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House of Commons
Session 2007 - 08
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General Committee Debates
Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill

The Committee consisted of the following Members:

Chairmen: Frank Cook , Mr. Edward O'Hara , † Sir Nicholas Winterton
Burrowes, Mr. David (Enfield, Southgate) (Con)
Coaker, Mr. Vernon (Parliamentary Under-Secretary of State for the Home Department)
Cohen, Harry (Leyton and Wanstead) (Lab)
Eagle, Maria (Parliamentary Under-Secretary of State for Justice)
Garnier, Mr. Edward (Harborough) (Con)
Hanson, Mr. David (Minister of State, Ministry of Justice)
Heath, Mr. David (Somerton and Frome) (LD)
Hollobone, Mr. Philip (Kettering) (Con)
Howarth, David (Cambridge) (LD)
Hurd, Mr. Nick (Ruislip-Northwood) (Con)
Keeble, Ms Sally (Northampton, North) (Lab)
Khan, Mr. Sadiq (Tooting) (Lab)
Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)
Sharma, Mr. Virendra (Ealing, Southall) (Lab)
Walker, Mr. Charles (Broxbourne) (Con)
Waltho, Lynda (Stourbridge) (Lab)
Wilson, Phil (Sedgefield) (Lab)
Alan Sandall, Committee Clerk
† attended the Committee

Public Bill Committee

Thursday 29 November 2007


[Sir Nicholas Winterton in the Chair]

Criminal Justice and Immigration Bill

9 am
The Chairman: I congratulate the Committee on making such excellent progress on Tuesday and on sitting late. It almost reminds me of the good old days.
Clause 124 ordered to stand part of the Bill.

Schedule 21

Minor and consequential amendments
Amendments made: No. 54, in schedule 21, page 222, line 26, at end insert—
‘Criminal Justice Act 1961 (c. 39)
2A In section 38(3)(c) of the Criminal Justice Act 1961 (construction of references to imprisonment or detention in case of children and young persons) after “in accordance with” insert “a determination of the Secretary of State or of a person authorised by him, in accordance with arrangements made by the Secretary of State or in accordance with”.’.
No. 210, in schedule 21, page 222, line 26, at end insert—
‘Criminal Appeal (Northern Ireland) Act 1980 (c. 47)
2A In section 13A(3) of the Criminal Appeal (Northern Ireland) Act 1980 (grounds for allowing appeal against finding of unfitness to be tried), in paragraph (a) for “the finding” substitute “a finding”.’.—[Maria Eagle.]
The Minister of State, Ministry of Justice (Mr. David Hanson): I beg to move amendment No. 236, in schedule 21, page 222, line 26, at end insert—
‘Prison Act 1952 (c. 52)
2A In section 43(1)(aa) of the Prison Act 1952 (provision by Secretary of State of young offender institutions), at the end insert “or other persons who may be lawfully detained there”.’.
The Chairman: With this it will be convenient to discuss Government amendments Nos. 372, 241, 205, 206, 373, 251 and 370.
Mr. Hanson: Good morning, Sir Nicholas. Welcome back to the Chair for our final sitting. The amendments are technical, but I shall say a word about three of them.
Amendment No. 236 is designed to bring the statutory definition of a young offender institution up to date. The change in definition will enable the Secretary of State subsequently to exercise an order-making power under section 41(6) of the Crime and Disorder Act 1998. It will allow the Youth Justice Board to exercise, concurrently with the Secretary of State, the power to enter into contracts for the provision and the running of young offender institutes.
Amendment No. 205 is a small amendment. It relates to the double jeopardy provision under part 10 of the Criminal Justice Act 2003. For the first time, the Act permitted retrials in respect of a number of very serious offences. The amendment addresses a small anomaly, which is that, unlike the High Court and the magistrates court, Crown courts and the Court of Appeal do not sit for urgent cases on Saturdays. The amendment would allow them to do so in the event of that requirement being needed in respect of double jeopardy.
Amendment No. 372 makes technical amendments to the Youth Justice and Criminal Evidence Act 1999. Among other things, the 1999 Act prescribed various procedural protections for complainants and other witnesses. New paragraph 8C rectifies an unintended omission from the list of offences to which some of those protections apply.
Amendment agreed to.
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): I beg to move amendment No. 237, in schedule 21, page 223, line 19, at end insert—
‘Football Spectators Act 1989 (c. 37)
6A In paragraph 1(c), (k) and (q) of Schedule 1 to the Football Spectators Act 1989 (offences)—
(a) for “Part III” substitute “Part 3 or 3A”; and
(b) for “(racial hatred)” substitute “(hatred by reference to race etc)”.
Broadcasting Act 1990 (c. 42)
6B (1) Section 167 of the Broadcasting Act 1990 (power to make copies of recordings) is amended as follows.
(2) In subsection (4)(b), after “section 24” insert “or 29H”.
(3) In subsection (5)(b), after “section 22” insert “or 29F”.’.
The Chairman: With this it will be convenient to discuss the following: Government amendments Nos. 246, 252 and 221.
Government new clause 34—Hatred on the grounds of sexual orientation.
New clause 49—Hatred on grounds of sexual orientation
‘(1) Save where expressly limited by subsection (2) below, nothing in this section affects any person’s right—
(a) to respect for private and family life, his home and his correspondence;
(b) to freedom of thought, conscience and religion, including the right to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance;
(c) to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas without interference by any person or public authority;
(d) to freedom of peaceful assembly and to freedom of association with others.
(2) It is an offence whether by words or acts for any person to do, or to incite any other person to do, any act with the intention of causing physical or mental harm to any person or group of persons on the basis of hatred of their sexual orientation or presumed sexual orientation.
(3) In this section “words” and “acts” include the making known to any third party of oral, written or printed words by any method of publication including electronic, wireless or internet media, and an offence under this section may be committed in a public or a private place.
(4) Where a body corporate is guilty of an offence under this section 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.
(5) Where the affairs of the body corporate are managed by its members, subsection (4) applies in relation to the acts and defaults of a member in connection with his functions of management as it applies to a director.
(6) No criminal proceedings under this section may be initiated or continued save by the Crown and with the permission of the Attorney General.
