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Lord Goldsmith: I am entirely in the hands of the Committee. A number of clauses are grouped together. If in fact all that is being put at the moment is whether Clause 37 shall stand part of the Bill, I shall simply say that that does not concern religious hatred. Clause 37 is about racial hatred and an amendment to the definition in that regard.
Lord Campbell of Alloway: The noble and learned Lord is out of order. If no amendments have been moved, it is not in order for the Government Front Bench to speak to them.
Lord Goldsmith: I understood from what the noble Lord, Lord Dixon-Smith, said, that he was speaking to the whole of these matters. I entirely accept that groupings are not mandatory. But I understood that we were speaking to the whole of this group. I give way to the noble Lord, Lord Dixon-Smith.
Lord Dixon-Smith: I entirely support the Minister in that we have to be debating something; that it has to be a Motion. If there is no Motion before us, we are all seriously out of order and have been for some time.
Perhaps I should say this in relation to Amendment No. 100, which is the main one in this group. What we seek to deal with in that amendment is the point of mens rea, which was raised by the noble Earl, Lord
Russell. How far we succeeded in that remains to be seen. If I give it that introduction, at least the Minister will have a hook on which to hang the hat.
Lord Avebury: Perhaps I can ask for further clarification. The Chief Whip said that we were debating all these amendments together, including all the clauses. I thought that after the noble Lord, Lord Dixon-Smith spoke—presumably he was addressing himself to his Amendments Nos. 97, 98, 99 and 100, although it was not clear to me from what sounded more like a Second Reading speech on Part 5—that the noble Lord, Lord Hylton, would speak to his Amendments Nos. 101 and 102 and following that the noble Baroness, Lady Whitaker, would speak to her Amendment No. 103. I was therefore surprised when the noble and learned Lord stood up and appeared to be pre-empting further debate.
Lord Goldsmith: I was not pre-empting. This is Committee. I stood because no one else was standing. The grouping is set out and no one indicated that they objected to it. The noble Lord, Lord Dixon-Smith, agrees. If the Committee wishes to deal with this in a different way, so be it. The last thing I want to do is to stifle any debate on any point. I want to deal with points raised by the Committee and I am happy and ready to do that. Perhaps the noble Earl, Lord Russell, will come to my rescue.
Earl Russell: I can assure the noble and learned Lord that as far as I can see he behaved with impeccable propriety and entirely in accordance with the customs of the Chamber. Nevertheless, it may be for the convenience of the Committee if at some stage Amendment No. 103 in the name of the noble Baroness, Lady Whitaker, was debated. If he could indicate when it may be convenient for us to do that, it may help us.
Lord Goldsmith: If my noble friend Lady Whitaker would like to deal with that now and that is convenient to the Committee, I am happy with that course. The matter has then been put and I can respond to the whole group.
11.45 p.m.
Baroness Whitaker: I shall be brief. This is a very discrete aspect of the general debate and this is not an original amendment. It follows the Bill moved by the noble Lord, Lord Avebury, in 1995 and it implements a recommendation made by the Law Commission in 1985. They said,
- Xwe take the view that where members of a society have a multiplicity of faiths or none at all it is invidious to single out that religion [i.e. that of the Church of England] for protection . . . the common law cannot remain as it is . . . our consultation confirmed this view".
The Law Commission implied one semi-reservation, saying that the only persuasive argument against the amendment was,
- Xthe criminal law should provide some protection to religious believers from suffering offences".
The Law Commission's assumption that it is inequitable to protect one part of the Christian faith without signalling equal respect for other faiths, or non-religious beliefs, is the main reason for this amendment.
But there are others. XBlasphemy" is quite undefined in law. Since one of the main attributes of law is certainty, this is hardly satisfactory. Blasphemy, nevertheless, is an absolute offence, one of strict liability, which means intention plays no part and any defendant is unable to give evidence about their own belief or purpose. In theory, one could commit accidental blasphemy and be just as guilty. It is hardly surprising that the Home Office undertook in 1989 to take no more state prosecutions for blasphemy.
I suggest that now we have a proper provision which protects believers of every kind from incitement to hatred on the grounds of their belief, this arcane and inequitable law should become history. So should its equally vague accompaniment, Xblasphemous libel".
Finally, the Law Commission also held that the offences of disturbing a religious service or devotions, and striking a person in a church or churchyard should not be criminal by virtue of being crimes against the Church of England, but to the extent that they constitute criminal behaviour, be caught by the criminal law in general. Thus I propose that this part of the Law Commission's amendment should also be adopted.
Lord Avebury: I am delighted that the noble Baroness, Lady Whitaker, has managed to get her oar in at last. I am sure that it will be greatly to the convenience of the Committee if the noble and learned Lord replies to this amendment when he deals with all the others which are grouped with it, as was suggested by the Chief Whip.
