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9 Jan 2008 : Column 440

29X Power to order forfeiture

(1) A court by or before which a person is convicted of—

(a) an offence under section 29Q relating to the display of written material, or

(b) an offence under section 29R, 29T or 29V,

shall order to be forfeited any written material or recording produced to the court and shown to its satisfaction to be written material or a recording to which the offence relates.

(2) An order made under this section shall not take effect—

(a) in the case of an order made in proceedings in England and Wales, until the expiry of the ordinary time within which an appeal may be instituted or where an appeal is duly instituted, until its finally decided or abandoned;

(b) in the case of an order made in proceedings in Scotland, until the expiration of the time within which, by virtue of any statute, an appeal may be instituted or, where such an appeal is duly instituted, until the appeal is finally decided or abandoned.

(3) For the purposes of subsection (2)(a)—

(a) an application for a case stated or for leave to appeal shall be treated as the institution of an appeal, and

(b) where a decision on appeal is subject to a further appeal, the appeal is not finally determined until the expiry of the ordinary time within which a further appeal may be instituted or, where a further appeal is duly instituted, until the further appeal is finally decided or abandoned.

(4) For the purposes of subsection (2)(b) the lodging of an application for a stated case or note of appeal against sentence shall be treated as the institution of an appeal.

Supplementary provisions

29Y Saving for reports of parliamentary or judicial proceedings

(1) Nothing in this Part applies to a fair and accurate report or proceedings in Parliament or in the Scottish Parliament.

(2) Nothing in this Part applies to a fair and accurate report of proceedings publicly heard before a court or tribunal exercising judicial authority where the report is published contemporaneously with the proceedings or, if it is not reasonably practicable or would be unlawful to publish a report of them contemporaneously, as soon as publication is reasonably practicable and lawful.

29YA Procedure and punishment

(1) No proceedings for an offence under this Part may be instituted in England and Wales except by or with the consent of the Attorney General.

(2) For the purposes of the rules in England and Wales against charging more than one offence in the same count or information, each of sections 29Q to 29V creates one offence.

(3) A person guilty of an offence under this Part is liable—

(a) on conviction on indictment to imprisonment for a term not exceeding seven years or a fine or both;

(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

29YB Offences by corporations

(1) Where a body corporate is guilty of an offence under this Part and it is shown that the offence was committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as it applies to a director.

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29YC Interpretation

In this Part—

“distribute”, and related expressions, shall be construed in accordance with section 29R(2) (written material) and section 29T(2) (recordings);

“dwelling” means any structure or part of a structure occupied as a person’s home or other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose “structure” includes a tent, caravan, vehicle, vessel or other temporary or movable structure;

“programme” means any item which is included in a programme service;

“programme service” has the same meaning as in the Broadcasting Act 1990;

“publish”, and related expressions, in relation to written material, shall be construed in accordance with section 29R(2);

“recording” has the meaning given by section 29T(2) and “play” and “show”, and related expressions, in relation to a recording, shall be construed in accordance with that provision;

“transgender hatred” has the meaning given by section 29P;

“written material” includes any sign or other visible representation.”’.

New schedule 2— ‘increase in sentences for aggravation related to transgender—

1 Section 146 of the Criminal Justice Act 2003 (c. 44) (increase in sentences for aggravation related to disability or sexual orientation) is amended as follows.

2 In the heading, after “disability” insert “, transgender”.

3 In subsection (2)(a)(ii) at end insert—

“(iii) the transgender identity or appearance (or presumed transgender identity) of the victim, or”.

4 In subsection (2)(b)(ii) at end insert “, or

(iii) by hostility towards persons who have a transgender identity or appearance.”’.

Amendment No. 214, line 4, schedule 22, at end insert—

‘(2A) After subsection (1) insert—

“(1A) An action under subsection (1) may include any action intending to equate sexual orientation with a propensity or intention to commit an imprisonable offence, where such action is threatening and intended to incite hatred on the grounds of sexual orientation.”’.

Amendment No. 231, line 4, at end insert—

‘(2A) After subsection (1) insert—

“(1A) When considering whether to consent to a prosecution under subsection (1) the Attorney General must have particular regard to the importance of the right to freedom of expression provided by the European Convention on Human Rights.”’.

Amendment No. 1, in page 234, line 26, at end insert—

‘13A After section 29J insert—

“29JA Protection of freedom of expression (sexual orientation)

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion of, criticism of or expressions of antipathy towards, conduct relating to a particular sexual orientation, or urging persons of a particular sexual orientation to refrain from or modify conduct related to that orientation.”.’.

No. 215, line 26, at end insert—

‘13A After subsection 29I insert—

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“29IA European Convention on Human Rights

Unless expressly limited by any provision within this Part, no right under Article 10 of the European Convention on Human Rights shall be affected.”’.

