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The Lord Bishop of Blackburn: The noble Lord, Lord Avebury, challenges these Benches to make some response to what he has just said. Perhaps I may say, first, that I do not believe that it is appropriate to piggy-back this very serious matter on to this emergency Bill. If it were done in that way, I believe that it would send out quite the wrong signals as to what we intend, and not simply to members of the Church of England. It is not always understood in the wider community that, as the noble Lord, Lord Avebury, rightly says, this measure applies only to the Church of England. I believe that the behaviour of many other people rides, if I may express it in this way, on the back of that understanding.
The matter was made quite clear in the Second Reading debate yesterday evening by the right reverend Prelate, my brother the Bishop of Southwark. The position is that, as of today—I shall return to that Xas of today" in a moment—the Church of England is not opposed to a review and a revision of the blasphemy law if something better can be put in its place. That would affect other religions and, indeed, other Churches. However, the reason that I say Xas of today" is that tomorrow the subject of blasphemy legislation will be on the agenda of the Archbishops' Council, which is the leading consultative body in the Church of England.
Therefore, we remain ready as a Church to enter into discussion with the Government. But I believe that it is a matter for the Government to instigate this type of discussion with the Board of Social Responsibility, or whichever body is appropriate in the Anglican Church and in other faith and religious groups. But I believe that it would be strange to remove legislation which at present at least protects some at a time when others are seeking a similar provision. It appears rather paradoxical to go about it in that way.
I now turn to the amendment in the name of the noble Baroness, Lady Whitaker. Leaving aside the whole question of blasphemy, unlike the noble Lord, Lord Avebury, I am seriously concerned about the implications of removing paragraphs (b) and (c), as set out in her amendment. Such offences may seem archaic, but there is growing evidence in this country of disrespect for people engaged in worship and devotion and, indeed, of the desecration of sacred places. That is a sad fact, but it is a fact.
As we react to the consequences of international terrorism, this is not the moment to remove clauses from the Bill. I hope that the noble Baroness will not move her amendment because I believe that it will rouse fears in many people at present. I also hope that the Government—this may be the assurance which the noble Lord, Lord Avebury, seeks—will give this matter serious consideration and, if appropriate, bring forth legislation on some other occasion in order that we may have a clearer understanding of the blasphemy law and the need for it, or otherwise, within contemporary society.
Midnight
Earl Russell: As we are in Committee, I hope that Members will forgive me for stating three sentences on this amendment, which I have not previously discussed. Its purpose, which I support, is to create equality and not to cause offence—I take the point made by the right reverend Prelate the Bishop of Blackburn about paragraphs (b) and (c). If we agree to the amendment, we will, in a redrafted Part 5, have to think about giving protection against hurt that is liable to lead to a breach of the peace, which we would not otherwise need to do in that form; that is another reason why Part 5 is not yet in a fit state to be approved.
Lord Goldsmith: I make it clear that I will speak to the entire group and that I am doing so at least three minutes earlier than the time at which I started speaking yesterday.
I hope that the noble Lord, Lord Avebury, will forgive me for pointing out that I certainly did not stop my noble friend Lady Whitaker from speaking to her amendment; I am happy that that debate has now taken place. I want to deal, first, with the amendments that refer to the details of the proposed incitement. We should be able to do so briefly, given that the noble Lord, Lord Dixon-Smith, has not really developed the argument. Secondly, I want to say something brief about the proposed maximum penalty, which is picked up in the amendment of the noble Lord, Lord Hylton. I shall also deal with the amendment relating to blasphemy, which was spoken to by my noble friend Lady Whitaker, and Amendment No. 185, which proposes a formal consultation exercise. I will then deal with what has really been the substance of this debate; that is, whether the matter should be dealt with now, and in what form that should be done.
Before doing so, I remind the Committee of two points, the first of which involves the structure of Part 5. Although we have been concentrating on the question of incitement to religious hatred, I ask Members of the Committee to consider the fact that Part 5 deals with rather more than that. Clauses 37 and 38 relate to the existing offence of racial hatred and amend the definition. No one has suggested that those are inappropriate amendments to make in this country and Northern Ireland, and I shall say no more about them.
Clause 39 will introduce incitement to religious hatred. Clause 40 is importantly different—it will add the concept of XReligiously aggravated offences"; that is, offences that are criminal offences. That has been done in relation to racially aggravated offences. The consequence—no one has spoken against this idea—is that particular conduct that is criminal would be treated as the worse because of the circumstances in which it took place. That would obviously be for the courts to decide. I had not understood that that part of the Bill was an issue in another place, at least with the main opposition party.
