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Lord Lester of Herne Hill: We on the Liberal Democrat Benches are delighted to stand shoulder-to-shoulder with the noble Lord, Lord Hunt of Wirral, and the Conservative opposition; with Labour Back-Benchers such as the noble Lord, Lord Plant—who serves with me on the Joint Committee on Human Rights—and with Cross-Benchers such as the noble and right reverend Lord, Lord Carey of Clifton, who regrets that he cannot be here this afternoon. It is a great coalition across this House, and well beyond, seeking to make the Bill fit for the Government's stated purpose.
 
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I am grateful to Ministers and their advisers for having met me on several occasions during the past year. That includes the Minister, the Attorney-General and most recently the Home Secretary. Yet I cannot admire the way in which this sensitive issue has been handled by the Government. I am sorry to say that the Government have played politics with religion and race; a dangerous game that they may come to regret. Having promised me that there would be full consultation after the recent general election, they made it a manifesto Bill. They used it as a means of persuading Muslims to vote Labour and introduced it without the promised consultation—almost as an emergency measure, driven, no doubt, by a Prime Minister who is now in such a hurry. They have lacked a sense of proportion, using the sledgehammer of a sweepingly broad array of new speech crimes to deal with what they admit to be a minute gap in the existing law protecting public order.

Ever since Mr. Blunkett introduced the original version, after the barbarous atrocities of 9/11, Ministers have refused to contemplate any significant change to the content or the way in which the proposed laws are written. The Home Office has worked mechanically, simply reading the race hate law literally into the very different context of religion and belief. Worse still, almost, the Government have even threatened this House with use of the Parliament Act to ram the Bill through if we do not do their bidding. That would be done in spite of the fact that—as the Law Lords made clear in deciding the hunting ban appeal, and as the noble and learned Lord, Lord Hope of Craighead, then said—trust will be eroded if the Parliament Act procedure is used to enact measures which are, as the noble and learned Lord, Lord Steyn has put it, exorbitant or not proportionate.

The Bill would criminalise abusive or insulting speech, as well as threatening speech. As Rowan Atkinson points out, it promotes the idea that there should be a right not to be offended when the right to offend is far more important. Because it suffers from the twin vices of over-breadth and vagueness, the Bill threatens—as the noble Lord, Lord Hunt, has explained—to chill free expression and to encourage self-censorship.

The Government have won political support from the Muslim Council of Britain, but have aroused deep anxiety and strong opposition among many British Muslims—as I know from appearing on a broadcast on Islam Channel some months ago—as well as opposition from people from all faiths, people without religious beliefs, from English PEN, from Index and from the Fleet Street lawyers' association and the creative writers, broadcasters and entertainers whom they represent. The Government have aroused the ire and hostility of the Church of England, of evangelical Christian associations and of the National Secular Society. It is a remarkable achievement to unite such a broad and disparate cross-section of British society in opposition to their proposals.

In a Home Office press release on 9 June, Paul Goggins, MP—the Minister in charge—had to explain that the Bill, in his words,
 
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In the same press release, the Attorney-General, the noble and learned Lord, Lord Goldsmith, said that the Bill is about protecting people from hatred, not faiths from criticism. The Home Office press release explained that the Bill would not prohibit people, including artists and performers, from offending, criticising or ridiculing faiths. It is a measure of the vagueness of the Bill that its reach has had to be explained in Home Office press releases to limit its loose language. That is not the way to give fair warning to the citizen of what conduct will or will not risk breaking the law.

Only this afternoon, I was given a letter from the Minister with an account of Home Office guidance that would be given to try to patch up the defects of the Bill. I urge Members of the Committee to read those documents, because they both make matters much worse, as I shall explain soon. One cannot patch up serious criminal law with ministerial guidance after it is enacted. The principle of legality and legal certainty requires otherwise, as Glanville Williams pointed out years and years ago.

