Serious Organised Crime and Police Bill

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Ms Blears indicated dissent.
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Dr. Harris: 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).

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The hon. Gentleman made a point about the introduction of the term ''by any person'', which is different from the previous wording, which used to apply to racial hatred and now applies to both racial hatred and religious hatred. I should be grateful if the Minister would explain why

    ''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.

5.15 pm

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),''—

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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
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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.

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