware'', referring to an awareness that something might be insulting. The words speak for themselves, and they pitch the offence very wide.
Religious hatred and racial hatred are very different. The argument has already been well rehearsed: it is difficult to see—in my view, at any rate—how there can be a legitimate criticism of somebody on the grounds of race, but it is possible to have legitimate criticisms of religion. As has been said, there is a severe risk that if we leave the offence as wide as it is, there could be a restraint on freedom of expression. We all share the objective of giving people protection for their religious beliefs and practices, but we also want to protect freedom of expression. The Minister spoke of maintaining a balance. I am not sure that the Government have got the balance right. I am not reassured by the fact that the decision is to be left to the Attorney-General. If the provision is too wide—if it is bad law—why make it at all, and if it is to be made, why leave its execution to the Attorney-General?
I have a lot of concerns, and my amendment is offered as a way of improving matters. It is designed to narrow the offence and to draw a distinction between those who intend to stir up racial hatred and those who are making what they consider to be legitimate comment or criticism without that intent, but who are aware that they might risk unintentionally insulting somebody. The distinction should be made. The Government must explain why they have drawn the measure as wide as they have.
We have had a long debate, but I tabled several amendments in the group. I shall try to speed through them, as many of them are of the same kind, and I shall not speak for as long as I planned. However, before I come to the amendments I shall set out my own perspective.
I have a big interest in the relationship between the state and religion, and a long-standing interest in the problems of racism. Racially I am Jewish, although my beliefs are entirely secular. However, I know that my secular views have not protected me from insult and, on rare occasions, racial attack on the basis of my Jewish racial origins. Therefore, I am acutely aware of the problems faced by people who suffer racial attack as a consequence of incitement to racial hatred. I include in that group not just black people and Jewish people, but people who are Asian who are Muslim. There is a major problem. My Liberal Democrat colleagues and I do not fail to recognise the problem that exists and the increasing problem faced day in, day out by the Muslim community who are victimised, first because of some of the media coverage, and secondly because of perceptions following 11 September. Their lives are blighted by unpleasant actions, from insult and abuse even to assault.
As my hon. Friend said, the figures appear to be getting worse; there is clearly a problem with racism in this country. We cannot rely on the low levels of support for extremist parties to reassure ourselves, because research from the Oxford Internet Institute on behalf of the Joseph Rowntree charitable trust shows that about a quarter of those canvassed said that they would contemplate voting for the far right BNP. Sometimes people vote for parties without knowing exactly what they stand for, but there can be no doubt about what the BNP stands for; it is well known. I fear that in the run-up to the election and in the current world climate, combined with the problematical and sometimes disgraceful language used in relation to asylum and immigration, we are facing a potential danger. We owe it to people in the country to be extremely sensitive to those concerns.
Although I have major objections to the wording of the measure, as my hon. Friend said we understand what the Government want to do and the concerns of groups—they include the Muslim community, but are not restricted to them—about the problems that they face. The question is whether the proposal is the best way of solving those problems, or whether it will solve them, or help to solve them, in a way that does not create new problems. As hon. Members have said, there is a better way forward, which we can explore now and on Report.
I take a strong, secular view, which not all my party necessarily agrees with, and it might be perceived that that view is not in sympathy with those who experience the problems of racism. I campaigned for years—long before I was in Parliament—about the racism suffered by Muslim and Asian doctors in the health service, which is partly in statute, unfortunately.
We all have examples. There was a proposal to build a mosque in my constituency and a lot of people, whose motives and objections I believe were wrong, were opposed to the prospect of a minaret on the Oxford skyline. There was extensive correspondence on the matter, and I had no hesitation in supporting the right of people to apply to have that mosque built, using the planning process. I have been a welcome guest of the Oxford centre for Islamic studies since that time and before then.
I want to mention various problems before I come to the amendments. The first is the problem of definition—of recognising the difference between religion, which is mainly defined by beliefs, and race. Given that it is mainly identified by beliefs, if a religion is to be meaningful as a religion there must be a test of belief for believers; even though there can be an inherited religion, as the hon. and learned Member for Redcar (Vera Baird) said, religion can be defined by a belief or, indeed, by the lack of it. There is difficulty in defining religion, in defining the difference between one belief system and other belief systems that are political rather than religious. It is incumbent on us to demonstrate that there is sufficient difference between religion and race to show that there is a prima facie case for dealing with them differently in law, particularly if there is an alternative way of dealing with the mischief that we have all identified and are concerned about that may be more effective and less dangerous in terms of unwanted side effects.
How is religion to be defined? There is an early-day motion suggesting that the court should have regard to the census as 200 different answers were given to the question about religion. In a sense, it is a matter of how long is a piece of string, because people can have religious beliefs that are consistent and clear but which are not shared by many other people. I do not know what the Government intend the courts to do to define what a religion, a cult or a sect is. The boundary between religion and politics is also extremely difficult to draw these days. I have difficulty understanding what the Natural Law party is about, and I have tried. Nevertheless, the members of that party would say that they have a set of beliefs around which they run their lives. The Natural Law party is also—the clue is in the title—a political party that has stood at elections. I do not know how the courts will deal with the issue if and when a case comes before them.
I am following carefully what the hon. Gentleman is saying, but the term ''religion'' is used in our law already. We have already talked about religiously aggravated offences, so we are fairly comfortable that the courts will be able to decide what aggravation on the basis of religion is and that they can sort out what a religion is. The term ''religion'' or ''belief'' goes back to the ECHR, an article of which specifically declares religious freedom, although it also expresses limitations on it. There is quite a long history and reasonable precedents, including in our own law, on which we can rely to decide what religion is.