Clauses 41 and 42 deal with the penalties for the existing racial hatred offence and the new religious hatred offence, to which I shall return.
The second point that I want to touch on briefly involves what the incitement to religious hatred offence amounts to in terms of its ingredients. It may help the noble Earl, Lord Russell, who picked up the question of what the mens rea is, and other noble Lords, including the noble Lord, Lord Lucas, who asked about what would and would not be an offence, if they consider what those ingredients are. I recognise that, in order to appreciate what they are, one has to read Clause 39 as it will be inserted into the Public Order Act—Members of the Committee will doubtless have done that.
I shall describe the ingredients. The first is that there has to be the use of threatening, abusive or insulting words or behaviour, or a display of written material of the same sort. That does not involve soberly expressed—or even robustly expressed—opinions.
Secondly, there needs to be either an intention to stir up racial hatred or, having regard to all the circumstances, a likelihood that racial hatred would be stirred up. Why is the second part necessary? It is because if someone uses language in circumstances which the rest of us, a jury or magistrates, would consider likely to stir up racial hatred they cannot pretend that they did not have the intention behind it. But there is an important additional element in Section 18(5) of the Public Order Act, which I hope will come back to the point raised by the noble Earl. That states:
- XA person who is not shown to have intended to stir up racial hatred is not guilty of an offence . . . if he did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting".
Hatred is a strong concept. It is more than contempt, disagreement or robust disagreement; it is hatred of a group and not of the religion. That is an important indicator also. Finally, as I mentioned yesterday, the offence is one which cannot be brought by way of private prosecution; it is an offence which can be brought only by or with the consent of the Attorney-General.
I turn to the first set of amendments. Amendments Nos. 97 to 99 seek to change the test to be applied to one of the incitement to religious hatred offences and to remove the provision which allows the person to commit an offence if in the circumstances their words or behaviour were likely to stir up religious hatred. That would be replaced with a test which requires that the person should contribute to criminal conduct against or by a member of a religious group. That is the essence.
There are two reasons for suggesting that that is not a good amendment. First, we suggest that it does not improve on what is proposed. Secondly, the amendment would criminalise something which is already a criminal offence. Therefore, it achieves nothing. It certainly does not achieve the intended end. It is the case that some people will deliberately seek to incite religious hatred but will do so in a calculated
way. They will then say, XI didn't think that that would incite hatred". But it should not be possible to say that where it is clear to any judge and jury that any reasonable person must have considered it likely that others would be incited to hatred. That is why the 1986 Act refers also to the likelihood of hatred being stirred up. However, as I have just drawn to the attention of Members of the Committee, the Section 18(5) defence means that there will still be a specific defence in that case if the person did not intend his words or behaviour to be threatening, abusive or insulting. That is the first point.The second point concerns contributing to criminal conduct. The simple fact is that inciting someone to commit a criminal offence is already an offence. That is what the common law offence of incitement is about. Religious hatred, like racial hatred, is not in itself, at common law or otherwise, a crime. It is not an offence to be a racist. That is why we must have a specific offence of inciting racial hatred. We cannot rely on the common law incitement to an existing criminal offence. That is why, for the same reason, we would need a statutory offence if we are to criminalise the behaviour of inciting religious hatred. But if all we do is to make that subject to being criminal conduct in any event, we do not achieve that end. We are simply criminalising that which is already criminal; it achieves nothing. We welcome any help in improving the Bill. However, I hope that when Members of the Committee think further about that point they will see that that does not achieve their end and will not pursue it.
Amendment No. 100 is another approach to the same theme. It concerns the six aggravating offences. The amendment looks rather long. That is because it picks up the same variation in all cases. What is being put forward is a defence that a person charged with this offence can show that his words were reasonable in all the circumstances or that he acted in the public interest.
The second part of the amendment defines reasonable conduct by reference to the circumstances in which the words or behaviour occurred. The third aspect defines what amounts to a person acting in the public interest by reference to words or behaviour that is fair, academic, political or theological comment.
I remind Members of the Committee that the starting point is that there have to be words which are threatening, abusive or insulting, either intended to or likely to stir up religious hatred. The question is: in what circumstances would the use of threatening, abusive or insulting words intended to or likely to stir up religious hatred be reasonable or in the public interest?
What we are looking at—as my noble friend Lord Ahmed powerfully pointed out yesterday—is the kind of circumstances where, on a website, a far right group is peddling hatred of particular groups. We may have words which are no different in kind from the words which could be used about groups which benefit from the existing protection—Jews or Sikhs. If the same
language is being used in relation to another group but defined by its religion, that is the kind of conduct that we are concerned about.I doubt that Members of the Committee would think that that kind of situation would be reasonable or in the public interest. The very essence of these offences, the people that we are concerned with, are not people who are reasonable. They are not people who are acting in the public interest nor are they discussing the finer points of theology.
