§ 28 Clause 70, page 45, line 13, leave out from beginning to "be" in line 14 and insert "with the intention that hatred shall".
§ The Commons disagreed to this Amendment for the following Reason:
§ 29 Because the Commons do not consider that it is appropriate to limit the offence of inciting racial hatred only to cases where the person concerned is proved to have intended to stir up hatred.
§ Lord HARRIS of GREENWICHMy Lords, I beg to move that this House doth not insist on their Amendment No. 28, to which the Commons have disagreed for the Reason numbered 29. Once again I do not think there is any need for me to repeat the reasons why, in this particular case as well, the Government came to the conclusion that they did. We came to the conclusion that it was right that the element of intention to stir up racial hatred should be removed from the offence of incitement to racial hatred. Instead, I should like to deal with one or two of the arguments to which the noble and learned Lord, Lord Hailsham of Saint Marylebone, directed himself on the last occasion. Of course, like him, I recognise that this is an important matter and it deserves serious consideration by the House. The main objection raised by the noble and learned Lord was that it conflicted with, 1092
…a fundamental principle of the English criminal law that a crime should consist of two elements, the actus reas and the mens rea".The noble and learned Lord made clear that he was not concerned with summary offences, but only with indictable ones like Section 6 of the Race Relations Act 1965, and Clause 70 of the Bill, which would replace Section 6. He went on to say that he could see no reason why the fundamental principle to which he had referred should not apply in the case of incitement to racial hatred. In reply to this argument I should like to make two points. First, it is not, I think, as though the fundamental principle to which the noble and learned Lord referred is without exception. Indeed, Section 5 of the Public Order Act 1936 is just such an exception. It makes it an offence to use threatening, abusive or insulting language which is likely to cause a breach of the peace, irrespective of any intention on the part of the person concerned to cause a breach of the peace. And, second, the link between Section 5 of the 1936 Act and incitement to racial hatred is not simply that the absence of an element of intention in the former is a precedent for the proposal in Clause 70: there is a clear parallel between the evil against which Section 5 is directed—namely, public disorder—and the evil of racial hatred, which contains not far below the surface the seeds of public disorder. In fact, this was among the considerations which led us, on a suggestion made by members of the Opposition in another place, to transfer the offence of incitement to racial hatred from the Bill to the Public Order Act. I beg to move.
§ Moved, That this House doth not insist on their Amendment No. 28, to which the Commons have disagreed for the Reason numbered 29.—(Lord Harris of Greenwich.)
§ Lord HAILSHAM of SAINT MARYLEBONEMy Lords, if there were an an Amendment which I should like to fight about at this stage of the exchange between the two Houses it would be this particular Amendment. I see no reason why I should withdraw what I said on an earlier occasion, that to create an indictable offence in which the mental element is wholly lacking is a constitutional outrage and an undermining of our principles of the criminal law. To make it one on which 1093 the guilty person could be liable to a penalty of two years' imprisonment is, to my mind, little short of abominable, and far worse than anything else in the Bill. It has also the merit, or demerit, of being totally inappropriate to the rest of the Bill. This Bill is concerned in other sections solely with relations in a civil sense, except for offences which are created ancillary to those relations, but this has to do with the Public Order Act 1936, and constitutes, therefore, an excrescence on the rest of the Bill. To my mind, therefore the Government could perfectly well have omitted it from this legislation altogether, and all the more so because at Committee in another place the Government spokesmen declared that they have in contemplation a revision of the Public Order Act 1936. We could perfectly well have then discussed this particular question at our leisure, instead of trying to rush it through at the end of a Session when we are faced with the alternative of making the Government drop their Bill or accept what they do not want to accept. That again is a constitutional outrage.
