Public Order Bill

HL Deb 21 October 1986 vol 481 cc167-81

3.8 p.m.

The Minister of State, Home Office (The Earl of Caithness)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill in respect of Clauses 17 to 29 and Schedules 2 and 3.

Moved, That the House do now resolve itself into Committee (on recommitment).—(The Earl of Caithness.]

On Question, Motion agreed to.

House in Committee (on recommitment) accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 17 [Meaning of "racial hatred"]:

Lord Elwyn-Jones moved Amendment No. 1: Page 12, line 21, at beginning insert ("(1)").

The noble and learned Lord said: Members of the Committee may think that Part III of the Bill is rightly directed against the stirring up of racial hatred, and the Committee may think it is right that provision should be made against that in a Bill dealing with public order. In a plural society such as ours, where groups of persons of different colour, race, nationality or ethnic or national origins live often close together on this crowded island, the stirring up of racial hatred, whether intended or likely, is a very serious matter and almost bound to lead to public disorder or worse. It has indeed all too frequently been a crucial factor in the disorders in some of our inner cities.

Clause 17 of the Bill spells out the meaning of "racial hatred". It reads: In this Part 'racial hatred' means hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins".

The question raised in the two amendments which we are considering together—Amendments Nos. 1 and 2—is whether the definition suffices and must include gypsies. It is in order to obtain the views and intentions of the Government on this matter that my noble friends and I have put down this amendment.

It has the support of the Commission for Racial Equality. As members of the Committee know, the functions of that important commission are laid down in the race Relations Act and are: to work towards the elimination of discrimination; to promote equality of opportunity, and good relations, between persons of different racial groups". The Act of 1976 further provides that "racial group" means: a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls". The view of the commission is that the gypsies, for the purposes of that definition, are an ethnic group. The treatment of gypsies as an identified group shook Europe during the Nazi period. Thousands and thousands of gypsies were murdered in the name of racial purity. They were identified, and they were murdered en masse in that appalling campaign of genocide.

The question of whether gypsies are a racial group was considered judicially by this House in 1983 in the case of Mandla v. Dowell Lee. That case was concerned with whether Sikhs are a racial group for the purposes of the Race Relations Act. The noble and learned Lord, Lord Fraser, in his speech in that case—and it is reported in 1983 Appeal Cases—set out certain characteristics to be met by a group for it to constitute an ethnic group. His words were: For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more will be commonly found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which keeps it alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community".

One of the leading academic authorities on gypsies, Dr. T. A. Acton, has accepted the proposition of the common origin of the gypsies and their distinct languages from a common root. A week or so ago in the Tube train I was interested to hear two ladies speaking in a language that I could not easily identify—I know one or two—and I asked what it was. They said "Gypsy language"; they have their language.

Their "long shared history", as Dr. Acton writes, in the British Isles may be traced to the 13th century. They first featured in legislation in an Act of King Henry VIII of 1514. Their common cultural tradition and customs deriving from their nomadic life style are common knowledge.

The only other statutory provision to which I ought to refer is in the Caravan Sites Act 1968. It provides a definition of gypsies as: persons of nomadic habit of life, whatever their race or origin", and is thus, for the purposes of our present task of construing Section 16, irrelevant.

The only other modern legal authority on gypsies is the case of Mills v. Cooper in the Divisional Court in 1967. It considered the word in the context of the Highways Act 1927, which has been repealed and now mainly replaced, but without reference to gypsies. The court in that case was unable to accept that the word "gypsy" meant "race", because that, in the context of that Act, would have been discriminatory.

Lord Diplock defined the meaning of "gypsy" in that case as: A person without fixed abode who leads a nomadic life dwelling in tents or other shelter or in caravans or other vehicles"— a view broadly shared by Lord Chief Justice Parker. But in Mandla's case the noble and learned Lord, Lord Fraser, as I have said, stated that "ethnic" is more than strictly racial.

The Public Order Bill language is identical with that of the 1976 Act in this part of it. However, it appears that in the Public Order Bill the view has been taken by the Attorney-General, on the advice of the Director of Public Prosecutions, that he is not prepared to accept that gypsies are a racial group for the purposes of this provision, relying on the case of Mills v. Cooper dealing, I submit, with a different issue and a different situation.

