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Lord Waddington: My Lords, I am grateful to the Minister for the patient way in which she is dealing with the point that I raised. She obviously understands that I am not attacking for one moment the proposition that someone who assaults another because that other is a homosexual should not suffer a dire penalty. I am merely suggesting that the interaction between the new clause and the law of harassment could result in private individuals bringing private prosecutions to the embarrassment of us all.

4.30 p.m.

Baroness Scotland of Asthal: My Lords, we will still have the benefits of the Human Rights Act and the need for proportionality and propriety. The courts will have to determine whether such issues fall within or without the Act. We cannot legislate for the perverse. I cannot say to your Lordships that there will not be an individual who will seek to take improper advantage of the legislative framework that we have put in place, but we believe that the good sense of the judiciary and the way in which the legislation has been framed will ensure that those who seek to take such advantage are brought to a quick, sticky end. I do not mean a permanent end, but an end in terms of the way in which the litigation will be dealt with.

The Disability Awareness survey of 2001 found that a quarter of the disabled people surveyed had experienced harassment. A Mencap survey found that 90 per cent of people with a learning disability suffer from bullying on a regular basis, and a quarter reported physical assault.

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Many of these offences are not reported to the police because of a lack of confidence that the criminal justice system can adequately deal with them. ACPO is aware of the problem. In most parts of the country, lesbian and gay police liaison groups work with the police to encourage reporting, respond to violent incidents, support victims and often also cover issues such as homophobic bullying. We believe that legislating will send a clear message to offenders, victims and witnesses that these very serious offences will not be tolerated.

It is appropriate at this point to mention Amendment No. 225B, which is a consequential amendment to Amendment No. 201A. It changes the definition of aggravation by sexual orientation for the purposes of Schedule 19—"Determination on minimum term in relation to mandatory life sentence"—to that used in the new clause on hate crime.

I thank the noble Lord, Lord Dholakia, for indicating that he will not move the amendment standing in his name and that of the noble Baroness, Lady Harris of Richmond, because it is very similar in effect to the government amendment. The only difference is that it includes hostility towards the victim because of gender as an aggravating factor. We do not believe that this is necessary. I am content that the noble Lord has indicated that he is also so content. Given that we have acted on recommendations from around the House, I hope that there will be no difficulty in dealing with the matter appropriately.

Amendments Nos. 198 to 200, which have been tabled in the name of the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Avebury, have a somewhat different effect from that of the government amendment, although I believe that the principle behind what we seek to achieve is very similar. If I understand the amendments correctly, their effect would be to apply the maximum sentences specified for racially and religiously aggravated offences in Sections 29 to 32 of the Crime and Disorder Act 1998 to offences aggravated by race, religion, lack of religion, sexual orientation or other identifiable characteristics. This would enable sentencers treating such features as aggravating factors to pass sentences greater than the maximums currently in place for certain offences. The amendments would also give the police power to arrest a person without a warrant whom they reasonably suspect of committing an offence motivated by hate.

The first difference between these amendments and ours is the inclusion of hostility because of any "other identifiable characteristic" as an aggravating feature. "Any identifiable characteristic" is very wide, as many have said. Furthermore, we do not believe that we should legislate on the basis of any possible future need but rather on the basis of evidence, which we believe we have seen in the cases of hate crime against gay and disabled groups. If other groups are targeted by hate crime in future, the proper procedure will apply. The

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evidence will be put before the House in the context of the Bill and the House will decide whether it is appropriate to legislate or no.

I now turn to the application of increased maximum penalties for offences aggravated by hatred of a particular group. Let me say that I personally hope that we will not have a Criminal Justice Bill every year, not least if I have the honour of still holding my current position.

We decided against creating aggravated offences and decided instead to provide for aggravating factors that would increase the severity of sentence without altering the maximum penalty overall that is available. We really do not think it is appropriate to increase the maximum penalties for these specific offences. A maximum sentence is set at a level which enables the sentencer to consider all the aggravating factors—that is, the worst case scenario for that offence. These have been set at the level deemed by Parliament to be appropriate. The racially and religiously aggravated offences were created specifically for a set purpose, and this cannot simply be applied to other aggravating features.

It is also inappropriate to apply the powers of arrest in Section 31 of the Crime and Disorder Act to offences where the aggravating factors are to be taken into account. There is no demonstrable need for the increased powers of arrest in this context. On the basis of these arguments, and given the strong level of support for the government amendment from the House and from relevant stakeholder groups, I hope that noble Lords will be prepared to withdraw their amendments.

Amendment No. 201, in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Harris, seeks to specify that data collected under Section 95 of the Criminal Justice Act 1991 should include certain group characteristics. The Secretary of State is required under Section 95 of the Criminal Justice Act 1991 to publish annually such information as he considers expedient for,

    "facilitating the performance by such persons of their duty to avoid discriminating against any persons on the grounds of race or sex or any other improper ground".

As part of the Government's commitment to driving out hate crime, we are carrying out a review of the hate crime investigation manual in association with the Association of Chief Police Officers. This full-scale review, which will also consider how hate crimes are monitored, will be widely consulted upon. Without pre-empting the findings of that review, we feel we have the processes in place that will drive the changes in policy and investigations that we all seek in this area.

I remind the House that we are expending 1.16 billion on the criminal justice IT to try and bring about a much broader and more comprehensive understanding of what exactly is happening in the criminal justice system so that we can get the empirical data upon which we will be better able to craft policy and legislation in the long term, because we really need to understand what works. As that comes on stream, we will be able to utilise the IT to make sure that we are

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getting the sort of data that will help us do the work we need to do. I say to the noble Lord and the noble Baroness that the combination of those two factors should inure to our advantage, and it is for that reason that we will resist their amendment.

The noble Baroness, Lady Harris, spoke about Northern Ireland. She is quite right that we have announced our intention to legislate by Order in Council on increasing sentencing for offences motivated by hatred of the victim because of his or her sexual orientation. This is because, as the noble Baroness indicated, there is, rather tragically, a particularly high incidence of homophobic crime in Northern Ireland. We are also considering the issue of hate crime against disabled people in the light of the Government's amendment to the Criminal Justice Bill. The Northern Ireland Office will be looking at that very keenly indeed.

The noble Baroness asked a whole series of specific questions in relation to Northern Ireland. Bearing in mind the stage we are at, rather than my reciting the answers to her, it might be preferable if I write to her on those matters. I hope that she will not find me discourteous if I take that course.

I have tried to interweave the answer to the issue raised by the noble Lord, Lord Thomas of Gresford, into the answers I have given so far. I hope that he will feel that he, too, has the answers he needs in that regard.

I wish to thank my noble friend Lord Alli. He speaks with some conviction and passion for those who have not had a voice in the past. It is important that we take into account that those who may disagree with the nature of others' sexual orientation should appreciate that, in terms of equality of treatment, everyone needs the protection of the law in a way that is meaningful and fair. We believe that this is a proper recognition at this stage, together with the proper recognition that we have a duty to be fair and appropriate towards disabled people.

I hope that I have replied to all noble Lords—I incorporated the concerns of the noble Lord, Lord Hylton, in the questions that I sought to answer.

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