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Session 2005 - 06
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Standing Committee Debates
Racial and Religious Hatred Bill

Racial and Religious Hatred Bill




 
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Standing Committee E

The Committee consisted of the following Members:

Chairmen:

†Mr. Edward O’Hara, Mr. David Amess

†Bryant, Chris (Rhondda) (Lab)
†Campbell, Mr. Alan (Tynemouth) (Lab)
†Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
†Cohen, Harry (Leyton and Wanstead) (Lab)
†Davies, Philip (Shipley) (Con)
†Featherstone, Lynne (Hornsey and Wood Green) (LD)
†Goggins, Paul (Parliamentary Under-Secretary of State for the Home Department)
†Grieve, Mr. Dominic (Beaconsfield) (Con)
†Khan, Mr. Sadiq (Tooting) (Lab)
†Mahmood, Mr. Khalid (Birmingham, Perry Barr) (Lab)
Malik, Mr. Shahid (Dewsbury) (Lab)
†Prisk, Mr. Mark (Hertford and Stortford) (Con)
†Soulsby, Sir Peter (Leicester, South) (Lab)
†Streeter, Mr. Gary (South-West Devon) (Con)
†Thornberry, Ms Emily (Islington, South and Finsbury) (Lab)
Walker, Mr. Charles (Broxbourne) (Con)
Colin Lee, Libby Preston, Committee Clerks

† attended the Committee


 
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Tuesday 28 June 2005

[Mr. Edward O’Hara in the Chair]

Racial and Religious Hatred Bill

10.30 am

The Chairman: Copies of the programme motion agreed by the Programming Sub-Committee earlier this morning are available in the Room. The order of consideration is subject to debate, and I remind the Committee that debate on it may continue for up to half an hour.

The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): I beg to move,

    That the Bill be considered in the following order, namely, Clause 1, the Schedule, Clause 2, new Clauses and new Schedules, remaining proceedings on the Bill.

May I say how good it is to see you in the Chair, Mr. O’Hara? You chaired the first Committee that I sat on back in 1997; that was a pleasant experience. I know that later in our proceedings we may be joined by Mr. Amess, and we look forward to that too.

The hon. Member for Beaconsfield (Mr. Grieve) and I could describe ourselves as old sparring partners now. We have been at this for more than two years. Although we have often had to agree to disagree, we have always done so in a sensible and constructive spirit. I expect that to continue. This is the first time that the hon. Member for Orkney and Shetland (Mr. Carmichael) and I have been in our corresponding roles. I look forward to his contribution and that of other hon. Members. It is interesting that although this is the third time that the Government have proposed these measures, almost half the members of the Committee are new Members of Parliament. That will add to our discussions.

May I offer an apology to hon. Members, in particular to the hon. Members for Beaconsfield and for Shipley (Philip Davies)? During my closing remarks on Second Reading, they both asked me to give way—the hon. Member for Shipley did so repeatedly—but the circumstances did not allow it. My normal custom is to give way at each and every opportunity, and I assure hon. Members that that will be the case in Committee. Whenever they ask me to give way or to clarify something I shall be happy to do so.

This is a two-clause, one-schedule Bill. It is tightly focused, and I am sure that our debates, which will be lively and interesting, will also be tightly focused under your chairmanship, Mr O’Hara. Already many amendments have been tabled. It is our job as a Committee to ensure that we fully scrutinise the Government’s proposals and the amendments. I have made it clear that my motivation in proposing this measure is my belief that it is the right thing to do. It removes an anomaly in the law whereby certain religious groups—Jews and Sikhs—are protected by
 
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race hate legislation, but other religious groups are not. In seeking to close the law we are responding to the urgings both of faith leaders across the spectrum and the police.

I reiterate the point that my right hon. Friend the Home Secretary and I made on Second Reading: we are prepared to engage and we are prepared to listen. Obviously, we would be foolish if we did not consider any sensible proposals that could improve the Bill. There are many issues to be debated. They will doubtless include what we mean by “religious belief” and “hatred”, and whether the use of religious language or symbols can be taken as a proxy for race. There will no doubt be discussions about the so-called likely limb and some of the changes that we are proposing there, and the circumstances in which an offence may occur. All the amendments, taken together, will take us right across the full range of the Bill.

I am pleased that we have reached a sensible agreement about the number of sittings that we will need. In view of the earlier remarks of the hon. Member for Beaconsfield, I think that we will be comfortably able to do our job properly within the time that has been allocated.

