HL Deb 13 December 2001 vol 629 cc1449-65

23 Leave out Clause 39,

The Commons disagreed to this amendment but proposed the following amendment to the words so restored to the Bill: 23A Clause 39, page 20, line 16, at end insert— ( ) The Attorney General may issue guidance as to conduct in respect of which he will not institute proceedings for an offence under Part 3 of the Public Order Act 1986, or consent to the institution of such proceedings, on the grounds that the conduct consists of the legitimate expression of religious belief.

Lord Goldsmith

My Lords, I beg to move that the House do not insist on their Amendment No. 23, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill.

We return to the issue of expanding the existing law on incitement to racial hatred to cover incitement to religious hatred. Noble Lords will recall that this House voted to remove Clause 39 from the Bill and the Commons have disagreed with that amendment and agreed an amendment to restore Clause 39 as amended by the government amendment regarding guidance.

The Government remain convinced that it is necessary to extend the law to cover incitement to religious hatred. We believe that it is necessary to do that now to ensure that those who have sought to stir up racial hatred, exploiting the tension since September 11th, are not allowed to do so. We believe that it is time to end the anomaly under which some religious groups are covered by incitement to hatred provisions when others are not. We believe that the clauses proposed by the Government are the right way to create these offences because they build on the tried and tested—and not abused—incitement to racial hatred offence. We believe that it is time for this House to send the message that it does not condone this kind of vile hatred.

I shall turn in a moment to the question of guidance. Today I have placed in the Printed Paper Office draft guidance which I intend to publish, with the agreement of the Director of Public Prosecutions, as soon as this clause passes into law. Before I discuss that matter, I shall deal with the following point. We do not accept that this conduct can simply be dealt with under the law relating to other offences. Of course, some cases, depending on the facts, will involve conduct which could amount to incitement to religious hatred but could also amount to another offence. The choice of charge will be for the prosecutor. However, there is a gap. Public order and harassment offences in particular, such as using threatening or abusive or insulting words or behaviour towards another person with intent to cause that person to believe that immediate violence will be used against him, or with intent to provoke immediate violence, require conduct which is directed at a specific individual—that was the point I sought to make the other day—and, therefore, do not bite on the general distribution of literature such as on a website or by leaflets which are distributed.

It has been said that the ingredients of the offence would not criminalise legitimate freedom of expression; that is, criticism, even robust criticism, of religion or religious discussion and debate. The criminal threshold has not been abused in the Companion incitement to racial hatred cases, and it would not be for religious hatred. In order to provide some further reassurance on that, I agreed to provide guidance.

Before I turn to the guidance I make two specific preliminary points. First, the guidance is intended to clarify factors which I would consider when exercising the power that I have under statute to consent, or to decline to consent, to a prosecution under Part 3 of the Public Order Act 1986. That is an existing power to consent which applies at the moment to the offence of racial hatred as it does to a number of other offences. The intention has always been that if the offence of incitement to religious hatred were included, it would be subject to the same regime; that is, a regime where there would have to be consent by the Attorney-General. But—this is important—the guidance does not alter the ingredients of the offence. It is not within my power to alter the ingredients of the offence. That is important as it was suggested in another place that this was an administrative power which allowed the Attorney-General to determine or change the law. 'The power already exists for me to consent to prosecutions. The guidance clarifies what factors I would normally consider when making that decision. However, I certainly cannot make anything criminal which is not criminal under the statute as passed by Parliament—if it is—and as interpreted by the courts.

The second important preliminary observation is one that I hope noble Lords will readily recognise. I also hope that noble Lords will readily recognise that as a prosecutor, with a responsibility to prosecute in the public interest, I cannot make sweeping or categorical statements that might apply to circumstances I cannot presently envisage. That would fetter a discretion in a way that noble Lords would not expect that any Attorney-General would want to do. The difficulty is that there is always a possibility of something that one cannot envisage at the moment occurring in the future. In looking at the guidance which I have produced in draft, I hope that noble Lords will recognise that point and kindly bear it in mind. Notwithstanding that, I hope that noble Lords will still find the draft guidance helpful and will agree that it meets at least the particular concern which has been expressed; namely, that this offence might somehow be used to stifle legitimate expression of religious belief or even criticism of religious belief.

