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Lord McIntosh of Haringey: Before the noble Lord concludes, I must say that what he suggested simply is not so. The same restrictions that I described in relation to Clause 17 also apply to Clause 19. Tax records are not held for statutory purposes and therefore cannot be disclosed in the same way. It simply is not the case that the intelligence services can do things outside their own statutory functions. The statutory function of the security services includes the prevention of terrorism and is quite well defined. They cannot simply require any information for any purpose.
Lord Thomas of Gresford: As I understand the position—perhaps the Minister will confirm this—the remit of security and intelligence services has been extended way beyond questions of terrorism and into the investigation of drugs, serious crime and so on. Just how far their remit goes we do not know.
Lord Avebury: People trafficking?
Lord Thomas of Gresford: I hear my noble friend's intervention.
Encapsulated in this provision is a grave extension of principle. I understand that the security services can act only within their statutory framework and I bear in mind what I describe as the Grand National course, which was outlined in relation to Amendment No. 48A. I accept that there is a framework but, within that, the security services control what they like.
Lord McIntosh of Haringey: Tax information is covered by Clause 19.
Lord Thomas of Gresford: The Minister has admitted his first failure of the evening—it is the first time that he has been wrong. We hope that he will accept that he may be wrong in principle in relation to this huge extension of power. I shall not pursue the matter further now but I give notice that I shall pursue it with more information on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 72 to 88 not moved.]
Clause 20 [Interpretation of Part 3]:
[Amendments Nos. 90 to 96 not moved.]
On Question, Whether Clause 37 shall stand part of the Bill?
Lord Campbell of Alloway: I am not going to take much time because there has been a full debate on these matters on two occasions.
This is the first of a series of amendments to oppose the Question that Clauses 37 to 43—the whole of Part 5 of the Bill—stand part concerning incitement to religious hatred. By leave of Members of the Committee, I shall deal with them all en bloc. This is not an exercise in confrontation. As my noble friend Lady Buscombe said, and I support, it is a hope and belief that through the power of argument in this place we shall have another opportunity to persuade the Government.
If that is the approach, what could be more persuasive than the sense of this House as expressed yesterday and early this morning on the important area of Part 5 of the Bill in the light of reports of the Joint Committee on Human Rights, the Delegated Powers and Regulatory Reform Committee and the Constitution Committee that floated into the Printed Paper Office today, and debate in your Lordships' House on 21st November in which the right reverend Prelate the Bishop of Oxford sounded a note of caution and in which the noble Lord, Lord Haskel, said that for the first time he had found himself in agreement with anything I had ever said in your Lordships' House, albeit there was controversy as to whether criminalisation of incitement to religious hatred would or would not protect our Islam communities or work an unintended mischief?
There was controversy as to the scope of safeguards for the freedom of expression by those of any faith or none in favour or against any religion regarded as such. On those matters there was an area of controversy. But there was unanimity on the crucial issues, save from the noble Baroness, Lady Whitaker, who I had the privilege of having a word with today, who supported the Government for reasons which, with respect to her, did not convince me. They were that because of acts of terrorism, they have increased prejudice and created the present danger. With that dissent—I have been right through the Official Report; that was the only dissent—what was agreed by the House was, first, that there was no or no sufficient connection with terrorism and that Part 5 should not be included in the Bill. It runs right through the speeches in this House. Secondly, much further discussion, thought, safeguards and assurances, for which we all know there is no time, are required before Part 5 could be accepted as drafted or amended.
The Lord Bishop of Southwark: I thank the noble Lord for giving way. It is not quite accurate that there was total agreement that those clauses should not be
part of the Bill. In my contribution I suggested that the matter needed to be tackled, even as part of this Bill. I also suggested:
- XThere is some merit in having the legislation in this Bill. September 11th and its aftermath placed stresses and strains on the religious fabric of society".—[Official Report, 22/11/01; col. 223.]
The Attorney-General (Lord Goldsmith): As the right reverend Prelate has made that point, can I also draw the attention of the noble Lord, Lord Campbell of Alloway, to what was said by the noble Lord, Lord Harris of Haringey. He said that the time was right now. I understood my noble friend Lord Ahmed also to accept that it was appropriate now that this should be in the Bill, although he had doubts in relation to it.
