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Noble Lords will know that this is part of a long and complex history. Over 20 years ago, the first recommendations were made to change the law, when, in 1985, the Law Commission considered the scope for reform of the law in this area. Since then, Parliament has made its own inquiries. In 2003, the Select Committee on Religious Offences, on which the noble Lord, Lord Avebury, was a leading light, spent a year gathering evidence. Its report contains an extensive discussion of the legislative options available.

When the Joint Committee on Human Rights reported on this Bill in January, it concluded that,

As the JCHR makes clear in its report, this was on the grounds of both an ongoing risk of violations of the right to freedom of expression and of the right not to be discriminated against, on grounds of religion, in the enjoyment of the right to freedom of thought, conscience and religion.

I certainly understand some of the concerns that have been expressed and the deeply felt beliefs of many noble Lords. However, I hope that the Committee will agree that 22 years of gathering evidence—four cases in 300 years—and debating the issues and implications, as we have done time and again, suggest that the steps that we are taking today to respond to the words of the most reverend Primates’ letter are not taken lightly; they are being taken after long consideration.

The question why we are doing this in this Bill and this context also merits an answer, particularly in the light of the questions raised by the most reverend Primates in their letter in relation to the recent High Court judgment on 5 December. That set out very clearly that the offence of blasphemous libel set the bar for prosecution at public disorder:

Within that context, we believe that the opportunity that we have in this Bill to resolve the matter is appropriate, timely and should be taken. It is right that we should consider these questions within a Bill that deals in some way with hate crime and public order offences and which makes further provision about criminal justice.

The most reverend Primates raised a further point about the existing protections. While the debate on blasphemy has a long history, what has changed is the fact that, whereas the offences of blasphemy and blasphemous libel do not protect the individual or groups of people from harm, the new offences of incitement to religious hatred and discrimination on the grounds of religion and belief—in the provision of goods, services and employment—do. In doing so, they afford the necessary protections that the most reverend Primates were seeking assurance on.

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Members of the Committee will be aware that in 2001 the Government introduced legislation that specifically affords protection to religious as well as racial groups in the form of religiously aggravated offences. We have also brought forward wide-reaching legislation to protect people from discrimination on the grounds of religion or belief, both specifically within the workplace, as I have mentioned, and in society more generally, with protection against discrimination in education, in the work of public authorities, in the management and disposal of premises and in the provision of goods, facilities and services.

Perhaps most centrally in this context, we introduced new criminal offences outlawing incitement to religious hatred in the Racial and Religious Hatred Act 2006. The church made it clear in 2002 that, if such an offence were enacted and proved effective, it would provide the context in which the current offence of blasphemy could be safely repealed. This context of stronger legislation weakens any argument to keep the status quo. The offence of blasphemy also brings additional difficulties with it. For example, the provisions within legislation on incitement to religious hatred protect all parts of all our communities. Whereas blasphemy seeks to protect Christianity and the Church of England—although some would argue that it covers all faiths—it certainly does not cover those of no faith; it does not cover atheism or humanism. However, these groups are protected within the incitement provisions. This legislation recognises a more complex and diverse society, which respects those of faith and those of none.

There is a further and more important argument driving this timetable. As long as this law remains on the statute book, it hinders the UK’s ability to challenge oppressive blasphemy laws in other jurisdictions, including those used to persecute vulnerable Christian minorities. As signatory to a number of international conventions that commit us to tackling discrimination in all its forms, the UK is regularly criticised by international bodies for having these laws. As recently as February this year, the UN special rapporteur on freedom of religion expressed concern at the continuing existence of the blasphemy offences in this country. As such, their presence represents a blemish on what is otherwise an excellent record on combating discrimination and promoting human rights. It is therefore right that we should seek to abolish them without further delay.

The Government are both respectful of and grateful for the fact that the Church of England has indicated that it will not oppose abolition at this time, with the support of a number of other churches. I hope that I have made our reasons as clear as possible in what I have said, but let me quote again from the Secretary of State’s recent letter in response to the concern of the churches. She made it clear that, in speaking to the amendment, the Government,

The amendment is about removing offences that have long been recognised as unsatisfactory and unworkable. It is not an attack on the sacred in our society. I quote again from the Secretary of State’s letter:

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In my personal view, the decision by the churches not to oppose the amendment reflects the resilience of Christian belief in this country and its significance in our history, culture and character. We have a strong tradition in this country of respect for others, justice, the right to freedom, the right to belief and a sense of right and wrong. The Christian tradition has had a profound effect on the way in which these freedoms and traditions have been shaped. It continues today in the role that it plays in contributing to and shaping the life of our communities.