First, the guidance sets out the procedures. It emphasises that any decision for consent would be a decision taken personally by the Attorney-General, or, in certain cases, by my deputy, the Solicitor-General. It refers to police investigations and the necessity for specialist prosecutors to be involved from the CPS central facilities. It identifies the necessary ingredients of the offence, each of which would have to be proved in order for a prosecution to succeed, and each of which must, therefore, be considered. It makes the important point, in accordance with general practice, that no prosecution would be brought unless there was a realistic prospect of conviction; that is, that the evidential test is satisfied, and also that, in my opinion, it is in the public interest to prosecute. Both those matters have to be satisfied. It seeks to give some guidance on some of the elements. I refer, for example, to hatred, which is an important ingredient. The guidance states in paragraph 5.4: 'Hatred' is a strong word and, as a matter of common sense, it is likely to be held by the courts to mean something stronger than dislike, contempt or ridicule". The guidance also deals with the matter to which I referred earlier in relation to legitimate expression. Paragraph 5.12 states: Given the high threshold tests set by these offences it is not easy to foresee circumstances in which legitimate methods of religious debate will justify a prosecution. So, expressions of, or indeed criticism of, one's own or another's religious beliefs or practices, even when robustly expressed, or satirising or poking fun at or making comical representations of religion, people who are religious or who follow particular religions are unlikely to offend the statute. Legitimate expressions of religious belief which, taken within their context, time and the wider national and international arena, could not be construed as anything other than the expression of a religious tenet are, similarly, not likely to amount to an offence of incitement to religious hatred". The guidance was produced in the hope that it would give further reassurance as regards the additional safeguard in the Act and as regards the ingredients being such that legitimate expression of religious belief, or criticism of others' religious belief, would not be criminalised.

Moved, That the House do not insist on their Amendment No. 23, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill.—(Lord Goldsmith.)

5.30 p.m. 23B Lord Campbell of Alloway rose to move, as an amendment to the Motion that this House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 23". The noble Lord said: My Lords, I move this amendment to reaffirm that, as was decided on Report, Clause 39, which seeks to criminalise incitement to religious hatred, be left out of the Bill.

On Report, I spoke only to Amendment No. 23A. The numbers are so confusing that I shall call that the Attorney-General's guidance amendment. It was heavily criticised by the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Neill of Bladen, myself and many other of your Lordships. No satisfactory answer appeared to be given at the time and on reading the Official Report, none materialised. There is no justification for such an unprecedented procedure.

When I moved the amendment to omit Clause 39 and it was carried, the Attorney-General's guidance amendment had not been divided upon. That was never divided upon because it could not exist if Clause 39, which it was proposed to amend, were left out of the Bill. It was the decision of the House by a substantial majority of members of all three main political parties and of Cross-Benchers—after a long, good-humoured and constructive debate—that Clause 39 be omitted.

It is not my intention to reopen that debate but I shall make three salient points. First, what is the hurry when the sense of the House was that there is a need for further comprehensive consultation and discussion?

What is the connection with terrorists in an antiterrorism Bill? What is wrong with the law as it stands, if it were enforced?

Secondly, there was a flood of opposition from all three monotheist religions; religious bodies including the Free Presbyterian Manse, eight Islamic institutions, the Christian Institute and Liberty. A veritable mountain of unsolicited correspondence expressed in one way or another the belief that Clause 39 could do more than harm than good, cause much unintended mischief and inhibit freedom of speech and religion.

The third salient point was made, inevitably, by the noble Earl, Lord Russell. I wholly agree that the proposed reach across, as the noble Earl termed it, to racial hatred is dangerous and ill conceived in a single statutory framework dealing with both racial and religious hatred. Religion is a matter of opinion and freedom of expression and belief could be compromised. In that context, the anomalies to which the Attorney-General just referred are not understood.

At the end of Report stage your Lordships—by excluding religious hatred offences and retaining religiously aggravated offences—devised a new structure to resolve the essence of the problem as identified by the right reverend Prelate the Bishop of Birmingham and accepted by the noble Lord, Lord Rooker, on 15th October. The right reverend Prelate said that in this country, Islam is generally perceived as an Asian religion. Therefore, attacks on Islam are used as a cover for incitement to religious hatred against people of Asian origin.

The House achieved a viable structure and on Third Reading, I sought in vain to persuade the Government to accept it. Such remains my respectful endeavour.

If the record of enforcement of racial hatred offences under extant law were to increase from the 47 cases over 15 years to which the right reverend Prelate the Bishop of Oxford referred, what would be the need for a new Bill? I beg to move.

Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 23".—(Lord Campbell of Alloway.)

Lord Dixon-Smith

My Lords, we return to a theme to which we have devoted considerable time. The House will be relieved to hear that I will be suitably brief.

There is a fundamental difference of opinion between noble Lords on these Benches, Liberal Democrats, Cross-Benchers and many government Members. Even in another place last night a considerable number—I can give the precise number if need be—voted against the inclusion of this clause in the Bill.

I am extremely grateful to the noble and learned Lord the Attorney-General for taking the trouble to ensure that a copy of the guidance notes—they relate to the provisions that would come into force if the proposal were agreed to—was available to all of us. However, the difficulty is that the guidance notes and the amendment do not address the fundamental division of view between us. That division of view is not about the content of the provisions or the way in which problems should be dealt with; it is about whether such provisions should be in the Bill at all.

I do not intend to repeat the ground that we have gone over so many times in that regard. This is a piece of emergency legislation; it is an anti-terror Bill with a few connotations added to it. The inclusion of religious hatred offences is not appropriate in a Bill of that sort. So far as I am concerned, that is the beginning and the end of the argument. The mills of this House grind slowly and they grind exceeding fine. That is superb in its way. I do not propose to waste more time on this matter—much time has already been spent on it. I simply say that we for our part will support my noble friend Lord Campbell of Alloway.

