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I should also mention subsection (14), the effect of which was queried in the other place. That subsection simply re-enacts the existing provision at subsection (14)(a) of Section 1A. That provision specifically exists in the Act in order to prevent it having any retrospective effect. Section 1A was inserted into the Criminal Law Act 1977 by the Criminal Justice (Terrorism and Conspiracy) Act 1998. The existing subsection (14)(a) provides that nothing in the section applies to a conspiracy entered into before the date that the 1998 Act was passed. That Act was passed on 4 September 1998. Clause 64 does no more than continue to ensure that Section 1A does not impose criminal liability for conduct taking place before the section was passed. Far from having retrospective effect, these clauses are drafted explicitly to prevent any retrospection. I assure the noble Lord that people who enter into a conspiracy before this change comes into force will not be affected by the change in the law. I hope that he will be satisfied with my explanation of that point and agree to withdraw his amendment.

However, the specific provision that the noble Lord, Lord Thomas of Gresford, raised concern about previously and alluded to in his speech is directed at specific actions that might have to be taken in the course of official duty. It is certainly not its purpose to give civil servants or anyone else complete freedom to break the law.

First, I must make clear that this provision is already on the statute book in relation to this offence. All the clause does is to replicate it in removing the current jurisdictional anomaly in the provisions. To do otherwise would be inconsistent with the current position, and to remove it altogether would be a radical change to the current position, far beyond the scope of the minor extension of jurisdiction that we propose. There are a range of circumstances in which technical breaches

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of the conspiracy provisions may arise. For example, if the police or Customs were planning an undercover operation involving infiltration of an organised crime group, a consignment of drugs or trafficked children, it might be tracked to a number of different parts of the UK. There would obviously be no question of prosecution here in those circumstances. I believe it is right to retain a specific protection of this kind in the 1977 Act, since its removal would hinder law enforcement agencies involved in dangerous undercover work.

That said, we accept that the exemption seems very wide. It raises complex and sensitive issues which require much fuller consideration than can be afforded them in the context of the Bill and the small amendment that we are discussing. There will be an appropriate opportunity to address them in the context of a full review of the laws on conspiracy and attempts, which the Law Commission has carried out and will report on shortly. In looking at the Law Commission's recommendations, we will consider whether the existing provision remains the right one or, as seems more likely, whether things have moved on since Parliament enacted the 1998 Act. It appears from the concerns that have been raised both in this House and the other place that a different formulation might be needed. When I set this out in Committee, the noble Lord said at the end of the debate:

"I accept his explanation ... and I look forward to reading the report from the Law Commission in due course".-[Official Report, 7/7/09; col. 664.]

I hope that he will similarly accept my explanation today and agree to withdraw his amendment.

Lord Lloyd of Berwick: My Lords, I do not quite understand why this amendment-small though it may be-is being made now, ahead of the report. What is the urgency for this amendment?

Lord Tunnicliffe: My Lords, it is the view of Her Majesty's Government that once an anomaly, which may have some substance, in the law comes to their attention, it should be addressed at the earliest opportunity. This is the earliest opportunity since the anomaly was seen to make this very limited correction in the jurisdictional character of the Bill. We are in no way seeking to enforce that widely drawn power, and we acknowledge that it will have to be addressed after the Law Commission publishes its report.

Lord Thomas of Gresford: My Lords, I am most grateful to the Minister for a very full explanation. However, it would be a bold counsel who submitted that a conspiracy to import drugs into Scotland would not be justiciable in the courts of England and Wales. I have dealt with just such a case, where nobody considered for a moment that questions of jurisdiction arose in that way. However, it seems that subsection (16) would certainly permit two civil servants to conspire to defraud the Scottish Government, and to escape criminal liability because it is so widely drawn. I am sure that the Law Commission will take all these matters into consideration in preparing its report and I look forward to reading it. For the moment, I beg leave to withdraw the amendment.

Amendment 66B withdrawn.



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Amendment 67

Moved by Lord Bach

67: After Clause 64, insert the following new Clause-

"Abolition of common law libel offences etc

The following offences under the common law of England and Wales and the common law of Northern Ireland are abolished-

(a) the offences of sedition and seditious libel;

(b) the offence of defamatory libel;

(c) the offence of obscene libel."

