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Lord Avebury: My Lords, my name is attached to the amendment, as I am a member of the Select Committee on Religious Offences, of which the noble Viscount is the distinguished chairman. The Select Committee looked in detail at the concept of aggravation and made observations on it, particularly at paragraph 121, to which I drew the attention of the noble Baroness, Lady Scotland, in a letter on 1st October. As she knows, having read those paragraphs, the committee concluded that there were serious disadvantages in creating statutory aggravated offences and that the right way to deal with the matter was through sentencing guidelines. The line of reasoning is reinforced by the establishment in the Bill of the Sentencing Guidelines Council, which removes the previous potential for the objection that the courts have not always heeded the advice of the Sentencing Advisory Panel.

I wrote to the noble Baroness on 20th October about homophobic offences. She replied a few days later saying that they could not be considered until the Met had undertaken a 12-month review of hate crime, which is due to start only this month. The Government, as an afterthought, have created in their amendment a new statutory offence applicable to crimes motivated by hatred of gay and disabled people. Although I join the noble Viscount, Lord Colville, in applauding the idea, I take issue with the manner in which the legislation has been framed.

The Select Committee reported as long ago as 10th April, and five months later the feeble letter that the noble Viscount mentioned was sent by the junior Minister, Fiona Mactaggart, stating that the Government intended to provide observations on the report by the middle of last month. They have not appeared yet, but the Home Office, in what I must say is its typically arrogant way, has ignored the reasoning of the Select Committee and avoided any discussion of a matter that it knew was a proximate subject for legislation. It knew that long before the Select Committee reported, because the noble and learned Lord the Attorney-General gave evidence to the Select Committee, during which the matter was discussed in some detail.

I do not wish to incur the wrath of the Government Whip by making a long speech but I cannot resist the temptation to quote a remark by the noble and learned

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Lord that echoes precisely what the noble Viscount has just told us about the disadvantages of the approach. As reported at page 229 of the minutes of evidence, the Attorney-General said that,

    "if you do charge the aggravated version of the offence and the jury acquit on that but convict of the lesser version of the offence (and sometimes juries do take what might seem to be a compromise position) it would be hard for the sentencing judge in those circumstances to take into account conduct which by their verdict the jury had ruled out".

That is the situation regarding the offences dealt with under Sections 29 to 32 of the Crime and Disorder Act.

The Select Committee pointed out that the Crime and Disorder Act had no direct effect on sentencing for the most serious offences, the maximum penalty for which is already life imprisonment. We said that, where the jury was not satisfied that racial or religious aggravation was involved, but they convicted on the bare offence, as the noble and learned Lord the Attorney-General explained, the judge, in sentencing, would be unable to take motivation into account, even if the defendant had a long history of previous conduct displaying racial or religious hatred. The Committee drew attention to the guidelines that were issued by the Court of Appeal in conjunction with the Sentencing Advisory Panel in the case of R v Millberry and others which dealt specifically with homophobic rape and to the complementary initiative by the DPP to treat all homophobic crime as having aggravating indications that should be addressed in the presentation of evidence. The judge would therefore be alerted to the possibility of an increased sentence. Meanwhile, the Disability Rights Commission and others have drawn attention to the increasing frequency of crimes motivated by hatred of disabled people which they have shown affects as many as one in four disabled people.

Who on earth would have imagined a few years ago that we would be discussing these horrible offences of crimes against disabled people, motivated simply by a hatred of disabled people? Who could have imagined at the time of the Law Commission report, which led to our discussions in the Select Committee, that crime motivated by religious hatred would need to come before your Lordships' House? That is the point of the speech by the noble Viscount, which I would like to echo. In the Minister's scheme of things, if new groups become subject to crimes of hatred in the future, we would have to have a new criminal offence to deal with them. Under the scheme proposed by the noble Viscount, however, they could be dealt with as yet another group subject to the same provisions.

