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Religious Offences Bill [HL]
9.8 p.m.
Lord Avebury: My Lords, I beg to move that this Bill be now read a second time. In doing so, I express my warmest thanks, first, to the Public Bill Office for its timely and effective advice on drafting; secondly, to the staff of the Library for the excellent notes they have produced; and, thirdly, to the Home Office for
producing what is known as a Keeling schedule demonstrating how the Public Order Act would look if the amendments proposed in the Bill were made thereto. It was a matter of complaint during our proceedings on the Anti-terrorism, Crime and Security Bill that it was extremely difficult to look backwards and forwards between that Bill and the Public Order Act. The production of the Keeling schedule is a tremendous advantage in trying to understand exactly what these proposals will do.As your Lordships know, the proposals in the Bill have been canvassed on many previous occasions, most recently, as I said, during the proceedings on the anti-terrorism Bill. I shall refer, first, to Clause 2—I shall explain later why I am doing it this way round—the provisions of which are identical to the provisions on incitement to religious hatred that were left out of the anti-terrorism Bill—probably not because the House was against them per se, as I judged the tone of the discussions then, but rather on the grounds that it was considered unsatisfactory to put them in a Bill dealing with the effects of the dreadful crimes of 11th September and the consequent changes that we needed to make in our legislation. The noble Lord, Lord Dixon-Smith, for instance, said that there was a case but that it was inappropriate to deal with it in that way.
I should point out—it was not a matter which received any attention during those proceedings—that in Northern Ireland provisions almost identical to these have been on the statute book since 1987. Presumably they have acted as a deterrent to religious incitement there. There is exactly the same wording as is already in Part 3 of the Public Order Act in relation to racial hatred offences and, as far as I am aware, there have been no difficulties of interpretation or of limiting freedom of expression and other of the anxieties expressed in our recent discussions.
People in Northern Ireland are well known for expressing themselves about religion in a robust manner, and the law has not altered that. Nor is the existence of the law a matter of controversy, as the Northern Ireland Human Rights Commission would confirm.
Returning to Great Britain, the Law Commission considered this matter in 1981, when it recalled that it had first been looked at as long ago as 1965 during the framing of the Race Relations Act. The proposition in 1981 was that the words "or religious" might be added to the law against incitement to racial hatred—as in this Bill—but at that time it was not considered a significant problem. In 1985 the Law Commission again considered the matter, but observed,
- "how closely linked are the concepts of a 'racial group' . . . and membership of a group which is distinguished by . . . a common religion".
If it is common ground that incitement to hatred of religious groups which are not defined by ethnic origin—including Muslims and Christians—does
happen, then the question is whether it has now become a real and urgent threat to society requiring legislation, which it was not when the Law Commission reported in 1985. But if it is now, then, as the Law Commission foreshadowed, the logical way of dealing with it is to follow the existing law on religious incitement in Northern Ireland and the law on racial incitement in Britain as closely as possible. It would be intolerable to have one set of provisions in Northern Ireland on religious incitement and another completely different set in the rest of the country.It would also be very confusing if the courts had to deal with dissimilar laws on racial and religious incitement, considering that in some cases ethnic and religious groups are one and the same. The definition of "religious hatred" follows exactly the same format as the existing definition of "racial hatred" in the Public Order Act, and the very nature of the phenomenon is identical. We are talking about hatred against a group of persons, whether they are defined by reference to their religion or race, as the case may be.
We have discussed at some length how this proposal can be reconciled with freedom of expression. I shall not go over the ground covered by the Attorney-General in relation to the anti-terrorism Bill when he explained how his discretion would be used to sanction criminal proceedings. I merely say that I hope that his draft guidance would apply to this Bill, as it would have done on that occasion.
The noble Lord, Lord Dixon-Smith, said that he accepted the principle that legislation in this area was desirable, as indeed did others in all quarters of the House. They felt, however, that incitement to religious hatred was important enough to be considered on its own. If that was the main reason why the House decided to remove what was then Clause 39 from the anti-terrorism Bill, and not because your Lordships considered there was no need for an offence of this kind, I hope that Clause 2 of this Bill meets the objection.