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, I will speak also to Amendments 119, 126, 127, 129, 131, 135, 140, 141 and 142. These amendments fulfil an undertaking that we gave in Committee in response to similar amendments tabled by the noble Lord, Lord Lester of Herne Hill, to whom we are extremely grateful. We indicated then that we agreed that the common law offences of sedition and seditious and defamatory libel can and should be abolished forthwith. The amendments would also abolish the last remaining criminal libel offence, namely that of obscene libel.

If I may, I shall briefly outline to the House the specific offences that we propose to abolish. I will then move Amendment 67 in the appropriate way, and I hope that the noble Lord, Lord Lester of Herne Hill, who is a co-signatory to the amendments, will then make his speech.

The first point to make concerns the term "criminal libel". As the House knows well, that term is often used synonymously with defamatory libel, but it is also a generic term used to describe all forms of libel that amount to a criminal offence. Criminal libel originally covered four distinct categories of libel: blasphemous, obscene, defamatory and seditious. As this House knows, blasphemous libel was abolished in England and Wales by Section 79 of the Criminal Justice and Immigration Act 2008. Publication of obscene material is now covered by the Obscene Publications Acts 1959 and 1964, so the common law offence of obscene libel is effectively obsolete.

Our Amendment 67 therefore abolishes the offence of sedition and the remaining offences of criminal libel-namely, seditious, defamatory and obscene libel. Our view is that those are arcane offences which have largely fallen into disuse. They stem from a bygone age when freedom of expression was not seen as the right that it is today. As we heard in Committee, taking the initiative to abolish them will be a positive step in helping our country, the United Kingdom, to take a lead in challenging similar laws in other countries where they are used to suppress free speech.

In the Government's view, the time is right once and for all to abolish those archaic offences. I beg to move.

Lord Lester of Herne Hill: As the Minister said, during the sixth day of Committee, on 9 July I moved amendments to abolish the common law offences of criminal libel and seditious libel. I there fully set out the history of those ancient crimes and their effect on freedom of expression. My amendments were supported across the House by the noble Baroness, Lady D'Souza,

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Lord Kingsland, my noble friend Lord Thomas of Gresford and, indeed, by the Minister, the noble Lord, Lord Bach. The late and great Lord Kingsland reminded the House at column 849 that the laws of seditious and criminal libel are very active in other countries. He said:

"Some of them look at us and say, 'You have them, so why shouldn't we have them? It is up to us whether we should use them'.".-[Official Report, 9/7/09; col. 849.]

Lord Kingsland referred to Turkey, Iran and Uzbekistan, and I would add that there are Commonwealth countries in Asia and Africa where those laws are used to suppress political dissent and criticism.

The Minister reminded us again that the offences are arcane, stemming from a bygone age when freedom of expression was not seen as the right that it is today. He has rightly recognised that taking the initiative to abolish those offences is a positive step in helping the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech. He has today fulfilled the undertaking that he made on the Government's behalf to propose amendments in time for today that extend the abolition of those offences to Northern Ireland and take the opportunity to abolish the obsolete offence of obscene libel.

The Government have been true to their promise, and today is a day to celebrate. I should declare an interest in the debate as a vice-president of English PEN, and I should say that the abolition of these offences is welcomed by English PEN, Article 19 and Index on Censorship, which campaigned for these reforms. It is also welcomed by my colleague Dr Evan Harris MP, who took up the issue in the other place.

So much for Amendment 67, but while I am on my feet, I will, if I may, speak also to Amendment 75A on blasphemy. I should declare an interest in that amendment, given that I was counsel in the Satanic Verses case for Penguin Books, when an attempt was made by an Iranian businessman to extend the law of blasphemy to protect Islam. That attempt was rejected by the Divisional Court.

The three common law offences of seditious libel, criminal libel and obscene libel were fashioned by the court of the Star Chamber and spread their tentacles widely. The fourth of the quartet of offences was blasphemous libel. During the passage of the Criminal Justice and Immigration Bill in 2008, as the noble Lord, Lord Bach, mentioned, the Government agreed to abolish the offences of blasphemy and blasphemous libel under the common law of England and Wales. I am sorry that my noble friend Lord Avebury cannot be in his place today because of an injury; he was one of those who campaigned long and hard for that reform.

I was unable to be present during the debate in the House on 5 March 2008, when the noble Baroness, Lady Andrews, said that the law had fallen into disuse and ran the risk of bringing the law as a whole into disrepute. She pointed out that we now have legislation to protect individuals on the grounds of religion and belief, and she referred to a letter from the most reverend Primates the Archbishops of Canterbury and York, in which they explained:

"Having signalled for more than 20 years that the blasphemy laws could, in the right context, be abolished, the Church is not going to oppose abolition now".