The Commission of Racial Equality certainly wishes to go on record that it disagrees with that view. But the present situation is that over a third of the complaints that the CRE receives about hate literature relate to gypsies. They are among the most abused and insulted people in this country. Indeed, it says that often the language is cruder and more offensive than literature relating to Blacks or Jews which has been, or is being, prosecuted.

It says further that it receives about 100 complaints about published material most years and a great many of those relate to the gypsies. I shall not cite them: it would only encourage possible imitation.

In Mandla's case Lord Fraser extended the group definition by adding: A group defined by reference to enough of these characteristics"— which I have quoted— would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member". That would help in dealing with the problem of distinguishing between gypsies and other itinerants, although it is the opinion, and the product of the research, of Dr. Atkins that about 90 per cent. of all itinerants are in fact of gypsy stock. Therefore there is here an important issue which in my submission the Committee should adjudicate upon.

The concern of the CRE has been reported to the Home Secretary who has suggested that perhaps an administrative solution could be discovered which would leave the law to be clarified at some future time. I submit that this Bill is a suitable vehicle and is indeed suitably timed for this matter to be dealt with, for the law to be clarified and put beyond peradventure by the amendment I have suggested to Clause 17, that for the purposes of Part III of the Bill gypsies are a group. I beg to move.

Baroness Faithfull

I wonder whether I might ask the noble and learned Lord for clarification? Those of us who, under the Gypsies Act, have been involved in setting up gypsy sites through local government, have always felt very confused because there is a big difference between gypsies and tinkers or travellers. They are quite different sets of people with different backgrounds, coming from different places and behaving in quite a different way. I am a little confused. The noble and learned Lord says "gypsies and other itinerants", and he said that 90 per cent. were gypsies. Those of us in local government who have had to supply a gypsy site have discovered that the people concerned were not gypsies: they were travellers. Gypsies do not like being confused with the travellers and the travellers do not like being confused with the gypsies.

Lord Somers

While the motives behind the noble and learned Lord's amendment are of the highest, I think sometimes some of us are apt to forget that we, the English people, are also a race. The hatred against the English people, which is displayed sometimes by some of the minority groups which have come into our country, seems to go completely unnoticed. I draw the Committee's attention to the recent action in one North London borough where spies—not English spies, obviously—are to be introduced into the schools to detect any possible chain of what might perhaps be called racial prejudice. Lack of racial prejudice is an ideal that we must all hope for, but we shall never get it until it is mutual on both sides.

The Earl of Caithness

The noble and learned Lord, Lord Elwyn-Jones, raised the very important question of the application of Part III to the gypsy community. Indeed he has referred to the representations on this issue made to my right honourable friend the Home Secretary by the Commission for Racial Equality. Some members of the Committee may have received a circular letter from the commission, urging support for an amendment to incorporate a similar declaratory provision to that proposed by the noble and learned Lord. I appreciate that the noble and learned Lord's amendment is intended for the purposes of clarification, but I regret to have to tell him that I can not support it.

There is no doubt that some sections of the gypsy community are of different ethnic origins. Those of traditional Romany origins are, I believe, an example of such a group. Indeed, I believe that they would fit the characteristics described by the noble and learned Lord. Those who are of distinct ethnic origins will fall within the definition of a racial group as it stands in Clause 17. They will therefore benefit from the protection against incitement to racial hatred afforded to all racial groups by Part III. The noble and learned Lord's amendment will make no difference to this.

However, there is equally no doubt that some groups who have a similar lifestyle to that of gypsies are not of distinct ethnic origins: they are simply people who have chosen to live by travelling from place to place. My noble friend Lady Faithfull mentioned some of the problems that local authorities have with these people who try to be classed as gypsies but are not, and the gypsies find that they are not beneficial to their particular difficulties.

The Caravan Sites Act 1968 indeed defines "gypsies" as "persons of nomadic habit of life". To amend the definition of a racial group in Clause 17 as proposed by the noble and learned Lord whould therefore bring within the scope of the Bill at least some people who are distinguishable merely by lifestyle and not by racial group. This would extend Part III beyond incitement to racial hatred, and I do not think that we should do so.