Lord Dholakia

My Lords, we on this side of the House insist on the amendment that was considered on Report and which proposed leaving out Clause 39. It is for that reason that we support the amendment moved by the noble Lord, Lord Campbell of Alloway. There is a fundamental difference between what the Government are proposing and what we believe is the case. The amendment to the words proposed by the Commons does not meet our concern that provisions concerning incitement to religious hatred are inappropriate as part of the Anti-terrorism, Crime and Security Bill.

We were aware on Report that the Attorney-General intended to issue guidance on matters on which he will not issue proceedings on the ground that the conduct consists of the legitimate expression of belief. I am grateful to the noble and learned Lord for supplying such guidance but it makes little difference to the arguments that we advanced previously. The chances of him succeeding on the basis of the guidelines are very limited. It will make very little difference to the cases that come before the courts. I do not for a moment doubt the wisdom and the wise counsel of the noble and learned Lord, but I question whether his department is qualified to interpret cultural and religious beliefs that are held by the many diverse religions that are part of our multi-religious society in the United Kingdom.

If it is any consolation to the Government, I make it clear that we do not dispute the purpose behind the legislation. We would argue—the number of letters and telephone calls that most of us have received confirms this—that the matter requires detailed consideration and should take into account not only incitement but also matters involving religious discrimination. Creating new offences will never on its own protect members of racial or religious groups from violence and abuse.

I invite noble Lords to look at the record of incitement to racial hatred, which was cited by the noble Lord, Lord Campbell of Alloway. In the past 12 years, only 42 defendants have been successfully prosecuted, and in 1999 only three prosecutions succeeded. We kid ourselves if we believe that once the Bill is enacted, we will round up those who perpetrate religious hatred. Extremists have successfully circumvented the incitement to racial hatred legislation. Ask the police, the CPS and the legal profession—they will confirm that. In reality, the guidelines from the noble and learned Lord the Attorney-General are not going to solve the problem. So why the hurry?

I had a quick glance at the debate in the other place last night. Again, the arguments that were advanced by the Minister in the Commons were no different from those that were advanced on Report. Of course there have been attacks on the Muslim community since September 11th, but attacks have also been perpetrated against other racial and religious groups. I congratulate our police forces, which have adopted a high-profile presence and prevented many ugly situations. But what is stopping the Minister from using the Public Order Act or harassment legislation? I know that the noble and learned Lord dealt with that matter, but he has not given a satisfactory answer. That legislation is on the statute book and could deal with many of the situations that were referred to on Report.

Let me quote one of the noble and learned Lord's colleagues—Diane Abbott, who is the Labour MP for Hackney North and Stoke Newington. In an intervention in the other place, she said: "My hon. Friend"—that is, the Minister in the other place— has been challenged about what the clause is doing in a Bill on terrorism and up to now she has not given us a satisfactory response". She went on to suggest the motivation in that regard. She said: The clause has been tacked on as a sop to certain sections of Muslim opinion that have long wanted such protection. It is an anomaly and it should not be in the Bill; wrong clause, wrong Bill. The Lords were right to strike it down".—[Official Report, Commons, 12/12/01; col. 934.] I hope that we shall do so again.

We do not doubt that there are gaps in the legislation on ethnicity and religion. Equally, fundamental gaps exclude the Muslim community from discrimination on religious grounds. Events in Bradford, Burnley and Oldham have demonstrated why it is important to look at the subject in its totality; the Government should not simply pick and mix what suits them.

We insist on what we said previously in your Lordship's House. The Government would have our full support if such legislation were separate from the anti-terrorism legislation. A law is more effective if it commands the respect of all our citizens.

5.45 p.m.

The Lord Bishop of Southwark

My Lords, it would not be very helpful if I rehearsed once more why I believe that all of the clauses in Part 5, including Clause 39, should remain in the Bill. I simply say that I believe that the outlawing of incitement to religious hatred should be a basic protection that is given to people of all faiths, particularly those in minority groups. The draft guidance, particularly paragraph 5.3, helpfully clarifies the offence.

Noble Lords have been patient on previous occasions in listening to my arguments; the majority vote then went the other way, as it might well do this evening. I hope that noble Lords will not support Amendment No. 23B. The noble Lord, Lord Campbell of Alloway, quoted my friend the right reverend Prelate the Bishop of Birmingham who suggested that an attack on Islam is an attack on Asian people. That may often be the case, but it is not always so. On Report, I referred to the way in which white racist groups were using attacks on Islam—and on Sikhs and Hindus—to divide minority ethnic communities. The perception of mainline Islamic leaders is that Islamophobia is a real factor in British society, and that it has intensified since September 11th.