I agree that the problem is already in our law, but having religiously aggravated offences does not necessarily mean that we are comfortable about the issue and that the courts have had the opportunity to deal with it or have dealt with it easily. I am certainly not comfortable that the courts would make the right decision even in those cases. An amendment on the amendment paper, which is starred because it referred to the wrong Act when originally submitted, suggests that if the Attorney-General's fiat is a good thing to avoid unintended prosecutions, there should be an Attorney-General opinion in respect of the relatively minor religiously aggravated offences under the Public Order Act—sections 4A, 5 and so on. I am not talking about religiously aggravated assault and criminal damage, because of the difficulties that the courts might have in future, particularly if we enter a climate of more religious conflict. I fear that we shall enter a climate in which there is at least more debate between religions, which is not a bad thing, but heightened debate may well lead to bad things.
Is there not an important distinction between a case in which another offence has taken place and a case in which the offence is criticising religion itself, when that is an offence? For example, is there not a difference between punching a Satanist in the face and saying that Satanism is evil?
I think that we all have to agree with the hon. Gentleman's point; I certainly do. It would have to be a peculiar person who treated both types of case equally. That is the point. There is a greater requirement to have clarity and avoid inappropriate prosecutions in relation to what we are discussing. That is why, to answer the hon. and learned Member for Redcar, in respect of these offences, which are defined solely by religion and do not rely on another crime to exacerbate them for the purpose of sentencing, the Government have seen fit to refer explicitly to the Attorney-General's permission to prosecute. As we shall see in relation to a group of amendments, there are arguments that that needs to be defined further. I know that the Attorney-General provision is already in the Public Order Act, but I think that in all the documents defending the decision to proceed with this legislation, the Government have relied on that, which suggests that they share at least some of my concerns about definition.
There is a difference between race and religion. It is perfectly possible and it is subjectively and, some would say, even objectively reasonable to describe a set of religious beliefs as evil or hateworthy. The hon. Member for Beaconsfield gave an example. We are all taught that evil is to be hated and wrong and that Satan stands for evil. However, some religions argue—some more strongly than others—that by definition if someone is not a follower of their religion they are damned in some way; they will go to hell, which is the repository for evil people who fail to see the light and repent. That is an interesting debate. I do not want to belittle those points of view, but that debate implies that strong words can be used about a set of beliefs that normally produce the reaction—a reaction that we are taught to have in school—that that is a nasty person. If they believe evil things, and sometimes, in their religious practices, do evil things that reject someone else's views, it is to be hated. The same applies to the BNP. I would not blame people who hated BNP supporters because of their views, so odious are they.
In both those cases one can see that the person may intend, in pursuing their own religious beliefs, to label other religions as uniquely or generally not good, or indeed evil, and that will produce hate. It is regrettable. It is not the sort of thing that I want to get into, but we must ensure that people are free to practise their religious beliefs in that way. We must capture mischief in other ways, using existing offences, particularly where violence is involved, or the common law offence of incitement, where such language is used to incite people to acts, but not to opinions of others.
I have received briefings on this aspect from a series of organisations. I do not think that I have ever said this before in the many debates about the reform of sexual offences, but I am grateful to the Evangelical Alliance—there we are; I have said it—for its briefing, because I agree with it that the Bill could act as a brake on its freedom to speak. However strongly I or others might feel about the Evangelical Alliance on a religious basis or even, where it strays into that area, on a political basis, I do not think that anyone argues that it is a racist organisation. I have major issues with it on many of its views, but I do not accept that it is a racist organisation. If it is worried that its freedom of speech to proselytise will be restrained on the basis of saying that another religion is evil—I do not want to put words into their mouth, but it would not surprise me if some organisations wanted to say that—I do not see how its members can have the certainty that people require in law to ensure that they will not be prosecuted. I shall come in a moment to the indirect effects of the fear that there will be a clamour, almost a riot, of calls for prosecutions.
There are major problems with this proposal that do not apply to hatred directed against people on the basis of race. For example, I have never heard people argue against blackness per se, but we always hear people arguing against a set of beliefs, such as Christianity or Islam—or indeed Judaism, although that is not so common these days. I can only summarise the point of view by saying that it is because it is different. That gives us a prima facie basis for trying to find a different way—certainly not this way—of treating it as if it were the same.
Another major problem is the way in which the Bill will be interpreted. It will not only cause a fear of being prosecuted but a fear of calls for prosecution. People misunderstand the Bill. I have had a lengthy meeting with the Muslim Council of Britain, which is an extremely worthy organisation, because it can transmit a point of view on these issues with a great deal of experience and professionalism. I am grateful for the time that it has spent sending me information and talking to me. I have a great deal of respect for Iqbal Sacranie in particular, who I think merits that respect. I think that he now understands what the Government say people should understand—that the Bill is not about an extension of blasphemy. I am not saying that he does not understand that or that the MCB as an organisation does not understand it. However, until recently its comments suggested that it thought the Bill was the same as a blasphemy law.
I shall read out some examples, not to attack the individuals concerned, but to suggest that if reasonable people such as them—with months and years of experience of negotiating such issues with the Government—believed that the law would cover what they thought it would, many people without their experience or insight, and without the perception that Mr. Sacranie now has, may well fall into the same trap. It is therefore important to read out these examples, and I am grateful to the Barnabas fund for providing them.
The fund writes,
''on BBC Radio 4's The Moral Maze on 14 July Iqbal Sacranie, Chairman of the influential Muslim Council of Britain . . . stated that he envisioned that under the new law any 'insult' or 'outrageous comments' about Islam or the Muslim community would be illegal, as would any 'defamation in the character of the Prophet Mohammed (Peace Be Upon Him)''' because that would be
''a direct insult and abuse on the Muslim community''.
I have heard that view repeated by several people in recent days and weeks. If that is the perception—and I fear that it is—the Government have not succeeded in sending a sufficiently clear message about what the provisions will cover. That will have terrible results for public order—to such an extent that the Government may be defeating their own purpose in the changes that they are proposing to the 1986 Act.
