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Mr. Carmichael: My hon. Friend is something of a purist in these matters, but as a matter of pragmatism, I think that most of us could live with that. However, the extension to include recklessness, along with that to include abusive and insulting words and behaviour, causes me the greatest difficulty.
We questioned initially the need for the Bill, but I accept that the Government will get it. We have asked the Minister throughout the process what is the demonstrable need for the Bill, but he has never properly answered us. The Government must still justify the need to extend the offences in the way that they propose. What conduct will be caught by the Government's new proposed form of words that is not already caught by the form of words introduced by the Lords?
The question of recklessness lies at the heart of our debate today. In our submission, it represents a significant lowering of the threshold of what constitutes an offence under the Bill. Of course, recklessness is a well-known legal concept, but it is normally applied to crimes against property or the person, and it is normally quite easy to establish and apply without difficultly because there is usually an element of physical damage or injury. Expanding that concept to a speech offence, such as the one that we are debating, is dangerous in the extreme. To my mind, that gives rise to a number of questions about the proportionality of the Government's proposals.
Many hon. Members remained unconvinced that such proposals represent an appropriate way to frame terrorism legislation. Allowing recklessness to become the test in relation to encouraging terrorism under the Terrorism Bill, which the other place is currently considering, is still a matter of some controversy. Those Labour Members who engaged in that debate and had that concern should carefully consider whether it is appropriate to extend the application of recklessness to an offence whose importance must come somewhere further down the hierarchy. If the Government have their way, a citizen can fall foul of the law by being reckless about the consequence of using insulting language, and that is going too far for the Liberal Democrats.
When I was a law student, I was told by a tutor that a breach of the peace under Scots law was anything that two cops did not quite like the look of, and we are in danger of replicating that attitude in the offence that we are considering today. On other occasions, my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) has used the example of the producer of a play who is warned by the police that if he proceeds in putting on the production, it is likely that he will incite racial hatred because the language or behaviour used will be insulting or abusive. Given that warning, it is difficult to understand how the producer of that play, if he proceeds, will not fall foul of the recklessness element of the Bill. If we go beyond constituting the offence merely by intent, the chilling effect on the producer in that circumstance is absolute and apparent.
Mr. David Burrowes (Enfield, Southgate) (Con):
Let us consider the chilling effect on the streets in, for
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example, the Green Lanes area of my constituency. Let us say, for example, that while a constituent was reading some words from the Bible or, indeed, the Koran, he was warned by a police officer that he risked offending the people who were listening. Is that not similar to someone who reads aloud without the intention of stirring up religious hatred? Is not that person putting himself within the remit of being reckless? If a listener's complaint is taken further, does he not risk at least being arrested, if not being convicted in court?
Mr. Carmichael: That is absolutely true, and it certainly applies as much to religion as to the example of the theatre producer that I have already offered to the House. Of course, the Government will say that there is the safeguard of the Attorney-General's intervention and so on. Again, that is highly unlikely to be of any great use when someone has been taken to the police station, questioned, arrested and perhaps spent a night in the cells. That is where the real chilling effect will be felt.
We will never be able to quantify the chilling effect, because the people who do not proceed because they have been warned that they could fall foul of the law will never be recorded anywhere. The people who are prepared to make a stand will become apparent, because they will go through the system and the statistics will be gathered. The real danger is for the people who heed the warnings, and they will be substantial in number.
Lowering the threshold to include recklessness will be counter-productive. Where little is needed to constitute an offence, one is almost inviting complaints to be made, either inter-faith or intra-faith, by different sects in a religion, one against the other. In that way, the protection of religious freedom that the Government seek to enshrine and encourage will be weakened.
By trying to frame the Bill in such a way, the Government are putting great reliance on the distinction between the belief and the believer. For example, they want to criminalise attacks on Christians, but not Christianity itself. That is exceptionally unrealistic. I think that most Christians—I am one—and especially fundamentalist Christians, will perceive an attack on their faith as an attack on themselves. At the very least, they will see that as insulting. Indeed, if the test is to be recklessness, it is difficult to envisage how such an attack could not be covered.
I wish to say a few words about the free expression rider. I am afraid that I do not draw great comfort from a measure that effectively says that conduct will not be an offence if it is an offence. It is worth reading into the record the terms of the rider that the Government are recommending:
"a person is not guilty of an offence under this Part of being reckless as to whether religious hatred would be stirred up if he is reckless as to whether hatred would be stirred up against a religion, religious belief or religious practice but is not also reckless as to whether hatred would be stirred up against a group of persons defined as mentioned in"
proposed new section 29A of the Public Order Act 1986. The provision is there
I now understand why the hon. Member for Beaconsfield was getting excited by the prospect of the litigation that would arise as a consequence of the
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measure. It might have been proposed for the avoidance of doubt, but as far as lawyers are concerned, it is certainly not for the avoidance of profit.
The hon. Member for Dundee, East (Stewart Hosie) asked the Minister about the Bill's impact on Scotland. The Bill will, of course, apply only to England and Wales but, as he observed, it will be have impact on Scotland. I commend to the House an example cited by the Christian Institute. It obtained the opinion of one of Scotland's leading Queen's counsel, Herbert Kerrigan. He says:
"though it is correct to say that the Religious Hatred law will not directly apply to Scotland it is simplistic to say that it will have no effect on Scotland. In practical terms the law will affect Scotland and every institution in Scotland which is in any way involved in writing, publishing or broadcasting will have to obey it even though it is not part of Scots law. The law is being criticised in England because of its 'chilling' effect on religious debate and because it will inevitably lead to 'self censorship' and caution. It will certainly have those effects in Scotland also."
Mr. Angus MacNeil (Na h-Eileanan an Iar) (SNP): Is it not the that case not only will publishing and broadcasting in Scotland be censored, but broadcasts for the UK that emanate from London could change dramatically over the next few years, which would affect what people in Scotland heard and read?
Mr. Carmichael: Yes. I do not want to over-emphasise the point, but it shows the Bill's lack of cross-border workability. I wonder whether there has been any consultation with the Scottish Executive. Given the Bill's possible chilling effect and the need for propriety in the constitutional settlement, such contact should have been made, at the very least.
The Minister repeatedly referred to the guidance for the police that he will draft if the Bill is passed. Much as I respect him and have no doubt that he is a man who honours his word, I do not find that reassuring in any way. He offered the House his personal assurance. That is worth something, but I remind him that there is a reshuffle coming. If he were to be moved as part of that reshuffle, his successor need not feel bound by his personal, rather than official, assurance. In any event, Ministers who hold his post in the future might well feel differently about the matter due to different circumstances and a different climate. They could well provide alternative guidance to the police, but such guidance would never have to come to the House for ratification or debate.
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