When this Bill comes into effect, there will be at least four different sentencing regimes associated with treatments of aggravation in our law. First, there will be the offences that attract the statutory increased penalties for racial and religious aggravation in the Crime and Disorder Act 1998. Secondly, there will be the more serious offences for which the maximum sentence is life, as I have explained, affected directly neither by the 1998 Act nor by this legislation. Thirdly, there will be all the other criminal offences to which the

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concept of racial and religious aggravation now applies under Clause 128, but without the increases in maximum sentences provided under the Crime and Disorder Act. Fourthly, there are the offences motivated by hostility towards gay or disabled people, all of which are to be treated in the same way as racially or religiously aggravated offences under Clause 128. That creates the anomaly that if any of the offences covered by Sections 29 to 32 of the Crime and Disorder Act is motivated by hatred of gay or disabled people, it will be liable to a more lenient penalty than if that same offence had been motivated by hatred of the religious or racial origins of the victim.

It would be much better to sweep away this arbitrary taxonomy of aggravation, and institute the single, easily understood scheme recommended by the noble Viscount, following the ideas that he developed as a result of detailed consideration and agreement by the Select Committee of which he was the distinguished chairman. Under one and the same statutory provision, the courts would have to treat every kind of group-hate motivation as an aggravating factor, and would have to say so in open court. That would lead to greater consistency and uniformity of sentencing than under the four different regimes that will exist if the Bill goes through in its present shape.

Lord Alli: My Lords, I do not wish to take much of your Lordships' time. I know that this is a complicated Bill and many hours have been spent on it. However, I could not let this set of clauses go past without recording my thanks to the Minister for introducing Amendment No. 201A. She listened very carefully and I know that it was a difficult amendment for her to get through with her colleagues. I want to record my thanks for bringing it forward at this stage of the Bill. Many people will be affected by this provision.

3.45 p.m.

Lord Dholakia: My Lords, Amendments Nos. 201 and 201B in my name and that of my noble friend Lady Harris of Richmond are grouped with Amendment No. 198. Our amendment also has the support of the noble Baroness, Lady Darcy de Knayth. I endorse Amendments Nos. 198, 199 and 200 in the names of the noble Viscount, Lord Colville of Culross, and my noble friend Lord Avebury. These three amendments follow the reasoning of the Select Committee on Religious Offences, in chapter 9, which deals with aggravation. It would be helpful at some stage to see the Minister's reaction to those amendments.

I fully endorse what has just been said. Miracles do happen from time to time and I want to grab this one as fast as I can. I am delighted that the Government have accepted our case for increased sentences for offences aggravated by reference to disability and sexual orientation.

We were impressed by the case made by the Disability Rights Commission, which identified hate crime against disabled people as a major human rights issue. My noble friend Lord Avebury cited the statistics. What is frightening is that nine out of 10

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people with learning difficulties have had their self esteem, dignity and personal safety robbed by verbal or physical abuse or harassment. Such harassment often cannot be dealt with because the significance of such action may be lacking in law. I am delighted that the Minister has now decided to put that particular right. We now have provision in statute to ensure that crimes involving harassment by reference to disability or sexual orientation can be dealt with by the courts.

We support government Amendment No. 201A. With that in mind, we will not move our Amendment No. 201B. I have one minor concern: those who have studied matters relating to racial attacks and harassment are aware that many times, the aggravating factor based on race, colour, national or ethnic origin is ignored by the prosecution because it is difficult to prove. In some cases, the original offence is sufficient to convict and the CPS has been reluctant in the past to give added emphasis to aggravating factors. That is why our Amendment No. 201 is important. We need systematically to collect and interpret data relating to these offences. That would indicate how effective the provision has been. Without such a system of monitoring we would be unable to identify how many cases are proceeded with in which aggravation is a factor.

Much credit goes to our judiciary, which has not hesitated to pronounce increased sentences when aggravation is a factor. That is a good example of how we can all influence public opinion. The Government obviously have our support in the action that they have taken.

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