I am grateful to the hon. Gentleman for supporting my point.
Another example involves Samar Mashadi of the Forum Against Islamophobia and Racism, a website with which I am acquainted and which has a long record of working on these issues. Again, she is a strong supporter of the proposed law. On 16 October 2004—significantly after the Government had announced their intention to legislate—The Times reported that, in her view, under the new legislation:
''People won't be able to say that someone of a different faith is going to hell. They will have to articulate themselves in a more pleasant manner.''
I think that people should articulate themselves in a more pleasant manner, but I do not think that we should have a law forcing them to do so. If people cannot say that others of a different faith are going to hell, a lot of people whose job it is to preach that sort of stuff will be left without much to say. I hope, therefore, that the Minister accepts that there is a misunderstanding about the Bill. Again, someone in a senior position in a Muslim organisation failed, at the time, to understand the issue.
There are further examples. Hon. Members might remember the article by Charles Moore. In it, he simply hypothesised about someone saying something clearly unpleasant about the Prophet Mohammed. Iqbal Sacranie, in the rebuttal for which he was given space, clearly linked that insult to the Prophet and, therefore, the religion with the new law. That happened more recently than July; indeed, I believe that it was at the end of December. Iqbal Sacranie and, I hope, the Muslim Council of Britain now understand the Government's intention, but at the rate we are going, loads of people out there will still not have understood the distinction.
By not repealing the pointless, obsolete, damaging, discriminatory blasphemy law that we have at the moment, the Government have failed to make it clear that we are not talking about another blasphemy law, and I hope that we shall come to that later in the Bill. The former Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), told the House of Lords Religious Offences Committee that he personally felt that it should be repealed. The Government's failure to repeal it, however, having reviewed it in the context of the Bill, gives encouragement to those in other religions who feel that the provisions in the Bill are their version of it.
I do not doubt that the words I referred to are insulting to Muslims with regard to the Prophet Mohammed, and I would not seek to use them, but the consequence of the belief in the wider world that the proposals will give people protection against insult to their religion is that there will be calls for prosecution. It may well be that the Attorney-General says no, although there will be political pressure. It may even be that if a prosecution goes ahead, the courts will say no. However, the problem will be that the people calling for restriction on free speech will be encouraged by the fact that they can point to a law, just as those people who protested against the broadcasting of ''Jerry Springer: The Opera'' on the BBC were encouraged by the fact that there was a blasphemy law they could call on. That is what laws do: they encourage people. The fact that the laws might be misunderstood does not stop them being encouraged.
In the context of the strong feelings generated by insults to religion, we cannot simply regret that there will be calls for constraints on freedom of speech because it is insulting, but should actively play down the view of people of strong religious belief that they have protection from insult. We urgently need to tell people in today's society to cool it. We can ask people not to be insulting, but if they are, that is not an excuse for them to be intimidated, or for calls for prosecution under a law that does not exist. That is not what the Bill is designed to do.
The problem then is self-censorship. What theatre, if it had a choice of two decent plays with artistic merit, would choose the one that might attract demonstrations by a group who believed the play was illegal because it was inciting them—unless the theatre thought that would attract custom, which is a high-risk strategy? There is no doubt that some Sikhs in Birmingham felt incited, but they misunderstood that this Bill is about the incitement to hatred of Sikhs in other people. Time and again, however, I heard people on the radio saying that the play was inciting them to feel hatred against the people putting on the play. That is a complete misreading of the law, but still the damage was done, and the police were unable to guarantee the safety of the people performing in the play.
There are other examples. Salman Rushdie is in the newspapers again today, because it is unclear whether the Iranian regime is reiterating the fatwa issued against him, which was supported by a minority in this country. Self-censorship is a danger if the law is not introduced correctly, and I fear that it will not be, because of the way it is framed and understood. The way to deal with that problem—I hope the Minister will accept that it is a problem—is to frame any legislation to make it clear that it is about racism, and religion as a proxy for racism—
Ms Blears indicated dissent.
The Minister is shaking her head, but there is a strong view out there that that is the mischief she was trying to deal with. We should also make it clear that blasphemy should not be unlawful in respect of any religion. I cannot understand the Government's failure to deal with that.
I will deal briefly with the amendments, as they are relatively straightforward. Most of the amendments in my name and in that of my hon. Friend the Member for Somerton and Frome are probing, and it is not our intention to press any of them at this stage. There is a series of sets of amendments, through which I will go one by one. I am looking for the Government to explain where they are coming from.
Simply to make the law clearer, one group of amendments seeks to define the terms ''racial hatred'' and ''religious hatred'' as ''hatred directed against racial and religious groups''. I know that the concept of racial hatred has been on the statute book for a long time, but if you ask people out there what racial hatred is, they are far more likely to find the question difficult to answer than, ''What is hatred directed against a racial or religious group?'' If Minister sees this as constructive, I wonder why the Government would not consider doing that to help make it clear what we are talking about, if we are unfortunate enough to see the clause become law.
Another set of amendments encourages the Government to use a new definition of ''religious belief''—the one that has been used before. I have a briefing from Justice, which is an organisation that the Government cite as supporting the legislation. I understand that Justice supports the set of amendments that I have just spoken to, which redefine ''racial hatred'' and ''religious hatred'' as ''hatred directed against racial groups and religious groups''. It also supports my amendment to probe why the Government are using a slightly different definition of religion or belief. The briefing states:
''The term 'religious belief or lack of religious belief' used in the bill risks omitting those who have a non-religious belief such as humanists.
JUSTICE believes that the use of the term 'religion and belief' best categorises the field to be addressed. This deliberately echoes the phrase used in Article 9 of the European Convention on Human Rights (ECHR) which has been defined by the European Court of Human Rights to encompass a very wide range of religions and beliefs including the right not to believe. It is both more appropriate and easier for the Courts to define if a common phrase is used in all aspects of the law relating to religion and belief.''