Our amendments are designed to give effect to those ministerial explanatory statements by introducing essential safeguards to increase legal certainty, to prevent the new offences from sweeping too broadly and to deal with the chilling of free expression. We seek to reduce tension and intolerance between different ethnic and religious groups through our amendments. Unlike the Bill as it stands, the provisions of which the Committee can understand only by studying the Public Order Act 1986, as amended, our amendments have the merit of being capable of being understood as a self-contained code on inciting hatred on grounds of religion or belief.

They contain three safeguards that we regard as essential. No doubt in her reply, the Minister will tell the House whether the Government agree that they are essential to secure compliance with the rule of law and respect for human rights. The first safeguard is to confine the new offences to using or publishing threatening words, as distinct from abusive or insulting words. That is not the case in respect of existing race hate offences, but it is necessary for religious hate offences, because the extension of that part of the Public Order Act reaches into matters of belief and practice, religious and otherwise, where it must be permissible—must it not?—to use abusive or insulting language in criticising religions and belief systems. By omitting "abusive and insulting words", we give effect to Mr Goggins's statement of intent, because we protect individuals from hatred and the fear of violence and harassment by forbidding the use of threatening language.

The second safeguard is to require the prosecution to prove that the defendant had a specific criminal intent. As a general rule, every crime requires a mental element, the nature of which depends on the definition of the crime in question. The mental element required to constitute most serious crimes is an intention to
 
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bring about the elements of the crime in question. Such crimes can be committed only by intention and it is for the prosecution to prove the necessary criminal intent. That is not the position in respect of race hate crimes, where it is for the defence to prove the absence of criminal intent but, because of the potential adverse impact on freedom of expression, including the chilling effects of the new offences in encouraging self-censorship, and because the offences are so serious as to be punishable by seven years imprisonment, we believe that the normal rules should apply and that it should be for the prosecution to prove the necessary criminal intent.

In the Minister's detailed letter, which, as I said, I saw only just before coming into the Chamber, there is the most extraordinary statement on the last page, which makes matters much worse. It is a deeply reactionary view of the criminal law. The letter states:

that is, the limb that says that you do not have to prove criminal intent—

3.45pm

I remember once, as a special adviser to Roy Jenkins in the Home Office, saying that, in relation to rape, one should not have to prove intent. The Home Office officials said to the Home Secretary—and they were right—"Mr Lester is a deeply reactionary adviser in advocating anything of the kind". I never thought I would see, on the face of a letter written probably 35 or 40 years later, the same thing coming out of the criminal justice wing of the Home Office. It is a deeply reactionary view to say that one does not have to prove specific intent because wrongdoers should be brought to account without having to show that.

The Minister may say that the Government have simply extended the scheme of racial incitement to cover religious incitement and that they wish for consistency, but they cannot say that because the Home Office has already recognised, in introducing the concept of religious harassment in Part 2 of the Equality Bill, that concerns for free speech considerations require them to apply the civil law differently when tackling religious as distinct from racial harassment. They have left out the religious harassment provisions from the goods and services provisions, even though the race equivalent is included.

I submit that it is even more necessary to treat religion differently from ethnicity when one creates new speech crimes of a political nature. The first safeguard is of the fundamental right to freedom of expression. We may perhaps be assured by the Minister in her reply that the Human Rights Act and Article 10 of the European Convention on Human Rights sufficiently protect free speech without the need for our amendment or that it is sufficient to include a reference to Article 10 or a reference to the importance of free speech—rather softer than our proposal. But
 
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that would not suffice. It would not suffice because it would not deal with the chilling effects that such broad and vague offences would have on freedom of speech, discussion, debate and the free flow of opinions and information in whatever form. It is essential to write the stated intention of Home Office Ministers into the Bill so that the Bill is reasonably certain and proportionate, making the least sacrifice of freedom of expression needed to meet the Government's aims.

We hope that the Government and the House will commend this approach by supporting the amendments. If they are approved, we also hope that there will then be urgent consultation with the Government about further improvements that may be made in the remaining stages before the Bill returns to the other place. By approving the amendments today, we shall establish the framework for discussion, including each of the three safeguards. We hope that the Minister will be able to tell the House in her reply specifically that the Government accept that these safeguards are necessary even if they might wish to express them somewhat differently after taking the advice of the admirable parliamentary counsel.


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