Thirdly, I think that the Government have not fully realised the mess into which this new offence will bring them, or any other Government who may inherit their foolish legislation. Let us imagine that a certain Mr. Enoch Powell makes a speech about race relations in the country. Well, he has a friend called Mr. Patel, who gives him unmerited advertisement by advertising the speech before he makes it. He makes it, and it attracts headlines in all the local and national newspapers. Afterwards, Mr. Patel demands that he be prosecuted under this new draconian provision. Of course, under the existing legislation the Attorney-General is under no difficulty; he can say, "We cannot prove intent". That would quash such a foolish suggestion. Under this new legislation, it is the effect that counts, not the intent. We have all seen the effect last week on "Any Questions". So, Mr. Patel may say, "Let Mr. Powell be prosecuted". I know that the Attorney-General has to consent to a prosecution before it takes place, but think of the embarrassment that poor Mr. Silkin will be in when this happens should this Bill become law. If he says, "I will not prosecute", when there is a viable case against Mr. Powell, then of course there will be a tremendous howl of indignation from the Patels of this world, 1094 because he will be giving preference to Privy Councillors and Members of Parliament rather than other, ordinary members of the public. It will be said that it is just another example of Front Benchers scratching one another's backs. So Mr. Silkin will be in for a very rough ride if he refuses to prosecute, because the case will be unanswerable.
Let us assume that he does his strict duty according to Roman principles of impartiality and sternness at breaches of law, and prosecutes Mr. Powell. Mr. Powell goes to the Old Bailey; cheering crowds, led on by the National Front, greet him on the way; flower petals are thrown to show enthusiasm for his speech. He becomes a martyr, a national hero; and of course nobody will be better pleased than Mr. Powell. This is the kind of thing which makes the Government ridiculous and illustrates above all things the folly of trying to interfere with general principles of law.
It is quite true that tucked away in Section 5 of the Public Order Act 1936 there is this precedent. I wonder how often it has been used in the 40 years since it was introduced, and, if it has not been used very often during the whole of the Mosley attack on Jews, I wonder why it has not been used. I think I can tell the noble Lords of the Government why it has not been used. It is because it was no use anyway and if it had been used it would have caused a cry of indignation and aroused sympathy for the very man whom it was wished to punish. That is why it has not been used.
The truth is that the safety of minorities in this country—the safety of Jews and that of coloured people—depends upon an observance of the rules of law and the principle of liberty. That is their protection. If one starts trying to make martyrs of the people who attack them, then it will be found that the sympathy to which they are justly entitled is transferred. Even that is not the end of the folly of this thing. Let us suppose that Mr. Powell's speech is published in The Times. Of course there is an escape clause for the publication of speeches: if they are made in Parliament or if they are made in legal proceedings the editor of The Times is protected. But if Mr. Powell speaks to the City of London Young Conservatives, or to the Eastbourne 1095 Chamber of Commerce or the other places which seem to solicit his attentions—although the invitation is not always persisted in when they discover exactly how he is going to abuse their hospitality—if he speaks anywhere except in the House of Commons or in a court of law, then the editor of The Times has to join him in the dock at the Old Bailey for publishing it.
That is the situation which the Government have created. Are the Government really not able to understand why it is that the President of the Guild of Newspaper Editors was so cut up about this clause, so anxious that our Amendment should be carried? Of course, it is now going to be said that if we persist in it we are defying the will of the people. Some little twit down the corridor, who will not get in the next time, is going to accuse us of defying the popular will. I must say, I am very much tempted to do so. However, I have said what I have said; I am not going to say it again. I do not think we shall gain any more or do much good by taking it any further, except just to tell them where they get off.
§ 8.5 p.m.
Lord JANNERMy Lords, I have a very high respect, as the noble and learned Lord knows, for him and for his views about racial discrimination. I have every cause to know that and I publicly acknowledge it, but I am afraid that I cannot accept the argument that he has put forward because of an experience which dates back many years. I came to the conclusion long ago, as one who fought against racial discrimination in the 1930s, that the law was not strong enough to prevent the kind of vicious and terrible propaganda that was being preached at that time under the leadership of Mosley, a man who had opened a synagogue at one time and who had even put up a candidate against myself, one who happened to be of Jewish persuasion. He was using his new movement purely for the purpose of obtaining some return in support of gangsters for the vilification of Jewish people.