I should be grateful if the Minister would explain why she has chosen to use another form of words, and, even if she does not feel that the difference is significant, whether she feels that it would be best to make the terms similar.
The third set of amendments seeks to probe the same area raised by the hon. Member for Hertsmere (Mr. Clappison). Again, the amendments are not necessarily seeking to improve schedule 10—I have strong feelings that it is beyond improvement—but I would like to probe the thinking behind the way in which the Minister rephrased, for example, section 18(1)(b).
''having regard to all the circumstances'' is required, as opposed to the recklessness test that I set out. I have sought to point out how grateful I would be by tabling amendments that delete words. I am not convinced that my version is any better—indeed, it may be worse—but I should be grateful if the Minister would explain why.
I suggested that there should be a recklessness test in section 18(1)(b). Perhaps
''having regard to all the circumstances'', combined with the modern interpretation of intention, combined with section 18(5), would answer my question, but I should be grateful if the Minister would put an explanation on the record, as many people are concerned about the ''likely to'' issue.
Further amendments deal with the Attorney-General's fiat, as it is called. New clause 33 is a serious attempt to suggest to the Minister how her provision could be improved. It sets out four qualifications to the existing fiat of the Attorney-General in section 27. The first qualification states:
''Before consenting to the institution of proceedings under this Part the Attorney General shall consider whether, having regard to all of the circumstances of the alleged offence, such proceedings are likely to be consistent with the Human Rights Act 1998, Schedule 1, in particular the rights and freedoms set out under Articles 9 and 10, and the prohibition of abuse of rights under Article 17.''
There is a clear tension—a conflict—between the Government's provisions and the right of free speech, which I understand is not absolute. The new clause seeks to ensure that the Attorney-General is bound in statute to have regard to the articles cited in it. Again I am grateful to Justice, which has more expertise than I do, for suggesting the wording. I require the Minister to explain what harm is done by making the matter clear in statute.
The second qualification states:
''In particular he shall consider whether the act or acts of the proposed defendant gave rise to incitement to racial or religious hatred so as to be likely to imperil the safety of persons of a particular race, religion or belief as set out in sections 17 and 17A.''
That means that the issue to bear in mind is whether the safety of people is at issue, rather than something that in theory might be seen to incite hatred but without any likelihood of its being translated into something that might imperil safety.
The Minister will accept that the clause simply requires that hatred be stirred up, even if it is powerless hatred. I am not in favour of hatred being stirred up, but that is one of the factors that should be borne in mind, and it is reasonable to put that on the statute.
Justice's third proposed amendment would ensure that
''the Attorney-General shall take into account such circumstances as he considers to be relevant to the proper balance between the rights contained in the Articles referred to in section 27(1A),''— that is, articles 9, 10 and 17, as I said—
''including the way in which any speech or other means of expression is conveyed, the content of such expression, and the occasion on which it occurred.''
The Government have said in answer to parliamentary questions that they will not cover certain things such as the telling of jokes. That may be their intention, but it would be more reassuring to those of us who are concerned about this if the Attorney-General could be directed to take into account the contexts to which I have referred in a way that would enable him to distinguish in law between a play in the Royal Albert hall and someone standing on a soap box outside a pub in Oldham and delivering a comedy routine. There is a contextual difference, and I believe that the Minister's explanatory notes and the Government's commentaries on the matter recognise that any decision on what falls under the law and whether it is prosecuted needs to take account of that difference. It is reasonable to ask the Minister to put that into statute. I also ask the Minister to include in the legislation a direction for the Attorney-General to publish details of his decision.
I have two final points to make. First, as I said, there is a starred amendment designed to probe the Government's reason for not considering extending the Attorney-General's permission to prosecute religiously exacerbated offences listed in sections 4A, 5 and 6 of the Public Order Act 1986. It has not been selected for debate, but we can cover it within the ambit of clause stand part to explain why this provision on religiously exacerbated offences and not other provisions relating to other relatively minor religiously exacerbated offences is the one that is required.
We have heard a lot about the rights of people of religious belief, but there is a separate fear that the entertainment industry will be particularly badly affected. That fear has often been dismissed by saying that, of course, it will not affect comedians, but there are reasons why it might affect them in a way in which, strangely, it might not affect preachers who use strong language about other religions.
The words ''intend to insult'' are relevant here. It is a facet of some types of parody that there is an intention to insult someone's beliefs. That may not be everyone's cup of tea, and it will be quickly dropped if it does not get a laugh, but that is a form of comedy at the moment. Stating in law that intention is a key factor does not reassure people whose intention is to create a comic reaction through insult, because the joke will not work if it is not much of an insult.
Although the Minister says that there have been no prosecutions of Jim Davidson or Bernard Manning, at least on these grounds, that does not reassure us in the current climate, in which members of various religions have said time and again that they have a right not to be insulted, that pressure will not be applied to broadcasters or places of to entertainment not to lay on these sorts of comedians with this sort of material, or plays for that matter. The indirect impact of this measure is therefore of particular concern to broadcasters, comedians and other entertainers, particularly when it is combined with the Government's failure, which I cannot understand, to repeal the blasphemy law, which gives succour to those who believe that this is a blasphemy law. I hope that the Minister will not be too dismissive of those concerns.
The Minister asked whether the Opposition realise that there is a loophole with regard to Jews and Sikhs. Assuming that there is a loophole and that Jews and Sikhs are protected from insult to their beliefs and not from insult to their race, which I question, and assuming that existing law is not wide enough, the measure proposed in the new clause by the hon. Member for Beaconsfield has some merit. It seeks to deal specifically with the mischief and make it clear to courts that, even if the wording is not right, they are able to prosecute and convict where incitement to religious hatred is used as a proxy or substitute for the incitement to racial hatred.