I now turn to Clause 1 of the Bill. I am dealing with it this way round because of the statement made during discussion on the anti-terrorism Bill by the right reverend Prelate the Bishop of Southwark that,
- "were the clauses regarding the incitement to religious hatred already on the statute book . . . we, from the Church of England, would view the departure of the blasphemy law with much easier hearts".—[Official Report, 10/12/01; col. 1178.]
I ought to emphasise, because it seems to be widely misunderstood, that blasphemy has a much more limited meaning in law than it has in the dictionary. There is no prohibition on speaking or publishing opinions hostile to Christianity, or on denial of the existence of God. But the existing law on blasphemy applies only to the Christian religion. Incidentally, the
notion that we have a choice between abolition and extension of the present uncertain law to all religions is a non-starter. If we wanted to encourage rivalry and animosity between religions, that would be a good way to do it. It was suggested at one time by a minority in the Law Commission that a law could be framed which extended blasphemy to every other religion.The definition of blasphemous libel adopted by the trial judge in the case of Whitehouse v Lemon was the publication of any writing concerning God or Christ, the Christian religion, the Bible or some sacred subject using words that are scurrilous, abusive or offensive. The offence consists of attacking religious entities, not the religious group which believes in that particular set of entities. But the language used might be capable of having both effects: it could be at the same time "scurrilous, abusive or offensive" about the objects of a religion—of Christianity in the case of the existing law—and "threatening, abusive or insulting" and intended or likely to stir up hatred against the set of persons belonging to the faith which held those objects to be sacred.
There are many examples of this in the history of anti-semitism, where extreme criticism of the Jews' denial of Christ's divinity could not be separated from incitement to hatred of the Jews as a people. Christian theologians from St John Chrysostom onwards portrayed the Jews as Christ-killers, and it was not surprising that the use of that kind of language led to the social exclusion of Jews and the pogroms of medieval Europe, as well as being a factor in the aetiology of the holocaust, as many authors have shown.
There will be some circumstances, however, which theoretically could lead to prosecution under the blasphemy law but will no longer do so under the Public Order Act if this Bill is passed. It could hardly be said, for instance, that the poem in the Whitehouse v Lemon case was either intended to stir up religious hatred or was likely to do so, and such a case, if it occurred today, would not get to the stage of a full investigation by the police. But would a private prosecution under an 1866 statute be allowed by a judge if that case or one like it arose today? If those circumstances did ever arise, would not the Attorney-General use his power to take the case over and then offer no evidence? In 1976 there was still a great deal of homophobia, and Mary Whitehouse was a highly motivated and effective campaigner. The Gay News case should be seen as an aberration, without which we could now be looking back on 80 years without any court proceedings on blasphemy charges.
Subsection (2) of Clause 1 repeals all the religious offences listed by the Law Commission in its 1985 report on offences against religion and public worship. I apologise for the error, as Sections 3 and 4 of the Law of Libel Amendment Act 1888 have been repealed already. It was fairly difficult to go through all those ancient statutes and pick out the parts that were still in force.
The only provision that has been used in recent times is Section 2 of the 1860 Act, which criminalises any person who is guilty of,
- "riotous, violent or indecent behaviour",
Our debates on these matters only a few weeks ago showed that your Lordships wanted an opportunity to examine them more thoroughly with a view to reaching well-thought-out decisions. Both religious incitement and blasphemy have been discussed on numerous occasions, but we have never had the benefit of knowing what is the sense of the faith communities and, indeed, of those who belong to no religion, who are now probably more numerous than any single religion.
It has been suggested that we might now obtain that advice by referring the Bill to a Select Committee—a practice that has been followed sparingly over the past half century. I should welcome such an opportunity for settling these issues definitively. As there will be many differences of opinion about the detail, I hope that there will be common ground that we should now face up to the two related issues that are dealt with in the Bill. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Avebury.)
9.21 p.m.
Lord Ahmed: My Lords, I congratulate the noble Lord, Lord Avebury, on introducing the Bill. He has a long and distinguished career in human rights, equality and justice. I hope that the Bill will reach the statute book so that we can perhaps bring a religious discrimination Bill to the House for your Lordships' consideration in due course.