I believe that many people will object that blasphemy is even more remote from the purposes of the Bill than Part 5 itself. But there we are. It was discussed in another place and we have it before us here. It is a very useful opportunity for clarifying what is the present attitude of the Church. The right reverend Prelate will correct me if I am wrong, but I understand that the official position at the moment is to wait and see what happens to this Bill and only then to express an opinion on the blasphemy law.
In 1995, after my blasphemy abolition Bill was defeated at Second Reading, the most reverend Primate set up a small staff group to consider what was the best way forward from the Church's point of view. I do not know whether that group ever reached any
conclusions but I understand that its present view is not that the blasphemy law should be extended to cover other faiths, as Mr Dobson suggested might be the case in another place.That is certainly reassuring as it would open up a Pandora's box if that were done. I think that not many people realise that the blasphemy law now has a very limited meaning in law—much less extensive than it has in ordinary English usage—being confined to the use of scurrilous or grossly offensive or abusive words tending to vilify the Christian religion. Blasphemy and blasphemous libel—the difference between the two concerns whether the matter is spoken or written—are, of course, offences at common law, as the noble Baroness explained, and their scope has been progressively narrowed over the three centuries of their history. The working definition is that which is contained in Stephen's Digest of Criminal Law, which was used almost verbatim by the trial judge in the Gay News case in 1979. For the benefit of those who think that there will be a great restriction on people's ability to criticise other religions, the denial of any of the doctrines of Christianity, mocking or poking fun at Christian beliefs, or the portrayal of sacred persons or objects in a profane setting would not be enough to satisfy the test. Some people belonging to other faiths might well be disappointed, if the blasphemy law were extended to cover other religions, to discover that its application is so restricted, and I am afraid that there would be constant pressure for the offence to be widened.
- XThere is a good case for . . . removing existing blasphemy law".—[Official Report, Commons, 26/11/01; col. 707.]
- Xachieve a measure that is less anachronistic and more appropriate to the 21st century".
I do not intend to enter into an argument about the general merits of Part 5 and I assume, for the purposes of the amendment I am discussing, that we shall pass the amendments dealing with incitement to religious hatred as they stand, whether or not the Committee thinks that there should be further consideration and further consultation with outside forces. But in this particular case of blasphemy why should this long delayed reform wait on the Board for Social Responsibility? With great respect to the Church of England, it has had more than six years to consider it since the previous occasion when it came before this Chamber and it is time we came to a decision. If it has to be done by separate legislation, the arguments put earlier by the right reverend Prelate the Bishop of Southwark apply with even greater force. It is very unlikely that time would be found for that in the
parliamentary timetable. It would take up scarce parliamentary time. With all the pressures that exist I cannot see it happening. There will always be something more urgent in the queue. As Mr Dobson suggested when he moved the amendment in another place, let us do it now.Perhaps I should say a few words about the other offences mentioned in subsection (1)(b) and (c) of the amendment which were dealt with in the Law Commission's Offences Against Religion and Public Worship document of 1985. Those are largely concerned with obstruction of religious ceremonies. As an example, Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 penalises any person guilty of,
- Xriotous, violent or indecent behaviour"
At the time, the Law Commission did not believe that Section 5 of the Public Order Act 1986 would work in this context because, in the special circumstances of a church service, it was unlikely that a breach of the peace would have been provoked. Now, under Part III of the Public Order Act 1986 as amended by this Bill, the use of threatening, abusive or insulting words or behaviour with the intention of stirring up religious hatred, or whereby religious hatred is likely to be stirred up, is an offence whether the action occurs in a place of worship or elsewhere. I hope that it can be agreed that all the rarely used provisions in those ancient statutes should be repealed.
In 1995, I argued that the Public Order Act 1986 would deal with utterances or the display of writing that fell within the definition of blasphemy as it had been developed by the courts and, specifically, in the Gay News case. There was still a gap at that time in that, if such material were published but never displayed, it would not be caught. The new offence of incitement to religious hatred closes that loophole as it extends to the publication and distribution of written material. I hope that it may be agreed that any material offensive enough to be prosecuted as blasphemous under the law as it now stands would be equally capable of being dealt with under the 1986 Act as the Government now propose to amend it.
Therefore, the right reverend Prelates can afford to relinquish the special protection which the blasphemy law has afforded their particular religion. In doing so now, when the Home Secretary—as he said in another place—has not yet made up his mind on the matter, they would earn the respect and esteem of other faiths. Priests and bishops of the Church of England are always affirming their commitment to a genuine multi-faith society. Here is an opportunity for them to demonstrate that in a practical and public manner that will cost them nothing.
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