Althought we find repugnant offensively expressed views about any group or individual, that is not the concern of the criminal law. Since legislation to deal with incitement to racial hatred was first introduced in 1965, successive Governments have taken the view that it is only the specific mischief of incitement to racial hatred which justifies a separate criminal offence. I do not think we should depart from that discipline.

The noble and learned Lord has referred to the disquiet expressed by the Commission for Racial Equality about what it sees as the difficulties involved in bringing a prosecution for material concerning gypsies. I understand that there have been useful discussions between the CRE and the DPP's office about this, and those discussions are continuing. One of the difficulties in bringing prosecutions is that some material is directed against individual groups of travellers rather than against gypsies as a racial group. As I have said, if such material is directed against genuine gypsies it would be caught. Therefore the noble and learned Lord's amendment would not help them in this respect. Those gypsies who are a distinct racial group will be protected by Part III as it stands. The amendment will make no difference to that. We are not persuaded that Part III should be extended to cover other itinerants and travellers.

Lord Elwyn-Jones

It seems to be conceded by the noble Earl that gypsies are and can be an identifiable ethnic group. If that is so, why should they not be provided for in the Bill to remove this confusion which presently exists between those who are so identified and the tinkers, to use the word that has been used, and itinerants who may not necessarily be gypsies—although according to the research about 90 per cent. of them are? This obscurity and indefiniteness is causing much concern to the perfectly well behaved law-abiding gypsies. They have had too much recent European experience of being exposed and unprotected; not that I am for a moment comparing anything of the kind that happened in Nazi Germany with what would or could happen here.

I wonder whether the noble Earl will consider this again in view of the anxieties expressed not only by me but by the Commission for Racial Equality which is in close touch with the gypsies?—perhaps I should say the genuine gypsies, who are a genuine ethnic group who can be so described and so identified. If the noble Earl will be good enough to say that he will at least look at this again and perhaps if necessary, consult some of the representatives of the gypsies, I should be quite content with the fact that I have raised this matter for the Committee's consideration. Perhaps the noble Earl will be kind enough to respond to my suggestion.

The Earl of Caithness

Of course I will look at this again, but without commitment. I fear that I shall not have good news for the noble and learned Lord because this matter has already been looked at in some considerable depth. However, in view of his represent- ations, I shall happily take it away. I think he has absolutely put his finger on the pulse, which is to differentiate between genuine gypsies and those who portray themselves as gypsies when indeed they are not.

This, I believe, will be something for the courts to decide if the matter is pursued. We remain firmly of the opinion that the genuine gypsy, with the characteristics that the noble and learned Lord mentioned earlier, is already fully protected by Part III of the Bill, but I shall look at this matter again.

3.30 p.m.

Lord Pitt of Hampstead

Will the Minister bear in mind that the question does not really concern the technical fact of whether a person is a gypsy; it is whether or not he is treated as a gypsy and, as a consequence, having things said about him and them or done to them because they are being treated as gypsies. In the discussion which the noble Earl will have, I hope that he will bear that in mind and draw that particular fact to the attention of his advisers. For several years, I was chairman of the Campaign Against Racial Discrimination and we had to face this difficulty. We decided that we had to include the gypsies because they are being discriminated against. It does not really matter that the person was not necessarily a gypsy. He was being discriminated against because he was regarded as a gypsy.

Lord Elwyn-Jones

The problem is not so much that of the individual gypsy who may have some protection in the court, but the identification of the group as a whole as being outside the bounds of decent acceptability. I have had experience of the good faith of the noble Earl and I shall be content, in view of his assurance, eventually to withdraw the amendment.

Lord Renton

While admiring the good nature of this interesting and useful discussion, I feel bound to point out that if we single out one group, whether it be an ethnic group, a racial group or another, there are certain to be other groups eventually coming along who may feel that they, too, should have been included. Therefore, with great respect, I would utter a word of caution on this matter to my noble friend.

Lord Elwyn-Jones

That could well happen. It has happened in our country, in our community. New ethnic groups have been springing up all around us. We Celts have seen it happening over a thousand years or two thousand years! The original inhabitants have looked with dismay from time to time at the influx of Angles, of Saxons and of heaven knows whom. This ought to be looked at again, and I hope that it will be so.