(7) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both; or
(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.’.
Government new schedule 2—Hatred on the grounds of sexual orientation
1 Part 3A of the Public Order Act 1986 (c. 64) (hatred against persons on religious grounds) has effect subject to the following amendments.
2 In the heading for Part 3A at the end insert “or grounds of sexual orientation”.
3 In the italic cross-heading before section 29A at the end insert “and “hatred on the grounds of sexual orientation””.
4 After that section insert—
“29AB Meaning of “hatred on the grounds of sexual orientation”
In this Part “hatred on the grounds of sexual orientation” means hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both).”
5 In the italic cross-heading before section 29B at the end insert “or hatred on the grounds of sexual orientation”.
6 (1) Section 29B (use of words or behaviour or display of written material) is amended as follows.
(2) In subsection (1), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
(3) Omit subsection (3).
7 In section 29C(1) (publishing or distributing written material), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
8 In section 29D(1) (public performance of play), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
9 In section 29E(1) (distributing, showing or playing a recording), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
10 In section 29F(1) (broadcasting or including programme in programme service), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
11 In section 29G(1) (possession of inflammatory material), for “religious hatred to be stirred up thereby” substitute “thereby to stir up religious hatred or hatred on the grounds of sexual orientation”.
12 (1) Section 29H (powers of entry and search) is amended as follows.
(2) In subsection (1), omit “in England and Wales”.
(3) Omit subsection (2).
13 (1) Section 29I (power to order forfeiture) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a), omit “in the case of an order made in proceedings in England and Wales,”; and
(b) omit paragraph (b).
(3) Omit subsection (4).
14 In section 29K(1) (savings for reports of parliamentary or judicial proceedings), for “or in the Scottish Parliament” substitute “, in the Scottish Parliament or in the National Assembly for Wales”.
15 (1) Section 29L (procedure and punishment) is amended as follows.
(2) In subsections (1) and (2), omit “in England and Wales”.
(3) In subsection (3), in paragraph (b), for “six months” substitute “12 months”.
(4) After that subsection insert—
“(4) In subsection (3)(b) the reference to 12 months shall be read as a reference to 6 months in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003.”
16 In section 29N (interpretation), after the definition of “dwelling” insert—
““hatred on the grounds of sexual orientation” has the meaning given by section 29AB;”.’.
And the following amendments thereto: (a), after paragraph 6, sub-paragraph (2) insert—
‘(2A) After subsection (1) insert—
“(1A) An action under subsection (1) may include any action intended to equate sexual orientation with a propensity or intention to commit an imprisonable offence.”’.
(b), after paragraph 13 insert—
‘(13A) After section 29I insert—
“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.”’.
Maria Eagle: Good morning, Sir Nicholas. Welcome back to what should be our final sitting. This group of amendments deals with the inclusion of an offence of incitement to homophobic hatred into the legislation, as explained on Second Reading by my right hon. Friend the Secretary of State.
There has been widespread debate on the issue, not only among the parties represented here on the Committee, but between the Government and other parties and among interested bodies outside Parliament. Indeed, we took evidence at the beginning of the Committee’s deliberations in relation to the desirability of such legislation and the form that it should take. The Government believe that it is desirable.
The Government have a good record in ensuring that the rights of gay, lesbian and bisexual people are protected, and we are committed to ensuring that all people can live free from the fear and discrimination that can and does ruin lives and blight communities. It is important that gay, lesbian and bisexual people are accepted by our society and are able to play a full part in it—sentiments from which I suspect that no one in the Committee or in the House would demur.
It is for that reason that the Government have taken much action in our period of office to make sure that the rights of gay, lesbian and bisexual people are protected. We have set up a cross-Government working group to tackle hate crime that is working on a number of priorities to help emphasise the importance of protecting all members of our society. We know that hate crime is corrosive and insidious. The more society stays silent about it, the more that perpetrators feel that they can get away with it. The Government’s key priority is therefore to encourage people to come forward and report what has happened. We need better to understand what is happening in order effectively to intervene and prevent it.
The criminal justice system plays an important part in that policy. A framework of offences and sentencing ensures that crime motivated by homophobic hatred is dealt with in a way that takes into account the wider harm cased by such crime. We are doing more to ensure that such crime is reported and properly recorded, so that we can assess the extent of the problem. Hon. Members will also recall that, on the civil side, we have introduced civil partnerships to ensure that the status of a gay partnership is recognised in law.
We need to do more, however. We need to make sure that hatred of people simply on the basis of their sexual orientation as a group is understood to be unacceptable, and is recognised as such. We should not underestimate the damaging effect of incitement to hatred, because it damages not only individuals, who might end up as targets of crime, feeling discriminated against and isolated from society, but entire communities as well as the community spirit that is so important to a successful and democratic society. Left unchecked, that creates an atmosphere in which hatred and intolerance aimed at particular groups are seen as normal and acceptable, and it makes crimes against particular groups and individuals seem more justified and acceptable too. Crimes that occur against people because of sexual orientation are not justifiable or acceptable, and we need to deal with incitement to hatred before hatred becomes engrained, endemic and accepted as part of our society.
There has been an offence of inciting racial hatred since as long ago as 1965. That legislation is now contained in the Public Order Act 1986, and is well established. Last year, the Government introduced offences of inciting religious hatred that came into force in October this year, and we now propose to introduce offences of inciting hatred on the basis of sexual orientation. Inciting hatred on that basis is harmful and divisive in the same way as is inciting hatred on the grounds of race or religion, and people should be protected from such incitement just as they are from incitement on grounds of race or religion.
When the House debated the religious hatred offences last year, some strong views were expressed about the offences and about the need to balance them against freedom of expression. In many ways, that it the nub of the whole debate, because freedom of expression is of enormous value to our society and to our democratic way of life. It is a real concern, and the balance that we are all seeking to achieve is between freedom to say what one feels and thinks and incitement of hatred of a group because of sexuality, race or religion. That is the balance that we all seek in casting the law.