I am not against blasphemy laws. Indeed, I should very much like all religions and people to be protected from insults and attacks equally in law. As a Muslim, I am duty bound to respect equally Abraham, Jesus Christ, and Mohammed, peace be upon them. However, certain common law offences relating to religion and public worship are out of date and relate to only one section of our community. It is imperative that we amend our laws so that they are relevant to the multi-religious Britain of today.
Although the Law Commission in its 1985 report concluded that the common law offences of blasphemy and blasphemous libel should be abolished without replacement, two law commissioners argued for similar legislation to that proposed by the noble Lord, Lord Avebury.
I pay tribute to the Home Secretary for attempting to introduce religious hatred offences in the Anti-terrorism, Crime and Security Act. I also thank the shadow Home Secretary, Mr Oliver Letwin, for acknowledging in the other place that vulnerable communities need to be protected—especially Muslim communities in the present crisis.
The European monitoring centre on racism and xenophobia has recently reported:
- "Prejudice and hostility against Islamic communities are prevalent in all European member states, and have often led to discrimination against Muslims and their exclusion from mainstream socio-economic activities."
Since 11th September, attacks on the Muslim, Sikh and other Arab and Asian communities have increased by four times in some places. The Commission for Racial Equality reported an increase in attacks of more than 75 per cent on the Asian community in Tower Hamlets, for example. Far right racist groups openly attack the Muslim communities in the media and on their websites. There is no law to bring those people to justice. Muslim women wearing the hi'jab, Arab women in particular, have been subject to verbal abuse. Asian men and women in traditional clothes and Sikh men wearing turbans have all experienced harassment and mosques have even been fire-bombed. Racist groups have openly displayed posters and distributed leaflets inciting religious hatred in the north of England; and, sadly, even a few Asian religious groups offered support to the BNP in the hate campaign against Muslim communities.
There has been a growing anti-Muslim sentiment in the western media. The intentional use of anti-Islam terminology has featured in the media: words like, "fundamentalism", "terrorism has been linked to Islam", "militant Muslims", "Muslim terrorist groups", "Islamic terrorists" and "Muslim warlords" have been frequently used. International terrorism became synonymous with the Islamic religion. British Muslims have been at the receiving end of religious hatred, and yet have been expected to prove their loyalty to Britain and their "Britishness" time after time.
I have congratulated the Government on many occasions for the Derby and the Cambridge reports on religious discrimination. I joined the Labour Party 26 years ago because Labour stood for equality, fairness and justice. That is why I am proud that our Government are showing their intolerance to the incitement of religious hatred, and are leading the way for a culturally and religiously diverse but harmonious society. I feel proud to stand before audiences in Asia and the Middle-East, Europe and America, to say that British Muslims have more rights in the United Kingdom than anywhere else in the world. Yet, we are still not equal in law. Jewish and Sikh communities are protected under the Race Relations Act 1976—and rightly so—but other communities are not. That is why we must support this Bill, and also introduce religious discrimination legislation.
The Public Order Act of 1986 has two basic requirements of an offence being classifiable as inciting hatred: first, the words must be threatening, abusive or insulting; and, secondly, the words or behaviour are intended to, or do, incite hatred. Implementation of Clause 2 of the Religious Offences Bill (formerly Clause 39 of the Anti-terrorism, Crime and Security Bill) are in keeping with the equality-based arguments for amendments to the law. Islam also forbids religious abuse. I speak as a British Muslim when I say that we are pleased that the matter of religion has been taken out of the anti-terrorism Bill, which, undoubtedly, would otherwise have been viewed negatively.
Although there have been some apprehensions that, rather than being protected, British Muslims will be further persecuted under the new Bill, I feel that it is beneficial to us and other religious groups to be covered by the law against unfair discrimination. There have also been concerns that freedom of speech will be stifled, but the Religious Offences Bill refers to acts of hatred, not comedy and religious debate. This Bill will now protect all groups, unlike the previous blasphemy laws. It is also in keeping with respecting unity, diversity and equality.
In conclusion, I agree with the noble Lord, Lord Avebury, who has suggested that the Bill could go to a Select Committee for further examination. I strongly support him in that aim. I wholly support the introduction of the Bill, and look forward to discussing the new religious discrimination Bill.
