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Lord Henley: Perhaps I may say just a word or two from these Benches. I shall return to the matter later when moving my own amendments and shall possibly want to say a word or two on clause stand part, as my noble friend Lord Carlisle made clear. We on these Benches, as will be true of every noble Lord in this Chamber, unreservedly condemn racial violence and harassment. We also welcome the fact that the Government take this issue very seriously and want to take it very seriously. The point that we have to address with these amendments--and, as I said, I shall address it in my amendments--is whether these clauses achieve what the Government are trying to achieve, whether they will help at all and whether they will advance the cause so much as one jot.
At Second Reading I quoted from both the noble and learned Lord's colleague the Attorney-General and from the Lord Chief Justice, both of whom made it quite clear that they considered they had perfectly adequate powers as it was to take such matters into account when sentencing. Since then, the noble Lord, Lord Meston, rightly referred us to Clause 68. If I understood his point--and I believe I did--the generality of Clause 68 seems to deal with virtually everything we need to do. Therefore, one questions whether Clauses 23, 24 and 25--the English clauses--are necessary. The same might be true of the Scottish clause, Clause 26 and its
associated provision, Clause 79, if my memory serves me right. One questions whether they advance us one jot further than Clause 68 or the powers that the courts consider they have at the moment.As I said, I wish to explore that further, particularly in my amendments Nos. 158 and 159 which I shall come to later. In the meantime, no doubt other Lords will wish to intervene as well, but it would be useful if the Solicitor-General, when he comes to respond to the points put by the noble Lord, Lord Monson, could explain how he sees these clauses as achieving the aim and end which we all share. It is no good merely saying that the Government take these matters seriously and wish to deal with them. He must explain how they propose to deal with them and in what way the clauses advance us.
4 p.m.
Lord Campbell of Alloway: The question is simple. Is the noble Lord, Lord Desai, right when he says that the clauses will do something constructive--those were not quite the words he used--to deal with the problem with which we are all concerned? The noble Lord thinks they will. I am wholly satisfied that they cannot do so for the reasons given not only by my noble friend Lord Carlisle but also by my noble friend Lord Meston. I found it difficult to hear what the noble Lord, Lord Monson, was saying. I am rather deaf and he was reading very fast, with his head down on his notes, and I missed his pearls of wisdom. But from what I heard, I am wholly in agreement. For my part, I do not see how one deals with the matter piecemeal, dividing on an amendment. It is a question of whether the clauses should stand part.
The Solicitor-General (Lord Falconer of Thoroton): The debate on Amendment No. 157 has strayed into the area of the principle of the clauses as a whole. I do not wish to develop in full the arguments on why the clauses are in the Bill. Before I deal with the amendments proposed by the noble Lords, Lord Monson and Lord Meston, I should explain briefly how the structure works and answer in principle the points that have been made so eloquently, particularly by the noble Lord, Lord Carlisle of Bucklow.
First, the way the statute works for England is that Clauses 22 and 23 create a number of new criminal offences where, if there is a racially-aggravating feature, it is a new criminal offence. The offences which are created are three kinds of assault case to which racial aggravation is added, thereby creating the new criminal offence. The Government believe, in my view quite correctly, that it is not sufficient simply to say that racial aggravation is a factor which goes to sentence. It is in certain cases something which, when added to other matters, should itself create criminal liability.
We believe that that gives a much stronger message than simply the important matter of adding to the sentence if an offence is racially aggravated. We of course accept that that is an important matter in itself.
The noble Lord, Lord Carlisle, also raised a point which, as the noble Lord, Lord Desai, said in his speech, is always raised in these debates, and it was mentioned
by the noble Lord, Lord Monson. It is that if you are protecting people on grounds of race, why do you not also protect them on grounds, for example, of religion, disability, sexual orientation and a huge number of other matters which one could identify as those which this Committee would wish to protect?The answer is that one cannot protect everybody in one Bill. In this Bill we have focused on racially aggravating features. We believe that is a priority and it is important. One should not let the best be the enemy of the good. There is legislative precedent for it, as all Members of the Committee know: for example, Part III of the Public Order Act 1986. It would, in my submission, be the most ridiculous reason for not voting for these provisions to say that they do not include lots of other perfectly worthy groups who require protection.