First of all, to me, there was considerable difficulty in getting any law passed at all. There was the question for example of stopping the use of uniforms. I remember discussing the matter with 1096 Lord Simon and others at that time. They also presented a similar case to that which the noble and learned Lord is putting forward this evening—honestly, of course, and believing that the effect of any legislation would be contrary to the interests of those whom it was intended to protect. Certain legislation was passed—the 1936 Act. As Members of this House will readily remember, it was passed but it was not sufficiently effective because, although in fact everybody knew that there was intent on the part of the villainous Fascists of that time they could not be prosecuted. It is hard for me to speak about this, because it ultimately resulted in the murder and torture of some six million Jewish people. We came to the conclusion that the Act as it stood then—and unfortunately, in my view, repeated in the Race Relations Act of 1965—was not sufficient to stop the dangerous and inhuman actions that were being used by those who were vilifying Jewish people and determined to destroy their good name because of the political ambitions of those Fascists.
§ Lord HAILSHAM of SAINT MARYLEBONEMy Lords, I do not want to interrupt the noble Lord's speech, but he is overlooking the fact that Section 5 of that Act is the precise model upon which this section is framed and it was cited in favour of it by the noble Lord, Lord Harris of Greenwich. This section does not really carry the matter much further.
Lord JANNERMy Lords, if I may say so with respect, it carries the matter further to the extent that the Attorney-General will have the right to institute prosecutions against people who are inciting racial hatred and who are not able to satisfy a jury that there was no intent. Indeed, I think that the noble and learned Lord will remember a number of occasions on which intent should in fact be clear to any reasonable person but in which juries have returned "not guilty" verdicts.
I feel difficulty in speaking against the contentions which are put forward by the noble and learned Lord, who I know has this matter deeply at heart. But I cannot help but feel that if people go (as they did in those days into the East End and other places in London) into areas where racial discrimination can be stirred 1097 up, it would not be a breach of the principles of law. I am a lawyer myself, and I realise what is underlying the arguments put forward. I think that this kind of case is very exceptional. I do not think that people should be allowed to act in the way that criminals of those days did, and I do not believe that a clause of this sort would have the effect that some noble Lords believe that it will. I think, on the contrary, that leaving it in the hands of the Attorney-General—and after all it is not a matter which can be brought without his consent—to decide whether an action should be brought is sufficient safeguard against anyone bringing a prosecution which is not based on thorough grounds.
There are cases, as the noble and learned Lord knows—and I feel bound to repeat something which has already been said—in which the onus of proof has been put upon the respondent or defendant. I think that the crimes that this Bill intends to deal with are crimes within the category where similar action should be taken.
§ 8.13 p.m.
§ Lord WIGODERMy Lords, I fully understand and have much sympathy with the argument put forward by the noble Lords, Lord Harris and Lord Janner, that there should now be legislation which makes it an offence if a person at a public meeting, for example, uses insulting words which are likely to cause racial hatred, and that it should not be necessary that intention should have to be specifically proved as an ingredient of the offence. My anxiety about this clause is not so much on that aspect of it as the other aspect touched on by the noble and learned Lord, Lord Hailsham, as to the possible effect upon the restriction of the freedom of the Press.
If a distinguished public figure is making a speech of this nature which, in itself, qualifies for prosecution under this clause, it might be very much in the public interest that the public as a whole should know what was being said and who was saying it. As this subsection stands, the newspaper is just as much liable to prosecution as the individual speaker. I can only hope that it might be possible for the noble Lord, Lord Harris, to indicate that when the Attorney-General comes to consider whether to give his consent to the prosecution of a newspaper, he will 1098 be very slow indeed to consent to the prosecution of a newspaper which is in good faith doing its duty in informing the public of matters which the public has every right to know.
