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Frank Dobson: I may have missed something, but in saying that such decisions should not be left to the Attorney-General but should be instead a matter for the House, is the hon. Gentleman suggesting that individual cases should be decided in this place?

Mr. Carmichael: The right hon. Gentleman was absolutely right in the first place: he must have missed the point, because that was certainly not what I said. If
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he has the chance to consider the Official Report tomorrow, he will see that I said that questions of public policy and the boundaries that determine where such decisions should be made should be decided by this House. That is very different from saying that individual cases should be adjudicated in the way that the right hon. Gentleman was prompted to suggest.

My concern is that where complaint is made, the Attorney-General risks being brought into the political question whether proceedings should begin. These will be highly emotive and contentious questions that will further politicise and change the office of the Attorney-General in an unhelpful way.

Mr. Streeter : Can the hon. Gentleman picture himself in the shoes of the Attorney-General? Let us say that in the run-up to a general election, there is a particular prosecution sitting on the desk of the Attorney-General—who attends Cabinet meetings—and a particular faith community, constituting some 10 per cent. or more of the vote, is clamouring for action. The political pressure on him to do the right thing would be substantial. Would he like to be in the Attorney-General's shoes in that situation? Actually, he probably would.

Mr. Carmichael: If an offer has been made. We already have the precedent in Scotland of the Solicitor-General being a solicitor, rather than a member of the Faculty of Advocates. I have no doubt that a solicitor could easily perform the functions of the Attorney-General and of course, if the opportunity arose, I would give it appropriate consideration.

To return to the serious point, the hon. Gentleman highlights the very political pressure that can be brought to bear on someone who is supposed to be a Law Officer. As I said earlier, we have already seen that political considerations are weighing much more heavily on Law Officers. As the Hutton and Butler reports have shown, the Attorney-General and other Law Officers are being asked for their advice in a manner that is much more political and much less objective. In fact, they are being asked to answer questions that lead in a particular direction, rather than being asked to give a definitive statement on the law, which was the traditional way in which such matters were proceeded with.

The cutting out of the Attorney-General in relation to racial hatred has been effective, but the House would be wrong to conclude that the same would necessarily be true if the principle were applied to religious hatred on the same basis. If we are not to deal with this issue before we consider the Bill in Committee, and given that we are likely to deal with the Report stage after the recess, we need to see the terms of the draft guidance that will be given by the Attorney-General on the operation of this provision. It seems to me that since the Government's case rests on saying that we should not worry about the theoretical position because they will make it work in practice, the ultimate judgment can be made only when we see the guidance that they intend to produce. I accept that it will not be available in Committee, which is regrettable. It makes me wonder why we are dealing with the Bill so early stage in the Session when it would have been possible to leave it for a few months to facilitate a more mature consultation with those affected and revisit the issues again in the autumn if necessary.
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Mr. Edward Garnier (Harborough) (Con): Is the hon. Gentleman's point not even more important given that this is the third time the legislation has been considered? I assume, perhaps naively, that the Government have had some thoughts about what sort of guidance they would instruct the Attorney-General to produce.

Mr. Carmichael: I would like to make that assumption, too, but I wonder if the hon. and learned Gentleman and I are both slightly naive in proceeding on that basis. The Minister can tell us whether the guidance exists in draft form. If so, perhaps he will be able to furnish members of the Committee with it before we start next week. It would certainly illuminate our proceedings if that happened.

I turn briefly to those who fear for artistic, as opposed to religious, expression—the comedians rather than the clerics. The Home Secretary has said that they will not be prosecuted. I do not have a problem with that; the right hon. Gentleman is probably right that such prosecutions are unlikely. Nevertheless, I remain concerned about the degree of self-censorship, and fear that the Bill will have some impact. If we are mainly about sending signals, prosecutions are unnecessary, and one signal that has clearly been picked up by the artistic community is that its freedom will be curtailed. The Home Secretary will have to give more serious thought to that problem than he has hitherto.

It is incumbent on us as parliamentarians, in passing any piece of legislation, to consider the worst-case scenario. I am looking forward—in time, rather than in the sense of wanting something to happen—to circumstances in which we do not have a liberal Government and in which the Law Officers are substantially less liberal than at present. At that stage, the opportunity for abuse becomes immense. At some future stage, the Home Secretary and the Attorney-General might have a particular agenda or a beef with some religious group and in those circumstances the legislation would be open to abuse.

Chris Bryant: Lord Mackay.

Mr. Carmichael: The hon. Member for Rhondda (Chris Bryant) refers from a sedentary position to Lord Mackay of Clashfern. Of course he was the Lord Chancellor, not the Attorney-General, but he may not be the worst example. The hon. Gentleman may not be aware that Lord Mackay of Clashfern was expelled from the Free Presbyterian Church of Scotland because he attended the funeral of a Catholic colleague. If that had happened in England and after the Bill had been enacted, I wonder whether the Free Presbyterian Church would have been prosecuted for inciting religious hatred by expelling the noble Lord and treating him in that way.

At the heart of the Bill lies the distinction between things that are immutable, such as race, which should be protected, and those that are not because they are a matter of choice. [Interruption.] Once again, the hon. Member for Rhondda shouts from a sedentary position that faith is immutable, but I do not accept that. I am surprised at the idea that the Church of England is going down the path of predestination, which even the Free Presbyterian Church of Scotland gave up about 150 or 200 years ago.
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Another aspect of immutability that the hon. Member for Rhondda and I have debated in the past is sexual orientation. I believe that people are born with their sexual orientation, but if the Government have their way—to develop a point that was made earlier—it will be open for a Christian, a Jew or a Muslim to condemn homosexuals as perverted, damned and people to be hated. Many in the more fundamentalist sects of all three faiths might well do so.

Dr. Evan Harris : And we could not call them bigots.

Mr. Carmichael: As my hon. Friend says, under the Bill, we would not be able to call them bigots. If the Government's assurances are taken at face value, there would be no prosecutions of people making such assertions because their doing so would be covered by their freedom of religious expression. On the basis of religion, which is a matter of choice, it seems that it is all right to incite hatred of someone else for something over which they have no choice. That problem has not been adequately dealt with.

Ms Barlow: I am rather confused by your argument. Are you advocating that the law should be extended so that certain religious groups cannot say such things about homosexuals and lesbians, or are you advocating that they should be able to say them?

Mr. Deputy Speaker (Sir Alan Haselhurst): Order. Before the hon. Gentleman replies, I must tell the hon. Lady that if she is referring to another hon. Member, she must use the third person; otherwise, she appears to be addressing the Chair.

Mr. Carmichael: I nevertheless take the hon. Lady's point, Sir Alan. In fact, the inconsistency lies at the heart of the Government's arguments. We are seeking to restrict the scope of the Bill generally, and in this particular example I am highlighting the inconsistency in the Government's approach.

Dr. Pugh: I do not want to be unhelpful to my hon. Friend, but we should lay aside the issue of whether a religion or a faith position is a matter of choice. If, for example, after going through all the arguments someone was obliged to take an atheistic position and could not think otherwise, could that person choose to have a different faith position? I would say that they were more or less obliged, on the basis of the evidence before them, to stay where they were.

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