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They added the rider,

The Minister stated her belief that,

Later in her speech, the Minister referred to the reports of the Select Committee on Religious Offences in 2003 and to the report of the Joint Committee on Human Rights, of which I am a member, of January 2008, which concluded that the offences could no longer be justified. She noted that the new criminal offences outlawing incitement to religious hatred in the Racial and Religious Hatred Act 2006 and the new law against discrimination on grounds of religion and belief gave modern protection. She made it clear that, in the words of the right reverend Prelate the Bishop of Southwark, who I am delighted to see in his place, the repeal of these offences,

I wholly concur with that view. There was then a full a debate and the House decided by 148 votes to 87 to abolish these offences. The other place overwhelmingly agreed by 378 votes to 57. There has been no example of any problem occurring as a result.

However, the abolition of the offence of blasphemy was not extended to Northern Ireland, which is the reason for my amendment. We are being asked to agree to abolish seditious, obscene and criminal libel, not only in England and Wales but in Northern Ireland, but not blasphemous libel. It is my submission that we should do so also for blasphemous libel, and I am greatly fortified by the support given by the noble and right reverend Lord, Lord Eames, and my noble friend Lord Alderdice.

I am a great admirer of the people of Northern Ireland and the Irish Republic, and of their traditions. We have had our holiday home in West Cork for 35 years, and I have been a frequent adviser and visitor in Northern Ireland since 1975, although I would still be described by any Irishman as a "blow in" from England. There are particular reasons why the common law offences can safely be repealed in Northern Ireland. I wish briefly to deal with them, as this is quite important.

The Select Committee on Religious Offences of this House noted in its report that blasphemy in Northern Ireland came from the common law of Ireland. However, it reported that it was arguable that the offence did not survive the disestablishment of the Church of Ireland by the Irish Church Act of 1869. It pointed out that there had been no reported prosecution for blasphemy in Northern Ireland. That is an important point: it is not even clear that there is a blasphemy offence in Northern Ireland now.

The Select Committee also pointed out that Northern Ireland has had a criminal offence of incitement to religious hatred since 1987, under the Public Order (Northern Ireland) Order 1987, although it has rarely

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been used. The offence of incitement to religious hatred in Northern Ireland is much broader than the offence in England and Wales. It protects not only against speech that is threatening but against speech that is abusive and insulting. It includes situations in which the defendant does not intend to stir up hatred or to arouse fear but where, in all the circumstances, hatred is likely to be stirred up or aroused. It does not contain the free speech clause that, as the noble Lord, Lord Hunt of Wirral, will be well aware, we inserted into the Racial and Religious Hatred Act 2006 to ensure that our law did not prevent discussion, criticism, ridicule or insult of religious beliefs and practices. This House accepted the abolition of blasphemy on the ground that the new law on hatred provided adequate protection for religion and religious believers. Given that there is greater protection on the statute book against incitement to religious hatred in Northern Ireland, the same argument applies with even greater strength. There is no gap in the legislation; indeed, some would argue that the legislation is overbroad.

Some may argue that Parliament should wait for the policing and justice powers to be devolved to Stormont before this arcane offence is abolished. I respectfully submit that, if we can abolish sedition, criminal libel and obscene libel in Northern Ireland without waiting for the powers to be devolved, it is difficult to understand why, in the circumstances that I have summarised, this offence, too, should not be abolished in Northern Ireland.

There is another reason why it would be bizarre not to apply the abolition to Northern Ireland. If this becomes comical, it is not my fault. Several years ago, the Supreme Court of Ireland declared that the offence existed to protect the Church of England as the established church and that, therefore, as Ireland does not have an established church, the offence-partly in view of its vagueness-had no application to the Republic. Therefore, the Supreme Court of Ireland abolished blasphemy by judgment, as it were. We in this House relied on that decision as part of the argument for abolishing the offence in this country. Another argument was based on its divisive nature in protecting Christianity and not other faiths, such as Islam.