Lord Campbell of Alloway: I certainly do not take that interpretation of those speeches. But let us not discuss that.
Assume that the noble and learned Lord's intervention is totally justified in those instances and assume that I am wrong. The fact remains that the broad sense of this House—whatever the noble and learned Lord may say, whatever the right reverend Prelate may think or say and whatever may be the position—was clearly in favour that there was no or no sufficient connection with terrorism and that Part 5 should not have been included in the Bill. From that I will not retract.
Secondly, the broad sense of the House was that much further discussion, thought, safeguards and assurances for which, as I have said, there was no time, are required before Part 5 can be accepted or indeed amended.
Thirdly, the broad consensus of the House was that if incitement to religious hatred is to be criminalised that should be done after discussion on a comprehensive basis in another Bill. The right reverend Prelate, if I remember correctly, assented to that proposition, but I may be mistaken.
It is the hope that the Government shall defer to the broad sense of this House between today and Report stage by a concession to remove Part 5 from the Bill for the reasons that I have given. If in certain particulars they were in error in the opinion of Members of the Committee, it cannot be contended that they do not represent the broad sense and advice of this House. I ask the Government to yield to persuasion.
11 p.m.
Earl Russell: First, I owe an apology to the right reverend Prelate the Bishop of Southwark. During his speech I was talking into the other ear of the noble Lord, Lord Campbell of Alloway, about the possible wording of an amendment on which I hope that we have now reached agreement. So if he did not absorb everything that the right reverend Prelate said, the fault is mine. I am sorry for that and I offer an apology.
We have three separate questions here. First, should incitement to religious hatred be an offence? Personally, I am inclined to the view that it should. As a 17th century historian I know something about religious hatred. I know that people have died as a result of it. I remember reading of an occasion when Archbishop Laud on trial before this House rashly expressed the opinion that the Pope was only probably anti-Christ. He was therefore denounced over and over again as the very pander and broker to the whore of Babylon. That makes one of my points. But I am not certain whether or not such language is covered by the Bill. Before any such Bill reaches the statute book I think that it would be well to know whether or not that is the case.
Therefore, in principle, because as a House of Parliament we must be concerned with keeping the peace, we should be prepared to consider legislating on the subject. That leaves us with the two questions: whether we should legislate in the Bill and whether we should legislate in the draft. My noble friends as a whole say that we should not do it in this Bill. Such a provision is not emergency legislation. It needs to be drafted with immense care, sensitivity and thought, after the widest consultation and after consideration of all the possible ways in which it could be misinterpreted in court. We do not think that the provision will receive that within the timetable allowed for the Bill. The consequences of that could be serious.
I appreciate the force of the argument repeated by the right reverend Prelate the Bishop of Southwark: that September 11th has put a strain on the social fabric where religion is concerned. I am on record—the noble Baroness, Lady Uddin, will bear me witness—as having spoken up about the need to protect the reputation and standing of British Muslims before any Bill was in evidence. I feel strongly about that need. The Bill does not meet it. There is something inherently paradoxical about saying that one is doing two things at the same time because they are not connected.
Those Members of the Committee who have faced discrimination because they happen to be women will know that such discrimination is usually preceded by the words, XThis is not because you are a woman, but . . .". Those who have faced discrimination on grounds of race are familiar with the phrase, XIt is not because of your race, but . . .". Those who have been discriminated against for being from public school have faced the phrase, XIt is not because of your education, but . . .".
The mere conjunction of the two things reinforces in the minds of many people the idea that we are in fact engaged in hostilities with the Muslim community, which is the very idea that we most want to avoid. There is opinion poll evidence to that effect, as well as my experience from talking to large and varied collections of people on the matter. So although the objective of including the provision in the Bill was good, and one that I share and respect, we will not achieve it.