In a democratic society, it is important that we interfere with freedom of speech only where there is a need to protect people in society from harm. As a result of concerns, the offences of incitement to religious hatred, as proposed by the Government, were amended and changed during the passage of that legislation. The Government thought at the time that the proposed offences were clear enough and that there were robust safeguards against the offences being used maliciously or inappropriately. However, Parliament thought otherwise and they were changed during their passage.
As the Secretary of State said on Second Reading, in drafting the current proposals we have taken as our starting point the amended offences of inciting religious hatred, which are now contained in part 3A of the Public Order Act 1986. I want to be very clear about what the new offences do and do not cover because that is not immediately apparent from reading the proposals, such is the way in which legislation is written. No doubt the hon. and learned Member for Harborough may have something to say about that when discussing the proposals.
Mr. Edward Garnier (Harborough) (Con): I have very little to say about any of these matters.
Maria Eagle: The new offences cover words, behaviour or material which are threatening and which are intended to stir up hatred.
I shall not comment on the broad grins on the faces of most Committee members on hearing that intention expressed by the hon. and learned Gentleman. I do not wish to provoke him, so I will leave it well alone.
Mr. Philip Hollobone (Kettering) (Con): I am listening to the Minister’s comments with great interest. Will she give us some more evidence, from her Ministry’s point of view, about why there is a need for such legislation at all?
We had some very powerful evidence in the evidence sessions about existing legislation in this area. For example, section 146 of the Criminal Justice Act 2003 includes tougher sentences for offences motivated by hatred of the victim’s sexual orientation. Under the Public Order Act 1986, it is already an offence to use threatening, abusive or insulting words or behaviour in a way that is likely to cause harassment, alarm and distress. That measure has been used to arrest people for making homophobic comments. The Protection from Harassment Act 1997 makes it a civil or criminal offence to harass somebody. There are also offences for actual bodily harm and assault under the Offences Against the Person Act 1861 and there is the offence of common assault.
In addition, the Crown Prosecution Service said in October that
“homophobic crime is being tackled head on and with success.”
Why is there need for new legislation in this area?
9.15 am
Maria Eagle: I am happy to deal with that point. I was seeking to set out very clearly what the new offences will and will not catch for the purposes of clarity, not only for the Committee, but for those who will read the Official Report. I hope that the hon. Gentleman does not think that I am avoiding his question, but I want to set out what the offences will and will not do before dealing with that point, if he will offer me a little patience.
The intention of the person committing the offence is what is important. We believe that to be the correct level at which the offence needs to be pitched and that that level is very clear. It balances properly freedom of speech and expression against the importance of making it absolutely clear that inciting hatred of a group on the basis of its sexuality is criminally wrong.
As my right hon. Friend, the Secretary of State said on Second Reading, the offence is much closer to that of inciting religious hatred than that of inciting racial hatred. It should allay the concerns of many who have contacted the Government and, no doubt, members of the Committee, who are concerned about inadvertently stumbling into committing offences, for example, by preaching religious doctrine or telling jokes, or through playground banter among children—some of which can be cruel but is not criminally wrong. That is why the offence that we are putting into the Bill at this stage, if the Committee agrees, is pitched so that there can be no misunderstanding. The hon. Gentleman—
Mr. Hollobone: Will the Minister give way on that point.
Maria Eagle: I have not answered the hon. Gentleman’s first point yet. I hope that he will allow me to deal with the points that he has made.
I do not disagree with what the hon. Gentleman said. There are offences on the statute book aimed at tackling crime against individuals that is motivated by antipathy or hatred of the sexuality of that person. He is quite correct to say that the 2003 Act made an aggravating feature of many crimes of violence; the motivation of attacking someone because of their sexuality is an aggravating feature that the judge can take into account on sentencing.
However, the hon. Gentleman may remember the evidence given at the beginning of the Public Bill Committee by Stonewall—which we agree with—that there is a lacuna, in that there are already offences dealing with hatred leading to violence against an individual; it is an aggravating feature to be motivated by hating gay and lesbian people. The lacuna relates to the fact that it is not presently unlawful to incite hatred of a group of people, without picking out an individual on the basis of their sexuality. The new provisions seek to deal with that lacuna. The hon. Gentleman is champing at the bit and I will give way.
Mr. Hollobone: In that evidence session, which was one of the most interesting parts of our deliberations, Mr. Summerskill of Stonewall quoted the example of a gentleman demonstrating in Parliament square, in what has been described by some as a prayer rally and by others as a demonstration. The gentleman concerned was shouting, “Don’t allow homosexuals to pervert these children.” In Mr. Summerskill’s words, nearby were
“little tots, not adolescents or 19-year-olds”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 78, Q173.].
In his view, that was clearly incitement. Under the legislation that the Minister is proposing, would that be incitement?
Maria Eagle: I have made it very clear that threatening words and behaviour and an intention to incite hatred are what the amendments and new clauses seek to put on the other side of the law. The intention of the individual doing the act and the context in which he does it are tremendously important. It is for the prosecuting authorities and the police in any individual case to take a view, on the basis of what they see and what is happening, on whether it falls foul of the law. However, I stress again that threatening words or behaviour, as well as the intention of the person who is engaging in it, are the key to the offence.
The Chairman: I call Edward Garnier for the lawyers.
Mr. Garnier: The shadow spokesman for criminal justice.
Will the Minister confirm that, on the occasion to which my hon. Friend the Member for Kettering refers, no action was taken by the police against the individuals holding up those placards, and, had they thought that there was a breach of the peace or some other offence being committed or about to be committed, they had ample powers to do something about it?
Maria Eagle: Yes, indeed, that is my understanding. Of course, the people watching, with a view to considering whether the law was being broken, did not have the benefit of what we are considering here, because it was not and is still not yet law. It is important to stress again that such matters will have to be considered on their individual facts. It is not possible for me to say precisely in every instance what would or would not fall foul of the law. However, I have sought to make it very clear what the offence would and would not catch because it is not evident what the provision means. I have set out what we seek to make unlawful and what would not be caught. We believe that we have struck the correct balance between the importance of having free speech in this country and the offences that we seek to put on to the statute book.
