Public Order Bill

HL Deb 21 October 1986 vol 481 cc190-231

House again in Committee (on recommitment) on Clause 18.

Lord Monson moved Amendment No. 7: Page 12, line 34, leave out ("by a person inside a dwelling") and insert ("in a private place").

The noble Lord said: It may be for the convenience of the Committee if, in moving this amendment, I speak also to Amendment No. 9. Subsection (2) of Clause 18 is amazingly intrusive upon traditional British freedoms. This is particularly so since prosecutions can be brought even if as few as two people are involved; that is to say, the person making the insulting remark alleged to inspire hatred and the person who comprises his or her audience. I am not sure whether this is generally realised.

If these two amendments are not agreed to, it will be illegal to make insulting statements in the private office of a political, national or ethnic organisation. In other words, within the four walls of their private office with the front door firmly closed, those in a Tamil organisation could not be insulting about Sinhalese, or the other way round; Arabs could not be offensive about Israelis, or the other way around; and Greek Cypriots could not insult Turkish Cypriots, or vice versa. Nor could people speak freely, albeit insultingly, among themselves in a room above a pub or in a hall hired by a particular political, national or ethnic organisation for the evening. As the clause stands, people cannot even speak freely in their gardens or anywhere outside their dwelling even if there are no third parties present. For example, two Greenham Common women chanting outside their tents, or even inside their tents, since the walls are so thin that passers-by would hear, "Yankee murderers go home" following the American bombing raid on Libya, would certainly be caught by the clause, even though no American serviceman was anywhere within earshot.

Once again, the subsection as it stands goes much too far, I submit, in this instance to the detriment of traditional concepts of privacy and traditional British freedoms. I remind the Committee that traditional British freedoms include the right to voice attitudes and opinions—robust and even coarse—of the sort found in working men's clubs, public bars, saloon bars and even wine bars and inevitably found distasteful by the liberal establishment. The rest of us may also, from time to time, find some or all of these attitudes and opinions distasteful. But that is part of the price that one pays for a free society. I beg to move.

The Earl of Caithness

It is not the purpose of Part III to affect the private expression of opinion of an individual in his own home. For this reason, the use of words or behaviour in a private dwelling is not covered by Clause 18. We do not believe, however, that this exemption should be extended to private places other than dwellings. In the general order of things, conversations in a dwelling will be between an individual and his friends or relatives. Even if they are not of like mind on matters concerning members of ethnic minorities, they are unlikely to be said to be setting out to stir up racial hatred in a way that threatens public order. Any disagreement that arises at the time is likely to be on a small scale.

However, when it comes to private places, it is much more likely that people will be present who have no link of friendship between them, and there may be an intention to stir up racial hatred on a scale that threatens public order. Indeed, if, as may well be the case, people of differing views are present, the threat may be immediate. We believe that this situation should be covered. It will be agreed, I hope, that we have struck a reasonable balance between protecting freedom of opinion and protecting against people who seek to stir up racial hatred in a way that threatens the peace and stability of society.

Once again, it is a matter of balance, very similar to the situation when I was responding to the noble and learned Lord, Lord Silkin of Dulwich, on Amendment No. 6. Both amendments look at a similar problem from different viewpoints. Having said that I shall take away and have another look at the amendment proposed by the noble and learned Lord, Lord Silkin of Dulwich, it would be totally wrong were I not to agree to examine the amendment of the noble Lord, Lord Monson, as well.

Lord Monson

I am mollified at least by the last sentence of the noble Earl. I do not believe that the Government are living in a real world. We have to face the fact that the world, unfortunately, is full of people who resent one another for historical reasons or because of what is happening in various parts of the world. The idea that people in their offices, clubs, or whatever, cannot voice their irritation or anger with other people is preposterous. The noble Earl has referred again to people who seek to stir up hatred. I have already mentioned that people who seek deliberately to stir up hatred leading to violence should come under the provisions of this part of the Bill. I must, however, remind the noble Earl that we are also referring to people who, while expressing strong views, are not specifically seeking to stir up hatred but who may be considered to do so, though it is a matter of fine judgment.

I do not believe that the subsection strikes a reasonable balance as it stands. I hope that the noble Earl will look seriously at what I have said before the next stage of the Bill. On that supposition, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments 8 to 10 not moved.]

Lord Mishcon moved Amendment No. 11: Page 13, line 8, leave out subsection (6).

The noble Lord said: The purpose of the amendment is to obtain clarification before we move on to other amendments, either at this stage or at Report stage, that deal with radio, cable and television. The Committee will observe that Clause 18(6) reads: This section does not apply to words or behaviour used, or written material displayed, solely for the purpose of being included in a programme broadcast or included in a cable programme service".

