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Lord Goldsmith: My Lords, it is guidance that I shall give as the prosecuting authority—as the prosecutor with the authority to say whether or not an offence should be committed. That is not the same as government guidance amending, in any way, the offence. I shall consider further the noble Lord's comments. I thoroughly share his views about the importance of democratic accountability. I shall return to the question of precise timing.

Amendments Nos. 95 to 97 deal with the penalties for incitement to racial or religious hatred. Amendment No. 95 would retain the proposed increase from two to seven years but only for racial offence, not religious offences. Amendments Nos. 96 and 97 would remove the provision.

The Government believe that the penalty for the existing offence of incitement to racial hatred as well as the new offence, if it is included, of incitement to religious hatred should be seven years—which would match the penalty set by Parliament for racially aggravated offences in the Crime and Disorder Act 1998.

Amendments Nos. 94 and 98 relate to aggravated offences, where there is a criminal element already but the crime is made worse by being aggravated by a racial element. It is not acceptable to use violence to cause harassment or to damage property because of hostility towards a person's religion. It is one thing to dislike a person for their religion; it is one thing to dislike the religion itself; it is quite another thing to punch a person because they hold a religious belief that one does not like. Sadly, those kinds of offences have increased since September 11th and we need to send a message now that that is unacceptable.

Noble Lords will recall that there was support from both the Conservatives and the Liberal Democrats for this measure in 1998 when racially aggravated offences were introduced in the Crime and Disorder Act. Both parties opposite called on the then Home Secretary to include religiously aggravated offences. The Government undertook to keep that under consideration and that was happening when September 11th occurred. Those events made clear that religiously motivated offences are a reality and that we need to act now. That is why we have brought forward Clauses 40 and 43. Therefore, I hope that noble Lords will support the inclusion of those offences.

In conclusion perhaps I may quote an Attorney-General, albeit an American, Robert Kennedy, who said in 1963,

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The Government's position is clear. We need to protect our communities and the people in this country from religious hatred. The provisions in Part 5 of the Bill will do that. We are not creating something entirely new. We are expanding existing offences with the same criminal thresholds and safeguards that have been in place for years. Where there have been concerns we have listened, examined the possible options, and in the case of Amendment No. 92A, we have brought forward a solution.

My right honourable friends the Prime Minister and the Home Secretary have both made it clear that the United Kingdom has no argument with Islam or Muslims. The vast majority of British Muslims are law-abiding citizens who condemn terrorism in all its forms. It is unacceptable in our society for innocent people to be subjected to hatred simply because another person equates their religion wrongly with terrorist activity. The Government believe that this part of the Bill strikes the right balance between ensuring freedom of speech, which we prize dearly in this country, and ensuring that innocent and law-abiding people are able to practise their religion and to go about their daily business without being subjected to hatred or threats.

With the support for this provision and the safeguards for it, I believe that there is no good reason to oppose it. It was described by Mr Oliver Letwin in another place as being introduced by the Government with Xnoble motive". To protect vulnerable religious communities is a noble motive. I hope that noble Lords will now want to join in sending a clear message that this House wants to protect those people, the young woman in Manchester, and British people against unjustified threat and intolerance. It is an opportunity to send a message of tolerance and inclusiveness. There is no justification for hiding behind delay and procrastination.

My right honourable friend the Home Secretary did the right thing in including this noble provision in this Bill. The House would do wrong to vote it out. I beg to move.

Lord Dixon-Smith: My Lords, the noble and learned Lord has made a gallant defence of an inclusion in the Bill that is not a part of the fundamentals of the battle against terrorism. His proposition rests on the assertion that it is. Indeed, it would be wrong of me if I were not say that there is justification for legislation in this field. The question is whether this is the right legislation, the right time and whether the legislation itself is entirely correct.

I shall try to follow the pattern that the noble and learned Lord has followed in his remarks because it might lead me to follow a logical progression, otherwise my thoughts might tend to be slightly scrappy. The noble and learned Lord rightly listed those bodies which support this legislation, such as the Muslim Council of Britain the Jewish Board of Deputies, Justice, the Law Society in principle, and the Joint Committee on Human Rights which says that it will have little difficulty in supporting legislation in

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this field. The right reverend Prelates have also supported the principle of this legislation. That is a powerful argument with which we do not quarrel.

The question which I do not believe has been answered by all those bodies is whether in fact they have said that this legislation must be passed now and in this form. With the possible exception of the right reverend Prelates who, by the good fortune of their presence here, have been able to express their view, I doubt whether the other bodies have expressed their support in those specific terms.

We come to the definition of the offence. As the noble and learned Lord said, before an offence takes place there must either be threats or abuse or insults; there must be an intention to incite religious hatred; there must be an intention to insult. The offence must be to create hatred of a group and it must be public and not private.

Those are all valid arguments. I believe I am also right in saying that they are also offences likely to cause a breach of the peace. Under existing law, if it were correctly applied—unfortunately today it is more honoured in the breach—these matters could be dealt with. The question whether the amendments would or would not work I leave to one side.