Mr. David Burrowes (Enfield, Southgate) (Con): I should like to press the Minister further on her response to my hon. Friend the Member for Kettering. This is an opportunity to clarify what should and should not be criminalised. I ask the Minister to explain further because it is important in terms of what happens not only in court but before court and how the police take action. Concerns have been expressed about the heavy-handed approaches taken by the police, not only potentially in terms of that rally—although there was no action—but also in matters involving the Bishop of Chester, Joan Helen Robertson and Iqbal Sacranie, which all led to investigations. It is important that the chill factor, which people already feel, is not increased by this new clause. Will the Minister explain clearly that she does not seek to circumvent Christian organisations, which wish to express their beliefs and criticise sexual practice, and to distinguish in her comments the issue of whether it is done in a temperate or intemperate way, which was suggested in the evidence Ben Summerskill?
Maria Eagle: I have not used the words temperate or intemperate. I seek to explain as clearly as I can—and I hope that I have done so—where the offence will bite. It is then for the police and the prosecuting authorities to consider whether or not, in any individual circumstance, the offence is made out. That is not something that I can do from here in the Committee.
I have made it clear that we understand the importance of not restricting free speech. We do not seek to prevent church or religious groups from preaching their doctrine, but they would have to have regard to the law and ensure that they do not intentionally incite hatred of another group. As long as they are not doing that, they will not fall foul of these offences.
Mr. Burrowes: When the clause is enacted, there will not be the protection clause within the religious hatred provision, and there will, in essence, be a disparity in protection. It is important that the Minister explains why there is not that same protection within this clause, and, without that protection, she must be clear where the protections are, and perhaps look at issuing clear guidance to the police. The Police Federation said that it would welcome clear guidance on how to deal with such a matter. There have been instances in which heavy-handed approaches have been taken.
Finally, the concern is that some organisations, from their sincerely held beliefs, seek to change homosexual behaviour and orientation. Indeed, there are trusts that seek to do that. Some homosexual groups may find that threatening. The Minister must clarify whether those organisations can be prevented from carrying out their practice on homosexual orientation.
Maria Eagle: That was a long intervention, but I will try to deal with the points raised by the hon. Gentleman. The offence will be made out only if there are threatening words or behaviour that are intended to incite hatred. Anything short of that will not fall foul of the offence. I seek to be clear with the Committee. We believe that this is the correct way in which to protect people who are gay, lesbian or bisexual from incitement to hatred on the basis of their sexuality, while balancing the needs of our society to support freedom of speech. I do not seek to be obfuscatory, but it is impossible for me to be clear about every possible circumstance that might be thought up by members of the Committee. That is not my job, that is the job of the prosecuting authorities and the police who will implement the law if and when it is passed. The hon. Gentleman made some reference to guidance. It is our intention to ensure that there is guidance because it is in nobody’s interest for there to be misunderstanding about what the law means once it is passed, and we will seek to make it clear now.
We do not expect there to be large numbers of convictions under the offences. The numbers convicted of the offences of racial hatred are small—perhaps three to four a year. Nevertheless, there are important cases that tackle damaging and unacceptable behaviour, so we must continue to ensure that we challenge such behaviour if it is to be tackled.
Mr. Hollobone: I am grateful to the Minister for setting the proposal in the context of other legislation. As a former Northern Ireland Minister, she will know better than I about the existing legislation in the Province with regard to homophobic hatred. Will she advise the Committee whether any prosecutions have been brought under that legislation?
Maria Eagle: I am not aware of any prosecutions having been brought. Last time I checked, there were no such prosecutions but that is not to say that there could not be in appropriate circumstances; that would be a matter for the police and the prosecuting authorities. That would be the same with the legislation that we are considering.
On a practical basis, there are other safeguards to ensure that the offences will not be used maliciously or inappropriately. The CPS will bring a case only if it is satisfied that there is sufficient evidence to provide a reasonable prospect of successful prosecution, and it will proceed only if it is in the public interest to do so. The Attorney-General will have to agree to any prosecution, as is the case with racial and religious offences.
I should mention that we intend to issue guidance to accompany the offences, to try to ensure that the police, courts and prosecutors are fully informed and able to use the offences effectively and consistently, which should provide further reassurance. Although this is unlikely to be central to the debate, I should add that in drafting the offences, we have taken the opportunity to correct some minor drafting errors in part 3A of the 1986 Act.
I know that the new offences have generated a lot of interest and some strong views, as has been reflected in the evidence that the Committee heard at the beginning of our deliberations, from a number of diverse organisations. I hope that I have said enough to demonstrate that we have taken those views seriously, and that we have sought in particular to balance properly the requirement to protect gay, lesbian and bisexual people from incitement to hatred and to cover the lacuna that I have mentioned, while ensuring that the offences are necessary and proportionate and that we can protect free speech. On that basis, I commend the amendments to the Committee.
9.30 am
Mr. Garnier: I said from a sedentary position that I had remarkably little to say, and then that that was a relative term given that some of my contributions in the Committee could not by any means be described as short or fall within the expression “relatively little to say”. Whether I have anything useful to say is a different question.
The debate on the Government amendments, our new clause 49 and the amendments tabled by the hon. Member for Somerton and Frome is not about whether we, as individuals or members of our respective political parties and Members of Parliament, approve of homosexuality, evangelical Christianity or the tenets of Islam or any other religion. It is about whether the law of the land needs to be extended in the way outlined either by the Government or by me to create a new criminal offence designed to deter those who wish to do harm and protect those to whom harm could be done on the basis of their sexuality.
I hope that it is uncontroversial that right-thinking people do not deliberately and unjustifiably cause harm to others, and that they disapprove of those who do. Equally, it is the duty of Parliament, where necessary, appropriate and proportionate, to protect actual and potential victims of deliberate and unjustifiable harm by means of the criminal law. The precedent that the Minister relies upon—religious hatred laws—is not helpful or happy. Those laws, which the Government passed through Parliament in the face of considerable opposition, were neither helpful nor necessary, but that is last year’s business. If, in some future Parliament, the matter is raised again, it can be reopened, but I prefer not to approach what we are discussing through the conduit of religious hatred legislation, which is a distraction and does not provide a helpful example.