But what I am really worried about is the drafting. It seems to be assumed in the drafting of the whole of Part 5 that one can make a read-across from racial to religious hatred—that one can use the same legislative framework to deal with both. That strikes me as a dangerous and misplaced assumption. After all, thank God, race is not an opinion; race is not protected by free speech. Correspondence in the press, much of it based on misunderstanding—but misunderstanding that the Bill as drafted does not do enough to dispel—is concerned that freedom of speech and freedom of thought in religious matters should be preserved. I share that concern.
What we need is a clear distinction that we hate the sin and hate the sinner. I look in the Bill for that distinction and I do not find it. We also need a test of mens rea, which must take account of circumstances. I am reminded of John Stuart Mill's famous passage on the corn chandler. We need something along those lines in our drafting. The opinion that all property is robbery, or that corn dealers are starvers of the poor, ought not to be prohibited when merely circulated through the medium of the public press but ought to be prohibited when orally delivered to an excited mob before the house of a corn dealer.
That is a clear distinction that goes to the point of intention. It is a distinction that the Parades Commission in Northern Ireland has attempted to apply in practice.
I can remember that when I was young, magistrates ruled that Mosleyite processions were not allowed to go through certain Jewish areas, although they were allowed to go through other areas, because the sheer decision to go through such an area was considered conduct liable to provoke a breach of the peace. I can understand that reason and I can respect it. The choice of route on occasion may be a deliberate expression of hostility and it is for that reason, rather than the fact that it is a parade, a speech or whatever, that it should be restricted.
We need some attempt at mens rea in the Bill. We need something in the words which are to be complained of to express an implied threat. I am rather disinclined to prohibit the view that the Pope is Antichrist if it is expressed purely as an abstract proposition. But the words spoken to Edmund Campion on the scaffold—XIn your Catholicism all treason is contained"—are words which, I hope, will be covered by a properly drafted Bill.
We have a vitally important distinction which I believe is not beyond the skill of our present parliamentary draftsmen. We have not even attempted to look for it. There is something here we ought to be doing, but we need to go back to the drawing board and start again.
11 p.m.
The Lord Bishop of Blackburn: There may be few Members in the Chamber tonight, but I do not believe that we should underestimate the number of people who are listening and will be reading the purport of the debate. We are dealing with a most sensitive subject
and I believe that there is a direct relationship between incitement to religious hatred and the events of 11th September. They have totally transformed the lives of the people among whom I live and work in East Lancashire, where Christians and Muslims—the two faiths—work together but face each other within the local communities. I cannot overestimate to the Committee the significance of the events of 11th September to those communities.We have a regular annual meeting when the Christians and Muslims meet in some number to discuss general issues; for example, drugs. We had such a meeting in October on family values. There was not a single Islamic speaker, from scholars to ordinary members of the audience, one might say, who did not begin their remarks without referring to XIslamophobia". It was in the air and in the nature of the people in the community at that time.
I have a great deal of sympathy with what has been said by the noble Earl, Lord Russell, but I urge the Government to continue to try to address the matter in the coming days. The time is short. I believe that it is entirely proper that it has a place in the Bill. I have great sympathy with the noble Earl, Lord Russell, who said that the words in the Bill and in the amendment may not be right. One has immense sympathy with Amendment No. 100 tabled by the noble Lord, Lord Dixon-Smith, where he brings in the protection of academic and theological debate and discussion. Everyone wants to include that, yet his amendment loses the provision at Clause 40(4) on page 20 which is the balancing protection for people of no faith.
Having heard the debate and the remarks of the noble Earl, Lord Russell, I do not believe that it is beyond the draftsmen in this House to attempt to produce something within the next few days. It is necessary for the Government and those such as the noble Lord, Lord Campbell of Alloway, who would remove these clauses or amend them to reflect before the Report stage in order to achieve a balance between protecting those in so many of our communities who have genuine fears of incitement to racial hatred which they live with daily and the curtailment of the freedom of speech, of serious debate, which we enjoy.
If we do not get that right, we shall arouse fears in other communities. A number of Christian people have written to me because they are seriously worried about some of the implications of these clauses on what they might want to say about the faith held by others. I believe that the time is now. It will be difficult whenever we do it. But there is a direct link between this matter and the terrorism which we seek to suppress.
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