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Lord Elton: My Lords, we need to get this right. If the substance is intercepted it will not be Xlikely" to have the effect that we are trying to prevent. Therefore, surely, the wording should not be Xis likely to have" but Xis intended to have"? The noble Lord will perhaps think about this matter between now and the next stage.

Lord Rooker: My Lords, we are always in thinking mode. I shall not rewrite the amendment on my feet. I am fairly confident that I could have explained this from the longer and extensive note that I have and could have used. However, if we have it wrong, we have tomorrow to put it right.

On Question, amendment agreed to.

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Lord Rooker moved Amendments Nos. 83 and 84:

    Page 68, line 31, leave out Xfalls" and insert Xhas an effect falling"

    Page 68, line 37, leave out Xis likely to induce" and insert Xinduces"

On Question, amendments agreed to.

[Amendments Nos. 85 and 86 not moved.]

Clause 114 [Hoaxes involving noxious substances or things]:

[Amendments Nos. 87 and 88 not moved.]

Lord Rooker moved Amendment No. 89:

    Page 69, line 25, leave out Xlikely to"

On Question, amendment agreed to.

[Amendment No. 90 not moved.]

Clause 37 [Meaning of racial hatred]:

[Amendment No. 91 not moved.]

Clause 38 [Meaning of fear and hatred]:

[Amendment No. 92 not moved.]

The Attorney-General (Lord Goldsmith) moved Amendment No. 92A:

    Page 20, line 16, at end insert—

X(8) The Attorney General may issue guidance as to conduct in respect of which he will not institute proceedings for an offence under Part 3 of the Public Order Act 1986 (c. 64), or consent to the institution of such proceedings, on the grounds that the conduct consists of the legitimate expression of religious belief."

The noble and learned Lord said: My Lords, in moving Amendment No. 92A, which stands in the name of my noble friend Lord Rooker, I shall speak also to the other amendments in the group which relate to Part 5 of the Bill.

The effect of Amendments Nos. 93 to 98 would be to remove a substantial part of Part 5 from the Bill. I shall recap, first, why the Government sought to introduce Part 5, recognising as I do so that, by not moving Amendments Nos. 91 and 92, it is accepted in the House that at least part of what the Government have done is acceptable.

Some noble Lords previously suggested that Part 5 had nothing to do with 11th September and that it was not a measure in response to those events. But we cannot and should not forget that ordinary people in our streets face hatred and harassment because others hold misguided prejudices about their beliefs. At the weekend, the Guardian outlined some individual cases: the Muslim schoolteacher, in a headscarf, who was asked on a Manchester train, XDo you think you will live until 9 o'clock tonight?"; graffiti on a wall reading, XAvenge USA—Kill a Muslim Now!"; a child in Cambridge attacked because his mother was wearing hijab; leaflets posted through letter-boxes across the country claiming that Islam stands for intolerance, slaughter, looting, arson and the molestation of women. It is a sad indictment of our society, but it is also the reality that faces many people today.

There is a weakness in our law because it deals with racial groups, not religious groups. As I have previously noted, some religious groups—Jews and

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Sikhs—can also be considered as racial or ethnic groups, and, as a result, are protected by the additional safeguards of the Public Order Act 1986 and the Crime and Disorder Act 1998. The current situation is anomalous. On a website run by a disreputable and hateful organisation, there could be the same message about three different groups—the Sikhs and the Jews, which would be prosecutable as incitement, and the Muslims, which would not be. That is an anomaly which needs to be resolved, and the events of 11th September require that resolution quickly. That is why these provisions were included in the Bill and that is why they should remain in the Bill.