It is right that society should not simply permit, but should promote and celebrate, freedom of speech. To permit freedom of speech does not mean that, as individuals, Members of Parliament and members of our respective parties, we are bidden to agree with others’ opinions. I am sure that we all know that the common-law defence of fair comment in the law of defamation is ancient and has been reinforced by the courts’ decisions over the years and underlined to some extent by developments in statute law in the past 50 to 100 years. I refer to a case that is relatively recent in legal terms, that of Silkin v. Express Newspapers. From memory, it was in the early 1960s, when not the recent Silkin brothers but their father—I think he was also a Law Officer, but that does not really matter—
Maria Eagle: Yes, Lewis Silkin.
Mr. Garnier: Lewis Silkin. The Minister is perfectly right. He had a well-known firm of solicitors, Lewis Silkin and Partners.
I am sorry that I do not have the words that Mr. Justice Diplock uttered with me now, because they would encapsulate more understandably and neatly the point that I am trying to get across, which is that the British notion of free speech and freedom of expression is vital, and we should neither throw it away nor undermine it. If we do, we will undermine one of the building blocks that makes this country a decent place to live.
If we create a law of the category outlined by the Minister, we must be persuaded that it is necessary and sufficiently clear and understandable to a number of people: the public, because we all need to know the boundaries that Parliament decides are those beyond which we may not travel; the people who implement and enforce it, so that the constable on the beat—if there is such a thing nowadays—or at a gathering knows what he should, or needs to, do; the local police commander, be he an inspector or a superintendent, so that he knows whether to take the matter to the Crown Prosecution Service; and the CPS, so that it knows how best to advise the police, or how and whether to seek advice from the Attorney-General.
It is very easy to make laws and to pass what I call early-day motion laws, about which the hon. Member for Somerton and Frome and I constantly complain—that is to say, laws that send out a message. I do not believe in laws that send out a message; I believe in laws that meet a public need, set boundaries and penalties for infringements, are clear beyond doubt and do not need to be message-sent. According to the material that the Government have put before us, and to some extent, that we have seen in the evidence sessions, I have accepted, for my own part and on behalf of the official Opposition, that there is a need for this particular law.
The next question is about how we frame the law. If I may say so, the Government’s attempt is unnecessarily complicated and quite difficult to follow. It is quite difficult to follow as a matter of procedure in this Committee, because one has to undertake an audit trail to wind one’s way back to the base legislation upon which the Government have built the new offence. So I turn to my new clause 49 to see whether I can persuade the Government and members on both sides of the Committee—I suspect that we are not agreed on the principle or the way in which it should be brought into law—that it is the better way to proceed. I shall do my best to try to persuade the Committee that it provides protection to those whom the Government seek to persuade us need protection but also that it protects the ancient right of freedom of expression.
I begin my new clause—I do not make any secret of this—by stealing from the European convention on human rights some fundamental freedoms that are set out in it. Subsection (1) refers to
“respect for private and family life, his home and his correspondence”,
which corresponds to article 8 of the convention, and
“freedom of thought, conscience and religion, including the right to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”,
which corresponds to article 9. I hope that that will reassure my hon. Friends the Members for Enfield, Southgate and for Kettering.
The Bishop of Chester and the man standing in Parliament square, assuming he has not broken one of the many other laws that the Government have passed to prevent people from standing in Parliament square—[ Interruption. ] Let us hope that he will not be caught by my new clause, even if the Prime Minister sends the boys in blue to pick up chaps who hold up disobliging placards.
I wish it to be known that the official Opposition are adamant that the right to private and family life, and the right to freedom of thought and so on should be publicly maintained, as should the
“freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas without interference by any person or public authority”,
which is in subsection (1)(c). So, be one an evangelical Christian, a follower of Islam or of any other religious or non-religious group that has strong views about the practice of homosexuality, one can, subject to what I say later, say so at the top of one’s voice.
I also wish publicly to uphold the
“freedom of peaceful assembly and...freedom of association with others.”
I have replicated articles 8, 9, 10 and 11 of the European convention.
However, just as under the convention and our law, both statutory and common law, rights cannot be universal; that is, they cannot be exploited in all circumstances. I come back to my tired old example of the law of defamation because, until the Committee started, that is something about which I thought I knew a little.
9.45 am
We know that the right to freedom of expression is curtailed in that one cannot say wrong or factually inaccurate things that are defamatory without being dealt with under the law of defamation. One cannot wander around causing damage to people’s property, albeit that may be an infringement of one’s freedom of movement. I do not need to go through O-level essay examples to demonstrate my point.
We also know from the European convention that each of the freedoms that are referred to in new clause 49(1) are restricted, and that the restrictions must be broadly proportionate, necessary and loosely agreeable in a democratic society. Again, I do not need to go through the examples.
I seek only to limit those freedoms through subsection (2), where I attempt to make it
“an offence whether by words or acts for any person to do, or to incite any other person to do, any act with the intention of causing physical or mental harm”.
I shall pause there and seek to explain what I am trying to do.
Like the Government, I believe that if there is to be a crime it has to be one that is based upon intention. It has to be based upon an intention to do something malevolent, and the malevolent thing that needs to be intended is the causing of physical or mental harm. Physical harm is easy to recognise and does not need a description. I can understand that defining mental harm may cause people to worry, but it is, in fact, something that is recognised. It is not to be equated with general distress or upset, so the examples that my hon. Friend the Member for Kettering produces of people holding up placards saying unpleasant things do not come within my new clause.
I go back to my Mr. Justice Diplock example: people say unpleasant things which may be impolite, ugly or disagreeable to all sorts of people, but they are not prevented from saying them, nor would they be under my new clause. Mental harm is something that is identifiable—by expert evidence, if necessary. It can be looked at and considered by the Attorney-General and the police, and an empirical decision can be made by a court. If something is done with the intention of causing somebody genuine mental harm—beyond simple distress and upset—my new clause would bite, but it would bite only if the thing were done with the intention of causing that harm to people
“on the basis of hatred of their sexual orientation or presumed sexual orientation.”
I have stolen the phrase “presumed sexual orientation” from the Northern Ireland legislation.
