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Mr. Carmichael: It will come as no great surprise to anyone in the House to hear me say that I agree with my hon. Friend on this occasion, as I do on most. I listened with great care to the litany that the right hon. Member for Holborn and St. Pancras produced. I could not identify anything within that list that would not in theory at least be caught by the current law—particularly incitement to violence, incitement to harassment and the multiplicity of common law offences that are at the prosecuting authorities' disposal.
The benefit of the Lester amendment is that it takes a belt and braces approach. In the event of a scenario arising that we—and even the right hon. Gentleman—have not yet envisaged, the Lester amendment would cover it. That is the sensible approach. That is why I say that the choice is not between following the Government and supporting the Bill, and doing nothing. The mischief at which the Government seek to strike is the pernicious use of religion as a proxy for race. The BNP and others know what will happen to them if they incite hatred on the basis of ethnicity. It is less clear what will happen to them if they do so on the basis of religion, so that is the basis on which they proceed.
It is worth remembering that Lord Lester's amendment came in two parts. My hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) has referred to the first part, so I will not read it into the record. The second part related to freedom of expression:
"Nothing in Part 3 of the Public Order Act 1986 shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy or dislike of particular religions or their adherents, or of any other belief system or its adherents, or proselytizing one's own religion or belief system or urging adherents of a different religion or belief system to cease practising theirs."
Whatever view one takes of the first part of the amendment, I cannot for the life of me see what the Government's objection would be to that express protection for freedom of religious expression being included in the Bill. I do not understand why the Government shy away from giving some comfort to evangelical Christians and others who see the Bill as a threat to their freedom of expression. Lord Lester's amendment leaves no hiding place for the BNP, but it still provides some protection for the rights of freedom of expression, especially the rights of artistic and religious freedom, which could otherwise be threatened.
It is worth considering how those threats may arise. My primary concern is about the misuse of the powers by the prosecuting authorities. Others have given examples of the "chilling of expression" that could arise as a result of interview, arrest or detention by the police. That is worth considering.
We also have to look at the manner in which the 1986 Act is being amended. The Home Secretary is right to say that hatred is set at a high threshold. The Government have set the bar fairly high, but I come back to the point about likelihood, which arises in relation to subsection (1)(b). The amendment to section
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19 entitled "Publishing or distributing written material" covers fairly clearly those who intend to stir up racial or religious hatred. But then substituted for subsection (1)(b) are the words:
"having regard to all the circumstances the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they are (or it is) likely to stir up racial or religious hatred."
That is a significant lowering of the bar that has been set by the provision dealing with hatred. In addition, it makes it very difficult for a person to regulate their conduct according to the offence. It is surely one of the principles of natural justice that law has to be clear to allow the citizen to regulate their conduct. In this case, one can be guilty of an offence not just on the basis of what one has said, done or published but on the basis of what someone else has done, because the provision relates to the likelihood of a person having access to it. That is profoundly worrying.
Mr. Denham : As I said earlier, the wording of the provision on incitement, concerning the effect that particular words or actions have on a person, is precisely the same as the wording used in the Public Order Act 1986. Is the hon. Gentleman saying that the Liberal Democrats oppose the provisions on racial incitement in that Act because of that drafting?
Mr. Carmichael: I am delighted that the right hon. Gentleman has enabled me to return to this point, which he raised earlier. He must have regard to the terms of the Bill that he supports. The terms of the 1986 Act and of the Bill are not exactly the same—the latter substantially amend the former. The 1986 Act uses the phrase,
Once amended, the Act would use the phrase,
"having regard to all the circumstances the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they are (or it is) likely to stir up racial or religious hatred."
That is a very different test. I should also point out that it is right that we apply different tests to racial and religious hatred, because the distinction is an important one.
Mr. Grieve: The hon. Gentleman is right on this issue; indeed, the right hon. Member for Holborn and St. Pancras (Frank Dobson) talked repeatedly about the 1986 Act, rather than the amended version that is being presented to the House. One consequence of this provision is that it will be possible for somebody to address, using terms that may be insulting to a religion, an audience whom he knows will not feel insulted, have those words reproduced to another audience, who are insulted, and be guilty of the offence. That is what the Government are setting out to do in their proposed new paragraph (b).
Mr. Carmichael: The hon. Gentleman makes the point elegantly. I have spent some time on this issue already and I do not intend to reiterate his points.
Mr. Gummer:
Before the hon. Gentleman leaves this subject, does he not agree that the example of the sword verse from the Koran is entirely relevant? If it were read by a group of people capable of understanding it, they
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might well not feel that it constituted incitement. But were it used in certain circles that we know of, it would be very difficult to claim, in the light of its wording, that it did not constitute incitement to hatred. The situation is exactly as the hon. Gentleman describes. This is a dangerous broadening of the meaning of the words, and as a result, the courts will be able to act in a manner that is unacceptable to this House.
Mr. Carmichael: I am with the right hon. Gentleman on this point completely. This is another reason why the Government's refusal to accept if not the first then at least the second part of Lord Lester's amendment, which would cure exactly the defect that the right hon. Gentleman correctly identifies, is all the more puzzling. I hope that when the Minister replies, he will shed some light on this issue, but given that we are going round this course for the third time, I shall not be holding my breath.
We should also consider the role of the Attorney-General, on which the Home Secretary laid particular stress. Here, we are talking about a potentially important protection. I do not underestimate that protection, and I am pleased that at the very least it will be retained. But that is not the end of the story. There are three distinct problems, the first of which is the changing nature of the functions performed by the Law Officers themselves. We saw that in the run-up to the war in Iraq, when the Attorney-General's advice was sought. Speaking as someone who worked as a civil servant with Law Officers in Scotland early in my career, it is clear to me that their job is changing dramatically. In fact, their role as an independent legal voice within the Government has been substantially diminished—a change that is devoutly to be regretted.
The second and more fundamental problem is that it is not the job of a Law Officer to establish boundaries of public policy in areas such as this. The question of what constitutes legitimate religious comment or incitement to religious hatred is surely one for which this place should be responsible; a Law Officer should not be required to adjudicate on it.
Dr. John Pugh (Southport) (LD): Surely such uncertainty is not just a matter for the courts. Most people want to stay out of court, and people in the creative industries will have to second-guess what the law may or may not make of their efforts. Is that not an additional problem, which cannot be dealt with by expert legal advice?
Mr. Carmichael: Indeed it is, and I shall return to that point. My hon. Friend is right: this is another example of the misuse of the Attorney-General's position, and the question of the self-censorship in which the Bill will result is not being addressed.
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