The noble and learned Lord said that offences under this new part of the Bill would be subject to his ruling as to whether or not they were offences. He intends to issue guidance as to what would or would not be an offence in this matter. I do not wish in any way to call into question the integrity of the noble and learned Lord when I say this. I hope very much that he will not take it that way. But the fact of the matter is that guidance is entirely discretionary. It is not binding. It can be set aside, changed, and it is not subject to parliamentary approval.

To return to the question asked by the noble Lord, Lord Lester, even if we have the guidance before us it is not certain that it is necessarily the guidance which will apply three or five years in the future when the noble and learned Lord has perhaps gone on to greater things and some other person is doing his job. So there will always be a question over guidance.

Furthermore, I am not satisfied that we are anywhere close to a proper definition of a Xreligious group" or a Xreligion". I have two ways of asking the question. We do not have any particular problem in this country with regard to Mormons. More questionable is the Church of Scientology. I think of a group such as the Baha'is. They are seriously religious, but is Baha'i a religion?

If one thinks back to the early days of the Non-Conformist Church, how should we have dealt with someone like Wesley? He Xtook on" the established Church in order to establish a new church. These remarks may seem somewhat odd, but the legislation that we pass—subject only to sunset clauses that we may apply to it—will be permanent, unless it becomes the subject of subsequent legislation. So there are deep and serious long-term issues wrapped in these simple little clauses which have been included in the Bill to fulfil a short-term political need.

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We do not quarrel with the principle behind the Government's approach; but the method is wrong. It is still wrong, despite the noble and learned Lord's remarkably clear advocacy. I hope that when the time comes the House will support the following amendment in this group, which seeks to remove the clause from the Bill.

5 p.m.

Lord Lester of Herne Hill: My Lords, in speaking to this amendment, perhaps I may speak also to the other amendments in the group, especially Amendment No. 93, and therefore speak only once. It is appropriate that we are discussing this sensitive issue on Human Rights Day, when we are concerned with the rights and freedoms of everyone in the country—majorities and vulnerable minorities. The Government's proposals are directed at protecting vulnerable minorities in this country, as the Attorney-General has explained.

As long ago as 1994, during the debates on the Criminal Justice and Public Order Bill, I sought to persuade this House and another place to abolish the common law offence of blasphemy, which is truly anomalous and is part of the problem connected with this proposed new offence, in line with the recommendations of the Law Commission, made after detailed consultation. I shall briefly explain the significance of that in a moment.

The Attorney-General was kind enough to refer to the Second Report of the Joint Committee on Human Rights on the Bill and on this offence. In the report we said that we shared the view of the Constitution Committee that the inclusion of non-emergency measures is inappropriate in emergency legislation required to be considered at speed. We observed also that this was not a proper or sensible way to make legislation. Those observations apply in particular to the proposed offence of incitement to religious hatred. The offence as it has been explained would apply not only to the spoken word but also to the written word, to public performances of plays and to all forms of broadcasting.

Unlike the new statute in the Republic of Ireland, the offence will not cover other forms of hatred—notably hatred expressed against gay men and lesbian women. Ireland has sensibly legislated beyond race and religion to cover that other most vulnerable group in our society.

At paragraph 60 of its report, the Joint Select Committee noted:

    XWe were ... pleased to learn that the Home Secretary is not committed to the view that the present state of the law of blasphemy is in tune with the equality-based and respect-based arguments which would be likely to be used to justify the interference with freedom of expression potentially occasioned by the provisions of the Bill on incitement to religious hatred".

The trouble is that the Home Secretary has explained that he does not consider it appropriate to abolish the vague common law offence of blasphemy in emergency legislation designed to counter the serious threat of terrorism. But he does think it appropriate to create the new offence of incitement to religious hatred

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as a matter of emergency. There is no evidence before Parliament that there is any emergency or pressing social need to justify creating this new statutory offence in such extraordinary haste without dealing with the underlying anomalies in existing law.

There are two underlying anomalies to which the Attorney-General has not referred. The first is that the law does not deal with religious discrimination; it deals only with racial discrimination. It does not deal with incitement to religious discrimination; it deals only with incitement to racial discrimination. The second anomaly is that the Church of England is uniquely protected in its tenets by the ancient common law offence of blasphemy against gross forms of insult. That anomaly was abolished by the Supreme Court of Ireland—of all places—a couple of years ago in a judgment in which the Supreme Court said that the ancient crime of blasphemy existed to protect the Church of England, but the Church of England was not the same as the Catholic Church; that in Ireland no such offence was needed and it was too vague to be capable of enforcement.

But the problem is that, to many Muslims in particular, the existence of a common law offence that protects Christianity against gross insult, and Judaism as a branch of Christianity under the curious law that applies to blasphemy—since Judaeo-Christian tenets are lumped together for this purpose in a complicated way—is grossly insulting. As counsel for Viking Penguin in the Satanic Verses case—where it was sought to put people from Viking Penguin and Salman Rushdie in prison for blasphemy in insulting Islam—I learnt that the sooner we get rid of the offence of blasphemy, the sooner we remove a source of legitimate grievance from the Muslim community; and the sooner we stop people who do not believe in freedom of expression, whether they are Muslims, Jews or anyone else—including Christians—from seeking to use arguments based on mere insults of a gross kind as a justification for criminal prosecution.