I conclude by saying that my motive in introducing the Bill is to deal with that small minority of people who currently seek to stir up hatred against people on the grounds of their religious belief. We are dealing with an anomaly in the law and closing a gap in the law. Some members of the Committee will take a different view of the proposed changes in the law. I know that despite our disagreements, those hon. Members share my commitment to tackling racial discrimination and race hatred in our society. We will be debating the means by which we do that and the measures that we propose. I do not in any way suggest, and never will in these debates, that hon. Members on either side of the Committee have a motive other than tackling religious and race discrimination; that is a common bond between us. However, we will debate and disagree about the manner in which we propose to tackle it.

Mr. Dominic Grieve (Beaconsfield) (Con): I welcome you to the Chair, Mr. O’Hara, and echo the Minister’s statement that we will enjoy sitting under your chairmanship. I also welcome the Minister to the Committee. We are indeed old sparring partners, but the sparring has always been enjoyable, and I have little doubt that this Committee will be as interesting. I also thank the Government for allocating enough time. This is the first Bill, under the new rules of programming, for which I am confident that we have allocated enough time. In fact, we probably have more time than we need, but that does not matter; if we finish early, so be it. The original proposal was for two sittings, which made me slightly anxious that we might not have enough time to scrutinise the Bill properly, but four sittings offer us ample opportunity to do our job.

I look forward to the debate. I agree entirely with the Minister that, whether we have doubts about the Bill or earnestly support it, we share the same
 
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objective; we all wish to see a peaceful society, in which discourse is conducted in moderate fashion, and people behave with moderation. However, the question is whether the Bill will achieve its intended effect, and we have some serious reservations about that. I hope that the amendments that have been tabled—doubtless a few more will be tabled during our debates—will provide an opportunity for examining the Bill carefully, for looking at available options for improving and altering it, and for teasing out the actual effect of the detailed words, which is not always understood.

Mr. Alistair Carmichael (Orkney and Shetland) (LD): I, too, welcome you to the Chair, Mr. O’Hara. I have had the privilege of serving with you on many occasions. I have also served on a number of Standing Committees with the hon. Member for Beaconsfield. As the Minister said, this is the first occasion on which we have had the opportunity to serve with him, and I look forward to that.

We had an excellent debate on the Bill on Second Reading. I engaged in a radio interview on the subject with the hon. Member for South-West Bedfordshire (Andrew Selous)—I do not think that he is a member of the Committee—which was broadcast at the weekend. He said that he thought that that debate was “Parliament at its best”, which is an expression that I particularly dislike. However, with that one reservation, I felt that it showed Parliament in a good light. There are substantial issues of principle relating to the Bill and there are honest differences on those issues. Those differences were handled well during the debate on Second Reading, and I hope that the same tenor will be maintained throughout the sittings of the Committee.

I should at least make passing reference to the motion that is before us. I, too, take the view that there is ample time to deal with the Bill but, as ever, I hope that it will be the case in the Committee that less is more.

Question put and agreed to.

The Chairman: I have some preliminary announcements to make before we proceed to the substance of the Bill. I remind hon. Members that adequate notice should be given of amendments; I am sure that they will co-operate in that. As a general rule, my co-Chairman and I do not intend to call starred amendments, and we would be grateful not to be put in the position of having to take that decision.

I also ask hon. Members to ensure that mobile phones and pagers are either turned off or in silent mode during Committee sittings.

Clause 1

Hatred against persons on racial or religious grounds

Mr. Carmichael: I beg to move amendment No. 31, in clause 1, page 1, line 3, leave out from “Act” to end of line 7.


 
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The Chairman: With this it will be convenient to discuss the following amendments: No. 1, in clause 1, page 1, line 5, leave out from “grounds” to end of line 7.

No. 45, in schedule, page 2, line 12, at end insert

    ‘where such hatred is racially motivated.’.

New schedule 1—Racial Hatred—

    1   Part 3 of the Public Order Act 1986 (c. 64) (racial hatred offences) has effect subject to the following amendments.

    2   Amend section 17 to read as follows—

    “(1)   In this Part “racial hatred” means hatred against a racial group, of persons defined by reference (whether directly or indirectly) to colour, race, nationality, (including citizenship) or ethnic or national origins (“a racial group”).

    (2)   In this section—

      (a)   “an indirect reference” means a reference to religion or religious belief or to a person’s membership or presumed membership of a religious group as a pretext for stirring up racial hatred against a racial group;

      (b)   “religious group” means a group of persons defined by reference to religion or religious belief.”.’.

