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23Leave out Clause 39,
The Commons disagreed to this amendment but proposed the following amendment to the words so restored to the Bill:
23AClause 39, page 20, line 16, at end insert—
X( ) 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, or consent to the institution of such proceedings, on the grounds that the conduct consists of the legitimate expression of religious belief."
Lord Goldsmith: My Lords, I beg to move that the House do not insist on their Amendment No. 23, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill.
We return to the issue of expanding the existing law on incitement to racial hatred to cover incitement to religious hatred. Noble Lords will recall that this House voted to remove Clause 39 from the Bill and the Commons have disagreed with that amendment and agreed an amendment to restore Clause 39 as amended by the government amendment regarding guidance.
The Government remain convinced that it is necessary to extend the law to cover incitement to religious hatred. We believe that it is necessary to do that now to ensure that those who have sought to stir up racial hatred, exploiting the tension since September 11th, are not allowed to do so. We believe that it is time to end the anomaly under which some religious groups are covered by incitement to hatred provisions when others are not. We believe that the clauses proposed by the Government are the right way to create these offences because they build on the tried and tested—and not abused—incitement to racial hatred offence. We believe that it is time for this House to send the message that it does not condone this kind of vile hatred.
I shall turn in a moment to the question of guidance. Today I have placed in the Printed Paper Office draft guidance which I intend to publish, with the agreement of the Director of Public Prosecutions, as soon as this clause passes into law. Before I discuss that matter, I shall deal with the following point. We do not accept that this conduct can simply be dealt with under the law relating to other offences. Of course, some cases, depending on the facts, will involve conduct which could amount to incitement to religious hatred but could also amount to another offence. The choice of charge will be for the prosecutor. However, there is a gap. Public order and harassment offences in particular, such as using threatening or abusive or insulting words or behaviour towards another person with intent to cause that person to believe that immediate violence will be used against him, or with intent to provoke immediate violence, require conduct which is directed at a specific individual—that was the point I sought to make the other day—and, therefore, do not bite on the general distribution of literature such as on a website or by leaflets which are distributed.
It has been said that the ingredients of the offence would not criminalise legitimate freedom of expression; that is, criticism, even robust criticism, of religion or religious discussion and debate. The criminal threshold has not been abused in the Companion incitement to racial hatred cases, and it would not be for religious hatred. In order to provide some further reassurance on that, I agreed to provide guidance.
Before I turn to the guidance I make two specific preliminary points. First, the guidance is intended to clarify factors which I would consider when exercising
The second important preliminary observation is one that I hope noble Lords will readily recognise. I also hope that noble Lords will readily recognise that as a prosecutor, with a responsibility to prosecute in the public interest, I cannot make sweeping or categorical statements that might apply to circumstances I cannot presently envisage. That would fetter a discretion in a way that noble Lords would not expect that any Attorney-General would want to do. The difficulty is that there is always a possibility of something that one cannot envisage at the moment occurring in the future. In looking at the guidance which I have produced in draft, I hope that noble Lords will recognise that point and kindly bear it in mind. Notwithstanding that, I hope that noble Lords will still find the draft guidance helpful and will agree that it meets at least the particular concern which has been expressed; namely, that this offence might somehow be used to stifle legitimate expression of religious belief or even criticism of religious belief.
First, the guidance sets out the procedures. It emphasises that any decision for consent would be a decision taken personally by the Attorney-General, or, in certain cases, by my deputy, the Solicitor-General. It refers to police investigations and the necessity for specialist prosecutors to be involved from the CPS central facilities. It identifies the necessary ingredients of the offence, each of which would have to be proved in order for a prosecution to succeed, and each of which must, therefore, be considered. It makes the important point, in accordance with general practice, that no prosecution would be brought unless there was a realistic prospect of conviction; that is, that the evidential test is satisfied, and also that, in my opinion, it is in the public interest to prosecute. Both those matters have to be satisfied. It seeks to give some guidance on some of the elements. I refer, for example, to hatred, which is an important ingredient. The guidance states in paragraph 5.4:
Moved, That the House do not insist on their Amendment No. 23, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill.—(Lord Goldsmith.)
