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House of Commons
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, †Mr. Roger Gale

†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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Thursday 30 June 2005
(Morning)

[Mr. Roger Gale in the Chair]

Racial and Religious Hatred Bill

9 am

The Chairman: Morning, ladies and gentlemen. This is an unexpected pleasure. Hon. Members may remove their jackets if they wish to do so. I notice that one or two have pre-empted the Chairman’s decision on that.

Clearly, the first set of amendments is massive and will generate a fairly wide-ranging debate. On that basis, those who know my practice in the Chair will understand that I shall not expect to have a schedule stand part debate at the end, so if you have something to say, say it.

Schedule

Hatred against persons on racial or religious grounds

Mr. Dominic Grieve (Beaconsfield) (Con): I beg to move amendment No. 8, in schedule, page 2, line 19, leave out sub-paragraph (3).

The Chairman: With this it will be convenient to discuss the following amendments:

No. 34, in schedule, page 2, line 19, leave out

    ‘For subsection (1)(b) substitute—

      ‘(b)’

and insert

    ‘After subsection (1)(b), insert “, or

      (c)’.

No. 9, in schedule, page 2, line 21, leave out ‘likely’ and insert ‘intended’.

No. 15, in schedule, page 2, line 22, leave out

    ‘“are (or it is) likely to”’

and insert

‘“will”.’.

No. 35, in schedule, page 2, line 22, leave out ‘“racial or”.’.

No. 53, in schedule, page 2, line 22, leave out ‘“or religious”’.

No. 48, in schedule, page 2, line 23, at end insert

    ‘or

      (c)   having regard to all the circumstances the words, behaviour or material are (or is) liable to be heard or seen by any person in whom they are (or it is) likely to stir up racial hatred.”.’.

No. 54, in schedule, page 2, line 23, at end insert

    ‘or

      (c)   having regard to all the circumstances the words, behaviour or material are (or is) intended to be heard or seen by any person in whom they are (or it is) likely to stir up religious hatred.”.’.

No. 71, in schedule, page 2, line 23, at end insert

    ‘or


 
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      (c)   he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.

No. 13, in schedule, page 2, line 28, leave out sub-paragraph (3).

No. 36, in schedule, page 2, line 28, leave out

    ‘For subsection (1)(b) substitute—

      “(b)’

and insert

    ‘After subsection (1)(b), insert “, or

      (c)’.

No. 83, in schedule, page 2, line 29, leave out from ‘material’ to end of line 31 and insert

    ‘might be reasonably supposed to stir up racial or religious hatred in any person who might see it.”.’.

No. 14, in schedule, page 2, line 29, leave out ‘likely’ and insert ‘intended’.

No. 16, in schedule, page 2, line 30, leave out ‘is likely to’ and insert ‘will’.

No. 37, in schedule, page 2, line 30, leave out ‘racial or’.

No. 55, in schedule, page 2, line 30, leave out ‘or religious’.

No. 49, in schedule, page 2, line 31, at end insert

    ‘or

      (c)   having regard to all the circumstances the material is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.

No. 56, in schedule, page 2, line 31, at end insert

    ‘or

      (c)   having regard to all the circumstances the material is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.

No. 72, in schedule, page 2, line 31, at end insert

    ‘or

      (c)   he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.

No. 17, in schedule, page 3, line 1, leave out sub-paragraph (3).

No. 38, in schedule, page 3, line 1, leave out

    ‘For subsection (1)(b) substitute—

      ‘(b)’

and insert

    ‘After subsection (1)(b), insert “, or

      (c)’.

No. 27, in schedule, page 3, line 3, leave out ‘likely’ and insert ‘intended’.

No. 28, in schedule, page 3, line 4, leave out ‘is likely to’ and insert ‘will’.

No. 39, in schedule, page 3, line 4, leave out ‘racial or’.

No. 57, in schedule, page 3, line 4, leave out ‘or religious’.

No. 50, in schedule, page 3, line 5, at end insert

    ‘or

      (c)   having regard to all the performance is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.

No. 58, in schedule, page 3, line 5, at end insert

    ‘or

      (c)   having regard to all the performance is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.

No. 73, in schedule, page 3, line 5, at end insert

    ‘or


 
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      (c)   he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.

No. 18, in schedule, page 3, line 10, leave out sub-paragraph (3).

