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Mr. Marshall-Andrews: I have my name on a bewilderingly large number of amendments that would have the effect of putting the Lords amendments back into force. I say straight away that I put my name to those amendments somewhat unwillingly. It is an awesome and awful thing to put one's name to an amendment that is critical of one's own Government. That is the first matter that I take on board.

The second is that at the outset, when the Bill began its passage through this House on Second Reading, I was one of those who believed that it was ill-conceived and should fall. I have changed my mind on that, which is why I have signed the amendments as they stand.

It is relevant to consider why I took that view. I am one of those who believes that there is a profound division between race and religion and that the sentry posts that man that division are the moral imperatives of "ought" and "should". Nobody can say to me that I ought to be black, white, Chinese or Russian, but there
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is no shortage of people outside this House, and some inside it, who would have no hesitation in saying that I ought to be Christian, Islamic, or Jewish, particularly if I chose to marry into that faith.

For 300 years, we have from time to time issued edicts to protect minorities on the ground of race—the Race Relations Act 1976 was not the first example of that. I tried to discover one that is a particular favourite of mine in the statute book, but I was unable to do so. I know that it exists, so Members will have to take it from me. It is the enactment in the vagabond legislation that a man should not be taken to be a vagabond simply because he is Scottish.

However, we have always set our face against the protection of faith by statute. The reason for that is very simple. Because of 200 years of religious intolerance, which led to nothing but bigotry and death, we have always understood that one cannot protect the faith without protecting the fundamentalist and the bigot who lie within it. Indeed, the legislation that we pass has precisely the reverse effect because the people whom we protect most are those who come close to committing the offences that we are attempting to place on the statute book. We end up with a gloomy vortex whereby I loathe bigotry and those who preach against any faith, and then those people say that my loathing them makes me liable under the very legislation that we have passed. We will create not a tolerant society but a legislative and cultural bear pit.

The thing is made infinitely worse by importing the concept of recklessness. Recklessness is the bastard part of intention. It has caused more trouble in the English criminal law than any other single concept. It is so wide as to be practically devoid of definition. If I may bore the House for a moment, there are two classic cases. The first is the so-called firebreak case, whereby a man who perceives that there may be a small danger sets up a firebreak that destroys the forest, city, town or whatever he perceived to be in danger. His motives were good, but he was undoubtedly reckless. The second concerns the bus driver who loses his way in a double-decker bus, approaches a low bridge, and says, "I don't know whether I can get this bus under there; I might not be able to but let's have a go anyway." He does not intend to kill all the passengers on the top deck, but he is undoubtedly reckless.

I say that in order to demonstrate just how wide this test is. We have heard excellent examples today concerning the cartoons about the Prophet. Those would undoubtedly be caught by the Bill—it would not be a question of how one construes the law or of worrying about the courts, judges or juries bringing in perverse verdicts.

If we pass this Bill in its present form, we will regret it for many years to come. I urge the Government now, before it is too late, to remove the concept of recklessness. Ultimately, we will all agree that an avowed or explicit intention to cause or stir up religious hatred is something that may justifiably be impugned. Anything else will be an incursion on our freedom of speech of historic proportions that will be regretted for generations to come.

Stewart Hosie : In common with many Members, I think that if the Bill was about threatening behaviour,
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actions or words it is unlikely that there would be any requirement for a Division. But, again in common with many Members, I think that the scope of recklessness and the subjectivity of abuse and insulting behaviour mean that almost anyone could be charged with this offence. We have heard several examples—there will be many more—that could fall foul of this. Hon. Members have made the case that it is likely to lead to a large number of spurious cases being brought on the basis of a handful of complainants in any given circumstance.

I am concerned about the impact that the Bill will have on Scotland. As the Minister said, it extends only to England and Wales. New paragraph 29H(2) in the Lords amendments would allow for a sheriff to have a warrant to search a premises in Scotland, presumably after a suspect had been charged on a warrant for his or her arrest issued in England. The Government amendment removes the possibility of such a search warrant being applied for. That may leave us in the ludicrous situation whereby a warrant is issued in England for the arrest of somebody in Scotland, the warrant is exercised and the person is arrested and charged, but no search can be performed on his premises to produce evidence in court.

