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Dr. Tony Wright (Cannock Chase) (Lab): A number of hon. Members have provided the Minister with example statements and asked him whether the Bill would catch them. In each case, he has said that the Bill would not catch that statement, but it would be helpful if he provided an example of a statement that the Bill would catch.
Paul Goggins: I am grateful to my hon. Friend for raising that point and shall provide him with an example that I used earlier today and on other occasions. The example involves a poster that depicts women, some of whom are white British and some of whom are not, wearing the burqa and that includes quotes from the Koran. The poster states that such women cannot be trusted, because they are recruited in various parts of the world as suicide bombers, and asks what they are hiding under their ugly clothes. That could be the kind of material that would be relevant under the Bill.
Paul Goggins: The hon. Gentleman knows me well enough to know that I shall give way to him in a moment.
It is difficult to provide precise examples, which may or may not be relevant. We are seeking to close a loophole in the law. The loophole is not huge, and we do not expect dozens of prosecutions every year. None the less, there is a gap in the current law, and we intend to fill it.
Mr. Grieve: On the Minister's example, is it not the case that such a poster would be caught by the existing provisions of the Public Order Act 1986? He need only read the case of Norwood to see that the existing provisions of the 1986 Act would catch such behaviour. Does that not highlight the lack of need for the provision? If the provision is to mean anything, it must go much further than the Minister's illustration, and I must say that it has that capacity.
Paul Goggins: I provided that example because the poster incites hatred rather than a criminal act. The offence is not racial, because the poster depicts white British people in addition to Asian people. It is not covered by existing provisions on religiously aggravated offences and it does not involve damage. The hon. Gentleman is correct to say that the Public Order Act 1986 might cover the matter, but only if someone were distressed or harassed by seeing the poster. Even so, the maximum penalty for such an offence is only up to six months in prison, while the penalty under the Bill is more severe, which is appropriate. He must acknowledge that there are many circumstances in which the Public Order Act 1986 would not be sufficient.
Mr. David Winnick (Walsall, North) (Lab):
Those of us who support the measure simply want to give Muslims the same protection in law, for which many hon. Members fought 40 years ago, as Jews and—this
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came later—Sikhs. I understand the criticism from people such as Rowan Atkinson, who is understandably afraid that it will not be possible to criticise religion itself. As my right hon. Friend the Member for Rotherham (Mr. MacShane) said, however, the supplementary provisions such as proposed new paragraph 29K make it clear that religion itself can continue to be criticised and that there is no way in which the Bill can stop such criticism.
Paul Goggins: I am grateful for the comments of my hon. Friend, who has taken us back over 40 years. I welcome the protection that the new provision will provide for Muslims, Hindus, Christians and those of no religious belief.
Paul Goggins: I have made one substantive point and I have three more to make. As I have said, I am relaxed about taking interventions but I must make progress.
The second effect of the amendments agreed by their Lordships is the removal of what was known as the "likely limb", leaving only intent as the threshold for prosecutions under the offence. It remains our clear view that intent by itself is not enough, but rather than seeking to reinstate the likely limb, we have decided to introduce an additional test of subjective recklessness, so for a prosecution to succeed, it would be necessary to prove either that someone intended to stir up hatred, or that they were aware that their actions or words would stir up religious hatred, yet they continued. No one could be caught out inadvertently, as some have feared.
It is worth pointing out that, in Committee, Opposition Members suggested that a recklessness provision might be a good substitute for the likely limb. Indeed, the hon. Member for Beaconsfield (Mr. Grieve) said that such a provision
"is a sensible test, and one with which juries and judges are enormously familiar."—[Official Report, Standing Committee E, 30 June 2005; col. 83.]
In the same debate, the hon. Member for Hornsey and Wood Green (Lynne Featherstone) said:
"I understand that the law uses recklessness as a benchmark to judge whether the perpetrator knew what they were doing and what the likely consequences of it would be, but proceeded to do it anyway."—[Official Report, Standing Committee E, 30 June 2005; col. 85.]
I therefore hope that the addition of a recklessness test will provide further common ground.
Mr. Grieve: It will come as no surprise to the Minister to learn that if the choice is between a subjective recklessness test and the "likely limb", I prefer the former, because the latter is even worse than the former. But as he knows from our discussions, such a test would be appropriate only where the offence is confined to threatening behaviour; even then, that in itself would be a contentious matter. Once the Government reintroduce the notion that the offence can be committed through abusive or insulting language or behaviour, any form of recklessness—whether subjective or objective—becomes completely inappropriate.
Paul Goggins:
The hon. Gentleman will make his own mind up on this issue. I merely point out that the
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addition of the recklessness test, which was informed by his own contribution in Committee, is a move forward from the previous position and marks a very constructive step forward.
Mr. Jim Cunningham (Coventry, South) (Lab): Who will apply the test—the Director of Public Prosecutions or the Attorney-General?
Paul Goggins: My hon. Friend brings us back to the very important issue of the Attorney-General's role. Of course, if there is a complaint the police must investigate it, and if there is evidence, they share it with the Crown Prosecution Service. It is at that stage that the Attorney-General has personally to sanction any prosecution. That is a further hurdle in respect of this offence that ought to give people additional confidence.
Mr. Robert Marshall-Andrews (Medway) (Lab): The question of recklessness is, in truth, the most important part of this debate. It is also one reason why our discussion of proposed new section 29K and the "unless" clause was interrupted so often. The "unless" clause introduces the question of recklessness and with great respect to the Minister, recklessness is not knowing that one's actions would stir up religious hatred; it is knowing that one's actions are likely to stir up religious hatred. There is a considerable difference between the two, and on that basis I bring the Minister back to an earlier, helpful intervention. The example was given of the following statement: "Mohammed's marriage to a six-year-old was immoral, and a call for the right to marry children is to be condemned as immoral." How could such a statement not be caught by the recklessness test, given that the person saying it must perceive that their comments are at least likely to stir up religious hatred?
5.15 pm
Paul Goggins: I make the point to my hon. and learned Friend that the precise context in which those words are uttered is the key determinant of whether or not an offence would be committed. Clearly, the same words may be used by different people in different contexts. In one case they may amount to an offence being committed, whereas in another they do not.
Mr. Gerald Howarth (Aldershot) (Con): When Sir Iqbal Sacranie said on Radio 4, out of a deeply held conviction, that it was his view that homosexuality was harmful, was he being reckless?
Paul Goggins:
He was giving his own honest view, based on his religious belief. He would certainly not have committed an offence in the context in which he said it and the manner in which he said it, because his intention—[Interruption.] Mr. Deputy Speaker, if hon. Members want to intervene, perhaps they will at least listen to my response. In the context in which Sir Iqbal Sacranie made the remark, he certainly did not intend to stir up religious hatred. However, the hon. Member for Aldershot (Mr. Howarth) points to something which I know is of concern to hon. Members in all parts of the House and elsewhere—that is, the way in which these
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matters are reported and investigated. One extremely important outcome of the Bill once it is enacted will be the drafting of the guidance for the police in their investigation of the offence, and so on.
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