No. 40, in schedule, page 3, line 10, leave out

    ‘For subsection (1)(b) substitute—

      ‘(b)’

and insert

    ‘After subsection (1)(b), insert “, or

      (c)’.

No. 29, in schedule, page 3, line 11, leave out ‘likely’ and insert ‘intended’.

No. 30, in schedule, page 3, line 12, leave out ‘is likely to’ and insert ‘will’.

No. 41, in schedule, page 3, line 13, leave out ‘racial or’.

No. 59, in schedule, page 3, line 13, leave out ‘or religious’.

No. 51, in schedule, page 3, line 13, at end insert

    ‘or

      (c)   having regard to all the circumstances the recording is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.

No. 60, in schedule, page 3, line 13, at end insert

    ‘or

      (c)   having regard to all the circumstances the recording is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.

No. 74, in schedule, page 3, line 13, at end insert

    ‘or

      (c)   he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.

No. 19, in schedule, page 3, line 18, leave out sub-paragraph (3).

No. 42, in schedule, page 3, line 18, leave out

    ‘For subsection (1)(b) substitute—

      ‘(b)’

and insert

    ‘After subsection (1)(b), insert “, or

      (c)’.

No. 43, in schedule, page 3, line 21, leave out ‘racial or’.

No. 61, in schedule, page 3, line 21, leave out ‘or religious’.

No. 52, in schedule, page 3, line 21, at end insert

    ‘or

      (c)   having regard to all the circumstances the programme is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.

No. 62, in schedule, page 3, line 21, at end insert

    ‘or

      (c)   having regard to all the circumstances the programme is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.

No. 75, in schedule, page 3, line 21, at end insert

    ‘or

      (c)   he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.

No. 20, in schedule, page 3, line 28, leave out sub-paragraph (3).

No. 21, in schedule, page 3, line 30, leave out ‘likely’ and insert ‘intended’.

No. 22, in schedule, page 3, line 31, leave out ‘is likely to’ and insert ‘will’.


 
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No. 44, in schedule, page 3, line 31, leave out ‘racial or’.

No. 63, in schedule, page 3, line 31, leave out ‘or religious’.

No. 77, in schedule, page 3, line 31, at end insert

    ‘or

      (c)   having regard to all the circumstances the material or recording is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.

No. 64, in schedule, page 3, line 31, at end insert

    ‘or

      (c)   having regard to all the circumstances the material or recording is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.

No. 76, in schedule, page 3, line 31, at end insert

    ‘or

      (c)   he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.

Mr. Grieve: I welcome you to the Chair, Mr. Gale, and I apologise for having assumed that permissions that were given yesterday might have been extended into today as far as our state of sartorial elegance or otherwise is concerned.

This is a very large group of amendments and has a rather daunting quality about it, but it is possible to break it down fairly readily. Some amendments were tabled by the Liberal Democrats, and I shall leave it to them to explain their position on those. Of the amendments that I tabled, there are really only three that are a novelty, because the remainder duplicate them as one goes through the text of the schedule, so the group is nothing like as terrible as it might appear at first sight.

I should add that all the amendments were tabled for probing purposes, so that we have an opportunity to consider an aspect of the schedule that has caused anxiety, which is the rewriting of the second limb of the racial hatred offence. The Committee will recollect that someone can commit the offence because they intend to incite racial hatred under the old law, or someone can commit the offence because in all the circumstances of the case it was likely that racial hatred would be incited.

With the Bill, the Government seek to change the test so that when religious and racial hatred continue together, it should come under the new test that

    “having regard to all the circumstances the words, behaviour or material are . . . likely to be heard or seen by any person in whom they are . . . likely to stir up racial or religious hatred.”

I look forward to the Minister explaining in due course exactly how that test will operate.

I have, as I told the Committee yesterday and the day before, reservations about the test. Amendment No. 8 would simply remove sub-paragraph (3). Perhaps slightly clumsily, it is intended to suggest that we might be as well to leave things as they are—that is, with the old test under the Public Order Act 1986 and the incitement to racial hatred provision.

If we are not to do that, I invite the Committee to consider whether we should look carefully at the sentence in that sub-paragraph, whether there are ways to alter it and what impact that would have on its meaning. The first amendment that is relevant to
 
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achieving that is amendment No. 9, which would leave out the word “likely” in line 21 and substitute “intended”, so that the text read,

    “having regard to all the circumstances the words, behaviour or material are intended to be heard or seen by any person in whom they are likely to stir up racial or religious hatred.”