That is a contradiction, irrespective of whether one supports the Bill. We know that it will be possible for an English warrant to be exercised for someone furth of England for a crime committed in England. The excellent counsel's opinion cited by the hon. Member for Orkney and Shetland (Mr. Carmichael) makes it clear that the cases of the Crown v. Harden in 1963 and the Crown v. Manning in 1998 will allow that to happen. We could end up with a situation in which someone who is subject to an arrest warrant issued in England is living in Scotland, having committed a crime in England but not in Scotland.

That is deeply troubling. In the Criminal Justice (Scotland) Act 2003, Scotland has already passed legislation to tackle religious hatred based on a joint cross-party report on such matters and after public consultation.

The relevant section states that an offence is aggravated by religious prejudice if immediately before, during or after the offence the offender evinces malice and ill will based on the victim's membership or presumed membership of a religious group or of a social or cultural group with a perceived religious affiliation. Equally, an offence is aggravated by religious prejudice if it is motivated wholly or partly by malice towards the same group. In such circumstances, the court must take action on the aggravation and the sentence must be different from the sentence that would have been passed if no religious aggravation had occurred.

It is therefore peculiar that someone acting wholly innocently in Scotland could be the subject of an arrest warrant in England for a crime that exists here but would not be deemed a crime under similar legislation in Scotland. The cases that legal counsel cited as especially worrying relate to broadcasting, journalism and so on.

According to legal counsel, newspapers would have to obey both current Scottish law and the English religious hatred law for any editions that were sold in England and Wales. For example, The Scotsman could publish a
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report that was legal in Scotland but could be censored in England. An English distributor could also be found guilty under the Bill while a distributor in Scotland would not be prosecuted.

The same logic would apply to a Scottish publisher selling books to bookshops in England or to English customers ordering books via mail order or the internet. Once publication or distribution occurred, people could be arrested and prosecuted under the Bill. There are several similar examples and concerns are widespread. Broadcasting, publishing, entertainment and so on that is perfectly innocent and legitimate under Scottish legislation could be prosecuted under English law.

The Under-Secretary can intervene if he wants to tell me that none of that could happen and that a warrant could not be issued, under any circumstances, for the arrest of someone in the circumstances that I outlined.

All the examples that have been given, from the mild-mannered Christians, to whom a spokesman on the Tory Benches referred, to Polly Toynbee in The Guardian today, suggest that the Bill goes too far and satisfies almost no one.

Mr. John Grogan (Selby) (Lab): I shall speak briefly from the perspective of three passionately held beliefs. First, I believe in the Labour party. As a Labour loyalist, I carry a pocket edition of the manifesto. However, it is the responsibility of all Labour Members to deliver the manifesto. We said that we would legislate to outlaw religious hatred but we also said that we would balance protection with tolerance and free speech. I suspect that the vote will be close and I plead with my hon. Friend the Under-Secretary to accept, even at this late stage, the House of Lords position, which delivers our manifesto pledge.

I speak secondly as a practising Catholic and, thirdly, as a strong believer in free speech. For me, the debate turned on my hon. Friend the Under-Secretary's interview on "Today" this morning. He said that there was a small problem with existing legislation and a gap to fill. Not unreasonably, he was asked to give one example from the past four years of a case in which existing law was deficient or that the Lords amendments would not cover. He attempted to give an example and I have been asking people about it all day. He cited a horrendous poster about the Muslim religion.

There have been plenty of lawyers around the place to consult today. They include lawyers from the National Secular Society and the Christian Alliance, and those representing actors. I have even rung several friends who are lawyers but belong to none of those groups. All agreed that the example that the Under-Secretary cited was exactly analogous to the 2003 Norwood case, in which a similarly offensive poster featured. Prosecution occurred because a policeman saw it, a public order offence was brought and a conviction was secured.

If we are to endure the deleterious consequences of the Bill, it is not too much to ask for examples. My hon. Friend the Member for Walsall, North (Mr. Winnick) was not his normal confident self today. He said that we may live to regret the Bill. He also said that he did not believe that we would, but when such a defender of free speech says, even when backing the Government, that we may live to regret something, it gives me cause for concern.
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7.45 pm

As a Catholic, I simply say that free speech is the best defence of any religion. My religion has been persecuted and has also persecuted people. Free speech is the best defence. Given the freedom of speech defences that the Government have included in the Bill, it is regrettable that they are stymied and reduced basically to saying, "This is not an offence if it is not an offence." Such tautology is not good enough. I plead with my hon. Friends on the Front Bench to withdraw their objections to the Lords amendments, which satisfactorily fulfil the manifesto on which we stood for office.

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