§ Lord MONSONMy Lords, I believe that this is the clause above all others that your Lordships should insist upon tonight. I fully appreciate the sentiments of the noble Lord, Lord Janner, but I believe that the clause as unamended would be counter-productive, and would not achieve the objectives or the safeguards which he rightly looks for: partly for the reasons advanced by the noble and learned Lord, Lord Hailsham, and partly for the reasons advanced by an honourable and learned Member in another place on 27th October, who pointed out that the effect of the clause as unamended is to render a man liable to up to two years' imprisonment when he is innocent of any intention to stir up hatred against any racial group. It will allow the conviction of a man who is genuinely innocent of any racialist intent. He went on to say that it would introduce into English law a principle which undermines civil liberties. I am sure that none of your Lordships would wish this to happen.
Another honourable and learned Member reminded the House that many years ago a Labour Party spokesman, speaking from the Dispatch Box in another place, demanded a Bill to make it a criminal offence to say that coloured immigration into this country should be totally stopped. Of course, no Labour spokesman speaking from the Dispatch Box today would say such a thing—but who knows what may happen in a few years time?
The noble and learned Lord, Lord Hailsham, spoke of the fears expressed by the Guild of British Newspaper Editors. I have heard today that the Insitute of Journalists are equally concerned about the effects of the clause if left unamended. Another Front Bench speaker in another place spoke about the clause as unamended as possibly bringing the whole of Parliament, and our civil and criminal law, into disrepute. In another place the great majority of the Liberal Party voted with the Conservatives for this Amendment, including Mr. Emlyn Hooson, who has in the normal way supported most of the clauses of this Bill, taking the side of the 1099 Government against the Opposition. The majority against the Amendment was a narrow one.
I remember well a few weeks ago the noble Lord, Lord Houghton of Sowerby, speaking from the Benches on my left, in opposing a subsection of this Bill, speaking of the freedoms for which the British people have fought throughout the centuries. I believe that freedom of speech and the freedom of the Press are the principles that we ought to fight for tonight.
§ Lord HAILSHAM of SAINT MARYLEBONEMy Lords, before the noble Lord replies, may I say that I have been reflecting upon a certain expression I used which might be thought to express a lack of respect for Members of another place. I do not think I was within the rules of order, and I should like to withdraw that expression and substitute the expression "honourable Member" for the expression which I in fact employed.
§ Lord HARRIS of GREENWICHMy Lords, if I may say so, that was done with particular delicacy. The noble and learned Lord has rehearsed—and I make no objection to this, obviously—the points which he made on an earlier occasion. I am well aware that he takes that view of the matter, as do his honourable friends in another place. I hope that the experience we have with the Bill on the Statute Book will prove him wrong, and that is the Government's belief.
Regarding the point raised by the noble and learned Lord, Lord Wigoder, he will realise that I have to speak with some caution in giving an undertaking not only on behalf of the current Attorney-General but as to the attitude future Attorneys-General may take on the question of a prosecution, but the intention is that they should reflect on the facts of a particular case, and I am sure that they will bear in mind the considerations which the noble and learned Lord advanced, but clearly I cannot go beyond that.
I am well aware also of some of the anxieties that have been expressed by the Guild of British Newspaper Editors, but I believe that some of the arguments they have advanced are unjustified. At the moment, newspapers often use their own 1100 discretion to omit language of that sort and, if using an example from the United States is not amiss, it is interesting to note that in the remarks which were attributed to the late Secretary of Agriculture in the United States, only one American newspaper thought it appropriate to tell their readers what in fact he had said. They did not take the view that it was their high public duty to publish words which later required him to resign his office as Secretary of Agriculture. This is an indication that the Press at present exercise a substantial amount of restraint when vulgar and abusive language is used and I do not therefore believe that this raises fundamental questions affecting the liberty of the Press. Nevertheless, there are certainly anxieties among some journalists I would not put it higher than that—and, again, I hope they will prove to be unjustified.