Lord Roskill

If I may add a word or two, I was a party to the decision in the House which my noble and learned friend Lord Elwyn-Jones mentioned. The speech of my noble and learned friend Lord Fraser was drafted with enormous care and thought because so much difficulty had arisen in the past, particularly in the Birmingham area and in relation to Sikhs. Those of your Lordships who recall the case may remember that the Court of Appeal headed by the then Master of the Rolls, my noble and learned friend Lord Denning, had reached a totally different decision and it was a decision which, with great respect, was causing racial disharmony.

We hoped—and perhaps the hope was wrong—that we had achieved a definition which was going to work. Indeed, a number of the letters which my noble and learned friends and I received afterwards suggested that we had achieved a measure of success because one suggested that we ought all to be made honorary Sikhs—an honour which we very greatly appreciated. But however that may be, I respectfully suggest, with great respect to the noble Earl, that it cannot be right to leave the matter as it stands at the moment in the Bill. For the reasons I have just given, one has had this bitter experience of what happened three or four years ago over the Sikhs.

One fully sees the point made by the noble Baroness, Lady Faithfull, but if somebody is not a gypsy because he cannot bring himself within Lord Fraser's description, then he will not get the protection that the Act accords. Why not put the matter right, whether in the form that the noble and learned Lord, Lord Elwyn-Jones, suggests, or in some other form if that be acceptable to the Home Office. To leave it as it is, I respectfully suggest, is a source of danger for the future.

Lord Foot

If it is still the intention of the noble and learned Lord to withdraw this amendment, may I make a purely practical point? As I understand it, the noble Earl says that there is no need to worry because the genuine gypsy is already protected under the terms set out at the beginning of Clause 17. Consider this in a purely practical way. Supposing the law remains as it is, unamended, and supposing then that somebody makes an inflammatory statement about gypsies, or a section of gypsies; that it is decided to institute a prosecution and that comes before a magistrates' court, what are they going to make of the open words of this clause, if unamended?

Are they going to ask themselves whether gypsies are members of a race or an ethnic minority or a national minority? Will they come to the conclusion to which the noble Earl says that they ought to come; that is, as he says, that, clearly, they are protected by the Bill as it stands? I very much doubt whether a magistrates' court would come to that conclusion of a certainty. It might well be that the matter might turn upon the character of the particular magistrates' court from which the conclusion came. I would earnestly entreat the Minister to consider what has just been said by the noble and learned Lord, that it is very dangerous to leave this matter in the state of uncertainty in which it now stands.

The Earl of Caithness

I am grateful to all noble Lords and noble and learned Lords for taking part in this debate. I think it shows the wisdom of taking this matter away and having another look at it.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 17 agreed to.

Clause 18 [Use of words or behaviour or display of written material]:

Lord Monson moved Amendment No. 3: Page 12, line 25, after ("or") insert ("seriously").

The noble Lord said: As so much time has elapsed since we last debated Part III of this Bill in any detail, I think it right briefly to reiterate and enlarge upon some remarks that I made at an earlier stage so as to avoid any possible misunderstanding. Any deliberate stirring up of hatred is abhorrent, whether it be racial hatred, religious hatred, class hatred, hatred directed against non-striking miners or print workers or hatred against doctors, scientists and laboratory technicians engaged in medical research through the use of animals. All these forms of deliberately provoked hatred in this country in recent years have led to criminal damage, arson, injury and sometimes death.

Where we have to be very careful, in my submission, is in dealing with actions that are not specifically intended to stir up hatred but which somebody considers—and it can only be a subjective judgment, after all—may nevertheless do so inadvertently. Back in July, when I introduced similar amendments to Part I where I considered the safeguards which the word "seriously" provided to be equally vital, the noble Lord, Lord Glenarthur, tried to reassure me by pointing out that the word "insulting" has a different meaning in law from that which it has for the ordinary man in the street; that, in law, seriousness is implied, if not spelt out. In other words, in law, the word "insulting" is very close indeed to the word "abusive".