I hope that I have managed to make it clear that the act should be intentional, that it should cause harm as I have described, and that it should be on the basis of the hatred that I have set out. I hope that evangelicals and fundamentalists of any religion—I use the word “fundamentalist” not in a pejorative sense but to describe people who have a deep-seated belief in the rightness of what they believe and what they say about their beliefs—will understand that under subsection (1) they would have every right to preach and every right to express disgust and to hold very strong views about other people’s sexuality and the way in which they lead their lives, as long as they did not intend to cause them physical or mental harm.
The issue of intention will often be best understood in the context in which the individual act or set of words is uttered or done. If my hon. Friend the Member for Enfield, Southgate and I were to stand up in a pulpit and preach about this, that and the other to our followers or congregation, unless it could be demonstrated that we were inviting those in the church or the assembly hall where we were meeting to go out and cause physical harm to these people whom we allegedly hate on the basis of their sexuality, we would not be caught by this new clause.
I do not believe that it is likely that members of recognised religions will stand up in pulpits and say, “Yes, I disapprove of other people’s sexuality. Yes, I disapprove of the sexual orientation of homosexuals, gays, and lesbians,” and then say to the congregation, “Off you go and give them a good thumping.” I simply do not think that that is going to happen, nor do I think that holding up a placard saying rude things about gays and lesbians in Parliament square will lead to that result, either. I rather suspect that those who want to thump gays and lesbians will do so regardless of whether they have seen the placards. I really think that we need to lower the temperature of the debate and understand the context in which such things are likely to happen.
Harry Cohen (Leyton and Wanstead) (Lab): I understand why the hon. and learned Gentleman says that, but does not that go against the experience of racism? When there is a climate of racism, some people do go out and thump black or Asian people, thinking that that climate gives them some sort of authority to do so.
Mr. Garnier: Let me try to give another example. I mentioned context. Imagine that I were to take a loudspeaker van into a part of London or Brighton where I knew that lots of gay people lived or assembled and spoke over the loudspeaker, “All of you people who live in this street or go to this club are revolting, disgusting, filthy perverts and you deserve to be thumped—and what is more, I have a van load of people who are coming out to thump you.” Perhaps that is not a very happy example, but clearly, in the context in which those words were uttered, they could incite my vanload of skinheads to go out and bash up the people in that neighbourhood. That is a mile away from a preacher in a church or mosque, or a legitimate demonstration in Parliament square. We need to separate in our mind legitimate demonstrations and gatherings, at which people express their disapproval of this, that or the other, and criminal misconduct. It is important not to discolour the debate by looking for extreme examples, or even for examples on the margins. These things are often easier to recognise than to describe. If I were to take a gang of thugs to a particular place with a view to inciting them to commit harmful acts, I am pretty sure that I would be prosecuted under some other law; however, it may well be that it is necessary for the additional protection that the Government are looking to be available.
Subsection (3) of my new clause proposes that
“‘words’ and ‘acts’ include the making known to any third party of oral, written or printed words by any method of publication including electronic, wireless or internet media, and an offence under this section may be committed in a public or private place.”
The significance of that—if there is any significance to what I have to say—is that I do not limit the activity, which has the intention to cause harm, to a public place. I can incite someone in my own home to go out and do harmful things. It seems to me that, if there is any logic in my arguments about the issue of intention and context, to limit the offence to activities carried out in a public place is neither right nor appropriate.
Subsections (4) and (5) deal with non-human actors. I do not think that that is particularly controversial. If the Committee is with me in relation to new clause 49 and subsections (1), (2) and (3), it must follow that subsections (4) and (5) fit appropriately into the scheme of the new clause. Again, I admit candidly that subsections (4) and (5) are stolen from existing legislation.
In subsection (6), I differ from the Government. I wish to impose a double lock. The subsection states:
“No criminal proceedings under this section may be initiated or continued save by the Crown and with the permission of the Attorney General.”
It is one thing for the Attorney-General to give a private citizen the right to prosecute, as in the Government’s proposals; it is quite another for the Attorney-General to give only the Crown—the state, in the form of the CPS—the right to advance such prosecutions and to continue them. I seek to make it impossible, or as close as one can humanly get, for a malicious prosecution to be advanced.
Maria Eagle: I am speaking from my fading memory of legal practice, but is it not the case that the Attorney-General can discontinue prosecutions started privately that she has not approved? Is that not effectively the same thing?
Mr. Garnier: Yes. I believe that the Attorney-General can issue a nolle prosequi. That is perfectly true, and it has happened, but the difficulty is that it leads to unfulfilled expectations. A malevolent group of individuals, or even a benignly motivated group, gets very excited, lays a summons and gets the ball rolling, only to have the matter taken up by the Attorney-General, who says, “No, you can’t.” That leads to two problems—a disappointed private prosecutor and a disturbed potential defendant. At least under my system there is no possibility of a disappointed prosecutor. I need not say any more about that provision, which I think is essential. I believe that it would reassure those who feel that they risk prosecution under the advances in the law that have been proposed.
In subsection (7), I ask for a smaller and less severe penalty than the Government propose. They have decided on seven years in prison, which I think is too heavy and too high. If somebody has committed a violent act that demands a heavy prison sentence, we should prosecute them under the Offences Against the Person Act 1861 with an old-fashioned, straightforward prosecution, and then aggravate the penalty, as my hon. Friend the Member for Kettering mentioned, on the grounds of the motive behind the assault. On that basis, I suggest that two years on indictment is entirely adequate.
I hope that I have persuaded the Government that my approach is neither harmful to their purpose, nor too restrictive of the rights and freedoms that we enjoy and ought to enjoy. Nor is it a cop-out or an approach that does not recognise, as we heard in the evidence session, that there are people who feel that they are in some danger. I appreciate that the issues underlying our debate are hugely controversial, but I shall not resolve them today—indeed, I hope that we do not need to resolve them, because they are matters that are perfectly properly the subject of controversial discussion, and they are outside the remit of my new clause.
I shall leave amendments (a) and (b), tabled by the hon. Member for Somerton and Frome, to him to advance. I shall say nothing about them.
10 am
The hon. and learned Gentleman makes an interesting point, on which I confess I had not picked up, on the possibility of private prosecution. I would be interested to see what the Minister has to say in response to that with respect to the provisions.
