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Lord Wedderburn of Charlton: My Lords, I apologise to the House as I thought that it was right to put a question to my noble friend on the Front Bench before she sat down. It led to something that appeared rather abrupt. With the leave of the House, perhaps I may add that in our manifesto commitment, which is, after all, central to the Government's argument, the centre point of concern is exactly that which has been put by the right reverend Prelate—namely, what has come to be called the "likely to" test, in addition to intention. Intention is involved in incitement; a ban on incitement is what we promised. The amended Bill does that, but I understand that the Government may wish to deal with particular words at particular places, with such long amendments. However, the "likely" test and the intention test is the core of what we now have, which we should keep.

Lord Hunt of Wirral: My Lords, first, I thank the noble Lord, Lord Foulkes, for giving us an opportunity to see where we are. Secondly, I thank the
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Minister for suggesting that we should now, to use her phrase, "find a middle way". I am not sure exactly what that means. I prefer to see it as an intention to seek a level of consensus. That is certainly the right way forward and we will do everything that we can to join with the Government and the many noble Lords with very strong views about how we should proceed. We will certainly do everything we can to assist in meeting the objective that the noble Baroness, Lady Scotland, set out.

I particularly welcome her statement that nothing is set in stone. That was very important, because in Committee noble Lords reached a decision that was very much an expression of opinion—indeed, to coin her view, they comprehensively disagreed. We reached a decision that has been communicated to the Government and that is the way to produce good legislation—to have a Government who listen and then seek to find the right way forward.

I agree with my noble and learned friend Lord Mackay that one of the most important objectives in all this is to look at the various areas of legislation that are now proposed—he referred to the glorification of terrorism, but there are parts of the Equality Bill and other current legislative proposals which we have to see in context. I share the noble Baroness's wish to find some way through.

I strongly agree with the noble Lord, Lord Wedderburn, that we must pay attention to what was said by the Labour Party in its manifesto, but, as I have pointed out previously, the manifesto was clear in its commitment to seek,

That, I hope, is how this House has approached the problems before us.

I agree with the right reverend Prelate the Bishop of Oxford that, in many ways, robust exchanges take place in the context of religion but I prefer the view of my noble and learned friend Lord Mackay of Clashfern that in fact they are very separate. The right reverend Prelate was not so convinced, but I hope that I will have the opportunity of persuading him.

The Lord Bishop of Oxford: My Lords, I do not think that either the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Hunt of Wirral, and I fundamentally differ on this issue; it is just that some people are mistaken in thinking that religion is only a matter of choice. Millions of people in the world are born into a religion and other people associate them with that religion. We are not in substantial disagreement on that.

Lord Mackay of Clashfern: My Lords, that is exactly my position.

Lord Hunt of Wirral: My Lords, I sense that consensus is spreading; it is infectious. I am delighted that the Government have decided to accept the infrastructure which is now the Bill. To have the proposed new religious hatred offences set out clearly in their own schedule to the 1986 Act and not lumped
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as an add-on to existing racial offences is an important step forward. I welcome the Government's concession on that. We can certainly proceed to deal on that basis.

The change makes it much easier to understand what is proposed in the Bill. It gives us a great opportunity to get the proposals absolutely right. The change means that we can move on to those other three areas, which I will deal with briefly.

The first is the "likely limb", as it is now termed. The Minister should be aware that this is a very important point for a range of my noble friends and other noble Lords. On this side of the House we feel strongly that it is important to have the burden of proof where it is: in the Bill, as amended. We are not dogmatic about that, but we feel the need for reassurance about the likelihood of frivolous or vexatious charges being brought under this legislation, or certainly being investigated under it. We do not believe that the original Bill was watertight. I hope that the burden of proof will be firmly on the prosecution.

The other main question is the nature of threatening, insulting and—in the middle—abusive behaviour. It is important that we recognise that on this side of the House we are deeply uncomfortable with the notion that causing a sense of insult could, of itself, involve the transmitter in the sort of legal proceedings we are talking about. Insult is in the mind of the insulted person, after all. That is such an important point. If the bar is set so low, the belief rather than the believer is unquestionably being protected. That truly would be a new "right not to be offended". As it stands, "threatening" is much more ad hominem but I look forward to discussing that point with the Minister.