Let me identify some of the support that there has been for these provisions being in the Bill. The Muslim Council of Britain, the leading Muslim representative organisation, issued a statement confirming its support in principle for both incitement to religious hatred and religiously aggravated offences. The Board of Deputies of British Jews—although, as I have indicated, the Jewish people are considered a racial group—also supports the extension of the law to religious groups. It noted that in the month after 11th September the number of anti-Semitic incidents recorded by the Jewish community in Britain doubled. Justice, in its paper to the Home Affairs Select Committee in another place, stated that it broadly supports the extension of incitement to racial hatred to cover religious hatred. It said that this will act as an important measure to protect vulnerable minority communities. The Law Society paper to the Select Committee on Home Affairs welcomed in principle the proposal to create an offence of religious hatred. The second report of the Joint Committee on Human Rights stated at paragraph 58:

    XThere would be little difficulty in establishing a pressing social need for action".

The United Nations Human Rights Committee, in its concluding observations earlier this month on the United Kingdom's latest periodic report, noted the recent upsurge in religious harassment and attack and urged the UK, among other things, to extend its criminal legislation to cover offences motivated by religious hatred.

In Committee, the proposal received support from the right reverend Prelate the Bishop of Southwark, who is in his place today, and the right reverend Prelate the Bishop of Blackburn. I hope that we shall hear at least from the right reverend Prelate the Bishop of Southwark today.

The second general point raised by noble Lords and others is that Part 5 will limit freedom of expression and will stop criticism of religions and hinder religious discussion and debate. My noble friend the Minister and I have sought to explain existing law and the safeguards in the Bill. I shall trespass on your Lordships' indulgence and mention them again and then return to Amendment No. 92A.

The first of the six safeguards is that the law requires that before an offence has been committed, a person must use threatening, abusive or insulting behaviour. Secondly, there must be a mental element—an intention to incite religious hatred or a likelihood that

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the conduct or words will do so, coupled in that case with an intention that the words should be insulting, threatening or abusive.

Thirdly, the offence is directed at hatred—a strong word. The dictionary definition Xhatred" is not defined in the Bill—is more than contempt or ridicule. Fourthly, the offence deals not with hatred of a religion but of a group of people who are defined by their faith or lack of it.

Fifthly, the conduct has to enter the public domain. The offence is not directed at purely private expressions of any sort. Sixthly, no prosecution can be brought unless it is instituted by the Attorney-General or with his consent.

The Government do not underestimate the concern expressed in this House and in the other place that a person should not be prosecuted for expressing a legitimate religious belief. I have made that clear, as has my right honourable friend the Home Secretary. In Committee, I undertook to consider how best to ensure that such prosecutions do not occur. We carefully examined the amendments tabled in Committee and in another place but concluded that they would not be effective. The difficulty is that providing exclusion from prosecution or a specific defence—where, for example, a person cites a religious text—creates a loophole that could be exploited by persons who deliberately seek to incite hatred and who are the very people we want the legislation to catch.

We have seen examples where extremists have used quotes from holy books out of context to incite hatred. It is not difficult for the devil to cite scripture for his own purposes. Amendment No. 92A will provide guidance, which will give reassurance, on the kind of conduct that, by being a legitimate expression of religious belief, is not likely to amount to an offence of inciting religious hatred. I hope that that provision, in conjunction with existing safeguards, will reassure those persons who feared that expressing truly held beliefs could inadvertently lead to them being prosecuted.

4.45 p.m.

Lord Lester of Herne Hill: My Lords, guidance is obviously important when dealing with a new criminal offence that will interfere with freedom of expression. Will the House see that guidance before concluding its proceedings on the Bill this week, so that it will know how prosecutorial discretion will be guided one way or the other?

Lord Goldsmith: My Lords, I hope to persuade your Lordships that the offence should be left in the Bill. The intention is that the offence will come into effect once Royal Assent is given. It is important that guidance is available by that date, so that the public know the consequences. I am hesitant to promise that the guidance, which has not yet been drafted, will be available by Thursday. I shall give thought to that question as I continue.

Lord Lester of Herne Hill: My Lords, does the Attorney-General agree that it is important, as a

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matter of parliamentary accountability, that Parliament knows what it is doing before creating a controversial offence? Would it not be in the interests of democratic, responsible and accountable government for the House to see the guidance that the Government contemplate?

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