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Lord Avebury: My Lords, does the noble Lord acknowledge that the Select Committee on Religious Offences found that the Attorney-General was not subject to judicial review if he refused a consent to prosecution?

Lord Campbell of Alloway: My Lords, I am much obliged to the noble Lord. Look at the clock. I cannot claim injury time. I cannot answer the noble Lord. Perhaps I may be allowed to finish with one sentence and sit down.

Such assuredly is the opinion of the Muslim Parliament of Great Britain, the Islamic Council (Human Rights) and Amir Butler, the executive director of the Australian Muslim Public Affairs Committee who was concerned with the case under the vilification law in the state of Victoria.

My time is up. I apologise for not being able to answer the noble Lord.

Lord Plant of Highfield: My Lords, there are many things to welcome in the Bill. I broadly support Parts 1, 2 and 3 and certainly the animal aspects of Part 4. However, a couple of issues give me concern.

First, I refer to the restrictions on the right to demonstrate and protest in the environs of Parliament. I shall need some convincing on that. In an age when we all decry disengagement from politics, this is the wrong time to discourage deeply felt protest—which would be the effect of the legislation. In these two Houses of Parliament, we make awesome and, in some cases, awful decisions which affect the lives of millions of people at home and abroad. I see nothing wrong with those who feel strongly about these issues making their views known in a consistent and even relentless way in the environs of Parliament. It may be that there are ways of meeting these points in relation to Parliament Square by treating the frontage of Parliament Square—I mean no disrespect—as being like a parking meter. Individuals could mount their protest there for a limited time to be followed by others; but no individual should be able to feed the meter. I have to say that I owe this ingenious proposal to my close friend the noble Lord, Lord Smith of Clifton.

However, I want to speak mainly about the part of the Bill dealing with incitement to religious hatred. In general, I take a liberal view of issues to do with civil liberties and religious freedom. As with most aspects of living in a liberal society, there is always a balance to be struck between freedom and equality. As the Minister said in her opening remarks, the Bill does not protect religions against ridicule, lampooning and so forth. Nevertheless the blasphemy laws do in relation to the doctrines of Christianity as understood by the Church of England. Therefore, if there is an argument in favour of extending the protection of the law to other
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religions without repealing the blasphemy laws, we are creating another inequality. I think that that would fuel problems about religious resentment because there would be two forms of protection for the Church of England and only one form of protection for every other form of belief. That is an important issue. It has been argued that there is an egalitarian case for protecting in particular the Islamic community on the analogy with racial identity which provides protection to Jews among others. I believe this analogy to be wrong.

What might be a liberal view of freedom of expression? The core idea surely is that I should be free to say what I want so long as I do not harm others. The crucial question is: what is harm to others? Reasons have already been mentioned by other noble Lords. It cannot be offence to the sensibilities of others. If we sought to criminalise what offends the sensibilities of others we would be issuing a wholesale charter for interference with individual freedom. It would be an entirely subjective test. I am the only person who can say that my sensibilities have been offended.

Harm has, I believe, to be something much stronger and more definite and objective than offended sensibility. I think there are two more objective accounts of harm: first, harm to physical security; and, secondly, harm in the sense of preventing someone else living their own life in their own way, or, putting it another way, exercising their own liberty. Those are more palpable and objective examples of harm than offended sensibility. So part of the liberal view is that the state can interfere with someone's freedom of expression when it causes harm in one or both of these senses.

There is a further condition; namely, that the harm to others cannot be avoided by the person claiming to be harmed. Hence, to utter extremely disparaging things about a religion from a church pulpit is private to those who attend. To write disparaging things about religion in a book which others do not have to read is not sufficient to cause harm. Saying disparaging things in a play does not expose to harm those who do not go to it. So the preaching of evangelicals from their pulpits about the wrongness of other religions, the publishing of The Satanic Verses and the performance of the play which exercised Sikhs in Birmingham do not cause direct harm. The harm can be avoided by members of these communities by not going to such churches, reading such books or attending such plays.

