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Lord Dubs: Will my noble friend help to clarify his Amendment No. 31? If it has already been done by one of the other signatories I apologise, because I had to slip out for a minute or two. In proposed new paragraph 29B in Amendment No. 31 it states clearly that there has to be an intention to stir up religious hatred. Sub-paragraph (3) states that,

That seems a step much further than the general arguments in favour of the amendment. The amendment seems to say that a constable can decide
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whether there is an intent to stir up religious hatred and then can proceed to make an arrest. That is going a long way further than many of the arguments that the supporters of the amendment have made.

Baroness Whitaker: Before the noble Lord sits down—

Noble Lords: Order!

Lord Plant of Highfield: Can I come back to that in a moment because I want to make three more general points? The first is that the amendments would enable the Government to meet their aims more effectively. The second is to clarify the nature of the offences that the Bill will give rise to and I realise that my noble friend's question relates to that. However, I will make the third general point first. The Joint Committee on Human Rights, of which I have the privilege of being a member, in both this and the previous Parliament, argued in the previous Parliament that the Bill is compatible with the Human Rights Act. I accept that. I was party to that decision, and I am not in any sense resiling from it. But the Human Rights Act does not specify that this is the best Bill that could be produced. There could be another Bill, or an amended Bill on incitement to religious hatred that would be better than the Bill that was found to be compatible with the Human Rights Act. I do not resile from the Committee's adjudication, as it were, at that stage, but I think that, for the reasons I have given, this would be a better way forward on the Bill.

Three elements of the amendments are very important. The first is the point about intention that has been made many times this afternoon and which is agreed to, as I understand it, by my noble friend Lord Foulkes, who is not enamoured with the overall strategy of these amendments. It is extremely important, because if we are looking at effects rather than intentions, there is an almost an incentive for those who feel aggrieved by some public utterance to turn its hatefulness into harmfulness. There is an incentive there. We ought to be able to prove intention to make that point.

Lord Foulkes of Cumnock: I accepted the point made by the noble and learned Lord, Lord Mackay, when he intervened, but subsequently the noble Lord, Lord Avebury, made the point that it has not been necessary to include intention in relation to racial hatred, so why should it be included in relation to religious hatred?

Lord Plant of Highfield: Because the point that I was making as my noble friend stood up arises. In the case of religious hatred there is a great deal more ambiguity about what is being said, what is being understood by what is being said and what is being read into what is being said. There is therefore an incentive for the person who claims to be disadvantaged or threatened by what has been said to over-exaggerate. I do not think that that degree of ambiguity is present in the case of racial hatred.
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It is important that in our amendments we have stuck with the idea of threatening language because that is much more objective than insulting language. Finally, we have a provision for—

Lord Avebury: For the record, what I actually said was that intent was present in both offences. It is in Section 19(5), of the Public Order Act 1986, for example, and all the other sections have an equivalent provision. Therefore, we were treating intent as a necessary ingredient in incitement to racial and to religious hatred.

Lord Lester of Herne Hill: I think my noble friend is overlooking the fact that the burden on the prosecution to prove intent normally—

Lord Grocott: I do not think we can have interventions on interventions.

Lord Plant of Highfield: I have one final point to make regarding the protection of freedom of expression. Noble friends around me are assuring the Committee that there is no problem here. If there is none, I cannot see why it should not be in the Bill—and if there is no problem, why do so many people think that there is? That is due to confusion about the nature of the Bill, which would be sorted out by the amendments.

On my noble friend's point about the constable, I assume—with all due deference to other colleagues on the Committee, for I am not a lawyer—that the constable may arrest without warrant anyone who, he reasonably suspects, is committing it. "Reasonable suspicion" would include suspecting the intention of the person.

Baroness O'Cathain: I want to make one brief point. There seems to be a big problem with the Bill, as I have said on several occasions. There is a problem also with the Bill outside, which nobody has mentioned this time. We have had protests and newspaper articles; our postbags prove it. At Second Reading, the noble and learned Lord the Lord Chancellor said:

Although he clearly believes that to be true, it is not written into the Bill. Surely the Government therefore cannot object to an amendment that would put it beyond doubt.

Lord Parekh: I happen to be one of those on these Benches who have mixed feelings. On the one hand, I feel extremely sympathetic to the Bill. However, realising that the Bill contains deep ambiguities, I am also sympathetic to the amendment tabled by the noble Lords, Lord Hunt of Wirral and Lord Lester of Herne Hill.
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I support the Bill for a variety of reasons. People have talked freely about the Australian legislation; they tend to forget that India has had similar legislation, which has been fairly successful in spite of occasional hiccups. I also recall that a similar debate took place in 1976 or thereabouts, when we were discussing the Race Relations Act and whether there should be incitement to racial hatred. The same kinds of arguments, about the chilling effect and so on were made. Happily, we know that those arguments have turned out to be wrong.

I also welcome the Bill for the simple reason that we cannot have a society in which people are at liberty to provoke or incite hatred against a group of their fellow citizens, especially those who are weak, marginal and vulnerable. We simply cannot sustain a spirit of common belonging if incitement to hatred is a common practice. Although not a lawyer myself—I am certainly open to criticism and direction here—I also support the Bill because I have often thought that it all depends on how "intention" is meant. In matters as important as inciting hatred of one kind or another, intention, in the sense of deliberately wanting to do something, is not crucial. If, for example, I were to shout "Fire!" in a theatre, as a result of which a few people died, it would be no defence on my part to say that I did not intend that. I can think of countless situations where I might do something without intending its consequences, and yet the consequences might materialise. If they were so significant as to involve life and liberty, I might rightly be held culpable.

I should have thought that if "intention"—I do not know how the lawyers use the term; I speak as a philosopher for a minute—is understood in the sense of deliberately wanting something to happen, then, of course, it is not crucial. It is enough if I could have anticipated the consequences of my action, or if it is something that I could have foreseen with reasonable care.

For those and other reasons, I am prepared to support the Bill. However, I have two reservations. First—I understand that this is against the advice given to the Government by people whom they consulted—the term "religious hatred" is deeply ambiguous. It is unlike the term "racial hatred", which simply means inciting hatred of a particular racial group. By contrast, "religious hatred" will mean inciting hatred of a body of beliefs, a religion, or of a religious group. Given the ambiguity of the term "religious hatred", which makes it asymmetrical with racial hatred, I wish that the Bill had not used it. It should have been called "hatred of a religious group".

There is also the danger, given that so many able lawyers disagree, that there is a deep ambiguity in the Bill and that those who are in charge of implementing it are likely to be confused—as are those who are likely to be affected by it—about what is forbidden and what is not. Given that, I very much hope that we will give a fair wind to the amendments, because they are not
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wrecking amendments. They are designed to clarify and, in places, to rectify some of the ambiguities and puzzles of the Bill.

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