Having had some months to think about this, it seems to me that this argument is all very well; but is the average British juror likely to comprehend this somewhat technical point, as in the last resort it is the jury which is going to have to decide? The noble Earl, Lord Caithness, may well reply that the Bill incorporates a safeguard in the form of the Attorney-General, whose function it will be to filter out any frivolous or borderline cases. Such an argument is reassuring only up to a point. Obviously, under this Administration, or indeed any previous administration, whether Conservative or Labour, one could rely on such a safeguard.

But just look at the way things are going in this country. One of my nieces attends a state school in north London. Recently the word "blackboard" has been outlawed in that school. That word is deemed, for some obscure and tortuous reason, to be insulting to black people. Nearly everybody laughs at anti-racialist fanatics, but the fact is that the last laugh is on them because they are winning almost every single time; and so it goes on. One has only to think of the cases of Mr. Ray Honeyford and many other persecuted teachers.

The dedicated, skilful and hard-working men and women of the hard Left who have taken over local government in inner London and elsewhere most certainly aspire to take over national government before too long; and who can seriously imagine that they may not do so before the end of the century? In their hands, this Bill could be a most dangerous weapon and in theory it could, for example, lead to people being sent to prison for two years for telling Irish jokes in their backyard, if this Bill remains unamended.

I should add that if this amendment is successful I shall of course introduce consequential amendments to insert the word "seriously" in nine other places in Part III of the Bill. I should also like to do that in Part I on Third Reading, if Standing Orders so permit. I beg to move.

The Earl of Caithness

As the noble Lord, Lord Monson, said, this covers some old ground. The arguments he has put forward today are not dissimilar from those used earlier in Committee on 16th July, where they can be found in cols. 928 to 929. Without, I hope, offending the noble Lord—because his arguments are very similar—I shall be brief.

There are two elements to the offences in Part III. It must be shown not only that the words, gestures or written matter are threatening, abusive or insulting but also that they were intended or likely to stir up racial hatred. Both elements must be satisfied.

The noble Lord referred to the court's decisions. I again remind him of the two cases of Jordan v. Burgoyne and Brutus v. Cozens, where it was made abundantly clear that the test of what is insulting is indeed a stringent one. The words "threatening, abusive or insulting" have formed part of the offences of incitement to racial hatred ever since such offences were first introduced in the Race Relations Act 1965. There has been no evidence since then to suggest that the inclusion of "insulting" without qualification has caused any difficulties. We believe that the stringency of the tests already imposed adequately meets the noble Lord's concern. I listened carefully to what he had to say, but he has not persuaded me that we should change our minds on this particular point.

Lord Monson

I suppose I must be reassured to some extent by the noble Earl's reiteration of what was said and by his reference to the earlier Act, from which it appears that so far no untoward consequences have flowed from the non-inclusion of the word "seriously" or some similar qualification. Of course I am thinking about the future—not necessarily the near future but the medium to long-term future—rather than the past. However, the noble Earl's remarks are now on the record, as are those of his predecessor, the noble Lord, Lord Glenarthur. I think that in itself may tend to inhibit frivolous or borderline prosecutions in the future. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

Lord Monson moved Amendment No. 4: Page 12, line 26, after ("behaviour") insert ("towards a racial group in Great Britain").

The noble Lord said: With the leave of the Committee, I shall speak also to Amendment No. 5, which is consequential. These amendments reintroduce a safeguard which I believe—I cannot be certain—was in the original Bill before it went to Standing Committee in another place, though possibly the words I seek to reinsert are not totally similar.

As the Bill stands at the moment, somebody could be caught even though the individual or individuals they have allegedly insulted had never been anywhere near this country, if the individuals who made the remarks had been referring to corruption or cruelty in some other continent, for example. Indian friends of mine who, a few months ago, made some far from complimentary remarks about Sikhs while having coffee in my garden, following some terrorist outrage in the Punjab, might easily be caught, to give one instance. Alternatively, somebody could be caught if he insulted people belonging wholly or largely to another ethnic group in Great Britain and did so in a non-racial context. One thinks of Mr. Bernie Grant, who remarked, after a policeman had been brutally hacked to death, that the police got a damned good hiding. That remark was undoubtedly an insulting one and I think it almost certainly stirred up racial hatred, certainly among the indigenous population. All the same, I feel uneasy about the idea of sending people to prison for such a remark, however terrible, except in the most extreme circumstances.