The position was simple under the original Bill. There was a bare reference in Schedule 2 to the Cable and Broadcasting Act 1984. One amendment was made. Pursuant to an undertaking that was given in another place the situation in regard to the broadcasting system and the cable programme service was looked at again in order that they might be brought within the purview of the Bill. We now have a most complicated exercise in Schedule 2. If members of the Committee will kindly refer to that section of the Bill they will see that there is the most complicated reference to various provisions which are now to affect these media, cable and broadcasting. Members of the Committee will find the new provisions in the Marshalled List under Amendment No. 27. If any layman looks at that Schedule 2 he will certainly be confused; and I believe that confusion would certainly extend to any member of the legal profession too.

Members of the Committee will see that one starts off with the words, "Omit section 27" of the Cable and Broadcasting Act 1984. I promise not to go through the whole of this. In Section 28 one has to add words in the definition clause. In Amendment No. 27 under Clause 5A under that schedule one amends it as it extends to Northern Ireland; and so it continues. Instead of that confusing series of provisions in Schedule 2 I thought that it would be useful to this Committee if we heard very clearly from the Minister why we cannot merely say that Clause 18 applies to a programme broadcast or included in a cable programme service, and why we have to have to have these complicated provisions in the schedule.

At the moment therefore I merely move the amendment which seeks to withdraw subsection (6) and will listen to the Minister with that appreciation that I always do while he explains why we could not have that simple amendment instead of the complicated provisions which are now going to be before us.

The Earl of Caithness

Subsection (6) has the effect of exempting from prosecution under Clause 18 words spoken or conduct resorted to solely for the purpose of a programme to be broadcast or transmitted by cable. We believe that this is correct. What we should be concerned about when the words or conduct are used solely for the purpose of the programme is what happens when the programme is transmitted; and the Bill already gives us adequate powers to deal with the latter. Perhaps I may refer members of the Committee to Clause 22. This clause creates offences for which the broadcaster, programme producer and the actor may be liable.

When, for instance, a television panel game is being broadcast but a studio audience is present then Clause 18 is relevant in relation to words spoken in the course of the game and which the audience hear. So Clause 18(6) does not exempt all words spoken, and conduct resorted to, which are broadcast. It does so only where the sole purpose of their use is their inclusion in a broadcast or cable transmission. In such circumstances Clause 22, and in particular Clause 22(2)(c), are relevant.

I hope that has clarified this point for the noble Lord, Lord Mishcon. However, I am sure that when it is portrayed like that he and the whole of the legal profession will now be at ease.

Lord Mishcon

I am most grateful to the noble Earl. I still think that there is a simpler way of dealing with this question, but this is not the appropriate time. That should obviously be by way of a suggested amendment, either to the schedule or to later provisions of the Bill. In those circumstances, I ask the leave of the Committee to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 12:

Page 13, line 11, at end insert— ("(7) The local authority responsible for maintaining any public highway or passage-way shall remove therefrom, or from any curtilage adjacent thereto, any display of written material as is referred to in subsection (1) within fourteen days of receiving notice of the existence of such material").

The noble Lord said: I hope that members of the Committee will think this a very important amendment. Clause 18 of the Bill says that a person commits a criminal offence if—and I am leaving out the irrelevant words— a person … displays any written material which is threatening, abusive or insulting in regard to race matters. That offence is obviously committed by offensive graffiti being inscribed upon walls, usually in an urban area. Members of the Committee will appreciate that a conviction may result, but the graffiti stays there. I know of few things that are more damaging and painful to racial minorities—and especially to the children among those minorities as they walk to school, possibly with a white friend—than see upon the walls, "Out with the wogs" or whatever the wretched graffiti may be. How do we deal with that? The only way is that which was adopted in the other place at Third Reading of this Bill: to impose upon a local authority the duty within a reasonable period, of removing the offensive graffiti.

That amendment was moved in the other place at Third Reading by a learned, and obviously very much respected, Member of the Government, Mr Ivan Lawrence. He was supported from another part of the House. Perhaps I may paraphrase the answer of the Minister. I am perfectly willing to quote it. It appears at col. 1055 of the proceedings of the other place on 30th April. The Minister welcomed not only the spirit of the amendment, but the amendment itself. However, he said that he felt it was the wrong moment to impose yet one more duty upon a local authority, and indeed that there might be difficulties in enforcing it.

I understand that I must not quote the exact words of Mr Lawrence, but I am allowed to paraphrase his reply. It was not one of great gratitude to the Minister, but he expressed the hope that the matter might have a better acceptance in another place. It has now reached another place. I am moving this amendment in the hope that this great barrier in the way of good relationships in many urban areas is removed by the offensive graffiti being removed by the local authority as a matter of duty. I ought to say in fairness to the Minister that he implied that he thought good local authorities would most likely remove it anyway. I have heard that reply before. I have no doubt that it would be true that good local authorities would remove the graffiti anyway. I am thinking of the medium-good and bad local authorities. One wants to make it a mandatory duty upon authorities to adopt this course in the real interests of proper race relations in this country. I beg to move.