Dr. Harris: I am pleased to move the abolition of the ancient discriminatory, unnecessary, illiberal and non-human rights compliant offences of blasphemy and blasphemous libel. It is the litany of faults with those offences that explains why the new clause has attracted so much support from all parts of the House. I would like to place on record my thanks to my co-sponsors, especially to the right hon. Member for Holborn and St. Pancras (Frank Dobson), the hon. Members for Salisbury (Robert Key) and for Spelthorne (Mr. Wilshire), my hon. Friend the Member for Cambridge (David Howarth), the hon. Members for Cannock Chase (Dr. Wright) and for Reading, West (Martin Salter), and my hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes). They were all were extremely helpful in ensuring that the House has this opportunity to debate the matter, and that broad support for the abolition of these offences was expressed.

As well as being cross-party, support has also crossed lines of religious belief. I note that support has also been previously expressed by the current leader of the Conservative party—and, indeed, by the hon. Member for Beaconsfield (Mr. Grieve), who has an excellent reputation in standing up for freedom of expression. The last time the matter was raised, support was also forthcoming from the right hon. Member for Suffolk, Coastal (Mr. Gummer) who, along with the hon. Member for Salisbury, represents a religious point of view in these matters. Let me add the right hon. Member for Birkenhead (Mr. Field), who also identifies with a religious point of view. I am grateful that 76 Members were willing to sign a potentially controversial new clause—albeit one proposed by a very sensible Liberal Democrat Back-Bench MP who does not really adopt controversial positions, at least most of the time.

The degree of support across the rest of society is also noteworthy. A letter in The Daily Telegraph yesterday had a remarkable list of co-signatories calling for the abolition of those offences. They included the former Archbishop of Canterbury, Lord Carey, who has spoken publicly about the need to abolish them; the author—and my constituent—Philip Pullman; my former constituent and former Bishop of Oxford, Lord Harries; Ricky Gervais, the comedian; Nick Hytner, the director of the National theatre; Shami Chakrabarti, the director of Liberty; Professor Richard Dawkins, who is well known and admired by many of us; Michael Cashman; novelists Hari Kunzru and Hanif Kureishi; Sir Jonathan Miller; Baroness Frances D’Souza, who was a long-standing executive director of Article 19; and human rights campaigner Peter Tatchell.

Interestingly, another supporter is the comedian and writer of “Jerry Springer: The Opera”, Stewart Lee, who faced a great deal of difficulty in staging his award-winning production because of claims that it was blasphemous. Those were a catalyst for the organising of the sort of demonstrations that, although they should be permitted, should not have the
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imprimatur of being backed up by any part of common law. I also want to pay special thanks to the National Secular Society and English PEN, which have campaigned for a long time on this issue.

Blasphemy is an ancient law going back hundreds of years. I do not have time to provide a full history, but it should be pointed out that the last conviction for the offences in question was in 1977, and that the last successful public prosecution was in 1922. It is an old-fashioned, ancient law that is out of time and not needed any more. One does not have to be an ultra-moderniser to recognise that.

Those laws are also unnecessary in two significant ways. First, enough laws dealing with outraging public decency and public order offences are already on the statute book to ensure that the removal of these two offences will not lead to widespread outrageous behaviour in public. We are talking about people being able to see theatre productions, watch television programmes, attend readings, and publish books and documents for specific audiences, without the threat of prosecution under the blasphemy laws. Secondly, as has been pointed out by a number of people more qualified than me to say it, the Almighty does not need the protection of these ridiculous laws, which is why many people with a religious perspective share the view that these offences should be abolished.

The offence of blasphemy is illiberal because its scope is uncertain. Its terms do not define—because the offence is not statutory, for one thing—what someone must do or say to be arrested, prosecuted and convicted. It is also an offence of strict liability, so not having intended to blaspheme is no defence to prosecution. One therefore cannot know when one is committing the offence, which was the main reason given by the Law Commission for seeking its abolition as long ago as 1985. Although people do not know whether they have committed the offence, it also commands an unlimited penalty, because no penalty is laid down in statute. The offence is discriminatory, in that it applies only to the Christian religion—and within that, only to the tenets of the Church of England.

7 pm

For both the reasons that I have given—the lack of clarity and its discriminatory nature—the offence does not comply with the European convention on human rights, or, indeed, with our own law now that it incorporates the convention.

Miss Widdecombe: Will the hon. Gentleman confirm that within the last two years the European Court has ruled first that countries may have blasphemy laws, and secondly that those laws are permitted to apply to one religion and not to others?

Dr. Harris: I can tell the right hon. Lady that in my opinion, and in that of the human rights lawyers whom I have consulted, it is unlikely that under the Human Rights Act the blasphemy offence would pass muster in United Kingdom courts, where there is no margin of appreciation on national grounds because they are our courts. It is extremely unlikely that the English blasphemy offence would survive Strasbourg nowadays, and I think
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it right and proper that it would be struck down, but I do not think we need wait for that. The offence is not necessary, it does not work, it is ancient, it is discriminatory, and it ought to be abolished.