X'Hatred' is a strong word and, as a matter of common sense, it is likely to be held by the courts to mean something stronger than dislike, contempt or ridicule".
The guidance also deals with the matter to which I referred earlier in relation to legitimate expression. Paragraph 5.12 states:
XGiven the high threshold tests set by these offences it is not easy to foresee circumstances in which legitimate methods of religious debate will justify a prosecution. So, expressions of, or indeed criticism of, one's own or another's religious beliefs or practices, even when robustly expressed, or satirising or poking fun at or making comical representations of religion, people who are religious or who follow particular religions are unlikely to offend the statute. Legitimate expressions of religious belief which, taken within their context, time and the wider national and international arena, could not be construed as anything other than the expression of a religious tenet are, similarly, not likely to amount to an offence of incitement to religious hatred".
The guidance was produced in the hope that it would give further reassurance as regards the additional safeguard in the Act and as regards the ingredients being such that legitimate expression of religious belief, or criticism of others' religious belief, would not be criminalised.
5.30 p.m.
The noble Lord said: My Lords, I move this amendment to reaffirm that, as was decided on Report, Clause 39, which seeks to criminalise incitement to religious hatred, be left out of the Bill.
On Report, I spoke only to Amendment No. 23A. The numbers are so confusing that I shall call that the Attorney-General's guidance amendment. It was heavily criticised by the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Neill of Bladen, myself and many other of your Lordships. No satisfactory answer appeared to be given at the time and on reading the Official Report, none materialised. There is no justification for such an unprecedented procedure.
When I moved the amendment to omit Clause 39 and it was carried, the Attorney-General's guidance amendment had not been divided upon. That was never divided upon because it could not exist if Clause 39, which it was proposed to amend, were left out of the Bill. It was the decision of the House by a substantial majority of members of all three main political parties and of Cross-Benchers—after a long, good-humoured and constructive debate—that Clause 39 be omitted.
It is not my intention to reopen that debate but I shall make three salient points. First, what is the hurry when the sense of the House was that there is a need for further comprehensive consultation and discussion?
Secondly, there was a flood of opposition from all three monotheist religions; religious bodies including the Free Presbyterian Manse, eight Islamic institutions, the Christian Institute and Liberty. A veritable mountain of unsolicited correspondence expressed in one way or another the belief that Clause 39 could do more than harm than good, cause much unintended mischief and inhibit freedom of speech and religion.
The third salient point was made, inevitably, by the noble Earl, Lord Russell. I wholly agree that the proposed reach across, as the noble Earl termed it, to racial hatred is dangerous and ill conceived in a single statutory framework dealing with both racial and religious hatred. Religion is a matter of opinion and freedom of expression and belief could be compromised. In that context, the anomalies to which the Attorney-General just referred are not understood.
At the end of Report stage your Lordships—by excluding religious hatred offences and retaining religiously aggravated offences—devised a new structure to resolve the essence of the problem as identified by the right reverend Prelate the Bishop of Birmingham and accepted by the noble Lord, Lord Rooker, on 15th October. The right reverend Prelate said that in this country, Islam is generally perceived as an Asian religion. Therefore, attacks on Islam are used as a cover for incitement to religious hatred against people of Asian origin.
The House achieved a viable structure and on Third Reading, I sought in vain to persuade the Government to accept it. Such remains my respectful endeavour.
If the record of enforcement of racial hatred offences under extant law were to increase from the 47 cases over 15 years to which the right reverend Prelate the Bishop of Oxford referred, what would be the need for a new Bill? I beg to move.
Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof, leave out the words after XHouse" and insert Xdo insist on their Amendment No. 23".—(Lord Campbell of Alloway.)
23BLord Campbell of Alloway rose to move, as an amendment to the Motion that this House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof, leave out the words after XHouse" and insert Xdo insist on their Amendment No. 23".
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