9.29 p.m.
Lord Campbell of Alloway: My Lords, I do not wish the Bill to reach the statute book and nor do I accept that there is any reason why it should do so. This can obviously become an emotive subject and I shall not follow the line of the noble Lord, Lord Ahmed, because I am anxious to remove that element from the whole discussion.
The Bill pre-empts extensive consultation between the three monotheist bodies and other religious bodies in England, Wales and Scotland on the issues covered in Clauses 1 and 2. That pre-emption would render wholly inappropriate the setting up of the suggested Select Committee, if the Bill were to be given a Second Reading—which, by convention, I suppose that it has to be given. It is essential that, in ecclesiastical matters, some sort of consensus should be sought and, if possible, achieved by compromise before the Bill could ever be referred to a Select Committee of this House, as is understood to be the intention—subject, of course, to the approval of this House.
I speak only for myself, but I do so in the light of a mass of unsolicited correspondence, to which I referred during the passage of the recent Anti-terrorism, Crime and Security Bill. One ought not to tinker with the law in the area of religion without having at least sought consensus, which I had understood to be the sense of this House on the Anti-terrorism, Crime and Security Bill. I have said that, but for convention, I would oppose Second Reading.
On Clause 1, if there were a consensus between the religious bodies, after consultation, to accept the recommendations of the Law Commission, so be it, but it is suggested that Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 should be retained as redrafted as constituting a religiously aggravated circumstance to be added to the offences by amendment to Section 29 of the Anti-terrorism, Crime and Security Act 2001.
As for Clause 2, I am not concerned with importing emergency legislation from the Province as a precedent for legislation in this country or in Scotland or Wales. Clause 2 is a replica of the provision in the Anti-terrorism, Crime and Security Bill that your Lordships rejected by a massive majority on two occasions. It is not a new provision, which we understood that the Government might wish to introduce in the light of extensive consultation. Your Lordships may well think that Clause 2 should not stand part of the Bill in any event. Clauses 1 and 2 raise totally disparate, distinct and separate issues, which are in no way related. Even if Clause 1 were to commend itself, that could never justify the retention of Clause 2—or vice versa. There is a rumour of a trade-off on both clauses, so that a semblance of unity might be achieved and the aspiration of the noble Lord, Lord Avebury, could be fulfilled and the whole matter could be sent to a Select Committee. If that rumour is true, I hope that your Lordships will have none of it.
In all events, if Clause 2 were not to stand part, the Title and Clause 3 would require amendment and it would be wholly unacceptable to foreclose on a Committee stage on the Floor of this House. I stand by that to the end of my speech.
I do not understand why the opinion of the House, expressed only six weeks ago by the composite wisdom of your Lordships on two substantial Divisions should not be respected by the noble Lord, Lord Avebury, and why the issue should be so soon revisited.
If the essence of the problem is that identified in the exchange between the noble Lord, Lord Rooker, and the right reverend Prelate the Bishop of Birmingham, whom I see in his place, on 15th October when the Statement was made—that religious hatred is used as a cover for racial hatred—so be it. Since then, however, Section 39 of the Anti-terrorism, Crime and Security Act 2001 has made provision for religiously aggravated offences which includes relevant safeguards, renders Clause 2 otiose and disposes of the argument in favour of the new offence of incitement to religious hatred. Under Section 40 of the Act, the maximum sentence for such offences is increased to seven years.
As for the argument in favour of the new offence in Clause 2, on 15th November, the Home Affairs Committee found no evidence to support it. It found problems of compatibility with the ECHR concerning freedom of thought and speech on religious matters; the objections of all three monotheistic religions and other religious bodies; and the "cross breed" objections of the noble Earl, Lord Russell, that racial hatred is not a matter of opinion protected by free
speech. Today, the noble Earl has confirmed that that objection does not extend to Sections 39 and 40 which provide for an increased sentence on conviction for the relevant offences—public order, assaults, criminal damage, harassment and so forth.
If the law as it stands were to be enforced—an issue raised on 21st November by the right reverend Prelate the Bishop of Oxford—it is a wholly satisfactory regime. Clause 2 is not only pre-emptive of due consultation but wholly inapposite. Indeed, it would work much unintended mischief.
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