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Lord Avebury: My Lords, that argument is constantly repeated and I have never heard it pursued. In other words, people make an ex cathedra assertion, if people do not choose their race, that that is a legitimate subject for a law on incitement, whereas if they do choose their religion, it is not. Can the noble and learned Lord say what the difference is, from the point of view of a victim of incitement who is harassed, intimidated or has acts of violence against him on the street, whether he happens to be a Jew, a Sikh or a Muslim?
Lord Mackay of Clashfern: My Lords, it does not matter whether you are a Jew, a Sikh, a Muslim or have no faith at all. Violence against you in the street is an offence under the present law and it may be aggravated if it is done on religious grounds, in view of the law that has recently been introduced. So I do think that there is a valid point of distinction between race on the one hand and religion on the other. I would not engage in a conversation with someone seeking to change his race, but one might well do so with someone seeking to change his religion. The noble Baroness, Lady Ramsay, pointed out that the Bill attacks not only the people but religious practices. Practices are carried out by people and if you are criticising, and are entitled to criticise, religious practices, that would involve the people who practised them. The attempt to distinguish between practice and people is a thin distinction indeed.
This is an issue of great importance and, as far as I am concerned, it is a threat to free speech, particularly in the investigations that might precede any attempt to obtain the consent of the Attorney-General to a prosecution. The Attorney-General does not determine the scope of the law; his discretion relates only to whether or not, if a breach of the law has occurred, it should be prosecuted. I should like to see Clause 124 deleted from the Bill.
Lord Lester of Herne Hill: My Lords, it is a great privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, with whose speech I agree in its entirety. Unfortunately, I cannot sit down, because there are one or two other things that I need to say. I also very much agree with the thrust of the remarks of the right reverend Prelate the Bishop of Portsmouth, especially in relation to the pressing need to repeal the common law offences of blasphemy. In view of the remarks made by the noble Baroness, Lady Ramsay, perhaps I should declare that I am, indeed, a lawyer, a secular Jew and I have worked in race relations for some 40 years. I am not sure whether I am speaking more as a lawyer, as a campaigner for equality or all those things, but I agree with her that no one has a monopoly, whether as a former member of the Security Service or as a former or practising member of the Bar in all these difficult questions.
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I am grateful to the Minister and her team and to the Attorney-General and his team for having discussed with me my concerns about the proposed new offences of stirring up religious hatred. I have also benefited from discussions with representatives of the Muslim community and other faith and secular groups with very different points of view.
I draw the attention of the House to the important article by Rahila Gupta, in Saturday's Guardian, which illustrates some of the unintended adverse consequences if these offences were to become law. Ms Gupta wrote that, if the Government mean to extend a hand of friendship to embattled Muslim communities, they would surely do better to tackle the poverty that so many suffer, or the low level of educational attainment among their children, or to ensure that the Government's anti-terrorist legislation respects the human rights of those peoplemainly Muslimswho are subject to its operation.
In Ms Gupta's well-informed view, the very presence of the proposed law would strengthen the voices of religious intolerance and choke off women's right to dissent in male-dominated religious groups. All the groups that I have met have been dominated almost exclusively by males. In his wise article in today's Times, the noble and learned Lord, Lord Mackay, explained why the new law would be likely to stir up disharmony, rather than to resolve it. I agree with that, too.
On these Benches, we regret that the Government have decided to include in an important Bill, designed to tackle serious organised crime, provisions which are sweepingly broad and ambiguous in their reach and divisive in their effect.
The Colville Select Committee, which did such valuable work, drew attention in its report to the observations of the distinguished Attorney-General of India, Soli Sorabjee, which I shall, with the leave of the House, briefly quote. He stated that,
"experience shows that criminal laws prohibiting hate speech and expression will encourage intolerance, divisiveness and unreasonable interference with freedom of expression. Fundamentalist Christians, religious Muslims and devout Hindus would then seek to invoke the criminal machinery against each other's religion, tenets or practices. That is what is increasingly happening today in India. We need not more repressive laws but more free speech to combat bigotry and to promote tolerance".
The Divisional Court in this country came to the same conclusion in Choudhury's case when rejecting an attempt to extend the offence of blasphemy to religions other than Christianity. I acted as counsel for Viking Penguin, the publishers of Salman Rushdie's novel, The Satanic Verses. As the noble Baroness, Lady D'Souza, will recall, it was a painful experience. It illustrated the danger of keeping blasphemy as a criminal offence because it encourages followers of other faiths to seek a blasphemy law to protect their faith against gross insult at the expense of free speech. One religion's faith is another's blasphemy.
The law of blasphemy is discriminatory. It prevents a Muslim speaking about the sacred entities of Christianity in ways that would not be criminal if a Christian were to speak in similar terms about Islam.
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The Colville committee rightly found that hard to justify, as did the Law Commission. I was surprised and very disappointed by the DCA's recent Written Answer on 3 March suggesting that it might be appropriate to prosecute and convict someone whose material or conduct was, in its words, "gratuitously offensive to Christians". That can only encourage a body such as Christian Voice in its ignorant campaign against the BBC over "Jerry SpringerThe Opera" or Sikh militants objecting to Gurpreet Kaur Bhatti's play. Our approach is significantly influenced in this debate by the Government's unwillingness to abolish the offence of blasphemy.