I am very glad that I shall never be Attorney-General. Whatever guidance he produces, he will be in a catch-22 situation. In the first place, if we do not get rid of the offence of blasphemy, we can be perfectly sure that pressure will be brought to bear on him by some sections of the community to use this new offence when he does not consider it appropriate to do so. If he authorises a prosecution, we shall be in a catch-22 situation. I can say that with confidence because I have worked in race relations since the early 1960s and have watched what happens to the offence of incitement to racial hatred. If a prosecution is mounted and it succeeds, the danger is that one makes a martyr of the person who has uttered evil thoughts in public. If the prosecution fails, the danger is that one legitimises the evil utterances as those who purvey such views are able to say, XA jury has acquitted and this was the speech that was thought to be forbidden or punishable by law".

I do not say that it follows from any of that that we should be opposed to this new offence in principle. Indeed, I am on record as saying, and have said since 1994, that, if we abolish the offence of blasphemy, we

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need a new, narrowly drawn criminal offence in its place. I agree with the Attorney-General that, if one were to get rid of the other anomalies to which I have referred, this would be an acceptably, narrowly drawn criminal offence. What is proposed here is what has obtained in Northern Ireland. However, it is never used there because neither of the communities has behaved in the same way as have some on this side of the Irish Sea. It is also similar to a measure that exists in the Irish Republic, although, as I say, it has had the good sense to move beyond race and religion to cover other vulnerable groups.

I hope that I have said enough to make it clear that this matter is very complicated and very sensitive. It requires proper consultation and should not be rammed through via an emergency procedure in Parliament in this ridiculous way. The Law Commission spent a long time in its consultation and, by a majority, came to the view that not only should blasphemy be abolished but nothing should be put in its place.

From what the Attorney-General and the Home Secretary have said, I do not believe that a new manifestation of religious intolerance has arisen since September 11th. I agree that before September 11th there was a continuing manifestation of such intolerance, as we saw in the riots in the cities in the north of this country. I agree that there is widespread racial intolerance, sometimes expressed in religious form, and I entirely agree with the urgent need for effective legislation to counter religious as well as racial discrimination.

Although I would not have expressed it in the same way, I also entirely agree with much of what the Home Secretary said yesterday about the need for social cohesion and the need for everyone to rally round basic civic and political values in this country. Those include the values of a liberal society in relation to free expression as well as mutual respect and tolerance for others and equal treatment without discrimination. I know that the Attorney-General and the Home Secretary share those values. But, speaking with more than 40 years' experience, I shall say to the Attorney-General, who is brilliant but much younger than I am, that it is not sensible to legislate in haste on these complicated matters. Even though I sympathise very much with a large part of what he said about the need for a new offence, let us deal with it properly and not in this hasty way.

5.15 p.m.

Baroness Carnegy of Lour: My Lords, I want to suggest a somewhat different approach. I am afraid that it involves leaving out Clause 39. I am encouraged by the remarks made by Mr Blunkett over the weekend in various interviews when he spoke about the problems that we face in this area. I want to suggest that it is extremely unwise of the Government to highlight religion as the root of the problem when in fact it is a cultural problem. It is the problem that some of our citizens have in coming to terms with being a part of this country, rooted as it is in centuries of a Judaeo-Christian culture. It is rooted also in the

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problems experienced by others, whose ancestors have lived here for many years, as the immigrant population begins to join in and they see our culture respond to that.

In my view, to highlight this as a religious problem is likely to be counter-productive. We are free in this country to practise and celebrate our own beliefs and religions. But the culture here—a culture rooted in our history, albeit one which evolves as history moves on—provides the setting in which we all live our lives and the setting for our freedoms, whatever our religion.

It is not easy for any of our people to come to terms with and express a cultural problem in terms of religion. It compounds the issue and makes the situation much more difficult if we attempt to do so. The confusion will be compounded even more should the first high-profile case under such a law happen to involve an alleged offender who is a Muslim.

I believe that the Government would be very wise to emulate what the Scottish Parliament has done. I can understand why it has done so because I have received 35 letters, some from south of the Border, but mostly from Scotland and very many from the Highlands and Islands. A shot asylum seeker in Glasgow followed by a church burnt down caused the Scots Parliament to pause for thought. I believe that the Government would be very wise to think again on this matter. I do not believe that the idea of the Government giving us the conditions under which legislation would not be made would help. I believe that that would be a fundamental error.

I should be very interested to know the right reverend Prelate's view on this matter. I have discussed it with a number of his colleagues north of the Border who do not disagree with me that it would be very much better to pause and to return with a Bill which gets to the root of the matter. They agree that we require a Bill which tackles the question of how we live within the existing culture of this country and how we let it evolve without trouble. Religion is linked to culture but it is not the root problem. I ask the Government to consider that.

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