That would mean that intentionality would have to be shown throughout, in that in the second limb the person would have to intend the material to be seen by people whom they thought might be stirred up even if they did not intend that they would be stirred up to religious hatred as a result.

The alternative, with amendment No. 15, is to leave the first part of the sentence as it stands but leave out the second “likely”, so that the subsection would read,

    “having regard to all the circumstances the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they (or it) will stir up racial or religious hatred.”

It is worth while for the Committee to consider carefully how those words would work in practice, which brings me back to my critique of, or anxiety about, what the Government are trying to do.

The old test, in the 1986 Act, provides for circumstances in which somebody says that they did not intend to stir up racial hatred and there is no evidence to show that they did, but the truth is that they were reckless about the impact of their words. That is how I have always understood the second limb of the existing Public Order Act offence to work. Someone can still be convicted, as the judge can tell members of the jury that even if they consider that the defendant did not intend to stir up hatred, they can look at the matter in the round and judge whether the prosecution has satisfied them that, considering all the circumstances, racial—or now religious—hatred would be stirred up.

That is a sensible test, and one with which juries and judges are enormously familiar. It asks them to apply their common sense and consider all the factors that can be taken into account. Those factors would include: where the speech, for instance, took place; its audience; whether it took place in a climate of heightened tension between communities; and whether the speaker allowed the speech to be disseminated knowing that it would be passed into areas or communities that would be inflamed by the words. The test asks the people to look at the totality of the picture.

We contrast that with the new test, which is dangerously narrow. All that has to be shown is that the words are likely to be heard by somebody

    “in whom they are . . . likely to stir up racial or religious hatred.”

That would put a great burden on somebody making a speech. For example, a vicar or priest who delivers a talk to a learned audience about Islam and provides a rigorous critique of Koranic teaching could find that his words are published and read by some fundamentalists with a violent bent, who use them at a public meeting to claim that people are being incited to hatred of Muslims, even though that had not been
 
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the vicar or priest’s intention. We could reverse that situation and apply it to a Muslim imam—the denomination does not matter.

Under the Government’s new test, the jury will be prevent from considering all the surrounding circumstances, which might incline them to the view that the vicar or priest could not have imagined that the words were likely to stir up hatred. All that now has to be shown is a likelihood that it might be seen by somebody in whom it might be likely to stir up hatred. That strikes me as too narrow a test.

Amendments Nos. 9 and 15 would deal with that, but I am the first to acknowledge that they may have downsides. If we agreed to amendment No. 9, there would have to be a specific intention that the material would be seen by people in whom it was likely to stir up racial or religious hatred, which I accept might be a tighter test that what exists at present. Amendment No. 15 would allow for the recklessness element to remain but would put the burden on the prosecution of showing that it was likely that the words would be heard by people in whom they would stir up racial or religious hatred.

If I were choosing how to amend the schedule, I would prefer amendment No. 15 to amendment No. 9, because it would allow the recklessness element to remain but, on the other hand, it would put the burden on the prosecution to show that the people who were going to hear the words would be stirred up. That then raises the question of what the Crown would have to prove in bringing a case in respect of likelihood. Would they invite the jury to consider all the circumstances? Would they produce somebody who attended a public meeting who said that they thought that such words would have been likely to stir them up if they had heard them? It is not at all clear to me how people will be prosecuted, now that we have departed, as I said to the Minister, from the much simpler test that originally prevailed.

I understand, because the Minister explained it to me and also because it has been published, that the reason for the alteration is the problem of acts taking place, such as posters being taken down before anybody could read them. Although it could be argued that the posters were likely to stir up racial or religious hatred, it was impossible to show that, in all the circumstances, hatred was going to be stirred up. I sometimes think that a single case leading to an amendment may produce bad law. The Committee should reflect carefully on whether we should alter the law at all. After all, if by a happy intervention of the police, the publication of a document that is intended to stir up hatred is stopped—in the same way as a murderer whose murder is prevented escapes the full rigour of the law—there is at least an argument that we should be thankful that the person concerned need not be prosecuted.