I make the point of saying that because, in thanking the churches, I have to stress that the Government are well aware of concerns expressed particularly, but by no means exclusively, by members of the Christian community that abolition would represent further evidence of a drift towards secularisation. Let me reassure noble Lords that we have been at pains to emphasise that the proposal is in no way an attack on those beliefs and values or on the church, let alone on Christians themselves. Indeed, I believe that, by removing a law that has fallen into disuse and some disrepute, we are demonstrating confidence rather than the reverse. We do not need to rely on such a law to remind ourselves that the sacred still has a role to play in today’s society. I would go further and remind noble Lords of the response that the Government made in 2003 to the report from the Religious Offences Committee:

The proposal has already attracted broad cross-party support in another place. Such representations as we have had on the issue have been broadly supportive. I know that some noble Lords have tabled similar amendments but I hope that, given the Government’s amendment, they will not move them.

I shall conclude by quoting the right reverend Prelate the Bishop of Southwark, who spoke in “Thought for the Day” on the “Today” programme yesterday. He said:

I say amen to that and I hope that noble Lords are able to join me. I beg to move.

The Earl of Onslow: I rise to speak to the amendment that I tabled. The noble Baroness, Lady Stern, and I both sit on the Joint Select Committee on Human Rights. I give the Minister the undertaking that we will not move our amendment, even though it is shorter and makes exactly the same sense. However, the Government like to have their own way and put down longer amendments. It struck me that it is deliciously new Labour that the Minister with responsibility for local authorities should remove the blasphemy clauses, aided by Hazel Blears. You could not ask for anything better.

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On the question of blasphemy, it has always struck me that if Jesus Christ exists, and if Jesus Christ in his Godlike form was capable of creating the universe, then he could quite easily hack the bit of left-wing obscurantism and b-mindedness that writes things such as “Jerry Springer: The Opera”. If he does not exist, nothing will happen; if he does exist, it is up to him to get hold of the chap who wrote it and make sure that he does time in the diabolical house of correction. The offence is unnecessary.

It also seems that the provision applies only to the Church of England, not to the doctrines of the Roman church, as far as I can gather. You can be just as rude and insulting as you like about the doctrine of the Assumption of the Blessed Virgin Mary, papal infallibility, or what the Church of Rome says about contraception; you can be blasphemous about those without any possibility of being prosecuted.

Blasphemy is a crime that is open to intense mockery. As the Minister said, something that is open to mockery and has been used only four times since 16-something-or-other has no place on the statute book.

The Church of England is quite capable of looking after its own; it is a great and wonderful institution which has been a great influence on our society from the Reformation onwards. It has on the whole been an influence for the better, but, like all human institutions, it has on occasion—unlike another church, which claims infallibility—been fallible. That is why I like the Church of England, even when it does nasty things to the Book of Common Prayer. Please let us now get rid of the crime of blasphemy. It is unnecessary and otiose.

5.30 pm

Lord Avebury: I rise to speak to the amendment in my name and to thank the noble Baroness, Lady Andrews, for her succinct and helpful summary of the law of blasphemy and of the history of the attempts to abolish it during the past few years—to which I made a small contribution in 1995, again in 2001, and, as she said, in a year's work on the report of Select Committee on Religious Offences, which I commend to your Lordships as a useful summary not only of the state of the law as it was then but of the arguments both for and against abolition. I pay tribute to the distinguished chairmanship of the noble Viscount, Lord Colville, whom I am very glad to see in his place. I hope that he may feel inclined to contribute to our discussion before we dispose of the amendment.

The Minister said that the last successful prosecution for blasphemy in England was the Gay News case 30 years ago and that the arguments for abolishing the offence were helpfully set out in the Law Commission's working paper, published in 1981, followed by its paper, Offences against Religion and Public Worship, in 1985. It concluded then that there was no argument sufficiently powerful to justify the derogation from freedom of expression that any such offence must occasion. The Select Committee on Religious Offences found that it would be extremely

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unlikely for any prosecution to get under way today. As the noble Viscount, Lord Colville, suggested when the committee's report was debated in your Lordships' House,

As the noble Baroness said, there was a recent attempt to launch a private prosecution by two members of the radical group, Christian Voice, which confirmed the prediction of the noble Viscount. They applied to a district judge for summonses against the producer of “Jerry Springer: The Opera”, which has been mentioned, against the director-general of the BBC, which had broadcast the work on 8 January 2005. The judge found that there was no prima facie case and that the application bordered on the vexatious.

Christian Voice applied for judicial review of the decision. In the High Court, Lord Justice Hughes recited the history of the offence and, following a reference to Lord Scarman's judgment in the Whitehouse v Lennon case, said in paragraph 16 of his judgment that there was common ground on the gist of the offence—that the material had to be,

It seemed to Lord Justice Hughes that,

He went on to outline the provisions of Article 10(2), concluding that insulting a person's deeply held religious beliefs did not affect his right to hold or practise his religion. Although, because of the way the application was put to the magistrates in this case—perhaps a tribute to the skill of Christian Voice’s legal advisers—it was not necessary to decide on consistency with Article 10, it was significant that Lord Justice Hughes emphasised the point, which would have been central if the case had been allowed to proceed. If I may say so, it might have been helpful if the Archbishops had acknowledged this in their letter to the Secretary of State for Communities and Local Government last week.