In broad terms, my party and I are wary of extending the areas of speech hate crime. The risk, if we are not careful, is that it could lead to a creeping escalation, almost to the creation of speech hate crimes on demand. That is something we must resist. It should not be sufficient for a group or individual to feel that they are likely to be offended for an offence to be created. However, I exclude entirely from that the subject under discussion today, because it is abundantly clear that there is evidence of deliberate incitement to hatred against gay and lesbian people. We have recognised that problem for some time and we are clear that there is a need to fill this particular legislative lacuna. That is why I applaud the Government intentions in their amendments.
Although we are clear about the need to provide the necessary protection against incitement to hatred, we must balance that determination with an equal and principled determination to protect, as far as is possible outside those restrictions, the freedom of expression and the freedom of speech. The difficulty we always face when dealing with such matters is deciding precisely where that balance is struck and whether it will successfully protect free speech, which does not include the sort of behaviour that we are trying to catch with the new offence.
I have been struck by the evidence that we have received. I will not hark back to the debates on religious hatred. We discussed those measures at length, and although I think that the arguments in the case of religious hatred were far less clear-cut than they are in this instance, using parliamentary process we eventually ended up with workable legislation. It is not brilliant, but it does include appropriate safeguards. In this instance, we have had, as one might expect, strong representations from religious groups, particularly evangelical Christian groups, who are quite rightly concerned about their freedom to express their faith without fear of prosecution. We have heard, to a degree, the concerns expressed by those in the world of entertainment, particularly comics who feel that they might be constrained from some areas of comedy by legislation that unnecessarily restrains them from telling jokes or doing sketches, if that includes some element of ridicule that might be caught by the legislation.
On the other side, we have heard a sober recital of incidents by those representing gay and lesbian groups, in particular the extremely powerful evidence from Stonewall, which gave clear examples of excitement to hatred, including direct incitement to acts of violence which apparently are not, or have not been, prosecuted under present law.
What is the Government’s approach? I think that the Government have come forward with a workable proposal and I commend the Under-Secretary of State for Justice for her careful work and for listening to what people have had to say. The Government have listened to some of the underlying evidence that we have received. For example, one thing that struck me about many of the messages, letters and other pieces of evidence that we received from committed Christians, whether they were within groups or outside them, is their firm view that, however much they may be against the practice of homosexuality on religious grounds—they may oppose it very strongly—it is not part of their Christian purpose to incite hatred against an individual or a group of individuals. That view is usually summed up as the principle of loving the sinner but hating the sin. They undoubtedly hate what they perceive to be a sin, but that does not cause them to hate someone whom they perceive to be a sinner.
On the other hand, we have heard evidence that those who strongly support the introduction of the new offence recognise that the purpose of the law should not be simply to prevent anyone from causing offence or inviting ridicule. If the law did that, we would extinguish some very basic elements of free speech. The people who hold this view are certainly very clear that people should be able to express their faith. Indeed, the last words said to the Committee by Mr. Summerskill in his evidence were:
“The Christian right...are perfectly right to express concern that their temperate and fair-minded expression of religious belief should not be curtailed.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 85, Q193.]
The Government have proposed an offence of incitement to hatred, but it has two qualifying factors; first, the speech, conduct or whatever must be threatening, and secondly there must be intent. Anyone who doubts the scope of the proposed legislation should realise that, if a person is not using threatening language and if they do not have the intention of inciting hatred, they will not be caught by this law. That is as it should be, and I hope that that will give considerable reassurance to those who were initially concerned about what this legislation might result in.
Mr. Hollobone: I am listening with great care to the hon. Gentleman’s words. I have not yet received a satisfactory answer from the Minister, so I will put the question to the hon. Gentleman. I would like to return to the subject of the famous demonstration in Parliament square, when one gentleman waved a placard with the words:
“Don’t allow homosexuals to pervert these children”.
Mr. Summerskill’s view was that that was incitement and it ought to be caught by this law. Does the hon. Gentleman think that the law as it is drafted would make a prosecution against that gentleman likely?
Mr. Heath: I will come on to that precise issue in a moment, if I may. I think that one of my amendments deals with it, but I want to explore the issue in slightly more depth than I can in response to the hon. Gentleman’s intervention.
In her comments this morning, the Under-Secretary of State for Justice rightly stressed the importance of context. A remark may well fall foul of legislation when said in one context, but may not do so when said in another context. Context and intent are closely linked. One can construe intent from context in some cases, and I would say that the reverse is also true; one can construe that there is not intent from a particular context. We have a balanced position, although that is not to say that it cannot be improved.
Will the proposed measure deal with those vile lyrics read out to the Committee by Mr. Summerskill? They were promulgated by so-called respectable record companies and, to me, they were more than offensive—they were direct incitements to violence against a class of people. I hope that the measure will do something to moderate such behaviour. In our last sitting, when I asked about the position of the so-called respectable newspapers that run adverts for prostitutes who have been trafficked. I find it extraordinary that newspapers that preach one thing in their editorial pages can do the reverse in their advertising features. The same applies to record companies: they are supposed to be good corporate citizens, and yet they disseminate material of the type Mr. Summerskill described. What does the Minister think?
Mr. Burrowes: Will the hon. Gentleman comment on the interesting fact that no prosecution has been brought for such lyrics in Northern Ireland, despite the fact that there is a wider ambit of offence available for prosecution there?
Mr. Heath: I cannot comment on that. To be frank, I am puzzled why the Northern Ireland prosecution authorities seem to be so supine in that respect. As Northern Ireland is a separate jurisdiction, we cannot easily question why there has been no prosecution. Perhaps there have been no complaints, so no evidence has been considered, but I find it puzzling that the legislation that is in place appears to be so ineffective.
I should say that I am sure that my two amendments are imperfect, and I ask the Minister not to spend a great deal of time telling us why. There was a limited period between the publication of the Government amendments and the last opportunity to table amendments. Simply put, I tabled my amendments to ensure that we had a satisfactory debate on the issues. I take full responsibility for them because I drew them up myself. I have no idea in what way they are imperfect; I am only sure that they are.