5.00 p.m.

Lord Hutchinson of Lullington

I should like strongly to support this amendment. Graffiti is one of the major nuisances of today—one of the menaces of the paint gun and the paint spray. In the old days one would find graffiti only in gentlemen's lavatories. Nowadays it is spread all over every free surface in most towns. I regret to say that in the United States of America it has become an art form. Happily, over here it has not yet found its way into our picture galleries.

The perpetrators of graffiti are very rarely caught. I would like to support what the noble Lord, Lord Mishcon, said about the offensive nature of graffiti in the context of racialism. It is far worse than many public nuisances, because it continues on, whereas many public nuisances which are dealt with in all sorts of legislation are over very quickly.

The Earl of Caithness

I agree with what the noble Lord, Lord Mishcon said, that this is an important amendment. On one small point I may have misheard the noble Lord; my honourable and learned friend Mr. Lawrence is not a member of the Government, but to be technically correct is a member of the Government's party in another place.

Lord Mishcon

I was only forecasting!

The Earl of Caithness

As this is an important amendment, I appreciate the concern of the noble Lord, Lord Mishcon, and that of the noble Lord, Lord Hutchinson of Lullington, that the responsible authority should take the necessary steps to remove offensive graffiti as soon as possible. This applies especially to racially inflammatory graffiti which may be particularly and continuously disturbing.

Some local authorities in areas where there are ethnic minority communities already make it a priority to remove such graffiti as soon as possible. The Government encourage all local authorities to recognise the effect that such graffiti may have on the lives of people who see it, and to take appropriate action. We hope that they will remember that they have a duty under Section 71 of the Race Relations Act to make good relations between people of different racial groups, and to consider the effect of such graffiti on that. Removing graffiti generally seems a sensible part of housing management policy which any local authority will have in mind when allocating resources. Whenever practicable we would certainly encourage local authorities to maintain the local environment in this way.

I do not think that I can support the noble Lord's amendment. Local authorities already have many statutory duties and it is not the Government's policy to impose new ones on them unless absolutely necessary. Here at least I am consistent with my honourable friend in another place. In this case I do not think there is a necessity for an extra duty. Moreover enforcement through the courts of such duty on an unwilling authority could well prove difficult.

In any event, the amendment would not achieve the noble Lord's aim since it would not deal with the graffiti on highways which the local authority had no responsibility to maintain, and also graffiti in places removed from the highway to which the public have access. I have in mind such places as the underground, an airport, British Rail, or the gable end of a privately owned house. The only legal consideration there is whether the owners were concerned in committing the offence under Clause 18 of displaying the written material.

I agree that it is an important amendment. I can see exactly what the noble Lord, Lord Mishcon, is driving at. However, I do not think that it covers all the points. Given the local authority's duty under Section 71 of the Race Relations Act and the encouragement that the Government are giving the local authorities in this matter, I hope that he will not wish to pursue this amendment further.

Lord Donaldson of Kingsbridge

I am unhappy at this reply because what the Minister has said in effect is that this amendment does not go far enough. If that is so, let him take it away and produce an amendment which does. Merely to say that one cannot ask the local authority to do something which they ought to do seems to me not an answer at all.

Lord Mishcon

I think the Minister himself was almost hesitating as he addressed the Committee on this matter. Usually the waves come over between us fairly clearly. However, on this occasion I did not detect any strong resolve in his own mind that this amendment should be resisted.

As this is an important amendment perhaps I may analyse what he said: Yes, it is a very good thing to try and do this. Yes, the effect on race relations is a very bad thing if you do not. Sorry, but it would add an additional duty to a local authority. That was an extraordinary debating argument because in another part of his address I thought he was saying that they already performed that duty. If that is the situation, it cannot be an, addition to a duty on a local authority which in any way affects the issue. He then went on to say that there is a section of an Act which tells the local authority to do all that they can in regard to race relations. If I may say so, I do not think it is very clever to reply upon that rather vague power.

Lastly, on the point that the noble Lord, Lord Donaldson, took up, I understood he was saying that one would not be covering everything and one cannot cover everything, because it is not possible, for example, to cover Underground stations. For heaven's sake, let us cover what we can. I think this amendment is one that the Government ought to have accepted. I am sorry that they did not. There is no party politics in this at all, and I hope the members of the Committee will realise that when the movers ask for this matter to be tested.

5.7 p.m.

On Question, Whether the said amendment (No. 12) shall be agreed to?

Their Lordships divided: Contents, 92; Not-Contents, 105.