If Christian Voice had succeeded in launching this case, or a similar one, as the Select Committee on Religious Offences in England and Wales predicted, and as the most reverend Primates might like to be reminded, it would be likely to fail on grounds either of discrimination or of denial of the right to freedom of expression. Article 10(2) of the European Convention on Human Rights requires that any restrictions placed on this right must be prescribed by law, which means that there must be certainty about what is or is not permitted. The common law of blasphemy fails that test, and although in the Wingrove case the European Court of Human Rights upheld the decision of the BBFC not to grant a certificate to the film “Visions of

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Ecstasy” on the grounds that it was blasphemous, that judgment was based on the false assumption that what Lord Scarman had said in his judgment on the Gay News case defined the actus reus of blasphemy in common law.

The Select Committee also examined the suggestion made by some witnesses that the abolition of the offence of blasphemy would open up the floodgates to masses of scurrilous and offensive books, pamphlets, cartoons or films—a bogey now raised again by the most reverend Primates when they tell Hazel Blears in the letter that has already been mentioned that this amendment,

There is nothing in the law to stop publications of this nature against any religion other than Christianity now, and it is this discrimination that is one of the most objectionable features of the present law. It is clear that a great deal of the material that is offensive to Christians is already published without attracting any legal penalty.

In their response to the Select Committee report of December 2003, the Government said that the Home Secretary was attracted to repeal but saw the need for full debate to inform the way forward. That ignored the many debates in both Houses over the years, as well as the huge volume of comment in the print media and in broadcasting ever since the Gay News case. Perhaps we should be thankful that now their anxiety to make progress with this legislation has persuaded the Government to table their own amendments 24 years after these were first recommended by the Law Commission and five years since the Select Committee went into the matter so thoroughly, taking evidence from all the major religious organisations and dozens of other people. My regret is that no Government have had the stomach to face up to the vociferous minority since the Law Commission reported, and I doubt whether it would have happened now if it had not been for the sterling efforts of my honourable friend the Member for Oxford West and Abingdon in another place.

The statutory religious offences were also examined by the Law Commission and the Select Committee. I thank the Minister for getting rid of blasphemous libel in the Criminal Libel Act 1819, and for eliminating the reference to blasphemy in the Law of Libel Amendment Act 1888. It appears that Section 3 of that Act had already been repealed—a small defect in the amendment, which may be remedied at a later stage. The Government have unfortunately neglected the opportunity to repeal the other ancient statutory religions offences, which were covered by the Select Committee’s report in 2003. Briefly, the main one that is still used occasionally is Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860, which forbids,

The Select Committee discussed that at some length, and it was noted that the Law Commission had recommended its repeal.

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In the last couple of years for which the figures were available to the Select Committee—2001 and 2002—three and six prosecutions had been brought under that Act, leading to no convictions and one conviction respectively. For the three years 2003 to 2005, there were 15 prosecutions and seven convictions, but those figures must be interpreted with caution, as the noble Lord, Lord Hunt, emphasises in a footnote to the figures. Apart from transcription errors in extracting data from the large administrative data systems generated by the courts and police forces, the statistics do not tell you whether there were multiple charges or whether the conviction was obtained under some other statute.

No evidence was received by the Select Committee of acts of desecration dealt with under the ECJA which did not constitute offences under some other Act such as the legislation on criminal damage or public order. We received no evidence that the Act had ever been used against riotous behaviour in a non-Christian place of worship. The best-known case which everyone remembers was that of Mr Peter Tatchell, who interrupted a sermon by the then Archbishop of Canterbury in Canterbury Cathedral. After a two-day trial he was fined £18.60 by the magistrate, thereby showing, by the reference to the 1860 Act, what he thought of the charge.

In their response to the Select Committee, the Government said that it was—

Noble Lords: Time.

Lord Avebury: I think I deserve my day in court, having been at this for some 20 years, if you do not mind.

In their response to the Select Committee, the Government said that it was,

But, in the event of an opportunity arising from the reform of the law, they said that they would,

In order to be able to do that, it would be necessary to scrutinise individual cases to see whether the conduct in question was or could have been dealt with under other legislation. Having given that undertaking, I hope that the Government will produce that analysis now for the benefit of the Committee. When we have discussed these matters in the past, those who want to retain the ECJA have said that there were cases where a church was desecrated without a person other than the offender being present, which is an essential ingredient of Sections 4 and 5 of the Public Order Act 1986, without which a prosecution could not have taken place.

Mr Tolson, of National Churchwatch, who I consulted on this, was not able to give me details of any case since 2002, and none has been reported in the print media to my knowledge. There may have been cases in mosques, but not many are registered under the Places of Worship Registration Act 1855, as they would have had to be for the charge to be used. I hope that the Minister will ultimately agree not only that the ECJA should now be repealed but that, given this opportunity, the other minor offences which are hardly if ever used should also be repealed.

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