The fact that someone or some group finds what he or it understands to be going on in a pulpit, book or play as being deplorably offensive to his religion, even though he is not directly confronted with it, is not a good reason for seeking to ban this material. To seek to criminalise something to which you object without needing to witness it seems to me to be a form of moral egotism: assuming that everyone has to conform to your view of what is good. I can see no justification for that.

It is sometimes argued, as it was this morning by my honourable friend Fiona Mactaggart—I have very great respect for her—that there is an analogy with
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race in that for many people religion is constitutive of their identity and is not a matter of free choice. I do not deny—it is true of myself—that for many people their religion is, or perhaps in my case has been, the most important thing in their lives, as perhaps being a member of the Jewish race is to a Jew. However, it seems to me that there is always a choice. For some religious groups, exercising the choice to exit the group for those who belong to it may be very painful and the exit costs are high. There is, however, still the choice and if these groups themselves became more liberalised and less authoritarian through education and the accommodation of the virtues of a liberal society, mentioned by the noble Lord, Lord Baker of Dorking, the exit costs would be a good deal lower.

In addition, it has to be said, it seems to me, that religions themselves, at least implicitly, put choice into a central role in their faiths. They all have forms of encouragement and they have forms of prohibition on behaviour. There would be no sense in encouraging the adherence of a religion to do X and to abstain from Y unless people had the capacity to choose X or Y. If they have the capacity to choose X or Y then they can also choose whether or not to belong to the religion. Therefore, in my view it would be reasonable to regard some form of expression which could affect the physical security of individuals and which could prevent the freedom of those individuals to practise their own beliefs in their own way and to which exposure could not be avoided as falling within the criminal law, in principle, on a liberal point of view.

Those circumstances exactly match the case mentioned this morning in the Times by the noble and learned Lord, Lord Mackay of Clashfern. As he points out, where a banner was displayed saying "Islam out of Britain" the case was prosecuted under existing criminal law. So I think that the Minister will have to explain why the sort of case mentioned by the noble and learned Lord, Lord Mackay, which can be criminalised under liberal assumptions about freedom of expression is not adequately dealt with under existing legislation. But I plead with my noble friend to go forward on the issue of repealing the blasphemy laws on which my own position follows from what I said about offended sensibility. I agree with the ancient expression, which I shall not try to quote in Latin, that offences to the gods are the concern of the gods.

Lord Bhatia: My Lords, I begin by declaring my interest as the chairman of the British Muslim Research Centre.

I should like to make a few comments on Clause 119 of and Schedule 10 to the Bill, which deal with racial and religious hatred. I believe that the clause is all about protecting vulnerable religious communities. I have at least two main reasons why I wish to speak on this subject. First, I was one of the Select Committee members considering the Religious Offences Bill, chaired by the noble Viscount, Lord Colville. Secondly, I am a Muslim and am part of the community, which at the present feels very vulnerable and is constantly under
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attack in all kinds of ways. I will refer to the present conditions a little later. I wish to remind the House that we must never forget that today the Muslim community is under attack, but tomorrow it could be any other faith. Therefore our approach should be that of protecting all faith communities in this country.

The crucial issue in this Bill is about incitement. It is about dealing with people who are prepared verbally, communicating through writing or the Internet, to incite others to hate because of someone's faith. It is about ensuring that people out there who feel threatened are protected. The subject has come up for debate a number of times over the past four years. When the matter came up for debate under the Anti-terrorism, Crime and Security Bill in 2001, I recall hearing from all sides of the House that there was acceptance that such a protection was necessary but that it should be brought to Parliament not under an anti-terrorism label, but under a more specific one.

In 2002, the noble Lord, Lord Avebury, introduced a Private Member's Bill that led to the appointment of the Select Committee whose report was debated the following year. As a member of the Select Committee, I heard the evidence of a lot of people of different faiths, a lot of institutions and faith community leaders, and above all the law-enforcing agencies such as the police, the CPS, the Attorney-General and Home Office officials. From all law-enforcing agencies the message was clear—that there was a gap in the law and it would make their job much easier if Parliament legislated to that effect.