People could also, as the Bill stands, be caught if they insulted people of their own ethnic group. If somebody were to make a vitriolic attack on those Members of Parliament who had resisted immigration control during the 1960s, thereby allowing hundreds of thousands of people to slip in under the barrier, he could well be accused of stirring up latent hatred by reopening the whole immigration controversy.

Finally, somebody could be caught, as the Bill stands, even if no individual or group of individuals were insulted at all. If the leader writer of a tabloid were to declare that multi-racialism is bunk—to paraphrase Henry Ford—or if a colleague on a more upmarket organ wrote rather more thoughtfully that multi-racial societies by and large do not work, no actual individuals or groups would be insulted. Yet opinions of that sort could be found highly insulting by people who are fervently committed to multi-racialism. I cannot believe it was intended that the various examples I have cited should come within the ambit of this Bill. I beg to move.

Lord Somers

Before the noble Earl replies, perhaps I may ask him to tell your Lordships whether, if these words were included in the Bill, we (the English people) are or are not a racial group in Great Britain.

Lord Hayter

While the noble Earl is thinking about that one, perhaps I may ask whether I am right in thinking that the words in this clause are governed by the words in Clause 17, where hatred is described as being against a group of persons in Great Britain and it applies to the whole of this section. Surely that is the answer—that so far as concerns the section we are talking about a crime against people in this country.

The Earl of Caithness

I have to tell the noble Lord, Lord Monson, that the words of his amendment, or indeed similar words, were not in the original Bill, and so I fear that his information on that matter is not quite correct. As the noble Lord said, these amendments would permit the offences in Clause 18 to apply only to words, behaviour or displays of written material which are threatening, abusive or insulting to a racial group in Great Britain. We believe this would limit the effectiveness of these provisions in dealing with offensive and inflammatory material.

The racial hatred which is intended or likely to be stirred up must of course be against a racial group in Great Britain. But these amendments would require the court to be satisfied in addition that the material or words in question were threatening, abusive or insulting towards a particular racial group in this country. Material which failed to meet that test would be exempt from the provisions of Clause 18, even though it might be threatening and might be intended, or likely, by its very nature to stir up racial hatred in this country. For example, material which was threatening in a general rather than a specific way or was threatening to a racial group outside this country would not be covered even if, because of its original tone and approach towards other races, that meant that its public order consequences might be the same as material which was threatening specifically to a racial group in Great Britain.

Our concern in this Bill is to prevent threats to public order in this country. We maintain the view, therefore, that if words are threatening, abusive or insulting, and if they pose a potential threat to public order because it is intended or likely to stir up hatred against a racial group in Great Britain, the persons using them should be caught by these provisions. We accept that most instances in which Clause 18 will apply would satisfy the doubly stringent test advocated by the noble Lord. At best then these amendments may be unnecessary. But there may be instances which would not be caught if they were carried but which would nevertheless have the likely or intended effect of inciting racial hatred in this country.

The existing racial incitement offences, and indeed those in other clauses in Part III, all proceed on the basis of leaving unqualified to whom the offending matter is threatening, abusive or insulting. We are not aware that the present law is cast too wide in criminalising conduct in this respect. We are here concerned with despicable conduct on the part of certain individuals. Their conduct seems to me no less reprehensible and would not necessarily exclude public order considerations, just because it is a group outside Great Britain for whom the words, behaviour or display is threatening, abusive or insulting.

As regards the point raised about the English being a racial group, we are indeed a racial group and the amendment does not affect that

Lord Monson

I apologise to the noble Earl for being wrong about what happened in another place. I was certain that in Standing Committee the Bill had been made more draconian or firmer (depending on your point of view) and I obviously am wrong concerning the point at which that happened. I am not nearly so reassured about the Minister's answer to this amendment as I was with his answer to the previous amendment. He has in mind certain individuals who, he says, are stirring up racial hatred, but from the way the clause is drafted it could catch all sorts of people who were not specifically intending to stir up hatred of any sort.

As I said on an earlier occasion, we have no problem with the words "abusive" and "threatening". They are clear-cut. However, the word "insulting" is incredibly subjective. I hope that none of the examples I cited will lead in practice to prosecutions. I know the noble Earl cannot give me an immediate answer but I wonder whether it will be possible, in the short time remaining between now and when we reach this point again at Report stage, to let me know either orally or in writing whether the four examples I quoted will be caught by the clause as it stands.