Mr. Carmichael: Amendments Nos. 31 and 45 and new schedule 1 stand in my name and that of my hon. Friend the Member for Hornsey and Wood Green (Lynne Featherstone). I shall leave amendment No. 1, to which our names have been appended, for the hon. Member for Beaconsfield to discuss.

Right at the start of Committee proceedings, we come to the heart of the Bill and the differences between the Government and Opposition Members. Amendments Nos. 31 and 45 are perhaps probing amendments. I shall be interested to hear what the Minister has to say about them. They are much narrower in their compass than new schedule 1, which in essence is what we referred to on Second Reading as the Lester amendment. Amendment No. 45 would clarify that religious hatred would be covered by the Bill if it was racially motivated. However, I shall focus on new schedule 1, which is the meat of our discussions.

The new schedule would introduce a new definition of “racial hatred” in respect of

    “persons defined by reference (whether directly or indirectly) to colour, race, nationality, (including citizenship) or ethnic or national origins (“a racial group”).”

It then defines “an indirect reference” as a reference to race using religion as a proxy. It refers to a reference to religion

    “as a pretext for stirring up racial hatred against a racial group”.

The term “religious group” is widely defined in the final part of the new schedule.

The Minister referred to the somewhat anomalous position whereby some protection is given by existing legislation to Sikhs and Jews but not to other religious groups. The basis of that, as I have always understood it, is that their religions are what are generally described as mono-ethnic religions, and case law has been developed under the Public Order Act 1986 that has allowed those people to be protected from racial hatred. I think that it is commonly accepted that that protection does not go so far as to include proper theological—if I can put it like that—religious hatred
 
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that could be stirred up. The import of the law as it stands is that coverage is given on racial rather than religious grounds.

I have seen some reference to that by the Minister, and I would be grateful if he accepted that that is the Government’s understanding of the law. I have noticed in recent times that most Government comment on this issue says that those people are protected from the stirring up of hatred, but there is no further specification of whether that is religious or racial. Currently, Jews, Sikhs and Muslims are protected if the basis for the attack or discrimination is their ethnicity, rather than their religious beliefs. That is probably the basis on which the leader of the BNP is being prosecuted. To that extent, new schedule 1 constitutes a belt and braces. It would enact through statute what currently exists in case law, but it would put the degree of protection beyond all doubt.

10.45 am

Muslims are currently protected from incitement to racial hatred, not on the basis that they are mono-ethnic—clearly they are not—but so that racists would find no shelter behind the word “Muslim” or “Islam” in the courts. The Minister dealing with the previous Bill that dealt with the matter, the right hon. Member for Salford (Hazel Blears), made the fair point that the words do not have to be racial but can be merely intended to stir up racial hatred, or insulting, threatening or abusive with the likely consequence of inciting racial hatred. There has been so much widespread comment about, and occasional misrepresentation of, the nature of the inequality of treatment that we believe that the amendment is necessary to put the issue beyond reasonable doubt.

Chris Bryant (Rhondda) (Lab): As I understand it, the proposal is similar to the Lester amendment. The part that still seems complex, and which introduces a new concept, is the phrase “as a pretext for”. How would one judge whether something was a pretext for racial hatred?

Mr. Carmichael: That would be judged on the facts and circumstances presented to the court. As with anything else, the evidence led by the prosecution would be required to demonstrate that the act was racially motivated and abusive, threatening and insulting.

If, for example, I said to the hon. Gentleman that as an Episcopalian he is to be hated because of his view on disestablishment or another theological or doctrinal point, that would clearly be religious or theological. If I were to call him a Church-of-England something—whatever expletive one would want to add—that would take the comment beyond religion. The Church of England is perhaps not the best example, but if someone were called a “Muslim bastard” or something of that sort, the comment would clearly be designed to be abusive, and one could draw from it certain inferences that are not in any way
 
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religious, theological or doctrinal. However, the short answer to the question is that it will depend on the nature of the evidence adduced.

Mr. Grieve: The hon. Gentleman is making a good point, because the existing law requires all sorts of decisions to be taken by juries within context—the use of the word “insulting”, for instance. Does he agree that if we start worrying too much about the anxiety expressed by the hon. Member for Rhondda (Chris Bryant), the Bill would go out of the window, along with the Race Relations Act 1976, because it requires juries to make such decisions?