DIVISION NO. 1
CONTENTS
Amherst, E.	Llewelyn-Davies of Hastoe, B.
Ardwick, L.	Lloyd of Kilgerran, L.
Aylestone, L.	Lockwood, B.
Banks, L.	Longford, E.
Beswick, L.	Lovell-Davis, L.
Blyton, L.	Mackie of Benshie, L.
Bonham-Carter, L.	McNair, L.
Boston of Faversham, L.	Mishcon, L.
Bottomley, L.	Morton of Shuna, L.
Bruce of Donington, L.	Mountevans, L.
Carmichael of Kelvingrove, L.	Mulley, L.
Cledwyn of Penrhos, L.	Nicol, B.
David, B.	Northfield, L.
Dean of Beswick, L.	Oram, L.
Diamond, L.	Phillips, B.
Donaldson of Kingsbridge, L.	Pitt of Hampstead, L.
Elwyn-Jones, L.	Ponsonby of Shulbrede, L. [Teller.]
Elystan-Morgan, L.
Ennals, L.	Prys-Davies, L.
Ewart-Biggs, B.	Rhodes, L.
Ezra, L.	Ritchie of Dundee, L.
Falkender, B.	Roberthall, L.
Foot, L.	Rochester, L.
Gallacher, L.	Ross of Marnock, L.
Galpern, L.	Seear, B.
Glenamara, L.	Serota, B.
Graham of Edmonton, L.	Shepherd, L.
Grey, E.	Somers, L.
Grimond, L.	Stallard, L.
Hampton, L.	Stedman, B.
Hayter, L.	Stoddart of Swindon, L.
Heycock, L.	Strabolgi, L.
Hughes, L.	Taylor of Gryfe, L.
Hutchinson of Lullington, L. [Teller.]	Taylor of Mansfield, L.
	Tordoff, L.
Ilchester, E.	Turner of Camden, B.
Irving of Dartford, L.	Vernon, L.
Jacques, L.	Wallace of Coslany, L.
Jeger, B.	Walston, L.
Jenkins of Putney, L.	Wells-Pestell, L.
John-Mackie, L.	Whaddon, L.
Kilbracken, L.	White, B.
Kilmarnock, L.	Wilberforce, L.
Kinloss, Ly.	Williams of Elvel, L.
Kirkhill, L.	Wilson of Langside, L.
Lawrence, L.	Winstanley, L.
Leatherland, L.	Winterbottom, L.

NOT-CONTENTS
Alport, L.	Belstead, L.
Auckland, L.	Bessborough, E.
Beaverbrook, L.	Brabazon of Tara, L.
Belhaven and Stenton, L.	Brougham and Vaux, L.
Beloff, L.	Broxbourne, L.

Butterworth, L.	Long, V.
Caithness, E.	Lucas of Chilworth, L.
Cameron of Lochbroom, L.	McAlpine of West Green, L.
Campbell of Alloway, L.	McFadzean, L.
Campbell of Croy, L.	Macleod of Borve, B.
Carnegy of Lour, B.	Mancroft, L.
Carnock, L.	Manton, L.
Cathcart, E.	Margadale, L.
Constantine of Stanmore, L.	Marshall of Leeds, L.
Craigavon, V.	Maude of Stratford-upon-Avon, L.
Cullen of Ashbourne, L.
Davidson, V. [Teller.]	Merrivale, L.
Denham, L. [Teller.]	Mersey, V.
Derwent, L.	Milverton, L.
Dilhorne, V.	Molson, L.
Donegall, M.	Monckton of Brenchley, V.
Duncan-Sandys, L.	Montgomery of Alamein, V.
Elibank, L.	Munster, E.
Elliott of Morpeth, L.	Norfolk, D.
Elton, L.	Nugent of Guildford, L.
Faithfull, B.	Orkney, E.
Fanshawe of Richmond, L.	Pender, L.
Fortescue, E.	Penrhyn, L.
Fraser of Kilmorack, L.	Peyton of Yeovil, L.
Gainford, L.	Portland, D.
Gardner of Parkes, B.	Reay, L.
Gisborough, L.	Renton, L.
Glanusk, L.	Rodney, L.
Glenarthur, L.	Rugby, L.
Gray of Contin, L.	St. Aldwyn, E.
Gridley, L.	Saltoun of Abernethy, Ly.
Hailsham of Saint Marylebone, L.	Sandford, L.
	Savile, L.
Halsbury, E.	Sherfield, L.
Harmar-Nicholls, L.	Skelmersdale, L.
Harvington, L.	Sudeley, L.
Henderson of Brompton, L.	Swansea, L.
Hesketh, L.	Swinton, E.
Hives, L.	Teynham, L.
Holderness, L.	Thorneycroft, L.
Home of the Hirsel, L.	Tranmire, L.
Hood, V.	Trenchard, V.
Hooper, B.	Trumpington, B.
Hylton-Foster, B.	Vaux of Harrowden, L.
Kaberry of Adel, L.	Vickers, B.
Knollys, V.	Vivian, L.
Lane-Fox, B.	Ward of Witley, V.
Lauderdale, E.	Whitelaw, V.
Layton, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.15 p.m.