Many noble Lords on all sides of the House argued that religious hatred and religious discrimination should be tackled thoroughly and tackled soon. I do not hide from noble Lords the fact that those mainline faith leaders—of all faiths—who have argued long and hard for many years for just such legislation will take some convincing of the fact that refusal to support the legislation on the basis that better legislation could be produced in future might not be a way in which to avoid dealing with a difficult and delicate issue. That issue will be of increasing importance in years to come. A bird in the hand is worth many promises of innumerable and beautiful birds in future bushes.

I hope that Part 5 of the Bill, in its entirety—

Lord Maclennan of Rogart

My Lords, in an earlier speech, the right reverend Prelate made those points and asserted that he speaks for what he calls mainline leaders of all faiths. I hope that since he made those assertions he has learnt from the leaders of a number of Christian Churches in Scotland that they profoundly disagree with him and do not believe that he has the right to claim such authority.

The Lord Bishop of Southwark

My Lords, the authority that I claim is simply my own. That applies to every Member of this House. The members of the House of Bishops may not agree with it, and that may be the case in relation to other noble Lords.

Lord Goldsmith

My Lords, my understanding is that this part of the legislation will not apply in Scotland.

The Lord Bishop of Southwark

My Lords, nevertheless this is a serious intervention and I wish to deal with the point. For the past 10 years I have represented the Church of England on the Inner Cities Religious Council. That council is a bridge body between the mainline Churches and main faiths in Britain and the Department of Environment, Food and Rural Affairs. I suggest that over those 10 years the people elected to those bodies have represented better than any other body the main feeling of the faiths in this country, including religious denominations. I am also the co-chair of the Inter Faith Network for Britain, including Scotland. We meet regularly with leaders from all the main faiths in this country. Before taking part in this debate, I checked with all those faith leaders to ensure that they thoroughly support the legislation before your Lordships' House. I said that in an earlier debate.

I hope that Part 5 of the Bill survives in its entirety, including Clause 39. I hope that tonight it survives the machinations of votes in this House and in the other place. If, however, at the end of the day the legislation on religiously aggravated offences alone remains as part of the Bill, that at least will be a modest gain and will provide something on which we may build in the years to come. However, I hope that Parliament will do better than that this evening and also preserve the outlawing of incitement to religious hatred.

Therefore, I shall vote against Amendment No. 23B, although I shall probably be in a minority. But noble Lords who intend to vote for it are honourable people who, I trust, will honour their words which have been placed on record during the various stages of the Bill. I trust that a new Bill concerning religious discrimination will be brought before your Lordships' House next year. There will indeed be support for such legislation, as promised by Conservative, Liberal Democrat, Labour and Cross Benches in this House.

Lord Rooker

My Lords, in relation to what the right reverend Prelate says, for the avoidance of doubt there is no promise of such a Bill. There is no prospect of any legislation on this issue in this Parliament. I must make that clear. Such a promise has not been made. It may have been implied in various speeches, but I can assure the right reverend Prelate that, so far as concerns the Government, there will no space for such legislation in this Parliament.

The Lord Bishop of Southwark

My Lords, that is helpful clarification. I believe that it intensifies my earlier expressed view that a bird in the hand is worth two promised birds in bushes. Voices from all sides of the House have indicated or anticipated that such a thought-out Bill would be introduced within the next 12 months or so if we did not deal with the issue this evening. I am not totally surprised that that may not be so. Therefore, we may have to wait many years before we ascertain the cash value of some of the promises of support that have been made for such a Bill. Certainly, tonight or in the future we on these Benches would wish to continue to play an active and constructive part in all such deliberations.

Lord Elton

My Lords, whether a bird in the hand is worth more than two in the bush depends very much on what the bird does when it is in one's hand. The point that I want to make to the right reverend Prelate is that those of us who urge caution at this stage are not against legislation but we are against bad legislation. We were advised 48 hours ago, I believe, that we should repose our confidence in the guidelines that were to be brought out. I have them in my hand.

Your Lordships will remember the concern expressed that this legislation should not be used maliciously to persecute people who were evincing legitimate religious views and silencing them. We were told that the guidelines were a protection against that. Presumably the complaint by the person who wishes to harass the person making the genuine religious point is made to the police. In paragraph 3.1 of the guidelines we find that: Certain steps can be taken by the police, for example to investigate, to arrest and even to charge, without the need to obtain prior consent from the Attorney General". Therefore, the guidelines give no protection whatever from that type of harassment.

I have had the guidelines in my hand only for four or five minutes. They cause me to remember that I was in the Home Office for three years during which time an intelligent section of the staff was busy making a permanent search for an interpretation and legal definition of the word "religion". They did so without success. I believe that that has persisted long since. In paragraph 5.6 we find that: Some have speculated whether particular named groups could be said to be defined by a religious belief". I leave out some words. The paragraph then goes on to say that, a difficult decision may have to be taken by the Attorney General when deciding whether to grant consent. Such cases will have to he considered on their merits as and when they arise". In other words, it will be subjective.

I wish to demonstrate only that there may be a myriad of points which we cannot possibly discover in the process we are now going through. That is what I am trying to say to the right reverend Prelate. I am not opposed to the protection that he wants to give, but I do not believe that this is necessarily or, indeed, likely to be the right means.