Those are my answers in substance to the points of principle. There is one other point of principle at the heart of the amendment from the noble Lord, Lord Monson: does Clause 22(1)(a) go too far? That provision makes the offence racially aggravated where it can be proved at the time of the offence, immediately before or immediately after, that the offender demonstrated towards the victim of the offence hostility based on the victim's membership of or association with members of a racial group.
So the effect is that if, as the noble Lord, Lord Carlisle, indicated, you say, "You are a Welsh something" or "a Paki something else", proved of itself that can establish the necessary racially aggravating feature. That is the effect of the Bill. It was rightly identified by Members of the Committee. The reason it is put in is that everyone who is involved in race relations and the intervention of the courts in race relations discovers that it is notoriously difficult to prove racial motivation. It becomes an illusory matter of proof which lawyers are well able to demonstrate in court is difficult to prove. Clause 22(1)(a) is a practical and sensible attempt to try to deal with the problem that if we had only Clause 22(1)(b), many cases which would fall within the racially aggravated criminal offence definition would slip through. That is why we have done it.
Although the noble Lord, Lord Monson, put his points well, it would be wrong to delete the provision from the Bill and contrary to the great weight of the consultations that went on before it was put into the Bill. That is why it is in and why we seek to defend it. I hope that I have answered all the points made by the noble Lord, Lord Monson. I did not hear the beginning of his speech but only because there was a stampede of Peers leaving after Starred Questions and not because of any form of delivery in relation to it.
As to the points raised by the noble Lord, Lord Meston, there is a difference in the wording between the Scottish racial aggravation and the English racial aggravation. In the course of the Second Reading debate, the noble Baroness, Lady Anelay, warned me not to get involved in Scottish matters. Perhaps I may make two points in relation to that. As regards the English provision in Clause 22(1)(a), I am quite satisfied that the wording is sensible and the right way to deal
with it, with one exception, the words "if any". The noble Lord, Lord Meston, has a point when he asks why the words "if any" are in the Scottish version but not the English. Perhaps I may undertake to go back and think about it. I do not wish to commit myself to changing the wording,
- "demonstrates towards the victim of the offence",
because I am satisfied that it is the right way to do it. I shall leave it to my noble and learned friend the Lord Advocate to defend the wording in the Scottish provision. I hope, in the light of the assurance I have given to consider the point in relation to "if any", and my warning to steer clear of Scotland, the noble Lord will be minded to withdraw his amendment.
Lord Renton: Before my noble friend withdraws the amendment, if that is what he intends to do, perhaps I may point out that the noble Lord based his interesting argument on the proposition that we cannot protect everyone in one Bill. I hope I have worded that correctly; I took the phrase down at the time.
However, the Offences against the Person Act 1861 protects everyone, whatever kind of person they are. There is a great mass of other legislation dealing with criminal law which does exactly the same. The Government are being selective in punishing a specific criminal motive--racism. We all dislike racism but there are many other motives we dislike too. We dislike bad temper, which is sometimes the cause of a crime, and there are many other different kinds of motives. Is it wise, as a matter of principle when legislating on criminal matters, to be so selective? If we express one thing, do we exclude another? I am not trying to apply that rule of interpretation, but as part of the argument it is something that we should bear in mind. My view is that we should ask the Government to think again.
The Lord Bishop of Bath and Wells: During the many years I tried to deal with racial violence in east London, this specific law--however it may seem to fall short of the sort of rational arguments that are being put--would have been enormously helpful in a situation where, for instance, going down to a balcony behind our home in Commercial Road I found a family being abused. With all the graffiti and hatred that was exhibited, one felt quite defenceless in the face of 20 or so people who were trying to make the family leave their home. That was based entirely upon racial feelings. I understand them, but they are totally unacceptable in our society.
There are many other cases. It is not the same to talk of an argument in a pub between a Scotsman, an Irishman and an Englishman when one is talking of a woman taking two children to school and being abused simply and absolutely because of her race.
The other point I wish to make is that there is also conflict between people of different races; it is not simply white against black. In that situation too it is important that there are legal sanctions available. Other laws may give protection, but they are so rarely capable of use. A much stronger position would be created for people working and living here and suffering this blot on our society if the law was clear.
I must say that I fear for the future. As we have seen in Europe, any rise in recession or unemployment will automatically set in train--unless there are things in place to stop it before it begins--the sort of oppression and scapegoating which was familiar in the major war of the century. I do not understand all the legal implications of the provision but as someone who has tried to work for justice for many years it is the sort of thing that we always hoped would appear.
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