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These are the first amendments covering the important topic of racially aggravated offending in the Bill. It is regrettable that it was necessary to spread the relevant clauses through the Bill. Clauses 22 to 25 concern the racial aggravation of specific offences in England and Wales. Clause 26 concerns specific racially aggravated
Two questions arise. Why is it necessary or desirable to have the expression "evinces malice and ill-will" in some places and the expression "demonstrates hostility" elsewhere? Apart from the argument for consistency, unless there is some good reason I suggest that the more modern and simpler English version is preferable.
Secondly, why do the words "if any" appear in Clause 79 after the word "victim" but not in Clause 22? Clause 22 governs the particular offences referred to in Clauses 23, 24 and 25, each of which will involve a specific victim. But the Clause 22 definition is applied to all other offences by virtue of Clause 68.
There are offences which are racially aggravated without having a specific or identifiable victim--for example, criminal damage or affray. Presumably most of those could be caught by the second limb of Clause 22(1) which does not depend on a specific victim. However, that still begs the question why the words "if any" are used in the Scottish clause. I am not sure whether this covers the aggravation after the offence by racial abuse towards the arresting police officer from a member of an ethnic minority.
These provisions in general are desirable, but they must be workable. At Second Reading my noble friend Lord Goodhart suggested that it might be simpler to apply Clause 68 across the board. That would enable the question of racial aggravation to be looked at simply at the sentencing stage so that the judge sentencing the offender can first decide whether there has been aggravation and, secondly, assess the degree of aggravation. But if we cannot have a simple application of a single clause to all offences because the Government feel that higher maximum sentences are called for in specific instances, there is still a strong case for simple language.
I hope that I am not alone among the membership of this Chamber in expressing considerable concern about the clauses that we are debating. We are involved in a major extension of the criminal law, creating several new criminal offences. It seems to me that if that is so we are entitled to ask the question and have that question answered: why are the new crimes necessary? What will the new offences achieve? Are they based on logic or are they totally illogical? Finally, what is the effect in practice of what is being proposed?
I appreciate that most of those issues are matters more appropriately raised in the debate on clause stand part, in particular whether Clause 23 shall stand part of the Bill. If I may, I shall reserve the remarks I wish to make to the Committee on those matters to that stage.
However, I wish to follow up what the noble Lord, Lord Monson, said about the subsection of Clause 22. I ask myself this question. Has the Committee considered the effect of what is being proposed? An offence is to be racially aggravated if at the time of committing the offence or before or after doing so,
I ask the Committee this question and request an answer from the Solicitor-General when he replies. How wide is that intended to go? Does the fact that you are Scottish mean that that is your nationality? Does the fact that you are Welsh mean that that is your nationality? Or does it mean that your nationality is British?
Unfortunately, the noble Lord, Lord Williams of Mostyn, is not present. I decided that he would be a very good example in relation to the comments I wish to make. If he and I go to the Scottish-English rugby match together, and afterwards, unlikely though it may seem, we fall out in the public house nearby over the result and I strike him a blow in the face, then presumably I am committing assault occasioning actual bodily harm in breaking his nose. If I say, "You b..... so-and-so", and strike him in the face, I presume that I am committing the offence of causing actual bodily harm. If I call him, "You b..... Welsh so-and-so", and strike him in the face, does my offence of assault occasioning actual bodily harm become immediately a racially aggravated offence of actual bodily harm? If "Welsh" is not a nationality, is it an ethnic group? Is it really to be said by the Solicitor-General that there is something different in nature between my calling him a "so-and-so" and calling him a "Scottish so-and-so"? Yes, so it is said. But if it is more serious to call him a Scottish so-and-so rather than just a so-and-so, perhaps I may take another example. If it is suggested that calling him Scottish aggravates the offence which was otherwise committed, what about religion? If I am a Protestant and I call him a "Catholic so-and-so", that apparently is not racially aggravated. If I say to someone, "You are an Irish so-and-so", that would clearly be a racially aggravated offence. If, as a
My noble and learned friend Lord Mackay of Drumadoon told me earlier that the Criminal Injuries Compensation Board--I declare an interest as its chairman--sits in both Scotland and England. Many of the disputes, many of the assaults that occur at a public house on a Saturday night in Scotland and upon which we have to adjudicate as to whether the person is the innocent victim of a crime of violence are not based on race, they are based on religion--Rangers and Celtic! Therefore, one asks oneself this. If nationality and ethnic grouping covers, as it must, English, Welsh or Scots, what is the difference between those descriptions and describing someone as a Protestant or a Catholic? I do not believe that the matter has been thought through.
I then ask the noble and learned Lord the Solicitor-General: how is the hostility to be proved? One would have thought that the striking of a blow against another was clear evidence of hostility. But on top of that it will be necessary to have evidence that the hostility was based on a victim's membership of a racial group. I cannot see how that is to be achieved before, during or after other than by merely relying on the outburst of the individual at the time. I return to my point. Is it really to be said that describing someone in a fit of temper as a "Scottish so-and-so" rather than just a "so-and-so" is of its nature of such a kind as to make it into a different offence?
With great respect, although I understand and appreciate the aims and intentions of this part of the Bill, to start down the road of introducing new criminal offences for which there is no basis in logic is the wrong way to go. As I said, I shall reserve my other remarks for the debate on Clause 23 stand part, because I believe that the effects of the proposal in practice have not been considered--as to the mode of trial and the effect on the whole trial situation. We should consider very carefully whether it is sensible to accept these sorts of definition at all.
Lord Desai: I hesitate to rise to speak to the amendment; it was not my intention. I did not take part in the debate at Second Reading and, had the Chamber not been so crowded, I should not have found myself listening to the noble Lord, Lord Monson, on this particular question, although I do listen to the noble Lord on other matters.
The arguments being made against Clause 22, especially by the noble Lord, Lord Monson, are part of a general class of argument raised whenever there is any attempt at either positive discrimination or any special provision. It is argued that there is a continuity, and no divide, either along the lines of race or gender or, as happens in India, caste, and therefore that the distinction being made is superfluous or illogical. Or, it is said, if a distinction is to be made according to one dimension, there are a hundred other dimensions and why are they being neglected? We have heard both those arguments. The argument is that insulting your neighbour who is a "Brummie" is no different from insulting your
I wish to argue that the idea behind this clause--and I think we know what lies behind it--is that there is a discontinuity in our society in relation to crimes committed against people of non-white colour. Let us not beat about the bush; what is it about? In south London, east London and across the country, crimes have happened that are quite horrendous, purely because of the colour of the victim. It is very often not even the person's neighbours who commit such crimes; it is perfect strangers who attack people in the street. Women taking their children to school in Southwark find themselves insulted and harassed only because they happen to be Bangladeshi.
I do not normally speak on racial issues in this House, as noble Lords know. I have no expertise in that area. However, in logic, one can say that there is no distinction and that we are all equal before the law. I would like to live in a society in which that is both nominally and factually true. I would love to live in a society where justice could be genuinely colour blind and gender blind. But we do not live in such a society. It is through clauses like this that we shall achieve our aim of living in a genuinely equal society. In the meantime, we have to take a strong stance if we are to have a multiracial society. We cannot properly pretend that there is no distinction between being a Bangladeshi woman in Southwark and being a Welshman at a rugby match. If people want to believe that, they can; and in some legal matters it may be true. But it is not true in fact--and there is a lot of evidence and experience on my side.
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