My final point is that we were given an emotive and touching example by the noble Lord, Lord Rooker, I believe at Report stage, of an unfortunate Muslim woman who had the horrific experience of being harassed on the grounds of her religion. But I find in paragraph 5.5 that, victims of the conduct, against whom the accused intends to stir up hatred or against whom hatred is likely to be stirred up, must be a group defined by their religious or lack of religious belief". Therefore, it seems that here again there is a lacuna in a document which, if it were to be dealt with in Committee in this House, might emerge effective but, I submit, will not do so in the process in which we are engaged. I believe that we should remove this clause as proposed.

Lord Lester of Herne Hill

My Lords, I should have much more sympathy for the speech of the right reverend Prelate if, after the Law Commission recommended it many years ago, he and his colleagues had decided that the offence of blasphemy should be abolished. Had that been the position, it would have made it much easier to consider this offence.

The Lord Bishop of Southwark

My Lords, I thank the noble Lord for giving way. I made clear on Report that, if this legislation saw the statute book, we on these Benches would be more than ready to see the disappearance of the law on blasphemy.

Lord Lester of Herne Hill

My Lords, I am grateful to the right reverend Prelate. The difficulty about that is that the Minister indicated just now that he does not anticipate that there will be any further legislation in the foreseeable future.

That leads me to my second point. If there really were an emergency or a pressing need for this legislation in the context of anti-terrorism, one could be perfectly sure that the Government would bring forward legislation early after Christmas in order to deal with it. But that is not the position for the following main reason. In so far as we are dealing with victim-orientated crimes, the existing criminal law is more than adequate to cope, as I believe the Attorney-General recognises. Such crimes are covered by Sections 4 and 4A of the Public Order Act and various sections of the Protection from Harassment Act. As the noble Lord, Lord Campbell of Alloway, indicated, the addition of religiously aggravated hatred offences to this Bill will, in some cases, greatly increase, for example, the maximum period of imprisonment. Therefore, as I understand the position, it is only where there is a lack of an individual victim—the Attorney-General gave the leaflet example—that a gap in the criminal law arises.

The third point that I want to raise concerns the guidelines. We are grateful to the Attorney-General for burning the midnight oil and producing the guidelines. I am bound to say with great respect that they beg more questions than they answer. I want to mention two or three examples to begin with, having had them in my hand only for about quarter of an hour. First, the heading to the guidelines includes the words, The expression of … religious beliefs". It does not deal, as it is meant to, with lack of religious beliefs. Secondly, it refers to the expression of "legitimate religious beliefs". For the life of me, I do not understand the difference between a legitimate religious belief and an illegitimate religious belief. Thirdly, it does not make clear in this context the right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The European Court has said over and again that freedom of expression protects not only the views with which most reasonable people will agree, but also those that shock, offend or disturb any section of society.

If one takes that as a guide, it gives a totally different impression from this document, which uses language which I am bound to say leaves more of a question mark in my mind about whether free speech would be effectively protected than otherwise. That is no criticism of the Attorney-General, who had the impossible task of trying to produce, in a hurry, guidance that will comply with Article 10 of the convention. With great respect, I do not believe that he has been able to do that. That is a further reason for wanting to abide by our previous decision.

6 p.m.

The Lord Bishop of Wakefield

My Lords, the views of my noble friend the Bishop of Southwark are highly respected among his colleagues within the Church of England, in other denominations and other faiths. However, not all members of the Church of England, other denominations or other faiths agree with everything he says. Nor would he expect them to. He said that we on these Benches are not under any kind of Whip. That is also true.

I agree with many of the comments he made tonight to your Lordships' House. However, listening to the debate and having read the earlier debates in Hansard, it seems to me that, although the intentions of the Government are genuine and well intended, the issues which surround these religious matters are of such sensitivity and complexity that they merit much more careful teasing out.

The Minister made the point that there may be no time in the present Session of Parliament for any such further legislation. Nevertheless, I agree with the noble Lord, Lord Elton: better that than for legislation to be rushed through. Although I hesitate to disagree with my colleague on these Benches on this issue, I feel I must vote against the Government.

Lord Renwick of Clifton

My Lords, I do not want to prolong your Lordships' debate, and I do not speak often in your Lordships' House. However, in common with many people outside this House, I have found it frankly incredible that the noble Lord, Lord Campbell of Alloway, and Opposition spokesmen should suggest, or appear to suggest, that there may be no connection between incitement to religious hatred and terrorism. The purpose of banning incitement to religious hatred obviously is to afford protection for minority communities in this country, including the Islamic community. However, it is also a matter of fact that over the past decade and more, a number of extremely radical Islamic spokesmen, mainly clerics, have sought refuge in this country as asylum seekers. They have been granted political asylum, notwithstanding the fact—indeed, because of it—that they were wanted for terrorist offences, and still are, in Jordan, Egypt and Saudi Arabia. Those same spokesmen, who in some cases are avowed Al'Qaeda sympathisers, have used our hospitality to preach Holy War; to seek to raise finance for Holy War; and to recruit people for Holy War.