I confess that the Minister has persuaded me that there is an issue that must be dealt with. It may not be clear enough to the police, prosecutors and courts that the existing law should be able to deal with the sort of language used in a clever way—if we like, reading the law—by the British National party against Muslims. I hope that she will accept that a form of words similar to those in the hon. Gentleman's new clause would deal with that issue. It might be considered that those people who are particularly worried about the issue would be satisfied without having to endorse schedule 10, which seeks a parallel form of wording for racial hatred. It will be difficult for us to support schedule 10 and clause 19. We intend to vote against those measures, although we have some support for the approach taken by the hon. Gentleman and others who have proposed similar amendments.
We have had a good debate, and a range of interesting points have been made. We have a series of complex amendments, and I will do my best to go through them in turn to explain to hon. Members why the Government seek to resist the amendments. Where the amendments are probing amendments, I will seek to persuade Members that on the basis of my reassurances, they should be willing not to press them. I am sure that I will not manage that in every case, but I will do my best.
The first set of amendments were tabled by the hon. Member for Hertsmere. He is opposed to the introduction in subsection (b) of the phrase
''the words, behaviour or material are (or is) likely to be heard or seen by any person''.
He seeks to remove those words from the legislation, but their insertion is not meant to lower the threshold, because in the legislation, we already have an objective test. We do not have legislation that necessarily requires intention; it requires either intention to stir up hatred, or the words, behaviour or material likely to stir up hatred. We are seeking to clarify the fact that the test is not dependent on a person seeing the material.
That is a narrow example, but such issues have genuinely been brought to our attention, so we want to make sure that we can prosecute, because the law was never intended to work in the way that I have just described. It used to be the case that if one produced material that would have been likely to stir up racial or, in this case, religious hatred, one should have been able to be prosecuted. It is currently difficult to do that in some cases, and the Attorney-General has asked for clarification, because of the way that the law was always intended to operate.
What I wanted was an explanation, but my main objection was to the creation of an offence with the lack of intent. I accept what the Minister says, but is it not more likely that her new wording will have the effect that she has described? The words or behaviour will have to be seen by someone, which was not required before. Therefore, she is creating the loophole that she has just described.
No. It says that it is ''likely'' that the material will be seen by any person in whom it would be ''likely'' to stir up racial or religious hatred. Therefore, it does not have to be, but to be likely that it would be.
Taking the Minister's earlier example about a poster being put up and taken down before anybody had a chance to see it, it would be easy to argue that such a poster was not likely to be seen by any person. I confess that I find the distinction difficult, so I do not see the merit of the change. Equally, I am not sure that it cuts the other way, in terms of demerit. I am at a loss to see the advantage of the new wording.
It has been suggested by the Attorney-General. His case workers have experienced difficulty in seeking to bring prosecutions in instances in which early action has been taken to get rid of racially offensive material, because it has been difficult to prove the two limbs of the offence. The main point was about intent, and I shall come to that when I deal with the recklessness provisions of the hon. Member for Oxford, West and Abingdon. I am assured that that clarification will be helpful in ensuring that the law can operate in the way in which it was intended that it should. On that basis, I would ask the hon. Member for Hertsmere to consider not pressing his amendments to a vote.
The next series of amendments is in two groups, The first seeks to add to the offence a recklessness limb in addition to the likelihood limb, and the second seeks to replace the likelihood limb with a recklessness test. The amendments stem from a concern shared by the hon. Member for Hertsmere that offences do not necessarily require that the perpetrator intends to stir up racial or religious hatred, and that there is the second limb—the more objective test—that hatred is likely to be stirred up. Hon. Members feel that a greater degree of intention would be appropriate in order for the offence to be fulfilled.
At present, a jury has to decide objectively whether the words are likely to stir up hatred. The effect of the hon. Gentleman's amendments would be to include a person who is aware that hatred might be stirred up by his words or behaviour but nevertheless unreasonably continues to use them. A key difference between that position and the existing law would be the need to prove the defendant's knowledge of that risk. Recklessness introduces a subjective element, rather than the objective test of the jury. It brings in a value judgment—the court has to ask whether it was reasonable to continue, bearing in mind that risk. Using recklessness in this context implies that in some circumstances it might be right knowingly to use words or behaviour that might stir up hatred. I do not believe that it is ever right to knowingly use threatening, abusive or insulting words or behaviour if they are likely to stir up hatred against a racial or religious group.
The Minister may unwittingly have imported the word reasonably into the legislation, where it does not appear. Apart from that, the mental state that the person has to have is to be aware that his words or behaviour might be threatening, abusive or insulting; that is all that is required. He has to be aware—he does not have to go on to foresee that religious hatred is stirred up, even if it is an effect of what he has said. So far as he is concerned, the only mental state that he has to have is an awareness that his words or behaviour might be threatening, abusive or insulting.
He has either to have intended it or to be aware that the words are threatening, abusive or insulting, and then he has to fulfil the second limb of the offence, which is that using those words would produce the likely effect. As I said in my opening remarks, every limb of the offence has to be proven; there has to be intention, or awareness that the words are insulting, abusive or threatening, and it has to be shown that the likely effect is that racial or religious hatred will be stirred up.
I will be corrected if I am wrong, but I am not sure that the Minister is entirely right. The mental state that the person has to have is to be aware that his words or behaviour might be threatening or insulting, but so far as the likelihood of producing religious hatred is concerned, he does not have to foresee it. It might be a consequence of what he says, but his mental state at the time needs only to be that he is aware that his words might be threatening, abusive or insulting.
