Mr. Grieve: I did not follow the Minister's logic when he suggested that the Lord Lester amendment would not give other religions the protection currently given to Jews and Sikhs. The protection given to Jews and Sikhs is based on their ethnic identity, not on their religious beliefs.
It is true that, in law, they are protected by the racial hatred legislation, because the religious hatred legislation does not exist. It is because of the close association between the two that Jews and Sikhs are covered: both are faith groups as well as race groups. We teased out that issue in Committee. I think it impossible to disentangle one element from the other, but I acknowledge that the protection that currently exists is on the ground of racial hatred. We seek to introduce legislation that will provide protection from the incitement of religious hatred. There is no direct read-across between race and faith. If the language is religious but the intention racial, that can already be proved.
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The third issue that I want to raise relates to the definition of religion or religious belief. I am grateful to those who tabled amendment No. 9 for enabling this discussion to take place. It is true that we have never defined religion in statute. We did not define it when we introduced the concept of religiously aggravated offences in the Anti-terrorism, Crime and Security Act 2001. We did not include it in the Criminal Justice Act 2003 when we increased the sentences that could be imposed for religiously aggravated offences. We did not include it in part 2 of the Equality Bill, which is currently being dealt with in the other place, and it is not in the employment regulations. It has not been a problem.
There is a good reason for our not wishing to include that definition in the Bill, which I mentioned earlier. Over time, things may change. We need flexibility, which is why we should let the courts decide. As I said earlier, Strasbourg case law is helpful. The characteristics of religion, as decided by the court, are cogency, seriousness, cohesion and importance. It should be worthy of respect in a democratic society and, as made clear in the Campbell and Cosans case, should be compatible with human dignity. That definition would exclude a number of practices specified in the amendment. Human sacrifice is, apart from anything else, a serious criminal offence. "Minister introduces legislation to protect Satanists" might be a catchy headline, but it is Parliament's job to protect believers, not belief, and it is the court's job to define religion. It is rather important that the House should appreciate the distinction between the two. Our job is to focus on believers. This legislation is about protecting believers from others who incite hatred against them; it is the court's job to define religion.
The hon. Member for Beaconsfield talked about the differences between religion and race, and I acknowledge that there are differences. Clearly, the two are not the same, but they are not as different as he suggests, and in that regard I cite my personal experience. I was born into a Roman Catholic family. Later in life, I made a rational choice about that religion in favour of it, but I cannot disentangle from having done so the fact that I was born in and brought up in that community. That has made a mark upon me and it is part of my identity. To say that my religion is simply a rational choice flies in the face of reality.
The fourth and final issue is the beloved "likely limb" that lawyers love to talk about. Of course, the prosecution's first priority will always be to look for evidence of intent. Nothing in this legislation removes that obligation, but we know that intent is hard to prove. It is hard to be absolutely definitive about what is going on inside somebody's head, which is why, when the existing race hate legislation was introduced 20 years ago, Parliament included a second limba likely limb.
Some Members asked why we are doing so, and in particular whether doing so will lower the test. It will not, but there is some concern that the current offence turns too much on the prosecution having to show that the material was actually seen, rather than on the likelihood of it stirring up hatred.
Let us say that somebody publishes material that is seen by the hon. Member for Beaconsfield, who then takes it down, or that the material is reported to the police, who are first on the scene and then take it down. Should the perpetrator of that material, which is capable of inciting hatred on the ground of religious belief, get away with it just because the hon. Gentleman or the police got there first? No, they should not. We are seeking not to lower the test but to clarify the law, so that it turns on whether the material was likely to incite hatred, rather than on whether it was actually seen.
Secondly, Members have made the accusation that we are somehow weakening the test by setting it too low. The most convincing evidence to the contrary is our having operated race hate legislation with a second likely limb for 20 years. It has been used effectively and has led to a modest number of prosecutions76and to 44 convictions. However, in addition the test of hatred in law is very highway beyond criticism or causing offence. Moreover, in law "likely" means "probable", not "liable" or some lower test. Again, that is a very high test. Under the terms of section 18(5) of the 1986 Act, for the likely limb to be proved it also has to be shown that the defendant intended their words or behaviour to be threatening, abusive or insulting, or at least that they were aware that their conduct might be interpreted as such. So, according to either legbe it intention or the likely limba level of intent, or of awareness of the impact of one's conduct, must be proved.
Thirdly, it is not possible to separate the religious aspects of this legislation from the race aspects. If we did so, we would simply re-create the two-tier system to which many of the amendments would lead, and which we do not want. We simply cannot have one law for Jews and Sikhs, and another for other groups. I offer my hon. Friend the Member for Rhondda (Chris Bryant) the assurance that, in relation to the theatre, all circumstances must be taken fully into account. The whole play must be considered, so individual lines and speeches would not be covered.
Last and not certainly least, the hon. Member for Oxford, West and Abingdon (Dr. Harris) mentioned blasphemy. I know that he wants to support legislation that would remove the blasphemy laws, a discussion that my right hon. Friend the Home Secretary has promised
Mr. Grieve: I regret that the Minister did not succumb a little to the temptation that new clause 2 offered. He said some reasonably kind things about itfor example, that it was an honest attempt to try to reconcile a serious difference of view. The clause was certainly put forward in that spirit. I make no pretence to it being perfect in the way it is drafted, but it went a long way towards reflecting some of the concerns expressed on his own Benches about the Bill by seeking to centre on a definition of the difference between what constitutes hatred and the degree to which it must go.
I believe that a court and a jury would have little difficulty in identifying words that were tantamount to an encouragement to violent acts. It is not a difficult concept for people to graspthe difference between ferocious criticism and words that imply that people should feel free to use violence against others. I say to the Minister, even at this late stage, that he might like to consider the issue carefully and we may be able to return to it.
Although I put forward the new clause in that spirit, I am not minded to press it to a vote because there is a clear difference between some hon. Members and others about whether the entire Bill and its scope is desirable or whether it can be narrowed down solely to the issue of what is called the Lord Lester amendment, in terms of defining and protecting those whose religion is attacked as a pretext for an attack on their race and ethnic identity. That is my preferred course of action. As I see that the amendment enjoys support from all sides of the House, I will seek to withdraw the new clause in the belief that the Liberal Democrats will seek a vote on amendment No. 1.
This has been a fascinating and wide-ranging debate, but the Minister must be aware of the disquiet expressed from both sides of the House about the way in which the Bill will work in practice. Unless the Government come up with a constructive solution to the problem, the Bill, however well intentioned, will end up as the source of polemical argument and will never see the statute book at all, or at least not for a long time. I cannot believe that that is a desirable state of affairs.
There must be a way through the problem, but the Government show no sign of responding to it. The basic reason for that is that they have been hoisted on the petard of their own promises. They have made a promise of equality between Jews and Sikhs and other religious groups that is completely fictitious for two reasons. First, it is a fiction because the equality in fact already exists and would be enshrined in law if Lord Lester's amendment were to be accepted. Also, the protection currently enjoyed by Jews and Sikhs is on the basis of their racial identity and not on their religion.
Secondly, it is fictitious because, in moving to create an offence of religious hatred, the Government are seeking to marry it in identical terms to racial hatred when the difference between racial hatred and religious hatred is so palpably plain that it makes a nonsense of the entire legislation.