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Lord Foulkes of Cumnock: My Lords, I thank my noble friend Lady Scotland very sincerely for what she has said today, for the diplomatic and sensitive way in which she has dealt with the Bill and for the hard work under way to find a resolution to difficult issues.

I understand the noble Lord, Lord Forsyth of Drumlean, only too well. He, like myself, loves a political dogfight. On this particular issue, however, it is better to try to move forward by consensus.

Lord Forsyth of Drumlean: My Lords, I prefaced my remarks by saying that I did not want to criticise the Government. It is not a matter of having a political dogfight. It is a matter of principle that the Government should work out their policy before the Bill comes before the House. The business managers and the Government decide that. That was what I sought to explore with the Minister, who gave me a very courteous response.

Lord Foulkes of Cumnock: My Lords, is it not wonderful to hear a Government who pay attention to what is said in a debate, take account of it and act accordingly? I find that exceptionally good. I was pleased to hear the noble Lord, Lord Lester of Herne Hill, acknowledge that in his gracious and eloquent speech.

Clearly, time is needed for discussions and consultations to take place to resolve the issue. I am looking forward, as I know all Members of the House will be, to the amendment which the Government plan to table at Third Reading. So, notwithstanding the
 
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arrow that was directed at my heart by my good friend the Opposition spokesman, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 2:


"ABOLITION OF CERTAIN RELIGIOUS OFFENCES
The following offences are hereby abolished—
(a) blasphemy and blasphemous libel;
(b) any distinct offence of disturbing a religious service or religious devotions;
(c) any religious offence of striking a person in a church or churchyard."

The noble Lord said: I beg to move the amendment introducing the first new clause. The atmosphere of consensus created by the debate on the previous amendment is very welcome. I particularly appreciated the remarks of the right reverend Prelate the Bishop of Oxford, who said that there must be robust exchanges on questions of religion. I hope that that means that the Church is coming round to the view that blasphemy should, at last, be abolished. Although it is impossible to imagine that everyone on the Bishops' Benches would agree with that proposition, if several do so it could be a weighty influence in helping the Government to make up their mind. It is the Government whom we have to convince to take this matter forward after today's debate.

The last time there was a prosecution for blasphemy in England was the Gay News case of 1976, when the editor of that newspaper was sentenced to nine months' imprisonment, subsequently lifted on appeal, for a poem that appeared in the paper. The arguments for abolishing the offence have been dealt with on many occasions in this House since then: in the Blasphemy (Abolition) Bill of 1995; in the Anti-terrorism, Crime and Security Bill of 2000; the Religious Offences Bill of 2002; in the Select Committee on Religious Offences, which spent a whole year examining the matter in 2003; in the Serious Organised Crime and Police Bill in 2004; and at Second Reading of this Bill only a few weeks ago.

One of the main reasons for coming back to the proposal now is to make it clear once and for all that this Bill does not, and is not intended to, introduce a new statutory offence of blasphemy by the back door. Subject to this amendment being agreed to, one could say whatever one liked about the sacred entities or beliefs of a faith. There has been no response to the challenge that I issued at Second Reading to draft a form of words "ridiculing holy objects" that would be liable to prosecution under this Bill.

I mentioned the Ship of Fools website which ran a competition to discover the 10 funniest and 10 most offensive religious jokes. The conclusion was that the Almighty was fair game and that blasphemy was a minority concern. The so-called jokes were indeed grossly offensive and some of them were undoubtedly blasphemous in law as well as according to ordinary English usage, but they would not make any sane person hate Christians. As long as the offence of
 
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blasphemy technically exists, however rarely it is used, there is confusion between incitement to hatred of believers and hatred of beliefs themselves. We have seen quite a bit of that already on this Bill. A new argument for getting rid of blasphemy is that it will help to make that distinction absolutely plain.

There are several other reasons for abolishing this offence and your Lordships have considered them repeatedly. I refer particularly to the report of the Select Committee and, since it covers the arguments in some detail, it is necessary for me to summarise them only briefly. First, nobody can say with any confidence what is blasphemous, because the CPS and the courts may well take a completely different view today from what they did in 1976. When there was a public recitation of the James Kirkup poem, which had led to the Gay News prosecution, on the 25th anniversary of the case, the police took no action and there was no significant demand for them to do so. But the uncertainty of the law may itself lead to self-censorship or even actual censorship as it did in the Wingrove case, which is described in Appendix 3 of the Select Committee's report.