The Earl of Caithness

I shall look at those points, but I think it is up to the courts rather than me to advise the noble Lord.

Lord Monson

I see. I can only beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

The Chairman of Committees

I have to point out that if Amendment No. 6 is agreed to, I cannot call Amendments Nos. 7, 8 or 9.

Lord Silkin of Dulwich moved Amendment No. 6: Page 12, line 32 leave out from (" place ") to end of line 35.

The noble and learned Lord said: I beg to move Amendment No. 6 and with it, with the leave of the Committee, I will speak to Amendment No. 8, which is an alternative wording, and to Amendment No. 10, which is consequential. These amendments concern the place where offensive behaviour under Part III of the Bill can take place so as to be criminal. In the predecessor of this legislation, the Race Relations Act 1976, in Section 70, which inserted a new Section 5A into the 1936 Act, we had this position. A person committed an offence if he published or distributed written matter which was threatening, abusive or insulting—apparently anywhere—or used in any public place or any public meeting words which were threatening, abusive or insulting. That latter part was confined to a public place.

Clause 18 of the present Bill alters that situation and puts the two parts of the clause on a parallel footing. It does so by virtue of subsection (2), which provides that, An offence under this section may be committed in a public or a private place", and then goes on to create an exception to the type of place. It is that with which these amendments are concerned. The exception is: except that no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling". That is a rather complex exception and I move these amendments in order to seek the justification for that.

In particular what we have in mind is to understand the intention of the Government in the situation which could very well arise when a person who is inimical to a particular household (for the sake of argument, a black household) enters the house, either by leave or by force, and while inside it performs conduct which, had it been performed immediately outside the house, would have fallen within the wording of the clause as it now stands. Why in those circumstances should he have an immunity from criminal prosecution, whereas if the offence had been committed by shouting from the street he would evidently not have immunity? At the moment we do not understand the rationale behind that exception.

For that reason, the first amendment we have put down, No. 6, omits the exception altogether so that the offence could be committed either in a public or a private place. As to that, if it is considered that any real danger arises and that prosecutions may be brought inappropriately, there is a safeguard of the necessary consent of the Attorney-General before the prosecution can be brought.

Alternative to that is Amendment No. 8, in which we suggest that the person should be limited to one who is not a trespasser. I am not very enthusiastic about that as an alternative because it raises the awkward questions which we have discussed in relation to Clause 39 concerning who is and is not a trespasser. However, if the Government are prepared to swallow that camel in Clause 39 there is little reason to think that they will be unwilling to swallow the gnat in this clause. I beg to move.

Lord Donaldson of Kingsbridge

I should like to support Amendment No. 6 from these Benches. Let me give an instance which is rather at the opposite end to that of the noble and learned Lord, Lord Silkin. Suppose that I, sitting in a room in my house, have a deputation of gypsies coming to see me. I insult them; I say I have absolutely no time for the roving crowd, I cannot bear George Borrow as a writer and I want to have nothing to do with them at all. We have a fight. It seems to me that I am clearly guilty of exactly the sort of thing that we are trying to suppress. Therefore I cannot see that this clause ought to exist. The amendment, which takes out "inside a dwelling", is correct. I should like to know what the noble Earl has to say about it.

4 p.m.

The Earl of Caithness

To deal first with Amendments Nos. 6 and 10, we appreciate the concerns which have been expressed by the noble and learned Lord, Lord Silkin, and the noble Lord, Lord Donaldson, on these points. There is no doubt that the kind of behaviour which Clause 18 is designed to catch is reprehensible and undesirable wherever it takes place. That is why we rightly include both public and private places. However, the effect of these amendments would be to bring within the scope of the offences activities of a purely private nature, such as conversations and exchanges of opinion between friends. I know that noble Lords did not give those examples, but those are the sort of things that would be caught by these amendments.

It is not part of our intention in this Bill to limit freedom of thought and expression; we are concerned rather with threats to public order. I think therefore that it is right that people should be able to express their opinions to one another in their own homes, provided that their activities are not seen or heard outside where they may pose a threat to public order. Similarly, we think it is right that people expressing their opinions privately at home, or in someone else's home, should not be at risk of conviction merely because for some reason, which they had no reason to believe existed, what they said or did was seen or heard outside the dwelling.