Mr. Carmichael: Yes, and in practical terms that is the situation that will pertain.

I hesitated slightly before giving the hon. Member for Rhondda examples because I do not know whether examples are necessarily always the best way of approaching such subjects, and certainly the one relating to the Church of England may have left something to be desired.

Chris Bryant: Of necessity, I must disagree with what the hon. Member for Beaconsfield just said, because the new schedule would add another layer of intentionality that would have to be determined. The hon. Member for Orkney and Shetland advanced a suggestion about calling someone a “Muslim bastard”. By his own terms, is calling someone a “Muslim bastard” objectively and clearly using religion as a proxy for race, or might that not be subjective? It would have to be determined whether it was A or B, and, of course, if anybody were questioned, they would claim that they had meant it as a theological rather than a racial comment. That is the problem with the new schedule.

Mr. Carmichael: There will be other supporting evidence, and one would consider the circumstances in which such a comment was made. For example, was it made on a street at 2 o’clock in the morning when bricks and bottles were being thrown as part of a wider racially motivated incident, or was it perhaps made outside a mosque? The courts would be entitled to consider all the circumstances, and that means exactly that: all the circumstances. They would even be entitled to look at the way in which the person who made the comment was dressed—in full skinhead gear, for example, or with swastikas on their clothing—or whether they were putting up posters that were racially abusive or incited racial abuse.

Mr. Sadiq Khan (Tooting) (Lab): If an initial requirement is a pretext for stirring up racial hatred against a racial group, and if the hatred is being stirred up against, for example, a white Muslim, how could that ever be construed as stirring up racial hatred against a racial group?

Mr. Carmichael: There would be other circumstances that would cover that. I do not think that a white Muslim would be covered by those circumstances. [Interruption.] The hon. Member for
 
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Islington, South and Finsbury (Ms Thornberry) asks a question from a sedentary position. If she wishes to intervene on me I shall respond.

Ms Emily Thornberry (Islington, South and Finsbury) (Lab): We were talking about whether white Muslims would be covered by the Bill. The hon. Gentleman said that there would be other circumstances. Such as what?

Mr. Carmichael: I am sorry that I have not followed the hon. Lady’s point. If she wishes to make it at greater length during the debate, I shall certainly try to deal with it. I have also forgotten the point that the hon. Member for Tooting (Mr. Khan) made. I accept that white Muslims would not be covered by the new schedule, and I am not going to pretend that they would be. There is a question of proportionality here, and framing the legislation so as to cover white Muslims in any way that is not covered by the existing law—abusive, threatening or insulting behaviour—involves a question of balance. We are not in a position to deal with the disproportionate damage that stands to be done by the risks that will be created by the Bill.

Mr. Khan: As I understand what the hon. Gentleman says, the current race laws allow those who incite hatred against Muslims, using their religion as a proxy, to be prosecuted. If we accept that, there is a loophole. By using the current race laws, people inciting hatred against white Muslims cannot be prosecuted. If that is so, the hon. Gentleman will accept that his new schedule still does not deal with that mischief and does not close that loophole, so what is the point of it?

Mr. Carmichael: Its purpose is to enact in statute the laws that currently exist. By and large, we think that the existing law is adequate. There is also sometimes a case for Parliament to legislate for offences that are already illegal, because of the signals that are sent out. We do that quite often. I am happy to proceed on that basis. However, the hon. Gentleman would need to persuade me that there is a compelling need to act to protect white Muslims. I would argue that there is a compelling need to protect black Muslims.

Mr. Khan: You have suggested that legislation often has a symbolic value, even when there is already law to cover the mischief that we are seeking to prevent. If that is the case, do you not think that those white Muslims currently not protected would see Parliament symbolically sending a positive message by bringing them within the protection, rather than simply bringing in a new law which once again excludes them from protection?

The Chairman: Order. Before we proceed further, I remind newer members of the Committee that remarks should be addressed to the Chair.

Mr. Carmichael: My answer to the hon. Gentleman is no, because what we have is a very small gap. If he can persuade me that there is a compelling need to
 
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close it, I will certainly consider that, but I would be very surprised if the Government were introducing the measure solely for that purpose.

Ms Thornberry: Let us suppose that someone shouted “Muslim bastards” at a mixed-race family—the man was white, the woman Pakistani and the children mixed race—all of whom were Muslim. Which of those people would be covered by the new schedule?