The offence is also divisive in terms of social cohesion, partly because it is discriminatory. The corollary of that is that it raises a sense of unfairness among other religions, particularly those whose adherents are more sensitive than adherents to the Christian faith—a sense that they are being singled out because they are not protected. It raises the expectation, which previous Governments may have sought to keep going, that they will be entitled to their own—Islamic, say—version of a blasphemy law. The best way in which to make clear to the communities and people of this nation that we do not expect there to be protection of beliefs, or indeed of people’s sensibilities about their beliefs, is to abolish the existing blasphemy offences, and that is one of the strongest arguments for so doing.

As many Members will recall, when we last discussed the religious hatred offences a couple of years ago, it was made clear even by those who supported the Government’s original wide offence that we did not want to prevent attacks—including scurrilous, lampooning and offensive attacks—on religious or indeed other beliefs. That is one of the main reasons why the House was right to narrow the offence, so that insulting and abusive language and unintentional words and behaviour would not be covered by the law relating to incitement to religious hatred. The House was right to do that, and anyone who voted in favour of narrowing that offence must surely also be in favour of abolishing these laws. They have even less justification than over-wide offences aimed at protecting people and their sensibilities, because they purport directly to protect people’s beliefs.

Mr. Alan Beith (Berwick-upon-Tweed) (LD): Is my hon. Friend not making a rather persuasive case for amendment No. 1, which seeks to make it clear that free speech should not be impaired by the provisions that it amends?

Dr. Harris: No. My right hon. Friend makes the case that when it comes to incitement of hate-crime offences, there is a balance to be struck between free speech and the needs of those who require protection from the consequences of incitement to hatred. I think that the House got the balance right when it voted on the religious hatred law, and that the Government are now pretty close to getting it right on homophobic hatred, since the Secretary of State for Justice agreed with me on Second Reading that it should be treated in broadly the same way as religious hatred. I am sure that more will be said on that point. However, there is no balancing issue here. There is no balancing argument about the human rights and other rights of others because the blasphemy offences are not purporting to defend the rights of others. They are there to defend the tenets of the Church of England from attack. We should not have criminal offences preventing such attacks.

Mr. Roger Gale (North Thanet) (Con): As the hon. Gentleman knows, I came to this debate with an open mind because I wanted to hear the argument. I have
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heard it, and I now do not accept it. Can he explain why it is wrong to protect the tenets of the Church of England?

Dr. Harris: Yes. I am disappointed that the hon. Gentleman is not persuaded, but I do not doubt that he came in with an open mind. It is wrong that points of view should be defended through the criminalisation of attacks on them. I do not think that there is any point of view that is so special that it requires the defence of the criminal law, especially this criminal law, for its defence. It is a sign of weakness. That is why many people, including now the Church of England, recognise that there is no argument in principle against abolition of these offences.

Chris Bryant (Rhondda) (Lab): As a former curate in the Church of England, I could not tell the hon. Gentleman what the tenets of the Church of England are. I do not suppose that he could tell the House what they are. I am sure that the hon. Member for North Thanet (Mr. Gale) does not know the first thing about the tenets of the Church of England. Surely the law should not be telling us what they are.

Dr. Harris: The hon. Gentleman puts it correctly. Most of those who are liable to be accused of blasphemy have the least ability to know what the tenets that they are supposed to be offending against are.

There are further problems with this offence; it creates real problems. Although it has not been used for a long time, it has a chilling effect. There can be a reluctance among some theatre directors, publishers or press people to print material that might be alleged to be blasphemous, because there is a criminal offence.

There is another chilling effect. The existence of such offences catalyses attempts at private prosecution. For example, the extreme Christian Voice group sought to bring such a prosecution against the BBC. That cost hundreds of thousands of pounds for the BBC to defend, money that I at least—I do not say this in the hope of a good write-up—believe would be better spent on salaries for journalists.

Mark Pritchard (The Wrekin) (Con): Is this not really an indirect argument—an argument by stealth—for the eventual disestablishment of the Church of England? As the hon. Member for Rhondda (Chris Bryant), who is the Prime Minister's adviser on constitutional affairs, will admit, he has a similar view on disestablishment.

Dr. Harris: I have never accepted slippery slope arguments, whether they are to do with embryology or anything like that. This House is able to decide each of the issues regarding the constitutional settlement point by point, time by time. If I had intended the new clause to go wider, one is quite capable of writing amendments to that effect. Hon. Members can be sure that in voting for the new clause, they are not signalling any intention to change the fundamental relationship between the Church of England and the state, although I for one—it is my party’s policy, too—would like to see that change. However, it is not the purpose of the new clause.

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