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The Earl of Onslow: Before the noble Baroness continues, am I not right in thinking that it is attacks on the racial element of Judaism and Sikhism which are subject to criminal prosecution, not the fact that Jews and Sikhs believe in whatever they believe in? It is not the religious side, which is what we were told in this House before, but the racial element.

Baroness Scotland of Asthal: It is because it is seen as a mono-ethnic religion which brings it within the racial and religious dimension. A race which is identified by its religion is where the combination arises.

Lord Lester of Herne Hill: Is it not the case—this is illustrated by a certain pending prosecution against the BNP at the moment—that the reason Jews and Sikhs are protected, as the noble Earl indicated, is because of their ethnicity, not because of their religious beliefs? Therefore, if, for example, a Muslim of Asian origin was to be attacked in precisely the same way because of his or her ethnicity, the same would apply.

I have listened very carefully to the Minister. Am I right in saying—it is vital to know this before we decide what to do—that so far she has rejected two of three essential safeguards? First, she said that threatening
25 Oct 2005 : Column 1099
alone will not do; and, secondly, she said that specific intent is too narrow. I am waiting to hear what she has to say about free speech, other than the Human Rights Act.

Baroness Scotland of Asthal: In relation to the first limb, the noble Lord is right. Our current position—and I stress that it is our current position because we are thinking very hard indeed about how the gap that seems to have arisen, and which divides us, could or should be bridged—is that if the Committee was to ask today whether I am able to bridge that gap, the answer is no. If the Committee was to ask whether I may be able to bridge it by Report stage, I would say that that might or might not be the case, but I shall certainly look at the issue and I am going to try. If we move on to the second—

Lord Wedderburn of Charlton: I apologise to the Minister if she has not finished with the point. If she has, I ask her a different short question: of the qualities she applied to herself, is there not a difference between the first group, such as where she was born and being a woman—a distinguished woman—of colour, and the last? She can change her faith, as I could change mine, although I do not think she will. I cannot alter the fact that I was born in Deptford and I am white.

Baroness Scotland of Asthal: The point we are trying to address is the hatred that can be directed towards an individual in relation to those different defining things that may affect identity.

I will explain where the Government are in relation to the other two. I understand people's concern over "likely to", although not because there is any distinction between the racial and the religious. I understand too the concern expressed by the noble Baroness, Lady O'Cathain, among others, about whether it is clearly understood that the Human Rights Act and all its terms apply with equal force to this legislation. I see the noble Lord, Lord Lester, shaking his head, but I am seeking to deal with the concerns that have been raised by a number of noble Lords, and I need to do so.

Lord Lester of Herne Hill: The point that I raised in debate, which the Minister has not replied to, is that it is no use relying on the Human Rights Act because Article 10 and its balancing are unclear. You need a free speech guarantee in the Bill.

Baroness Scotland of Asthal: The Human Rights Act—I am sure I have heard the noble Lord say this on innumerable occasions—is the means through which we tend to preserve the proper balance of freedom of speech and other rights. We have to get the balance right.

The thrust of what many in this House have said is "why not have something on the face of the Bill that gives that clarity, and gives voice to the fact that the Human Rights Act provision—the signature that we put on the front of the Bill—actually bites?". We have listened to that, and are considering how we could
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better address that concern. Our answer has been, as was said by the noble Lord, Lord Avebury, that it is there, in Article 10 and all the way through. However, that is an issue we will consider between now and Report.

In relation to either of those last issues, I do not have amendments or proposals that I can put before the Committee that would be capable of reassuring your Lordships and/or of being the foundation of debate. The whole purpose of the Committee stage is for us to discuss, debate and listen, and then hone what is being proposed so that we can vote on it on Report, if that need arises and we have not resolved it.

So that is where we are now. I do not say that the Government will not think again, but I say clearly that I do not have amendments or suggestions this afternoon that I can put before your Lordships that you can consider. I may be in a better position to do so by Report.

Lord Hunt of Wirral: This has been such an important debate. I hope your Lordships will forgive me if I do not seek to answer the many important points that have been made, but merely conclude the debate by saying to the Minister: if only she were in charge of the Government, I would have much greater confidence that this whole matter was going to get resolved properly. That is a genuine tribute to her, because in all my experience she has always been prepared to listen.

The conclusion of the debate is that we disagree about the means but we agree about the ends, so we are as one in the intent. I hope that we have been able to explain that these amendments do just four things. First, they make the whole offence much easier to understand; secondly, they clarify the position over intent; thirdly, they separate the person from the belief, which many noble Lords have emphasised is so important; and, fourthly, they guarantee freedom of expression. I know the noble Lord, Lord Lester, will point out that Article 10 does not do that in the terms of the amendment.