If, on the other hand, it is felt that we should prosecute such people, where it is only by a happy chance that the words have not been disseminated, confining the offence to a specific intent might be better, or if not, amendment No. 15 might provide a fairer outcome. I should apologise to the Minister for
 
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having been so technical; it is not an easy topic to get one’s head around, especially at 9 o’clock on a Thursday morning.

Perhaps the Minister will be able to persuade me that I am completely wrong about the matter, but I think that the impact of the changed test raises the possibility that people will be convicted unfairly. As the test that he is planning to introduce does not require intent, it strikes me that when one likelihood is piled on another, a highly speculative environment is created, which is unfair to the person concerned. That worries me. The Minister can persuade me that I am wrong, as I am open to persuasion, and if another member of the Committee can persuade me that there is another way of approaching the problem, I shall be equally happy.

Lynne Featherstone (Hornsey and Wood Green) (LD): If the hon. Member for Beaconsfield (Mr. Grieve) thought that it was daunting for him, it was certainly daunting for me. We have three sets of amendments. They are all probing amendments, and underlying them all is the fact that we do not want incitement to religious hatred in any case. However, for the sake of argument, amendments Nos. 34, 35, 38, 40 and 42 pave the way for the following three sets. We want to know exactly what is the point of the Government’s change to the likely limb in terms of race. If the point is to make prosecution more likely to be successful, surely lowering the threshold is what the Government wish to do. We have tabled amendments Nos. 35, 48, 37, 49, 39, 50, 41, 51, 43, 52, 44 and 77 for that purpose. If the Government wish to lower the threshold, why not change the word to “liable”? That would change the test from the balance of probability to risk only.

9.15 am

The second set of amendments applies to religion only; we are not arguing the point on grounds of race. Amendments Nos. 53 to 64 are probing amendments. They might be considered to create a higher threshold, but they deal with what the Government are seeking to do in terms of the prior limb. We are saying that in order to be guilty of an offence of incitement to religious hatred the person would at least have intended to be heard or seen.

The third set of amendments relates to the recklessness test to which the hon. Member for Beaconsfield referred. Amendments Nos. 71 to 76, taken with amendments Nos. 8, 13 and 17 to 20, are about recklessness. I am not a lawyer, as I said yesterday, but 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. I seek an explanation from the Minister because I fear there is likely to be a mess, and a feast for lawyers, if the Bill is enacted as drafted.

Chris Bryant (Rhondda) (Lab): What a delight it is to see you in the Chair, Mr. Gale, despite the fact that you are replacing Mr. Amess. He would have been delightful, but perhaps not quite as delightful as you, Mr. Gale.


 
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The hon. Member for Beaconsfield made some important points, to which I hope the Minister will respond later. I add my contribution not least because I tabled amendment No. 83. The issue of intentionality is important in deciding whether a genuine offence has been committed. Of course, in some criminal cases intentionality is perhaps much easier to determine than it is in a case of religious hatred. In a case of murder we presume that if someone stabbed a knife into a person’s chest they intended to kill that person, unless in law intentionality has been excused by virtue of insanity or someone not being in full possession of their faculties. In the case of murder, that is fairly straightforward, but in a case of incitement to racial or religious hatred it is more complex, not least because it is incitement. That may be trying to create a climate of religious hatred without doing so directly; for example, handing a piece of paper into the hands of another person, who might thereby be incited to religious or racial hatred. The direct connection between the perpetrator and the victim is tenuous.

If the bar for committing the offence is the question whether anyone may be incited to religious hatred by the words that are said, the material that is published, the play that is produced or the broadcast that is shown, that is an extremely low bar. For example, someone might be incited to religious hatred who already had a fair degree of it in their bloodstream. However, the bar would be far too high if it was a reasonable person who was being incited to religious hatred, as I would argue that you would not be able to incite any reasonable person to religious hatred. I accept that there must be a different determination of precisely how to determine whether an offence has been committed.

I tabled only one amendment, but I could have tabled an identical amendment to paragraphs 5, 6, 7, 8 and 9, which relate to the use of words, behaviour, display of written material, publishing or distributing written material, performance of a play, and showing or playing a recording or broadcasting. However, I did not do so because my amendment, like those tabled by the hon. Member for Hornsey and Wood Green (Lynne Featherstone), is a probing amendment.