In that case, the European Court of Human Rights decided in 1996 that the British Board of Film Classification had not violated Article 10 of the convention on the basis that Lord Scarman's speech in the Gay News case had fixed the definition of the offence in common law and that the restriction on freedom of expression was within the limited margin of appreciation accorded to member states in assessing whether the interference was for a pressing social need and was proportionate to the legitimate aim pursued.

That aim was the protection of the right of citizens not to be insulted in their religious feelings dealt with by the court in the Otto Preminger case. The Select Committee concluded that the European Court had wrongly assumed that the House of Lords had clearly formulated the law on blasphemy in the Gay News case and it doubted whether the Court would have upheld the BBFC's decision to ban the Wingrove video if the facts had been correctly argued before them. That shows that our blasphemy laws have continued to have reverberations in Strasbourg within the past 10 years and that the uncertainty may well lead to further expensive and divisive litigation in the future.

Lord Clinton-Davis: My Lords, I do not disagree with what the noble Lord is putting forward, but I have some difficulty in deciding how it fits in with this Bill. Would he kindly tell me whether it does?

Lord Avebury: My Lords, it is not for me to argue with the learned Clerks who allowed this amendment to be tabled as they did in the other place. I am satisfied that, if there were any question about whether the amendment fell within the Long Title, your Lordships could deal with that at Third Reading or perhaps when the Bill goes back to the Commons.

Secondly, the law protects the Christian faith and arguably only the Church of England, which your Lordships will agree is intolerable in a society that
 
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believes in equality before the law, and is contrary to Article 14 of the ECHR on the prohibition of discrimination. As long as this law exists, other faiths may well continue to argue for equal treatment. As your Lordships may know, many Muslims originally believed that the main proposal in this Bill was designed as a substitute for a universal blasphemy offence. Conversely, repealing the offence of blasphemy would make it clear that Parliament does not intend to shield any religion from robust or even offensive criticism.

Thirdly, because of the Human Rights Act, any prosecution for blasphemy today would be likely to fail either on the grounds of discrimination or through the operation of Article 10.2 of the ECHR which allows restrictions on freedom of expression only to the extent that it is necessary in a democratic society for public order reasons. The court would have to consider, first, whether any speech or publication subject to the prosecution was intrinsically blasphemous and then whether restricting the freedom to use those words was proportionate to the aim being pursued. In outlining the case for repeal—which I hasten to add was only one possible course of action that it discussed—the Select Committee concluded that, even if a prosecution were successful, it is likely that it would eventually be overturned on appeal either by the higher courts in the United Kingdom or by the European Court of Human Rights on one or more of the grounds that it is discriminatory, uncertain and a law of strict liability. On that argument, repeal would save the considerable expense of proceedings that might well go to Strasbourg.

Finally, the law is objectionable because, as I said, it imposes a strict liability on a person who wants to publish a document or make a verbal statement about a Christian belief or sacred entity but who has no way of knowing whether he will be committing an offence.

Some of the witnesses who testified before the Select Committee would have none of those arguments, believing as they did that the prohibition of blasphemy in the Ten Commandments should be part of our domestic law. One cannot have a sensible conversation about any law with people who think that our conduct in the England of the 21st century should be regulated according to instructions supposedly given by God or Allah to individuals living in the deserts of the Middle East in the distant past. We are now living in a multi-religious society where no religious group has the right to impose its rules on the rest of us. Although it is usually best to exercise restraint in speaking about things that are considered sacred, there must be freedom to criticise or attack customs and practices that are said to be sanctioned by religion.

Scotland and Northern Ireland have survived without blasphemy laws since the middle of the 19th century. Belgium and Spain have no such laws. In Australia, a common law jurisdiction, the Supreme Court of Victoria could not decide whether blasphemous libel was an offence known to the law and, in 1998, threw out the only such case known to have been prosecuted in the whole of the previous century. In Pakistan, on the other hand, blasphemy
 
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law is alive and well. As the Foreign and Commonwealth Office states in its human rights report this year, that has fostered an atmosphere of religious intolerance and eroded the social and legal status of religious minorities.

The Bill deals with the real evil of stirring up hatred against people because of what they believe or practise. Our ancestors hated each other, sticking labels on Lollards, Catholics, Protestants and Jews. That led to the burning of heretics, religious wars that cost thousands of lives and to the Holocaust. Hatred was never brought to an end by hatred, so let the rivalry between faiths, including secularism, be conducted by means of argument or even by mockery and derision. Let poets, novelists, comedians, playwrights and broadcasters say what they please. If God exists, He does not need the protection of this or any other law. I beg to move.


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