He has to be aware or to intend. Those are the separate limbs. If he does not intend, he must be aware. If he did not intend or was not aware, the defence in section 18(5) would come into play. The hon. Member for Oxford, West and Abingdon is seeking to introduce an element of recklessness, which is not appropriate because that would require the court to reach a judgment on whether the defendant was aware that his comments were insulting, abusive or threatening and chose to carry on, and on the balance of whether it was right to do that. We are saying that if he is aware that his words are insulting, threatening or abusive, he should not go on to use them if the likely effect is to stir up racial hatred. That is what is in the provision. The hon. Gentleman's attempt to raise that degree of intention is not appropriate and that is why we are resisting his amendment. If someone is aware that they are knowingly using such words and if those words are likely to stir up racial hatred, that is wrong. That is the mischief that we are seeking to attack.
What the Minister is saying is that a person does not have to be aware that their words are likely to stir up racial hatred. They have to be aware only that their words are potentially insulting. The provision could be tightened up in respect of religion to make a requirement that they should also be aware that a reasonable view would be that their words are likely to be heard by someone and to stir up racial or religious hatred. Can she explain what the problem is with taking the extra step in what she calls the objective test?
First, the position in existing legislation is similar—someone must either intend or be aware that their words have those qualities. Having passed that limb, there is an objective test from the court as to whether the words were likely to have the effect of stirring up racial hatred. That provision has been in legislation for eight years and has been interpreted by the courts in that way.
One of our concerns is that the amendments would make it significantly harder to prosecute the sort of behaviour that the provisions are designed to combat because the Crown Prosecution Service would need to show that the defendant was aware of the effect that his words might have. The defendant's awareness would be substituted for the objective test that the court would use. That would raise the threshold and make it more difficult to prosecute. Hon. Members will know that there is criticism of the Crown Prosecution Service for the very low number of prosecutions under public order provisions. I genuinely believe that the amendments would frustrate prosecutions against both racial and religious hatred.
I understand the Minister's concern not to weaken the existing legislation on racial hatred and I am not seeking directly to do so, which is why I described my amendments as probing. There could be an architecture to make the qualification of recklessness as to the likelihood of stirring up racial hatred specific to religious hatred on the basis that it is more contentious. I do not believe that there was a debate such as this or similar objections to the provision on racial hatred, for the reasons that we have already heard. It could be argued that there is a need to have a higher threshold for religious hatred to ensure that people are not caught if they should not be caught.
That brings us to the core of the difference between those on this side of the Committee and the hon. Gentleman. He seeks to distinguish stirring up hatred against people on racial grounds and stirring up hatred against people on the basis of their religion and beliefs. I shall ask him a simple question because it might help us to clarify the matter. Why should people have hatred stirred up against them on the grounds of their religion? That is at the heart of the legislation. I shall come to that in relation to new clause 17 and the hon. Gentleman's other amendments. There is a big difference in what is being said.
The hon. Gentleman is saying that there is a significant difference between race and religion and that the provisions to protect people from racial hatred should be stronger than the provisions to protect them from religious hatred. That goes back to the core: is race a matter that is not chosen, whereas religion is chosen, because it concerns belief? There is a significant difference between the parties in the way our proposals are framed. We think that it is as wrong to stir up hatred against people on the grounds of their religion and belief as it is to stir up hatred against people on the grounds of their race. That is a fairly large distinction between us.
I am anxious to make progress, because we are under pressure. I am sure that such matters will be debated again on Report in great detail.
I turn to amendments No. 322 and 323. Amendment No. 322 proposes that
''religious belief or lack of religious belief'', in proposed section 17A of the 1986 Act, in paragraph 3 of schedule 10, be replaced with ''religion or belief''. There are also consequential amendments to that proposal. There are three reasons why I want to stick with the original wording. First, there are other relevant criminal law provisions. As my hon. and learned Friend the Member for Redcar said, there are already definitions in criminal law. For reasons of consistency we have sought to keep that wording. Secondly, the term ''religious belief or lack of religious belief'' is narrower than ''religion or belief'' and I am keen for the legislation to target the mischief that we have identified.
I was about to say that we would probably have unhelpful legal battles about whether ideologies such as Marxism fell into that category. That is not territory on which we want to trespass. The third reason is that we want to tackle the mischief of which we have become aware.
The hon. Member for Oxford, West and Abingdon mentioned humanists and atheists, which I think are adequately covered by the term ''lack of religious belief'', rather than simply ''belief''. The legislation will protect such groups from the stirring up of hatred against them on the grounds of their lack of belief. I hope that the hon. Gentleman will feel that the legislation is properly targeted and that if it were extended to belief in general, we would be on even more controversial territory.
Several amendments would change the title of several provisions from ''racial or religious hatred'' to ''hatred against racial or religious groups''. We tried to make it clear in the explanatory notes that we want to protect groups of people rather than ideologies. However, there is merit in what the hon. Member for Oxford, West and Abingdon says, so I ask him not to press the relevant amendments on the understanding that we will give the matter further consideration before Report. Hon. Members have pointed out that we need to make it very clear in our communications to people exactly what the legislation covers and what it does not cover, so that we do not run the risk of people bringing unnecessary prosecutions. I undertake to do that by Report stage.
Amendment No. 222 would remove clause 119, to be replaced by new clause 17. The alternative version from the Liberal Democrats is new clause 31 and there are similarities between the two proposals—they are trying to get to the same place. New clause 17 would amend part 3 of the Public Order Act, so that people who held a particular religious belief would be protected by the offence of incitement to racial hatred, if their religious beliefs were associated with a racial group. That is the key phrase. New clause 17 is unnecessary because part 3 of the Public Order Act already refers to the intention to stir up racial hatred. It does not matter if the words used are not racist words. Under the Public Order Act, the words could be religious words in relation to those people who qualify because they are from a mono-ethnic background. If Jews or Sikhs were involved, the words would not need to be about their race—they could be words about their religion. The proposal from the hon. Member for Beaconsfield therefore does not take us any further from where we are now. It is designed simply to address the gap that has been identified, whereby religion is used a proxy for race. That is part of what we want to do, but new clause 17 does not address that further territory, which is a real problem that we want to address.