Clause 18 agreed to.

Clause 19 [Publishing or distributing written material]:

Lord Mishcon moved Amendment No. 13: Page 13, line 25, at end insert ("(including a member of the public)").

The noble Lord said: I think that I can be fairly brief over this amendment. As the Committee will see, Clause 19(3) says: References in this Part"— that is, this part of the Bill— to the publication or distribution of written material are to its publication or distribution to the public or a section of the public". There the Bill stops. This amendment seeks to add the words: including a member of the public".

This is necessary because there was the case of R v. Britton, which was decided in 1967. Without wearying the Members of the Committee with too many facts, let me say that it involved a prosecution by virtue of the fact that a Member of Parliament, when at home with his family, heard the crash of the glass panel in his front door being broken. He saw the appellant running away, and pursued and caught him. On returning to his house the Member of Parliament found stuck on the door a pamphlet with the words on it, in large black letters, "Blacks not wanted here". Four or five other similar pamphlets had been left in the porch, and nearby was a beer bottle round which another pamphlet had been wrapped.

The appellant was duly convicted, but the case came before the Court of Appeal. Lord Parker, the Lord Chief Justice at that time, delivered a judgment in which he said that the conviction had to be quashed by virtue of the fact that a distribution had not been made to a section of the public. I quote but a couple of sentences from his judgment: Nor, as it seems to this court, can one say, and indeed counsel for the Crown has not suggested it before us, that the member of Parliament or his family were a section of the public within the meaning of the definition clause. The words 'any section of the public not consisting exclusively of members of an association of which the person publishing or distributing is a member', connote the idea of an identifiable section of the public who, but for those words, might be said not to be members of the public at large, in other words members of a club or of an association".

Therefore, by virtue of that decision, I ask for these words to be added. I beg to move.

Lord Monson

I wonder whether the noble Lord, Lord Mishcon, can explain to the Committee why, as an alternative, the perpetrator of this most unpleasant deed was not charged with causing criminal damage, the penalties for which could be quite severe?

Lord Mishcon

Someone much more learned than I whispered to me as 1 rose: "because that would only be an offence under an Act of 1971, and this occurred in 1967."

Lord Monson

I am most grateful to the noble Lord.

The Earl of Caithness

I appreciate the noble Lord's concern that the publishers and distributers of racially inflammatory material should be caught no matter how few people the material is distributed to. However, we believe that Clause 19 and 21 as currently framed already meet that concern. For example, a person may be distributing leaflets in the street but he may give out only one because there is only one passer-by at the time. In such circumstances the court could hold that that passer-by was a section of the public. Similarly if only one member of the public attended a public meeting at which a racially inflammatory recording was shown, that individual might be held to be a section of the public. At the end of the day it is a matter for the courts to decide in the light of the particular circumstances.

We believe it is right to ensure that purely private transactions such as a personal letter from one person to another, or a private showing of a recording, are not affected by this clause. It is not the purpose of Part III to affect private expressions of opinion. It is for this reason the Clauses 19 and 21 refer to distribution or publication or distribution, showing or playing to the public or a section of it. I think it is right that it should be for the courts to decide in the light of the circumstances whether a particular act of distribution, showing or playing constitutes distribution, showing or playing to the public or a section of it.

I take note of what the noble Lord, Lord Mishcon, said about the case of R v Britton, in 1967, but the point of Part III is whether it is a question of public order, and that is the difference between us. If the person is inciting racial hatred, expressing to the public or a section of the public, we believe that one individual can be caught, which rather differs from the interpretation that the noble Lord has put on the Britton case.

Lord Mishcon

I propose to consider what the noble Earl has said. At the moment I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [Public performance of play]:

Lord Hutchinson of Lullington moved Amendment No. 14: Page 13, line 31, after ("circumstances") insert ("and taking the performance as a whole").

The noble Lord said: I hope that the Minister will have little difficulty in accepting this amendment. In Schedule 3 on page 36 of the Bill Section 5 of the Theatres Act 1968 is repealed. This clause, Clause 20, has been substituted for it. It deals with the situation of the public performance of a play.

The old section, Section 5, reads very much the same as the new clause. But when it reached the point at which guilt was spelt out the words were these: shall be guilty of an offence under this section if— (a)he did so with intent to stir up hatred et cetera. This is the relevant provision: (b) that performance, taken as a whole, is likely to stir up hatred against that section on grounds of colour, race or ethnic or national origins". The essential words in that Act were "taken as a whole".