I find that state of affairs deeply disquieting, as do most people outside this House. So, clearly, do our colleagues in the other place. It is because I believe that there is a connection between incitement to religious hatred and terrorism that I intend to support the inclusion of Clause 39 in the Bill. I hope that others will also do so.

Lord Goldsmith

My Lords, I start by acknowledging that it is a good thing that the House has left in the Bill religiously aggravated offences, an extended definition of racial hatred and the extension of the penalty. I was the one who referred emotively on Report to the example of the young woman. The noble Lord, Lord Rooker, should not be accused of that. Unless your Lordships accepted, as they did, after I had made that point that there can be religiously aggravated offences, the additional feature of a religious element in that case could not have been taken into account in there being a new offence.

However, despite that, I remain of the view that there will be a gap in our protection for vulnerable parts of our community if we do not include incitement to religious hatred. I know the mood of the House. I shall deal briefly with the main points raised in the shortest of summaries. The noble Lord, Lord Campbell of Alloway, says that the guidance which I have provided is a strange precedent. I have tried to assist noble Lords and another place by indicating certain matters in relation to the offence. It is not a case of the law being set by the Attorney-General. I have made that extremely clear, as does the guidance.

Publishing guidance as to the basis upon which prosecutors will act is not unprecedented. What may be unusual is to include the reference in the Bill. However, again, I am unrepentant about that. Secondly, what is the hurry? The hurry is clear. There is a connection with September 11th. Anyone who has read the appendix to the report of the Select Committee on Home Affairs from another place will see a number of incidents—I referred to some on Report—which show that since September 11th attacks on particular parts of the community have increased. My noble friend the Minister indicates that the choice is now or certainly not soon in order to deal with this.

To argue that there are defects in the Bill without proposing changes undermines the argument that the Bill is wrong as it stands. There is a gap. The noble Lord, Lord Lester, was good enough to acknowledge that the sort of thing with which we cannot deal under existing public order offences which are victim orientated is offensive literature. I have seen some of that—noble Lords may have seen it—directed against particular groups, some on websites. If it is directed against Jews or Sikhs it is criminal. If it is directed against Muslims we cannot prosecute it as incitement to racial hatred.

Lord McNally

My Lords, I thank the noble and learned Lord for giving way. The Minister indicated that this is Hobson's choice. It is a government decision not to bring forward legislation. However, as we have proved with the tobacco advertising Bill, there are other ways to bring legislation to this House. In answer to the right reverend Prelate we would bring forward legislation on these matters and defy the Government to frustrate it.

Lord Goldsmith

My Lords, I am grateful to the noble Lord for what he says. As noble Lords have rightly said, we have spent time on this provision. From our point of view we have spent time trying to explain why the offence as it stands, using exactly the same formula as for incitement to racial hatred, would not give rise to the problems to which some noble Lords have referred. I am of the view that those who have been concerned about the expression of one's own religious belief and criticism of someone else's religious belief should be—and I hope will be—reassured by what is said in this House and in the guidance. That was the reason.

At the end of the day noble Lords have a choice. I can do nothing better than remind noble Lords of what was said by the right reverend Prelate the Bishop of Southwark. He said that this is an opportunity to provide basic protection for all. The figures may well demonstrate that it will not be an offence which will be prosecuted every day or every week up and down the country. Noble Lords may think that that is a reassurance. It is an opportunity to give a clear message; to give a protection now; and to put a stop to the kind of pernicious message which can incite and result in attacks on the train or in any part of the community. Therefore, I hope that noble Lords will not support the amendment of the noble Lord, Lord Campbell of Alloway.

Lord Campbell of Alloway

My Lords, I thank all noble Lords who have spoken on the amendment and, in particular, the right reverend Prelate the Bishop of Southwark. I want him to understand that I am most assuredly anxious not to cause him any offence at all. I simply say that when he says, "Oh, incitement to religious hatred is offensive, therefore criminalise it", that lacks logic. It lacks common sense. I wanted to say that without causing any offence. I am grateful to the other right reverend Prelate for his views, which set the scales more evenly balanced on the spiritual Benches.

On Report I called the Attorney-General's guidelines amendment a fudge. Having seen it, it is a meretricious fudge. It is an absolute nonsense. It is not of the slightest use to anyone. It states what one can pick up from any down town solicitor if one asked him where he would stand on the general principles of a prosecution. In the guidance, what is the nature of the conduct? Paragraph 5.3 states: A person does not commit an offence of incitement to religious hatred unless: (1)) He uses threatening or abusive or insulting words or behaviour", and so on. There is a packet of offences in the criminal law dealing with that. Then if one has the religiously aggravated situation, which your Lordships were good enough to forge on to the system, one has seven years.

What is wrong with that? Why do we have to fiddle around with an issue which, as the right reverend Prelate said, is enormously sensitive?