The proposed amendments make two important points, one from either side of the argument. First, on the free speech element, I am satisfied by the limitations on the scope of the offences. The requirements for the action to be threatening and for there to be intent will ensure that the measure does not have a perverse effect on those preaching from a pulpit or telling jokes on stage in a theatre; such people will not fall foul of the law inadvertently. The Minister will tell me that because all legislation must comply with the European convention on human rights, it is unnecessary to say that it would help, when construing the provisions, if we had an explicit statement in the Bill that no other derogation from the provisions of article 10 will be made other than the limitations of speech made explicit in the Bill. However, I would like a reassurance that freedom of speech, which is guaranteed by our adherence to the convention and by the Human Rights Act 1998, will be preserved, except for those who incite hatred against and threaten people in a way that curtails their freedom of speech. Such a statement would provide effective reassurance to those worried and valuable guidance to those interpreting the Act.
10.15 am
Amendment (a) is more problematic and addresses an issue touched upon by the hon. Member for Kettering. People are concerned about the ample evidence suggesting that the easy equation of homosexuality and paedophilia is used offensively by those who intend to incite hatred against homosexual people. They can say, “All homosexuals are paedophiles. There is a homosexual,” knowing that the, quite proper, public revulsion against paedophilia makes such comments the easiest way to incite hatred against homosexual people. That equation is used in exactly that way, not by Churches or religious organisations generally, but by political—I use that term loosely—organisations in support of their campaigns. They know perfectly well the consequences of making that equation.
I am not convinced that under the Government’s proposals that could be construed as incitement to hatred, which undoubtedly it is. Some people say that all homosexuals are paedophiles in complete ignorance or in defiance of the evidence. We know that paedophilia is not a proclivity exclusive to homosexuals or to heterosexuals, and certainly not all heterosexuals or homosexuals have a proclivity to paedophilia; only a tiny proportion does. My amendment would make it clear that if that equation is used with the intention of inciting hatred or with threatening intent, it could be considered by a court as evidence of an offence. That would be of great reassurance to many people who feel threatened by that sort of behaviour.
When discussing the chap in Parliament square, we must consider the context. I do not know the precise words on his placard. If they were simply an expression of a general view that homosexuality was strongly against his religious tenets and that he does not want any child to find themselves a homosexual when they reach the age of maturity, it could be construed that no offence had been committed. From the example given by the hon. Member for Kettering, it was not clear that the intention was to equate all homosexuals with paedophilia, and it would be very difficult for a prosecuting authority to decide on which side of the line his statement fell. I suspect that it would not be a prosecutable offence, although intent might have clearly been exemplified by what he shouted through his megaphone—I do not know what that was. My view is that the placard itself would not have been evidence of an offence, but who am I to tell? I am not a prosecuting authority; I am not even a lawyer. However, there is a mischief here that we ought to recognise and address.
Mr. Hollobone: If it helps to inform the debate and the comments of the hon. Gentleman, according to Mr. Summerskill, the gentleman shouted:
“Don’t allow homosexuals to pervert these children”.
Mr. Heath: This is where I have difficulty. This becomes a hypothetical case that it is pointless for me to pursue very far. However, whether to pervert a child is to teach them something or actually cause or undertake an offence under the law is something that could only be determined by the context and by intent. I suspect that it would not be an offence under the law that has been proposed today, but that would not be for me to determine. I am sorry that I cannot be more helpful than that, but it is useful for me at least to try to respond.
I conclusion, I ask the Under-Secretary of State for Justice to consider my amendments, which were tabled with good intent to try to improve her proposals, to give additional reassurance to those who are still concerned that the Government’s proposals are over-restrictive of their freedom of speech, and to deal with a particular and unpleasant aspect of the sort of conduct that she is trying to tackle. I make it plain that my colleagues and I will support the Government’s new schedule and new clause. We shall consider the matter further on Report and in another place, but our firm view is that the intent is right and we are dealing only with the details of the provisions. She is right to say that there should be protection against threat and incitement to hatred of an individual or group of individuals. It is not right that we should seek to make illegal disagreement or disapproval, or even disapproval expressed in terms that are offensive or which invite ridicule. There is a difference between those two things. I think that the hon. Lady has got the balance right.
Mr. Hollobone rose—
The Chairman: Order. Before I call the hon. Member for Kettering, I wish to point out that we shall adjourn at 10.25 am today until 1 o’clock, and this afternoon we may sit until 7 pm, as laid down in the programme order. The afternoon sitting may therefore be very long—six hours. I shall discuss it with the Whips on both sides of the Committee, but I think it appropriate to tell Committee members that I intend to suspend the Committee for a short time, for a cup of tea, a rest and perhaps answer the call of nature, or whatever. I hope that that is agreeable to the Committee.
Mr. Hollobone: I appreciate what the Government are trying to do, but I am not convinced of the need to do it. Although I respect the Government’s position, the provision is unnecessary. I have come to that view on the basis of the evidence that we received in the public evidence sessions and in the contributions to the debate since then.
All of us were, I am sure, appalled by some of the evidence that Ben Summerskill gave the Committee. Some of the language must have pushed the Official Report to its absolute limit in terms of reproducing the very offensive comments that he cited as evidence of homophobic hatred. I am sure that all of us want to see appropriate measures taken against some of that offensive material. I would like to hear in more detail from the Under-Secretary of State for Justice about how she intends her legislation to enable action to be taken against offensive rap lyrics, and why such action has not been taken in Northern Ireland, using existing legislation, against offensive rap lyrics.
Maria Eagle: The hon. Gentleman will be aware that that is a different jurisdiction. My writ does not run in Northern Ireland. I can only ask, then tell the hon. Gentleman what I am told, rather than explain a decision that I have made.
Mr. Hollobone: I appreciate that clarification. I was hoping that, given the hon. Lady’s huge experience in Northern Ireland, she might have been able to illuminate that point for the Committee.
The huge worry of many people who hold faith—not just Christian, but Muslim and other religions—is that such a provision will have a huge chilling effect on their ability to pronounce their faith, which is especially important for evangelical faiths such a Christianity. I do not want to leave this Committee today without having a clear answer from the Minister—
It being twenty-five minutes past Ten o’clock. The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at One o’clock.

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