In this clause, instead of those words, we find (b) having regard to all the circumstances, racial hatred is likely to be stirred up thereby". The amendment simply wishes to add what I suggest are the crucial words: having regard to all the circumstances, and taking the performance as a whole racial hatred is likely to be stirred up".

These words are important, A character in a play may use words which, taken in isolation, would be likely to stir up racial hatred. You have only to think of "The Merchant of Venice" and the remarks made about Shylock. You have only to think of Alf Garnett, who would be in a great deal of trouble, one would think, under this clause. It is essential that words spoken by a character in a play should be looked at in the context of the whole play and the place in the scheme of the play that the character is fulfilling. The character may be depicted as a racist.

The words "having regard to all the circumstances", I would suggest, are not apt to meet the situation. To look at lines spoken in a play in the context of the play as a whole is in no way a circumstance to which a court can have regard. For instance, outsiders attending a rehearsal would be a circumstance; or failure to make a cut would be a circumstance; or disobeying the instructions of a director of a play would be a circumstance. But to look at the words in the context of the play as a whole could hardly be described as a circumstance.

Parliament inserted these very words in Section 1 of the Obscene Publications Act, where the material complained of: shall be deemed to be obscene … if taken as a whole, [its effect is] such as to deprave and corrupt". Clearly there it has been found essential, when examining allegedly obscene passages in plays, to look upon them in the whole context of the play, and that of course is always done. Exactly the same principle should apply when judging the effect, prima facie, of racist material. I beg to move.

Lord Elystan-Morgan

I invite the Committee to accept the arguments of the noble Lord. I believe that they are utterly unanswerable. I am sure that it was never the intention of Her Majesty's Government that there should be any catching of a phrase or a sentence, or even a speech, in a play without looking at the play as a whole.

If that was the intention of Parliament from the very beginning, I am sure that the noble Lord, Lord Hutchinson, is correct when he says that the phrase "having regard to all the circumstances" might well not achieve that; the danger being that when the courts have to interpret the meaning of the words they would obviously look to the Obscene Publications Act 1959—which has the fundamental provenance, as the noble Lord pointed out—and at the Theatres Act 1968, which has that formula in a number of its sections, and not only in relation to racial hatred but in relation to obscene publications as well.

The courts will inevitably place significance upon the fact that a well-known, accepted form of words has been deliberately left out, and might well draw the wrong conclusions from that. If I am wrong, that it never was the intention of the Government that it would operate in this way, there is even greater force in the noble Lord's submissions.

Dramatists from classical times onwards, from Sophocles to Bernard Shaw, in order to show how ridiculous and unworthy a sentiment is, have placed that sentiment in the mouth of an impossible character. The absurdity of the submission is then compounded, as it were, by the unworthiness of that character. The danger will be that that form of dramatisation, one of the most powerful forms known to literature, will become dangerous unless it is spelt out in the way the amendment suggests.

5.30 p.m.

Lord Monson

As I have been largely at odds with Members of the Committee on the Opposition Benches so far this afternoon, I should say that I believe this to be an extremely sensible and indeed vital amendment.

Lord Jenkins of Putney

I add one word to this subject before we have the reply. It is my hope, as in the case of the noble Lord, Lord Hutchinson, that we are knocking at an open door. I hope that we are, but in case an extra word would be helpful in getting the answer which I believe we are entitled to expect, I add that unless we have the words "taken as a whole" we shall be in great difficulty. I cannot see that it would be possible to put on any future performance of "Othello", for example, without being in danger of serious trouble. It is only the whole of the situation which emerges at the end of a play that enables one to say that this is a great play and that it is not morally contemptible. We must be careful about this. My noble friend Lord Strauss, who introduced the Theatres Act, was wise in taking the right advice. He was told that the words "taken as a whole" were the right words to ensure that the thing went far enough and not too far.

I hope that we shall hear from the Government that they recognise that these words have stood the test of time and that we should be very foolish not to incorporate them in this piece of legislation.

The Earl of Caithness

We are all grateful to the noble Lord, Lord Hutchinson of Lullington, for explaining the purpose of his amendment. As he pointed out, under Section 5(1)(b) of the Theatres Act 1968, in determining whether racial hatred is likely to be stirred up by a performance, the performance must be considered as a whole. The noble Lord wonders why in shifting the provisions on racial incitement in the Theatres Act into Clause 20 of this Bill "taken as a whole" has fallen by the wayside to be replaced by "in all the circumstances". The answer is that we thought it sensible to bring Clause 20 into line in this respect with other provisions in this part of the Bill. Clauses 18 to 19 and 21 to 23 all employ the words "having regard to all the circumstances". In doing so they follow existing law.