6.14 p.m.

The Deputy Speaker (Viscount Allenby of Megiddo)

My Lords, the original Question was that the House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill. Since when an amendment has been moved to leave out the words after "House" and to insert "do insist on its Amendment No. 23" to which the Commons have disagreed. The Question is that this amendment be agreed to.

Their Lordships divided: Contents, 234; Not-Contents, 121.

Division No. 2
CONTENTS
Aberdare, L. Craigavon, V.
Ackner, L. Crickhowell, L.
Addington, L. Cumberlege, B.
Alton of Liverpool. L. Dahrendorf, L.
Ampthill, L. Darcy de Knayth, B.
Anelay of St Johns, B. Deedes,L.
Arran, E. Denham, L.
Ashcroft, L. Dholakia, L.
Ashdown of Norton-sub- Dixon-Smith, L.
Hamdon, L. Donaldson of Lymington, L.
Astor, V. Eccles of Moulton, B.
Astor of Hever, L. Elles, B.
Attlee, E. Elliott of Morpeth, L.
Baker of Dorking, L. Elton, L.
Barker, B. Emerton, B.
Beaumont of Whitley, L. Ezra, L.
Biffen.L. Falkland, V.
Blackwell, L. Feldman, L.
Blaker, L. Ferrers, E.
Bledisloe, V. Flather, B.
Boardman, L. Fookes, B.
Boothroyd, B. Forsyth of Drumlean, L.
Bowness, L. Fraser of Carmyllie, L.
Brabazon of Tara, L. Freeman, L.
Bradshaw, L. Gardner of Parkes, B.
Bridgeman, V. Geddes, L.
Brigstocke, B. Glenarthur, L.
Brooke of Sutton Mandeville, L. Glentoran, L.
Brougham and Vaux, L. Goodhart, L.
Burnham, L. Goschen, V.
Burns, L. Greaves, L.
Buscombe, B. Greengross, B.
Byford, B. Greenway, L.
Caithness, E. Hamwee, B.
Campbell of Alloway, L. Hanham, B.
Campbell of Croy, L. Harris of Richmond, B.
Carlisle of Bucklow, L. Haslam, L.
Carnegy of Lour, B. Hayhoe, L.
Carr of Hadley, L. Henley, L.
Carrington, L. Higgins, L.
Cavendish of Furness, L. Hodgson of Astley Abbotts, L.
Chadlington, L. Hogg, B.
Chalfont, L. Holdemess, L.
Chalker of Wallasey, B. Holme of Cheltenham, L.
Chan, L. Home, E.
Clement-Jones, L. Hooper, B.
Cobbold, L. Howarth of Breckland, B.
Coe, L. Howe, E.
Cope of Berkeley, L. [Teller] Howe of Aberavon, L.
Craig of Radley, L. Howe of Idlicote, B.
Howell of Guildford, L. Peston, L.
Hunt of Wirral, L. Phillips of Sudbury, L
Hurd of Westwell, L. Platt of Writtle, B.
Jacobs, L. Plumb, L.
Jeger, B. Plummer of St. Marylebone, L.
Jellicoe, E. Quinton, L.
Jenkin of Roding, L. Rawlings.B.
Jopling, L. Razzall, L.
Kennedy of The Shaws, B. Rea, L.
Kimball, L. Reay, L.
King of Bridgwater, L. Redesdale, L.
Kingsland, L. Rees, L.
Kirkham, L. Rees-Mogg, L.
Knight of Collingtree, B. Rennard. L.
Laing of Dunphail, L. Renton, L.
Laird, L. Renton of Mount Harry, L.
Lamont of Lerwick, L. Roberts of Conwy, L.
Lane of Horsell, L. Rodgers of Quarry Bank, L.
Lang of Monkton, L. Roper, L. [Teller]
Lester of Herne Hill, L. Rotherwick, L.
Linklater of Butterstone, B. Russell, E.
Listowel, E. Saatchi, L.
Liverpool, E. St John of Fawsley, L.
Livsey of Talgarth, L. Saltoun of Abernethy. Ly.
Lucas, L. Scott of Needham Market, B.
Lyell, L. Seccombe, B.
McFarlane of Llandaff, B. Selbome, E.
MacGregor of Pulham Market, Selsdon, L.
L. Sharman, L.
Maclennan of Rogart, L. Sharp of Guildford, B.
McNally, L. Shaw of Northstead, L.
Maddock, B. Shrewsbury, E.
Magjnnis of Drumglass, L. Shutt of Greetland, L.
Mallalieu, B. Skelmersdale, L.
Mancroft, L. Slim, V.
Mar and Kellie, E. Smith of Clifton, L.
Marlesford, L. Stem, B.
Masham of Ilton, B. Stevens of Ludgate, L.
Mayhew of Twysden, L. Stewartby, L.
Methuen, L. Stoddart of Swindon, L
Miller of Chilthorne Domer, B. Strange, B.
Miller of Hendon, B. Strathdyde, L.
Molyneaux of Killead, L. Swinfen, L.
Monro of Langholm, L. Taverne, L.
Monson, L. Tebbit, L.