Let us take, for example, the instance of producing and performing a play. Let us say for the sake of argument that it is a production of “The Jew of Malta” by Christopher Marlowe. Most people would probably consider that when Barabas says to his daughter Abigail:

    “It’s no sin to deceive a Christian;

    For they themselves hold it a principle,

    Faith is not to be held with heretics:

    But all are heretics that are not Jews”,

that is either deeply and deliberately offensive against Christians, because Barabas is saying things that are deliberately intended to be offensive to Christians, or that the putting on of the play and putting such words into the mouth of a Jew is deeply offensive.

Likewise, when, later on in the play, Barabas says of himself:

    “Is’t not too late now to turn Christian?

    I have been zealous in the Jewish faith,


 
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    Hard-hearted to the poor, a covetous wretch,

    That would for lucre’s sake have sold my soul”,

people might consider, quite rightly, that putting those words into the mouth of a Jew, and implying that to be a zealous Jew is to be hard-hearted to the poor and a covetous wretch, is an incitement to religious hatred.

One could, of course, enter into lengthy exegesis of the play on what Marlowe’s intention was, what the intention of the production was, and whether one presented Barabas in a supportive and sympathetic light in a particular production that was being put on. However, I note that although Judaism is protected under current law, no prosecutions have been advanced against any theatre company that has produced “The Jew of Malta”, of which I have seen at least five productions in the past 20 years. We can therefore be fairly sure that, if we remain with the intentionality clause, there are unlikely to be prosecutions against such plays.

Similarly, in the 1980s, a production of a play called “England, My Own”, by Peter Terson, was put on by the National Youth theatre, in which I played a very small bit part—[Interruption.] The play was contemporary; it was about the National Front and the many attacks that there had been in various parts of the country, particularly on Afro-Caribbean communities. One of the characters in the play was supposedly the leader of the National Front. It was an interesting production.

There were about 120 of us in the production—so hon. Members can see how small a bit part I had—and on one of the nights, while we were standing on stage during one of the various songs in the production, which were mostly patriotic old British hymns, the whole of the audience of about 450 stood up, took off their jackets and showed their brown shirts and their sand-brown belts, and proceeded to march on to the stage. There was then a very big fight. The next night we were attacked by gay lib, so it was an interesting week. [Interruption.] Formative years, indeed. The important point is that many of the speeches in the play by the character playing the leader of the National Front were deeply offensive. They had to be deeply offensive to make the point of the play, which was to expose some of the outrages committed by the National Front—which is now the British National party.

If someone were to use precisely those same speeches on a street corner, I am sure that they could be arrested on the grounds of incitement to racial hatred. Saying such things on stage as a fictional character, albeit a fictional character very closely based on some people that we might all have been able to name in the 1970s, was different. No one took out any form of prosecution against the play, and rightly so, because the moral of the play—it was a fairly moralistic play—was that the National Front and racial hatred were wrong.


 
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Let us move forward to today. Let us say, for instance, that the National Theatre wanted to put on a play that was about incitement to religious hatred, and in the play it chose to have groups of Christians and Muslims, or Catholics and Protestants—perhaps it was about sectarianism. There might be characters on stage who made ferocious attacks which, if we heard them in a meeting in the east end of London or in a Catholic part of Glasgow, we would consider to be a deliberate attempt to incite religious hatred.

Of course, if the play were able to explore that issue it would have to present those characters on stage; again, these might be fictional characters. The context within which those words are spoken on a theatre stage is different from the context in which they might be spoken in the east end outside a mosque or in a Catholic area in the west end of Glasgow. It would be difficult to introduce an exemption for plays and works of fiction. Everyone would then argue that something was meant to be a play and a work of fiction. I cannot see that there is a way that would help us.

We should want to help our theatre industry because one of the things of which we have been rightly proud over many centuries is that Britain has been good at exposing, on stage, some of the great moral issues of the age. Islamophobia is undoubtedly one of the moral issues of this age. I cannot see how, without some intentionality being introduced into the Bill, we have a means of allowing the National Theatre to put on a play about incitement to religious hatred without being caught by the Bill.

My amendment would allow for a slightly different grammatical reading by turning from the active into the passive. Instead of the present wording the sub-paragraph would read

    “might be reasonably supposed to stir up racial or religious hatred in any person who might see it.”

I recognise that that still falls somewhat foul of my worry that “any person” gives us a very low bar. This is still a probing amendment, but I urge the Minister to look for some means of reintroducing an element of intentionality into the question whether someone has committed an offence under the Bill.

 
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