I say to the noble Lord, Lord Barnett, that I have a copy of the manifesto here; and I say to the noble Lord, Lord Wedderburn, that he did not finish the quotation from the manifesto. It concludes with the words about the Government's determination to work out,

That is really what we are seeking to do.

I received from the Minister the letter that several noble Lords have quoted, and I want to accept her promise. She said:

That is why I am sure that today we should test the opinion of the Committee. But I give this undertaking to the Chamber: that I am perfectly prepared, as are my colleagues, to sit down with the Minister and other Ministers, the officials and the parliamentary draftsmen, in the time which lies between now and Report, to work out ways in which we can improve—
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Lord Clinton-Davis: Why cannot the noble Lord give the Government an opportunity to have second thoughts now? A vote would be irrelevant today, in many ways. Why does the noble Lord not want to give the Government an opportunity to think again about this vital issue?

Lord Hunt of Wirral: I must say to the noble Lord, Lord Clinton-Davis, that it has been five years since this whole idea was first explored. There was a promise of consultation but, sadly, the Government decided to introduce this Bill and to seek to force it through. The present position, which the Minister has not changed, is that the Government are determined to force the Bill through in its present form. That is why it is important that we respond to the Minister's invitation to see whether these amendments have widespread support. I wish to test the opinion of the Committee.

5.23 pm

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 260; Not-Contents, 111

Division No. 1


Ackner, L.
Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Armstrong of Ilminster, L.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Barnett, L.
Beaumont of Whitley, L.
Berkeley, L.
Biffen, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bragg, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Chadlington, L.
Chapman, B.
Chelmsford, Bp.
Chorley, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Crickhowell, L.
Cuckney, L.
Cumberlege, B.
Dahrendorf, L.
Darcy de Knayth, B.
Davies of Coity, L.
De Mauley, L.
Dean of Harptree, L.
Desai, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Evans of Parkside, L.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Feldman, L.
Ferrers, E.
Finlay of Llandaff, B.
Flather, B.
Fookes, B.
Fowler, L.
Garden, L.
Gardner of Parkes, B.
Glasgow, E.
Glenarthur, L.
Goodhart, L.
Goodlad, L.
Goschen, V.
Greaves, L.
Greengross, B.
Greenway, L.
Guthrie of Craigiebank, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Howie of Troon, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hylton, L.
Jenkin of Roding, L.
Joffe, L.
Jones of Cheltenham, L.
Jopling, L.
Kalms, L.
Kilclooney, L.
Kingsdown, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laidlaw, L.
Laing of Dunphail, L.
Laird, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, Bp.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
May of Oxford, L.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montagu of Beaulieu, L.
Montgomery of Alamein, V.
Montrose, D.
Moore of Lower Marsh, L.
Morgan, L.
Morris of Bolton, B.
Naseby, L.
Neuberger, B.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Onslow, E.
Oppenheim-Barnes, B.
Palmer, L.
Park of Monmouth, B.
Patel, L.
Patten, L.
Patten of Barnes, L.
Peel, E.
Perry of Southwark, B.
Peston, L.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Plant of Highfield, L.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Prashar, B.
Prys-Davies, L.
Quinton, L.
Quirk, L.
Rawlings, B.
Rawlinson of Ewell, L.
Razzall, L.
Reay, L.
Redesdale, L.
Rees-Mogg, L.
Rendell of Babergh, B.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rotherwick, L.
Ryder of Wensum, L.
Saatchi, L.
St. John of Bletso, L.
St John of Fawsley, L.
Salisbury, Bp.
Saltoun of Abernethy, Ly.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheldon, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Slynn of Hadley, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Southwell, Bp.
Sterling of Plaistow, L.
Stern, B.
Stevens of Kirkwhelpington, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Taverne, L.
Taylor of Warwick, L.
Tebbit, L.
Thatcher, B.
Thomas of Swynnerton, L.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trumpington, B.
Tugendhat, L.
Turner of Camden, B.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Vinson, L.
Waddington, L.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Watson of Richmond, L.
Weatherill, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.
Young of Hornsey, B.


Adebowale, L.
Adonis, L.
Ahmed, L.
Amos, B. [Lord President of the Council.]
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Avebury, L.
Bach, L.
Bassam of Brighton, L.
Bhatia, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Borrie, L.
Brett, L.
Brooke of Alverthorpe, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clark of Calton, B.
Clark of Windermere, L.
Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dearing, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Howarth of Newport, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
King of West Bromwich, L.
Kinnock, L.
Leitch, L.
McDonagh, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
Mason of Barnsley, L.
Maxton, L.
Merlyn-Rees, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Manchester, L.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Leigh, L.
Soley, L.
Southwark, Bp.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Uddin, B.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

25 Oct 2005 : Column 1103

25 Oct 2005 : Column 1104
5.42 pm

Lord Lester of Herne Hill moved Amendment No. 2:

On Question, amendment agreed to.

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