In the case of Clause 20 it seems clear to us that "circumstances" include the play as a whole. The advantage of referring to "all the circumstances" is that account can also be taken of the nature of the audience, outside political events and so forth. Members of the Committee opposite may perhaps agree with me so far, but they may well ask whether it is not prudent to include both "taken as a whole" and "in all the circumstances" That indeed is the effect of this amendment.

As I have explained, although I do not believe that "as a whole" would add anything, to try to help the noble Lord I was tempted to accept the amendment if Clause 20 could be looked at in isolation, but that I am afraid is the rub. It seems to me that the difficulty with a belt and braces approach is that it casts doubt on other provisions in Part III. There is no express requirement in, for example, Clause 22 for a television programme to be taken as a whole or in Clause 19 to say that a newspaper article should be taken as a whole. In the latter case it is difficult to see how such a requirement could be included.

I believe that as the Bill stands it will be clear that "all the circumstances" includes the whole of a programme, play or newspaper article as the case may be, and covers such plays as "The Merchant of Venice" or "Othello". But doubt would surely be cast on this if Clause 20 referred to the performance "taken as a whole" and other clauses contained no similar requirement.

To sum up, "in all the circumstances" seems more apt than "taken as a whole" and in our view covers all the ground and more covered by "taken as a whole". Further, it appears to us that if we were to accept this amendment we should be tending to cast doubt rather than to promote certainty. This is because, if we were to destroy the symmetry between Clause 20 and the remainder of Part III, we should be suggesting, contrary to our intentions, that these provisions should be interpreted differently.

The noble Lord, Lord Elystan-Morgan, argued that the arguments of the noble Lord, Lord Hutchinson of Lullington, were utterly unanswerable. I hope I have tried to answer them, but I fear that some Members of the Committee may not agree.

Lord Grimond

I am one of those who ventures not to agree. It seemed to me listening to the case made for this amendment that it was indeed unanswerable. It does not seem now that the Minister has answered the main point, which is that the phrase "all the circumstances" is not the same thing as "taken as a whole". I do not think he answered that point. I understand that he was inclined to accept this amendment and his only reason for not accepting it was that it would mean amending other parts of the Bill. Why not do that? If it is important or sensible to have this amendment what is to prevent the Government from amending the other parts of the Bill, which I think may well be improved by similar amendment? Without it, as has been said, it seems to me that the courts will believe that this provision has been deliberately omitted and it will make it extremely difficult for them to interpret the Bill in the way that both the Government and the mover of the amendment want it interpreted.

The Earl of Caithness

I should tell the noble Lord, Lord Grimond, that I said that the words "in all the circumstances" were more apt than "taken as a whole" and in our view cover all the ground and more than the words "taken as a whole", so there was another strand to my argument.

Lord Hutchinson of Lullington

With the greatest respect to the noble Earl, he completely misses the point of this amendment. The situation in the theatre and in a play broadcast on television or sound radio is totally and completely different from the situation covered by Clauses 18 and 19. If one is saying things in public, in private in the street or wherever else, there is nothing to take into account except the situation at the time where you are making the observation or using the insulting, abusive or threatening words.

A play is completely different. When something is said in a play you do not take it as it stands at that time, looking at the circumstances surrounding the phrase at that moment. As has already been said, if you were to do that all sorts of great plays, taking a line at a time, would be clearly within these clauses. A play is something which continues for a long period of time and has a message in it; it is to be looked at as a whole, and the phrase which is being used or the behaviour of the actor must be looked at in the whole long context of the play. This is a one-off situation and cannot possibly relate to the earlier clauses in any shape or form.

With the greatest respect to the Government, I ask the Minister to agree to take this back and to consult those who are involved in this world. I do not know whether he can tell us if they have been consulted, because this is for the theatre a very serious matter indeed. I urge upon the Minister that this is a matter which affects the whole world of the theatre, be it in the live theatre or through the media. It is a one-off situation and surely taking this debate as a whole everything that has been said about this clause has been said in one direction only. Unless the Minister can give me some assurance that the matter will be looked at again and that those who know about those matters will be consulted, I feel that I am bound to take the view of the Committee on this matter.

Lord Mishcon

I should like to add a brief word to the very strong submission that was made by the noble Lord, Lord Hutchinson, and others who participated in this debate. I hope that my short point will persuade the noble Earl that he must take this matter back unless he wishes to face a Division. The first part of the alleged offence is that the person who presents or directs the performance intends thereby to stir up racial hatred. May we take it for granted that any look at this play would immediately acquit the person concerned of the charge that that is what he intended? Then may we take it for granted that there is a play at the end of which complete and absolute mockery is made of the character who stirs up the racial hatred; but that it is such an awful play that three-quarters of the audience walk out at the interval?