Finally, on the freedom of expression clause, I detect a willingness on the part of Ministers to accept what is in the Bill. After all, we have merely put into legislation what the Government have always said. Now to see freedom of expression so clearly set out is a huge advance. The amendment tabled by the noble Lord, Lord Foulkes of Cumnock, would rip the heart out of the Bill in its amended form. I know that Hearts are very dear to the noble Lord, even in these troubled times, and I hope that he will not force this matter to a vote.

Everybody will have their own view on what imperfections there may be in the new freedom of expression clause but as I have pointed out, it does no more than embody what Ministers have been saying all along.

I welcome what the noble Baroness, Lady Scotland of Asthal, has said, although I have a great deal of sympathy with my noble friends who asked for more time. We probably do need more time, whether by means of a recommitment, as my noble friend Lord Skelmersdale suggested, or simply a period of more open discussion. We need to argue our way through
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this situation rather than take entrenched positions. However, I very much welcome the noble Baroness's expressions of view today.

Baroness Scotland of Asthal: My Lords, I hope that I am not out of order in responding to some of the points made. I say to my noble friend Lord Wedderburn that I did not by any means wish to be curt but others wanted to speak.

There has been much helpful discussion about where we are now. We very much take into account the comments that the noble and learned Lord, Lord Mackay, made about ensuring that we look at the broader framework within which this issue sits. He is right to identify a potential difficulty, and we are bearing that in mind as we go forward. The noble and learned Lord is absolutely right to say that we would hate to see a cloak being given to acts which should properly be dealt with by virtue of an assertion that they were made on some basis of faith. We are very alive to that point.

We are seeking a level of consensus, and therefore I am concerned in case the noble Lord, Lord Lester, feels that I have in any way trespassed into an area which would make that more difficult. I hope that I have not done so.

This is not an easy area, as I believe we have all demonstrated in our comments. I very much appreciate the remarks of the noble Baroness, Lady Carnegy of Lour, who asked whether this is the right time. We are where we are, and certainly the consensus view is that we should try to make progress, if we can, between now and Third Reading in the hope and aspiration that Third Reading can take place at a sensible time when we will have had discussions and will be able to make progress. To do otherwise would defeat the whole purpose of the debate that we are having now.

I shall deal with the issues in order. Like the noble Lord, Lord Hunt, we are absolutely determined to ensure that frivolous and vexatious cases should not be brought. That is very much part of the thrust of what everyone wishes to see and, as we all know, there is already a sift from the CPS and the Attorney-General. However, I listened carefully to the point made both in Committee and today that it is not just the charges that should be taken into account but also the nature of the bringing of investigations. I very much take that on board.

I take on board, too, comments made in relation to intent and the "likely to" test. We have had a number of discussions about whether intent simpliciter is enough or whether recklessness or other issues should be considered. I simply reassure the House that those issues are exercising our concerted efforts. I just say to noble Lords that we have to keep the benchmark which will enable proper—I emphasise "proper"—prosecutions still to be possible. I am sure that no one in the House would like us to arrive at a situation where proper prosecution of proper cases in relation to inciting racial and religious hatred were not possible because of any changes that we make. I know that that is not what anyone in this House wishes.
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I hope that I have made it absolutely clear that we understand that freedom of expression is the biggest issue which has caused the most concern. Proper debate, proper discussion and proper criticism of differences in faith and religious belief should not be chilled but should be capable of continuing with an appropriate amount of vigour and vim, as would be consistent with a vibrant democracy. We understand that too. So we will look very carefully to see whether a formula can be brought forward with which all parties can feel more content.

We are seeking consensus, so it will be incumbent upon us all to move a little. We would like a situation where all would be content, if not totally thrilled. That is an aspiration that we should seek to deliver. I emphasise that many say that the Government's position as presented in Committee was the correct position from which we should not move. We understand that a whole spectrum of views have to be brought together to a position where each can feel comfortable. I know that those sitting on the opposite Benches have similar difficulties going the other way, too.

3.45 pm

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