It has been pointed out that the clause as drafted would not catch the case where a public meeting was held in a dwelling. This may be the case, but we do not believe that that represents a significant gap in the law. I understand that there have in recent years been no prosecutions under the existing law for this kind of activity, and I do not believe that the private expression of opinion should be penalised to ensure that if such public meetings took place they would be caught. This is not a matter on which there are easy answers, but I hope the Committee will accept that we have tried to strike, and have indeed struck, the right balance between freedom to express a private opinion and the need to penalise words and behaviour which stir up racial hatred.

Turning to Amendment No. 8, I totally agree with the noble and learned Lord, Lord Silkin, that it would be wrong if the criminal law was unable to protect us in our homes from hooligans who trespassed in order to insult us with racial abuse. However, the law already catches such behaviour and thus there is no need for this specific amendment. Clearly such hooligans will use or threaten violence to effect entry and they will know that there is a person in the house who is opposed to that entry. An entry in such circumstances would be an offence under Section 6 of the Criminal Law Act 1977. The police may arrest without warrant anyone who is, or is reasonably suspected of, committing this offence. Thus the noble and learned Lord's amendment is not needed as this type of disgraceful behaviour can already be dealt with by the police.

With regard to the example which the noble and learned Lord gave where people gain entry by deception, I fear that not having the legal training of noble Lords opposite I must revert to further advice on the point. But I hope that I have been able to convince the Committee that, although it is not an easy matter, we have struck the right balance between freedom in one's own home and freedom outside.

Lord Silkin of Dulwich

There is a difficulty of borderline definition. That is where I wholly agree with the noble Earl. I do not find myself convinced by the earlier part of his remarks, but I entirely accept the intention behind what he said when he drew attention to the fact that we do not want to criminalise friends talking to one another privately. There is no doubt that we would all agree on that. But I am bound to say that it is very difficult to see a situation in which friends are talking to one another privately in a friendly way, and in the course of his remarks one of them says something which is intended to stir up racial hatred. Surely that is the very opposite of talking in a friendly way with friends. If that were not enough to rule out the possibility of prosecution there is, as I have just said, the position of the Attorney-General in sanctioning prosecution as a long-stop.

The noble Earl was unable to think of occasions when somebody might obtain entrance to a private place by deception. I have in mind someone who goes to the door and simply claims to be an official of some kind or even a political canvasser, and then having gained entry in that way, causes great offence and harassment by his subsequent behaviour. I was interested to hear that there is an offence for which there could be a prosecution when a trespasser enters, though I take it that it is not an offence within this part of the Bill and is presumably something of a lesser kind altogether. But it is important that this kind of behaviour should be categorised as such, and not simply by reason of the method of obtaining entry to the premises when some other offence of perhaps a lesser kind is committed.

I accept the difficulties of definition—that my amendments merely draw attention to the problem rather than provide a solution—and accept that the Government have gone some way already by changing the form of wording from that in the present Section 5A. I hope that the noble Earl will promise to look at this again and see whether something more satisfactory which comes nearer to dealing with the problem can be devised.

The Earl of Caithness

I shall take the proposal away and have another look at it. I think we have a major problem here and I cannot guarantee to Members of the Committee opposite that I shall come back with anything satisfactory. But we have the remainder of the Report stage on this Bill in a couple of days' time and perhaps we can have another crack at it then.

Lord Hutchinson of Lullington

Will the noble Earl bear in mind that private conversations can take place in a hundred places other than a dwelling-house? They can take place in motor-cars, in offices and in all sorts of other places. Will he bear that in mind when looking at the matter again?

The Earl of Caithness

We shall continue to bear it in mind. It has not escaped our notice to date.

Lord Silkin of Dulwich

I am grateful to the noble Earl for making that promise. I understand his difficulty in coming up with a solution within two days, but I hope that we shall at least be progressing towards one. With that undertaking, I beg leave to withdraw the amendment.

Amendment , by leave, withdrawn.

The Earl of Caithness

This might be a convenient moment to take the Statement. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.