I think that new clause 17 does take us slightly further, because it identifies religion as one of the potential hallmarks of a racial group, whereas the previous legislation did not. That is the point at which the Minister parts from us. The Bill as drafted goes too far. My proposal aimed to see whether there was a sensible point at which there was a meeting of minds. If the Minister does not see that as a good departure point, I suspect that it highlights what I said when I spoke originally, which is that it is difficult to see how the legislation can be amended from its present form to allay my anxieties. I fear that that leads inevitably to the position that we will be compelled to vote against the clause.
There is a difference between our positions and it would be wrong not to acknowledge that. The hon. Gentleman's amendment is designed to cover the position in which people are members of a race, but it does not address the position of members of the Muslim community, who are not defined by their racial or ethnic group, or members of the Christian community, who are similarly not identified with a particular nationality or background. The amendment does not fill that gap.
I am not sure that I agree with the Minister. Of course she is right about the Muslim community. There are white Muslims, African Muslims and Muslims from large numbers of Asian countries, as well as all sorts of other places. However, many manifestations of hatred are, in my experience, directed against fairly defined communities that do have characteristics that are ultimately founded on being a racial group, even though the hatred may well be expressed in terms of religion. She is right to point out that the existing legislation makes some provision for that. It highlights the question of whether this legislation is necessary. My amendment intends to make a little more provision for that scenario.
I have been given a couple of examples that may help the hon. Gentleman. Under existing legislation, a statement by a far-right group that Pakistanis are a threat to Britain because they are Muslims and want to kill Christians is potentially covered by the race offence, because it is likely to stir up hatred against a national group with which that religious group is associated—Pakistanis. Similarly, the race offence might apply if a far-right group said, ''All those Muslims from a particular town are a threat to Britain because they want to kill Christians'', if all the Muslims from that town are from a particular racial group; if, however, they are not, the race offence would not cover them. The question for the court is whether, considering all the circumstances, the actions are likely to stir up hatred against a group of people defined by their race or nationality, as opposed to a group defined by reference to their religion.
I am afraid that the hon. Gentleman cannot get away from the fact that he would not be providing a level playing field for people in this country to have their rights protected, because groups defined by their religion would not have the protection of the law under the race offence. We should be honest that the result of his amendment would be to leave some people without the protection of the law in the way that we intend.
I understand what the Minister said. There is a disagreement between the two sides. In defence of both the new clause tabled by the hon. Member for Beaconsfield and new clause 31, I say that I hope that she will accept that in the area in which we agree—that we ought to act when religion and religious words are used as a deliberate proxy for racial hatred—new clause 31 and new clause 17, even if not perfectly drafted, would help in making it absolutely clear to the courts, prosecutors and potential troublemakers, mischief makers and worse that that is the case. Will she concede that? I accept that the other group that she is concerned about would not be covered by the new clauses.
I have made it as clear as I can that the law on people who come from a racial group also covers a range of insulting, threatening and abusive behaviour that does not have to be racist but could extend to the religion of those in question. They are in the ambit of the legislation. It is on those grounds that I do not feel that the new clauses are necessary.
I am pleased that there is recognition across the House that we are trying to tackle real problems. Although I know that the Liberal Democrats share our ambition to ensure that the protection of the law covers everybody in our communities, I am a little disappointed that the hon. Member for Oxford, West and Abingdon and his party are not prepared to use their amendments to ensure that we are able to do that. It is interesting that the hon. Gentleman acknowledged that there is a difference between the parties. I asked him a simple question: does he think it right that people should be protected from having hatred stirred up against them on the grounds of their religion?
There is not exactly same requirement because there is no legitimate reason to criticise and attack race—that is the difference between race and religion. However, the opposite applies to religion on occasion. It is necessary sometimes to criticise religious belief, but there is no basis for criticising race. There is clearly a difference. The Minister might not consider it sufficient difference to get in the way of her legislative bulldozer, but there is a difference.
The hon. Gentleman fails to appreciate a fundamental part of the offence. It is not about criticism of the belief, but stirring up hatred against people defined by reference to their belief. He is saying that he does not believe that people should be protected from having hatred stirred up against them on the grounds of their religious belief. I want to establish that difference: the Government believe that people should be protected in relation to reference to their racial origin and reference to their religious belief. The Bill will not stop criticism of the belief, but it will stop hatred being stirred up against people on the grounds of religious belief.
I do not want to extend the debate any further, but I want to make it absolutely clear that we do not wish to see incitement to hatred on any count whatever, whether that is race, religion, political belief or anything else. The difficulty we have with the Government's proposals is the inability to extricate criticism and proper discourse from incitement to hatred, which, as my hon. Friend says, is much more difficult in the case of religion than it is in the case of race.
I am disappointed that the Liberal Democrats are not in a position to support us yet. I hope that they will consider the matter further. When the plans were first formulated, the hon. Member for Winchester (Mr. Oaten), who speaks for the Liberal Democrats on home affairs, said that the plan to introduce the offence of incitement would close a loophole that had allowed inflammatory language to go unpunished, and that the Liberal Democrats would give the plans their support. I understand that they may have changed their position, but I am disappointed.
I have to clarify that. First, it is our view as expressed in new clause 31 that we recognise that there is a problem. The Muslim community complain that racists are using religion as a basis for incitement to racial hatred and hoping to escape the coverage of the law. That remains to be seen, and it is doubtful whether that can be covered. We would support, as we have made clear, a measure to ensure that that loophole is closed. In September, we debated that openly at our party conference—perhaps the Labour party has, too—and we decided that if the law went any wider than dealing with the problem as attacks on Muslims as a proxy for racial attacks, it would pose too great a problem for freedom of speech to make it worth while. That is certainly true of the provisions in the Bill.