Mr. Carmichael: There is mention in the schedule of reference to presumed membership of a religious group as a pretext for stirring up racial hatred against a racial group. It may well be that in the circumstances outlined by the hon. Lady all the people in the group would be covered, because the presumption would clearly be seen to have applied to them all.

If what we are about is tackling the real issue, which is the use of religion as a proxy for racial hatred, and that is the gap to be filled, new schedule 1 is an alternative means of doing so without any of the dangers that exist under the Government’s proposal, which brings with it concerns about curtailing the right to freedom of religious expression. That is essentially what the new schedule is about, and I look forward to hearing what the Minister has to say about it.

Mr. Grieve: New schedule 1 would rewrite the Bill so as to confine it to the use of religious words as a pretext for incitement to racial hatred. It has been loosely termed the Lord Lester amendment, because it surfaced in earlier deliberations. It is slightly unfortunate that the Committee has to consider one of the most critical and important amendments in the first group, before we have had an opportunity to look in detail at the strengths or weaknesses of the Bill as drafted. I fear that there will inevitably be a series of debates that go over the same ground, but there may have been no way of avoiding that.

New schedule 1 has much to commend it, although I will probably reserve my judgment until Report, after we have had an opportunity to look at the Bill in its entirety in greater detail.

The supposition of the hon. Member for Dewsbury (Mr. Malik) seemed, in a funny way, to hit the nail on the head in suggesting that religions require protection—

Chris Bryant: He is not in the Committee.

Hon. Members: Tooting.

11 am

Mr. Grieve: I apologise to the hon. Member for Tooting. I have to tell him that I start from a diametrically different standpoint: I do not think that my religious views require protection. I declare my interest as a churchwarden and a practising member of an Episcopalian church, the Church of England. I do not believe that I require protection against being vilified or from people saying that they consider my religious views horrible and stupid, the fact that I go to church on Sunday ridiculous or the theology of the religion that I practise absurd.


 
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In an increasingly pluralistic society it is of considerable importance to accept that special protection for such religious beliefs should no longer continue. That is why, prior to the election, I said that I would be happy to vote for the abolition of the blasphemy laws, which are obsolete and redundant and protect only the Church of England’s practices. I start from that position. The hon. Member for Tooting made a forceful case that such protection was a good thing, with particular reference to Islam, so I must accept that there is a difference of opinion on the matter.

The Government have said, repeatedly, that the Bill is not intended to protect religious viewpoints. Indeed, we have heard—I was about to say ad nauseam—that the Attorney-General will not allow that to happen, because the use of his reserve powers in order to allow a prosecution to take place will prevent it. The anxiety of many members of the Committee is that it is a dangerous thing to enact law which is of very wide scope in theory but which will be restrictive in practice, but that is what the House is being asked to do. I therefore urge the hon. Gentleman to consider carefully whether there are other ways to deal with legitimate anxieties about the current state of discourse in society and whether or not it incites hatred.

The context in which examples are being brought before Parliament about the use of hatred or incitement to hatred seems from my personal experience to lie squarely within the format of an individual’s ethnic identity, which can, of course, include a religious dimension—I shall be interested to hear the hon. Gentleman’s experience—and the development of a law on racial hatred acknowledged that. As I am sure he is aware, the defining case, Mandla v. Dowell Lee in 1983, which put Sikhs into the category of a racial minority, described ethnic origins as

    “a group which was a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms was a common racial stock, in that it was that combination which gave them an historically determined social identity in their own eyes, and those outside the group.”

Sikhs were included because they were seen as a tight-knit community usually sharing racial origins. Generally, the overwhelming majority are drawn from a tight-knit ethnic group originating from the Punjab in India who share common religious characteristics, although I have met a German Sikh, who turns up regularly at meetings of the Sikh secretariat, which I have attended in Parliament.

Can the protection that was extended in the Mandla case be used to cover other incidents of attack on religion? As the hon. Member for Orkney and Shetland rightly said, it can be. The law has already been extended through case law, so that when an attack on somebody’s ethnic identity is masquerading as an attack solely on their religion, but it is clear from its context that it extends to their ethnic identity, a
 
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person may be caught by the law. New schedule 1 would put in statutory form what has already been pronounced by the courts, therefore allowing Parliament to give its stamp of approval and ensuring henceforth that it will be enforced.

The hon. Member for Tooting should consider that carefully. The new schedule is likely to go a long way to meeting the mischief that he has identified, but it is not likely to widen the scope of the legislation into areas in which criminal law has no business.

 
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