A few other important facts came out of the report. First, that two faith communities were already protected—the Sikh and the Jewish communities. Secondly, that by extending similar protection to all other faith communities, we may not be infringing on the freedom of speech of anyone, that legislation on freedom of speech was not absolute and that it carried responsibilities with it. In the evidence given by Muslim community leaders, it was clear that they did not wish to propose that the blasphemy law should be removed or that the Sikh and Jewish communities which had protection should lose it. All that the Muslim community was asking was to be treated equally with other faiths under the law.

There are some 1.6 million Muslims, forming 3 per cent of the population of this country. It is the second largest faith community, a young community with problems relating to low education attainment, a high level of unemployment and a large percentage of the community living in some of the most deprived boroughs of this country. There is considerable evidence that such people in such communities feel vulnerable in a whole range of ways, but here is the double whammy: it is bad enough to be unemployed and suffering from deprivation, but to be victims of hate because of their faith becomes very difficult to cope with.

Since 9/11, the Muslim community has been under attack both verbally and physically at times. Our women and our children have been attacked, spat on and abused in the streets and in public. It is no longer safe for many
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to walk on the streets without fear. I cannot believe what I hear from some of my community members; I cannot believe that in 21st-century Britain, a section of the population have fear for their safety simply because of their faith. Does it not remind us of the terrible days of the Holocaust during the Second World War? Does it not remind us of tragedies of the former Yugoslavia in recent years? Are we all waiting for a large number of Muslims to die or be maimed or damaged before we wake up?

Let me be a little more specific. We all hear about the possibilities of a terrorist attack on our country. Our security services are warning us about this possibility. If that was to happen, God forbid, the first faith community to be attacked within this country will be the Muslim community. Our police will, as always, have to defend the community and will also be in the front line of such attacks. Out there, there are people who are waiting to incite others to hate the Muslims, and the scenario that I have just described will be the best opportunity for them to do so. The current gap in the law will permit them to do so.

I must pay tribute to the Prime Minister and the Government in wishing to protect the Muslim community in this country. Immediately after 9/11 it was the Prime Minister who forcefully and clearly said that it was just a handful of Muslim extremists who had carried out the atrocities of 9/11, and that the vast majority of Muslims in this country were law-abiding British citizens who needed to be protected, and protected properly, against any attacks. The police and the law-enforcement agencies were advised to ensure that appropriate protection was given. Since 2001, the Government have made various efforts to bring in provisions to fill the gap in the legislation, and I hope that this House will support the passage of Clause 119 of this Bill.

Let us please find the reasons, the mechanism and the will to support this clause. Freedom of speech is not at risk. The Muslim community wants freedom of speech as much as any other citizens and communities in this country. The legislation as presented to us for debate complies with human rights legislation; in fact, the gap in the law currently breaches human rights legislation, because the state currently protects some faiths and not all the faiths in the same manner.

Lastly, I remind your Lordships how this proposed legislation will work in practice, if we support it. Whenever there is an offence of incitement to hate, the victims will have to go to police to report it and the following steps will be taken before a case is brought to the court. First, the police will have to be satisfied that there is a clear incitement to hate; secondly, the police will then have to convince the CPS that there is incitement to hate; thirdly, the Attorney-General will then have to exercise his fiat that this is definitely a case to incite people to hate a group or a community or a faith group. Only then could the case be sent to the court for prosecution. Fourthly, a jury will decide whether the charge is proven and whether there is clear evidence that incitement to hate a group of people has been carried out. Finally, the court itself has to see all the evidence before the judgment is given.
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These are the hoops through which any case under this legislation, if we support it, will have to go. My own assessment is that very few cases will even reach the courts and those that do go to the courts will have to pass the stringent tests I have described. But what this legislation will do is to draw a clear line and send a message to those who wish to incite people to hate groups of people, that society, the state and the people of this country will not allow such trouble makers, hate merchants and bigots to damage vulnerable communities in this country.

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