We have some clarity now. The Liberal Democrats want to plug the gap that is perceived but do not wish to take the extra step to ensure that Muslims, Christians, people of no religious belief, humanists and atheists are protected from having hatred stirred up against them.
Not socialists; the measure is about religious belief. That clarity is welcome, but I urge the hon. Gentleman to think further about the matter before Report.
New clause 33 is the last item that the hon. Gentleman spoke about. It sets out four requirements for the Attorney-General to consider when making a decision about whether to prosecute under the offences of incitement to racial or religious hatred. He must consider whether the provisions are consistent with the Human Rights Act, whether the acts of the defendant were likely to imperil the safety of persons—which links the effect to the intention—and whether there is a proper balance of human rights. Finally, there is a requirement in relation to publishing details of the various prosecutions that are carried out. As the Bill stands, all prosecutions would require the consent of the Attorney-General, which will prevent the provisions from being misused in private prosecutions.
We know that the public interest test applied by the CPS has ensured that prosecutions are brought only when necessary. Even though the Liberal Democrat amendments are supported by Justice, they are not necessary. The protections that they are intended to obtain are already covered. In new clause 33, proposed subsection (1A) makes explicit the existing requirements of the Human Rights Act, but the courts must already ensure that they make their decisions in accordance with the European convention on human rights. If a prosecution came before the courts, they would be required to act in a way that was compatible with articles 9 and 10 of the convention. They may well have to carry out that kind of balancing act—they have to do that in any event.
The Minister has just mentioned the courts, but we are talking about the decision made by the Attorney-General before the case reaches court. Her answer certainly does not address the basis on which that subsection has been promulgated. Will she deal with that? She may not feel that it is necessary, but what harm does it do to include it in the Bill?
It is not right to legislate simply to reiterate the current position of the law. I am not in favour of unnecessary words. I seek to reassure members of the Committee that the Attorney-General—as well as the courts—already has a legal requirement to consider the ECHR under the Human Rights Act, so the provision is an unnecessary restatement of the existing legal position.
New subsection (1C) is intended to ensure that the Attorney-General considers the circumstances when making those decisions. As I say, both the Attorney-General and the courts are already bound in that respect, so we do not need to make it explicit. More interestingly, under new subsection (1B), the Attorney-General has to consider whether the defendant, in stirring up hatred, has imperilled the safety of a particular group. I am concerned about that element of the new clause because it requires a link between the behaviour of the individual intending to stir up hatred and the reaction among those in whom hatred that imperils the safety of others is stirred up. That is not part of the offence itself in terms of the way in which the Public Order Act offences are amended. It would be wrong to introduce into the Attorney-General's decision about whether to prosecute elements that are not part of the offence itself. That direct linkage is not part of the offence, so it would be wrong to make it a consideration for the Attorney-General.
Also, the provision appears to indicate that there would be no prosecution unless the defendant's acts were likely to imperil the safety of others. That is raising the threshold of the current offence. It would be difficult to prove and it would make prosecutions for incitement even more difficult to bring than they currently are. I am certainly not in favour of that element of the new clause. Quite often there will not be an immediate reaction to the stirring up of racial hatred, so there will not be an immediate connection between the incitement and the imperilment of people. If there is that direct connection, we already have incitement provisions under the Public Order Act that cover incitement to commit a specific crime.
The provisions we propose are designed to fill a gap and to prevent hate-mongering, because racial and religious hatred in itself has a corrosive effect on our communities, whether or not it immediately leads to specific acts of violence. It is important that we have the kind of communities where there is tolerance and respect for each other's different views, opinions and ways of life. Rather than providing any additional guarantees of freedom of expression, the hon. Gentleman's amendments would create an additional loophole that extremists could exploit to continue stirring up hatred on the basis of religion.
I have nothing further to add and I know that Members are anxious to get on with the rest of the debate. I ask the Committee to reject the amendments.
This has been an interesting and detailed debate that has covered the ground effectively. There is nothing further to be said at this point, except that the Opposition would like to return to these matters on Report. They will be of wider interest on the Floor of the House. In the meanwhile, we will vote against the clause. We would have withdrawn our amendments, but as they have not been moved, that is not necessary.
I have just two points to make. Perhaps the Minister feels that this is not the appropriate place—where is?—but she has not really addressed the problem that we see in society of expectations being raised through large protests, some of them involving unlawful acts, that people shall not be subject to insult to their religion. I know that that is not the intention of the Bill, and I should be grateful if the Minister would clarify the steps that the Government are taking to make that clear.
The Minister has also been silent on the not unreasonable question raised by no less a person than Trevor Phillips of the Commission for Racial Equality and by Justice and the British Humanist Association, all of which are claimed to support her Bill—why has she not chosen the simple act of abolishing the blasphemy law? That would help send the message that the Bill is not about criticism of belief—the message she says she is so keen to send. The Government said that they would review the matter, but they have never explained why they are not seeking to abolish the blasphemy law. The longer the Minister remains silent on that point, the more difficult it is to convince people that they can be confident that she is confident that the Bill will not stir up calls for protection of belief. Is there any reason why the Government are not seeking to repeal the blasphemy law?
Again, the hon. Gentleman is in danger of confusing the debate and conflating issues. I have made it as clear as I can that the provisions are not about blasphemy, but are about preventing people from stirring up hatred against one another. The hon. Gentleman brings in the separate issue of blasphemy. He knows that the Government are keeping that under review. We do not consider it appropriate to take action in that regard in connection with the Bill. The purpose of this fairly narrow, targeted Bill is to deal with the mischiefs that bedevil our communities, where hatred can be stirred up against vulnerable groups on grounds of their religion.
Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 10, Noes 7.