This summer, the Attorney-General of Ireland decided that Eamonn de Valera's 1937 constitution requires that blasphemy should be a punishable offence. The Irish Government did not wish to have a referendum to amend the constitution to remove that anomaly but instead amended the Defamation Bill not only to abolish the common law offences of defamatory libel, seditious libel and obscene libel but to create a statutory offence of publishing or uttering blasphemous matter that is,

where there is the necessary intent. That provoked huge controversy and was hurried through the Irish Parliament with no proper debate. It would surely be bizarre to have a situation in which the common law offences are abolished in England and Wales, and by the Supreme Court of Ireland in the Irish Republic, but revived by statute in the Republic and left in a vague and unenforceable condition in Northern Ireland,

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where, as I have emphasised, there is a strong statutory offence that has existed since 1987. I hope that the House will be willing to bury this ghost of the Star Chamber in Northern Ireland, as we are doing with the other three ghosts.

Lord Campbell of Alloway: My Lords, I have a short question. Is there any evidence that the people of Northern Ireland want to do away with the offences of blasphemy or blasphemous libel, or is this an academic exercise?

Lord Lester of Herne Hill: My Lords, there is no more evidence about the attitude of the peoples of Northern Ireland than about the peoples of England, Wales or the Republic. These ancient offences are not a matter of daily conversation in any part of the two islands.

Baroness D'Souza: My Lords, my name is on Amendment 75A and I shall speak briefly to it. Most of the issues have been set out by the noble Lord, Lord Lester, so I will not go into detail. The arguments for abolishing the offences of blasphemy and blasphemous libel in this day and age have been well rehearsed over many years-so well rehearsed and received that blasphemy ceased to become an offence when the Criminal Justice and Immigration Act was passed last year.

It is perhaps relevant to mention the inconsistency of such laws in the multi-faith communities in which we live, and to remind noble Lords that in the past this archaic law has been used predominantly as a tool of censorship. As the noble Lord, Lord Lester, said, it re-emerged as a proposal in the Republic of Ireland earlier this year. It would be inconsistent for noble Lords to ignore the continuing existence of the blasphemy laws in Northern Ireland. It cannot be that such laws are considered arcane and redundant in the UK and not so in Northern Ireland-which, for these purposes, is not yet devolved. This will become a matter for the Northern Ireland Assembly once powers are fully transferred. At present it remains in the hands of Westminster, which is why we are debating it today.

I remind noble Lords that laws that remain on the statute book are hostages to fortune. No one can guarantee that their continued presence will not in future be misused to curtail legitimate speech, opinions and views.

Lord Henley: My Lords, I start by saying that we are perfectly happy with the government amendments in the group, which abolish sedition and seditious, defamatory and obscene libel as common law offences. These arcane offences are no longer relevant to our criminal system, and we accept the amendments.

We are less happy about Amendment 75A, tabled by the noble Lord, Lord Lester, which relates to blasphemy and blasphemous libel in Northern Ireland. I agree with him that they too are arcane and redundant, and I was grateful to him for pointing out that there have been no prosecutions for these offences since the 19th century. However, as a spokesman for the Conservative and Unionist Party, I say that this matter should be left for devolution. We support devolution, and the matter can be discussed in due course by the Stormont Assembly when it has the appropriate authority.



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Having said that, and in the light of what the noble Lord, Lord Lester, said about there having been no prosecutions since the 19th century, it will make no difference to man nor beast whether his amendment is passed or not. It is unlikely that we will see a flood of prosecutions under the existing law, or if we change it. Though we are happy-

Lord Lester of Herne Hill: My Lords, I apologise for interrupting. Can the noble Lord explain why we should do this on sedition, obscenity and criminal libel in Northern Ireland but not blasphemy? What is the special factor that requires God to have special protection under criminal law there but not here because of devolution?

4.15 pm

Lord Henley: Because, my Lords, these issues raise what one might refer to as heartfelt emotions, and it would therefore be right and proper if this matter were left to Northern Ireland. For that reason, I think it is far better that it should be left to Stormont, as and when it has the authority to deal with it.

I was going to end by saying that I did not think that, as I put it, neither man nor beast would make any difference, whatever happened. All I can say is that we will support the Government on their amendments. I hope that the noble Lord, Lord Lester, will move his amendment separately when we come to it. We will not support it but nor will we oppose it.

The Lord Bishop of Winchester: My Lords, I think that there probably is an answer to the question that the noble Lord, Lord Lester, put just now to the noble Lord, Lord Henley. I in no way want to reopen the discussion of 5 March 2008, the report of which I have reread, as has the noble Lord. I could not be there that day but I would have voted with the majority for the reasons that the most reverend Primates the Archbishops, the right reverend Prelate the Bishop of Southwark-it is good that he is in his place-the right reverend Prelate the Bishop of Portsmouth and others stated that day.


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