It is not a question of robust criticism or one of disagreement with cults or with other religions and their beliefs. I repeat this again because it is so important. It is the use of threatening, abusive or insulting behaviour at its start.
I add that the offence will not in any event be brought unless I or my successor or successors decide that it is in the public interest that it should be brought. That is a safeguard for your Lordships to judge. It will help considerably, I suggest, to prevent unreasonable offences being brought. But the Government are alive to the concerns which have been expressed here and in another place. We do not underestimate that concern. My right honourable friend the Home Secretary said in response to an amendment, somewhat differently phrased but on the same theme proposed by Sir Brian Mawhinney in another place, that we will look again at whether there is a construction which can be used to protect the people we are all agreed we want to protect without creating new loopholes which will be exploited by the people we all agree we should be able to prosecute.
Amendments Nos. 101 and 102 deal with the penalty. The simple point here is that the Government believe that the increase from two years to seven years reflects the seriousness with which the offence should be treated. It is in line with the existing sentence of seven years for the range of racially aggravated offences in the Crime and Disorder Act. In the Government's view, that properly reflects the impact that these offences have on communities and public order in this country.
I turn to Amendment No. 103, the proposal for an introduction into the Bill of provisions in relation to blasphemy. The Government believe—a point I made yesterday—that the Bill is devoted to matters connected with, and which have arisen since, September 11th—anti-terrorism measures. Blasphemy does not come up in that context. We do not believe that the Bill is an appropriate vehicle for amending or repealing the common law offences.
It is quite right, as has been pointed out, that as long ago as 1985 the Law Commission recommended abolition of the law on blasphemy and blasphemous libel. Even at that stage, it talked about the introduction of an offence of incitement to religious hatred. The matter has not cropped up suddenly; as some Members of the Committee have said, it has been discussed for some time and been the subject of much consultation.
However, the response to the Law Commission's paper—a response that has been reflected in what was said today by my noble friend Lady Whitaker, the noble Lord, Lord Avebury, and the right reverend Prelate the Bishop of Blackburn—demonstrated that there were important differences on the right way to deal with the issue of blasphemy. When the Law Commission issued its recommendation, there was considerable support for retaining the laws on blasphemy—some 1,700 out of 1,800 respondents were in favour, although many of them wanted it to be extended to cover other religions or faiths.
That is obviously a major issue between Members of the Committee: should we abolish the provision altogether or extend it to other faiths? That debate has important implications. While we wholly respect the reasons why the amendment has been proposed and the sincere concerns that surround the important topic that it covers, I must disappoint my noble friend Lady Whitaker. The Government do not consider the Bill to be the right vehicle to deal with the issue of blasphemy.
I shall deal briefly with Amendment No. 185 before returning to the main point. Amendment No. 185 is intended to stop both the incitement to religious hatred and the religiously aggravated offences in Part 5 coming into effect until after a formal consultation process with certain criminal justice organisations. That leads us well into the question of whether it is right for us to deal with the matter now.
The point of the provisions in Part 5 is to strengthen the law where it is weak and where it is necessary to deal with events after September 11th. I shall not repeat what I said last night, but since that date, there have been incidents that have given rise to grave concern in certain parts of the community—attacks and harassment. It is the connection between the events of September 11th and those events that has been in the Government's mind in bringing forward the provisions now.
I pray in aid the recent report of the Joint Committee on Human Rights, and invite Members of the Committee to study it. It deals expressly with the issue of freedom of expression, which certain Members of the Committee have raised. As I understand it, the Committee expresses itself content with what it has been told about the intention of the Bill: that the legitimate, pressing social need to outlaw particular despicable conduct justifies the limitations that the Bill would impose. Freedom of expression is not absolute. It is not absolute in relation to racial hatred. We do not permit people to say things that will incite racial hatred; that is not a legitimate exercise of the freedom of expression.
Our Joint Committee also draws attention to the concluding observations of the United Nations Commission on Human Rights earlier this month. It noted the recent upsurge in religious harassment and attack and urged the United Kingdom to extend its criminal legislation to cover offences motivated by religious hatred.
In addition to that powerful urging to deal with the matter now, we have what I suggest is the important support of the right reverend Prelates present in Committee, both of whom spoke powerfully about the need, in order to provide proper protection in our community, to deal with the matter, and to deal with it now.
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