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Dr. Tony Wright: I was troubled by the last intervention and I wish to pin my hon. Friend down on the issue if I can, because it goes to the heart of worries about the Bill. I want to be able to say that I hate religious bigots and religious bigotry. I want to go around urging other people to hate religious bigots and religious bigotry. Why am I to be prevented from doing that, as the Bill suggests?
Chris Bryant: Far be it from me to stop my hon. Friend doing anything. It seem to me that it is wrong to go out on the street and incite people to hate others because they are Muslims. We know that that is happening. My hon. Friend the Member for Dewsbury (Mr. Malik) said in his maiden speech, on Second Reading, that people used to call him a Paki, but now they accuse him of being a Muslim, in a very derogatory way. Such behaviour should be caught under the Bill.
Mr. John Grogan (Selby) (Lab): Would not the example that my hon. Friend gives be covered by new schedule 1? In our manifesto, which I carry with me at all times, we promised that we would give people of all faiths the same protection against incitement to hatred on the basis of their religion. Could it not be argued that the Lord Lester amendment fulfilled that commitment?
7.15 pm
Chris Bryant: We have had that conversation in Committee and this evening.
I tabled amendment No. 11 for a specific reason to do with the performance of plays. I said earlier that I believed that we should have as great a degree of freedom of speech in this land as is commensurate with others enjoying their rights to express their religion. Therefore, we should have a high hurdle for an offence to be committed in the production and performance of a play. For instance, many people might advance the argument that parts of "The Merchant of Venice" are offensive and insulting to Jews or Christians. Indeed, an individual production of that play could be extremely offensive and insulting to one of those religions. The character Barabas, in a play from a similar period, "The Jew of Malta"—I apologise to members of the Committee who have heard this before—says:
Some might believe that putting on a play that portrays Jews as covetous and hard-hearted to the poor would fall foul of this Bill, so it is important that we ensure that no one would do so by putting on a production of "The Jew of Malta".
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Mr. Grieve: The hon. Gentleman is arguing that a high test is necessary, but does he agree that being hated, on its own, does not prevent anyone from going about their lawful business? It may be an unpleasant phenomenon to be hated, but unless that hatred is translated into overt acts of discrimination, hostility or violence, it is just one of those things that people have to face. Is not that the issue that we have to consider?
Chris Bryant: I am sure that the hon. Gentleman is right in one sense, in that if there were to be a law preventing people from inciting hatred of politicians, we would be in a right mess. The point that the Opposition would not accept in Committee—although we advanced it on several occasions—was that whereas some people might want an offence to be committed only if the incitement led directly to acts of violence, many of us think that if someone incites hatred of a group of other people, they increase the likelihood of violence towards them even if the relationship is not directly provable. That is the element of the tide of hatred that we want to wash further back down the shore. I accept, however, that many hon. Members think that that is impossible and that the Bill will not achieve that.
My point about the performance of plays is that the National Theatre might want to put on a play about incitement to religious hatred. A young woman from the east end of London might write a play that articulated in strong and effective fashion her profound dislike of what Islam had done to her family and her community, or she might point to some of the disagreements within the Muslim community in the east end of London. The director of the National Theatre should have every right to put on such a play. However, if the head of the British National party presented a play with similar themes to the National Theatre, I hope that the director would take a different attitude and would consider whether, in the circumstances, that might be an incitement to religious hatred.
Sir Patrick Cormack : Would the hon. Gentleman's amendment extend to the classroom or the lecture theatre, so that teachers of literature can analyse the sort of play about which he is talking? Would the freedom he wants to give the stage extend to the academic world?
Chris Bryant: I am about to come on to some complex aspects of the Bill's wording. So far, I have deliberately looked only at the performance of plays, but many people have advanced arguments that the freedom of expression should extend in other ways. Section 20 of the Public Order Act 1986 refers exclusively to plays, which is why, because the Government want to amend that, I have introduced an amendment on the point.
Mr. David Winnick (Walsall, North) (Lab): My hon. Friend referred to "The Merchant of Venice". I believe that the play is anti-Semitic, although Shakespeare did not intend that when he wrote it. However, it reflected the ingrained anti-Semitism in Christianity that has, I hope, been seriously undermined in the years since the holocaust. It is interesting that no attempt has ever been made under the provisions of the incitement to race hatred laws to stop a production of the play—rightly, because any attempt to do so would be ridiculous.
Chris Bryant:
That is precisely the point that I was about to make. As far as I am aware, there has been no
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instance of the Public Order Act being used against the performance or production of a play. The definition of "play" specifically includes improvised performances, which is why the Act includes an explicit defence for a director who might not realise that particular words might be spoken or used.
The Government want to change part of the original Act, and it is that change that I want to question. I am worried that the hurdle set in that measure will be lowered by the Government's change. Is the hurdle high or low, as constructed at present? To prove that there has been an offence, there must have been threatening, abusive or insulting language or behaviour as part of the play. That is moderated in the original Act by the defence that the producer or director did not know and had no reason to suspect, that the offending words were threatening, abusive or insulting.
The second point that must be proved is intent. It is of course much easier to prove intent in some forms of the criminal law than in others. It is much more difficult in the cases covered by the Bill. If someone thrusts a knife into another person's chest, one can assume that he intended to kill the other person. In a case where certain words are said or used, it is not so easy to prove intent. Consequently, as the hon. Member for Beaconsfield pointed out, there is a second likely limb under the 1986 Act, which is that
"having regard to all the circumstances (and, in particular, taking the performance as a whole) racial hatred is likely to be stirred up thereby".
That is what the Government want to change.
I believe that the Government's change will lower the hurdle in the second proposed subsection. The hurdle for the offence would be extremely low if it was that any person who might come into the theatre might be incited to religious hatred. Indeed, the person might already have religious hatred in their heart, which would be highly problematic. However, I assume that that is not what the Government intend; they intend the provision to apply to a person who is reasonable, yet if the test was whether a reasonable person might be incited to religious hatred the difficulty is clear, as most of us in the Chamber would say that no reasonable person could be incited to religious hatred.
It is unclear what the Government are hoping to catch by the change. I understand that they want to keep the likely limb as nearly identical as possible for each section of the 1986 Act. I understand their argument, but I do not accept that, with reference to material that might be published or posted outside someone's house, or words that might be said, the provision does not need a definition of the audience. At the public performance of a play, the audience is predetermined; people have paid for their tickets to go to the theatre to see the play. I worry that the Government are lowering the hurdle by creating an unnecessary offence in relation to the production of plays. The situation could be better clarified by the change that I suggested—going back to the provisions of the original 1986 Act in relation to plays.
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