The Government wish to extend the existing offences of stirring up racial hatred, as has been explained. I accept, of course, that the stirring up of hatredespecially ethnic hatredagainst groups of Muslims or Hindus is as offensive as stirring up hatred against groups of Sikhs or Jews. But if the hatred is ethnic, that is largely covered by the existing offence of inciting racial hatred and the pretext cases could be covered by a narrow amendment.
Because we on these Benches strongly believe in the equal protection of the law, we have long campaigned for comprehensive equality legislation to tackle religious and other forms of invidious discrimination and harassment, including discrimination and harassment against gay and lesbian people, who are not to be protected by this new offence.
Although the Government say that the proposed offences are designed to protect people, the definition links people with their religious belief or lack of religious belief. "Religious belief" plainly includes belief in the teachings or practices of a religion or its followers. "Religious" means concerned with religion, and religion may include a multitude of belief systems, old and new, and not only the theistic but also the non-theistic religions, as well as sects within religions and cultsfor example, scientology and the Moonies.
"Religious hatred" means hatred against a group of persons defined by reference to religious belief or lack of religious belief. "Hatred" is not defined. The proposed offences are not confined to hate crimes akin to violence; nor do they deal, for example, with stirring up hatred against people because of their sexuality, even though that is a serious social evil.
Hatred is not an activity; it is an emotion or a state or mind. The deliberate stirring up of hatredthat is, the intense dislikeof members of a racial group is an offence, even though it creates no immediate risk of stirring up violence. That is an acceptable use of the criminal law because criminalising incitement to racial hatred does not normally threaten the right to free speech. A verbal attack on members of a racial group is an attack on their common humanity and ethnicity.
However, in answer to my noble friend Lord Avebury, a verbal attack on members of a religious group, expressing intemperate criticism of, or hostility to, the beliefs, teachings or practices of their religion, is not an attack on their common humanity unless, in reality, it involves an attack on their ethnicity, origin and biologyfor example, when it uses a religious attack to
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stir up racial hatred against Jews, Sikhs, Hindus or Muslims of Asian descent. A verbal attack on the followers of a religion involves an attack on religious beliefs, ideas and practices in the exercise of the right to free speech. Subject to narrow exceptions, the right to free speech applies not only to information and ideas favourably received or inoffensive but those that offend, shock or disturb.
The proposed offences are sweepingly broad in their reach. The Bill would make it an offence to stir up religious hatred by using threatening, abusive or insulting words or behaviour, or by displaying or publishing written material which is threatening, abusive or insulting, or by publicly performing a play or distributing, showing or playing a recording, or broadcasting a programme involving the use of such words of behaviour. It would also make it an offence to be in possession of religiously inflammatory material intended for publication.
Those offences would be committed not only if the defendant deliberately intended to stir up religious hatred but also where religious hatred was likely in all the circumstances to be stirred up. The offences could be committed in a public or a private place. They would be punishable on conviction on indictment by up to seven years' imprisonment or a fine, or both.
As the noble and learned Lord, Lord Mackay, has already indicated, a wide range of offences incur higher penalties if they are motivated or aggravated by religious hostility. One is the offence in Section 4A of the Public Order Act 1986, which involves using threatening, abusive or insulting words or behaviour or disorderly behaviour, or displaying any writing, sign or other representation which is threatening, abusive or insulting, with the intention and effect of causing harassment, alarm or distress. Section 5 covers similar conduct within the sight or hearing of a person likely to be caused harassment, alarm or distress.
Those offences cover all forms of harassmentnot only racial or religious harassment but any harassment. The Protection from Harassment Act 1997 also creates a criminal offence, as well as providing civil remedies for the victims of harassment, including alarming a person or causing distress to that person. The Norwood case, which one can read about in the JCHR report, illustrates the very broad reach of the existing Public Order Act.
In the light of this wide armoury of offences and the existing robust case law, what exactly is the gap in the criminal law which needs to be filled by further criminal offences, and where is the evidence of a serious social problem which cannot be dealt with under the existing law?
I asked the Home Office to answer that question. It explained, first, the gap whereby Jews and Sikhs are covered by ethnic discrimination but not Muslims. It also stated that if the conduct is not likely to cause anyone present harassment, alarm or distress, then Section 5 of the Public Order Act will not apply. The Home Office gave me the following hypothetical examples of the only gap that it has been able to identify. The first is of a leader of a far-right group who gives a speech in the back room of a pub that encourages his followers to hate Muslims.
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The second example is of a radical Islamist preacher who circulates tapes to his followers encouraging hatred of Christians. In both situations, religious hatred is likely to be stirred up but not covered by the law. Those narrow examples could, if necessary, be dealt with by narrow and carefully tailored exceptions, but the Government have rejected that proportionate response.
The other vice is lack of legal certaintynot over breadth, but lack of legal certainty. The former Home Secretary, David Blunkett, wrote an article in the Observer on 12 December under the title "Why we'll outlaw the persecution of belief". He asked:
"Can it be right that hatred based on deliberate and provocative untruths about a person's religion remains unchallenged?"
So David Blunkett, the original Home Office architect, apparently believes that the offences are designed to protect beliefs against what he terms "untruths". In similar vein, Mr Khalid Mahmood MP apparently thought that Salman Rushdie could be prosecuted for his novel under these provisions. I am sorry to take
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