Montagu of Beaulieu, L. Tenby, V.
Montrose, D. Thomas of Gresford, L.
Moore of Lower Marsh, L. Thomas of Swynnerton, L.
Morgan, L. Thomas of Walliswood. B.
Moynihan, L. Thomson of Monilieth, L.
Murton of Lindisfame, L. Tope, L.
Naseby, L. Trefgame, L.
Newby, L. Trumpington, B.
Nicholson of Winterbourne, B. Tugendhat, L.
Noakes, B. Vivian, L.
Northbourne, L. Wakefield, Bp.
Northbrook, L. Wakeham, L.
Northesk, E. Wallace of Saltaire, L.
Northover, B. Walmsley, B.
Norton of Louth, L. Watson of Richmond, L.
O'Cathain, B. Wigoder, L.
Oakeshott of Seagrove Bay, L. Wilberforce, L.
Onslow, E. Wilcox, B.
Oxfuird,V. Williams of Crosby, B.
Park of Monmouth, B. Williamson of Horton, L.
Pearson of Rannoch, L. Willoughby de Broke, L.
Peel, E. Windlesham, L.
Perry of Southwark, B. Wright of Richmond, L.
NOT-CONTENTS
Acton, L. Andrews. B.
Ahmed, L. Archer of Sandwell, L
Allenby of Megiddo, V. Ashley of Stoke. L.
Alii, L. Ashton of Upholland, B.
Amos, B. Attenborough, L.
Avebury, L. Howie of Troon, L.
Bach, L. Hoyle, L.
Bassam of Brighton, L. Hughes of Woodside, L.
Berkeley, L. Hunt of Chesterton, L.
Bernstein of Craigweil, L. Hunt of Kings Heath, L.
Bhatia, L. Irvine of Lairg, L. (Lord
Billingham, B. Chancellor)
Blackstone, B. Janner of Braunstone, L.
Borrie, L. Jay of Paddington, B.
Brooke of Alverthorpe, L. Jones, L.
Brookman, L. King of West Bromwich, L.
Brooks of Tremorfa, L. Lea of Crondall, L.
Bruce of Donington, L. Lipsey, L.
Burlison, L. Lockwood, B.
Campbell-Savours, L. Macdonald of Tradeston, L.
Carter, L. [Teller] Mclntosh of Haringey, L.
Castle of Blackburn, B. [Teller]
Chandos,V. Mclntosh of Hudnall, B.
Chorley, L. MacKenzie of Culkein, L.
Christopher, L. Massey of Darwen, B.
Clarke of Hampstead, L. Merlyn-Rees, L.
Clinton-Davis, L. Milner of Leeds, L.
Condon. L. Mitchell, L.
Corbett of Castle Vale, L. Morgan of Huyton, B.
Crawley, B. Nicol, B.
David, B. Paul, L.
Davies of Coity, L. Pendry, L.
Davies of Oldham, L. Pitkeathley, B.
Dean of Thornton-le-Fylde, B. Puttnam, L.
Dormand of Easington, L. Radice, L.
Dubs, L. Ramsay of Cartvale, B.
Elder, L. Randall of St. Budeaux, L.
Evans of Parkside, L. Rendell of Babergh, B.
Evans of Temple Guiting, L. Renwick of Clifton, L.
Evans of Watford, L. Rooker, L.
Falconer of Thoroton, L. Sainsbury of Turville, L.
Farrington of Ribbleton, B. Sawyer, L.
Faulkner of Worcester, L. Scotland of Asthal, B.
Filkin, L. Sewel, L.
Fyfe of Fairfield, L. Simon, V.
Gale, B. Southwark, Bp.
Gibson of Market Rasen, B. Stone of Blackheath, L.
Gilbert, L. Strabolgi, L.
Gladwin of Clee, L. Symons of Vernham Dean, B.
Golding, B. Taylor of Blackburn, L.
Goldsmith, L. Thornton, B.
Gordon of Strathblane, L. Tomlinson, L.
Goudie, B. Turner of Camden, B.
Gould of Potternewton, B. Varley, L.
Graham of Edmonton, L. Wedderbum of Charlton, L.
Grenfell, L. Whitaker, B.
Grocott, L. Whitty, L.
Harris of Haringey, L. Wilkins, B.
Hayman, B. Williams of Elvel, L.
Hilton of Eggardon, B. Williams of Mostyn, L. (Lord
Hollis of Heigham, B. Privy Seat)
Howells of St. Davids, B. Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.27 p.m.

Lord Carter

My Lords, before moving to the next amendment, I point out that we still have four important groups of amendments to the Bill to discuss. They all concern subjects that have been discussed in great detail during the eight days allocated to the Bill. We also have the Third Reading of the Office of Communications Bill, two important health orders and an Unstarred Question. We must also deal with the Commons Message. I need say no more—I hope that your Lordships have got the message.