In those circumstances, since they have never heard the rest of the play, where all this is refuted, the poor judge, the poor magistrate, who is trying this case says: "In all the circumstances that are before me, three-quarters of that audience having heard this dreadful part will undoubtedly have had racial hatred stirred up within them. And they did not hear the other part. In all the circumstances, I am afraid that I have got to convict". This really raised the absurdity, if I may say so, of resisting this very sensible amendment. With the noble Lord, Lord Hutchinson, I hope that at the very least, having heard this debate, the noble Earl the Minister will go back and will not use those precautionary words, "I can't hold out very much hope".

Lord Elystan-Morgan

Before the noble Earl replies, perhaps I may urge him, as a person who is a monument of good sense and patience, to consider two arguments, one which has already been put forward with some force by the noble Lord, Lord Hutchinson, and by my noble friend Lord Mishcon. A play is a comprehensive totality in a way in which the situations under Clauses 18 and 19 are not. Secondly, if the clause remains in its present form the result in law, as I apprehend it, will be that under the Theatres Act 1968, Section 2(1), which deals with an obscene publication, will enjoin a court to look at the performance as a whole for the purposes of obscenity. But that same court will not be enjoined to look at the performance as a whole in relation to engendering racial hatred. That will make a thorough mess of that piece of legislation.

In the light of that second point alone, never mind the stronger and more comprehensive argument in relation to the first matter, I urgently ask the Minister to reconsider the situation.

The Earl of Caithness

With due respect, I think that the noble Lord, Lord Hutchinson of Lullington, was wrong when he said that Clause 20 could be distinguished from the rest of Part III. I do not believe that that is the case; because the offence in Clause 20 is that of giving a performance of a play and it is therefore similar to the mischief in Clause 18 and the publishing in Clause 19. The noble Lord, Lord Mishcon, gave a very good example of a play where a lot of the audience walked out after, say, three-quarters of the play. I would only reiterate that our very best advice is that the words which we have suggested—"in all the circumstances"—would mean that the judge would have to take the play as a whole from the beginning to the end. Not only that, but he could also take account of the nature of the audience, outside political events and so forth. We believe that what we propose is slightly better than "taken as a whole". I am sorry to disagree with noble Lords opposite, but we believe that the judge should have no difficulty in situations such as those envisaged by the noble Lord, Lord Mishcon, in directing the jury to look at the play as a whole, from the beginning of the first scene to the end.

5.45 p.m.

Lord Foot

Before this matter is taken to a vote—and I certainly hope that my noble friend will do that because I think the answer that we have received is entirely unsatisfactory—perhaps I may take the point which has just been made by the noble Earl. I make this point. If you look at Clause 18, it would be ludicrous to put in there the words which are going to be put into Section 20. It would be ludicrous to say: A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if…he intends thereby to stir up racial hatred, or…having regard to all the circumstances". and add the words "taking the performance as a whole". That would be absurd.

It would be equally absurd to put those words into Clause 19. But when you go to the other clauses which follow, there it is necessary to put in words of the same kind as are required by this amendment, because Clause 21 deals with, a person who distributes, or shows or plays, a recording of visual images". Why should that not be taken as a whole when it is being considered what is to be done? If you go on to Section 22, that again deals with broadcasting or a programme in cable programme service. Why should we not there (as my noble friend Lord Grimond has suggested) put in these same words: "taken as a whole"? This is one of those subjects upon which I should have thought the Government would be delighted to have the assistance and advice of the Committee. It is to be noted that the noble Earl has not received any support from the people behind him.

Lord Beloff

If I may explain why the noble Earl the Minister has not received any support from the people behind him, it is because his arguments are without value. We on this side of the Committee cannot always be relied upon to support any ministerial argument, however fatuous. It is true, as has been said over and over again, that plays are different because (I think this is the most powerful argument) they express the views of the characters.

My own co-religionists over many years have from time to time objected to "The Merchant of Venice". They have always been answered by others of their co-religionists that this is wrong, that although in this play things are said which any Jew hearing them would find hurtful, the ultimate impact of the play is not such. Surely for once the Minister must find that he can at least go back to his experts to see whether he can find someone with knowledge of literature and the theatre who is prepared to support him; because no one in this Committee, where our knowledge is of the law and politics, can support him on this point.

The Earl of Caithness

I agree entirely with the noble Lord, Lord Foot, that using the words "taken as a whole" in Clause 18 would be ridiculous. That is what I said earlier. What I have said is that the words that we have used—"in all the circumstances"—are the same as and cover the same ground as "taken as a whole". Contrary to what my noble friend Lord Beloff has said, I think that I will take this matter back to have another look at it. It will not be the first point in this Bill that I have taken back to have a look at. I have already taken back a number of matters this afternoon, as well as at earlier stages. I promise to have another look at this one.

Lord Hutchinson of Lullington

I think I heard the noble Earl say that he is going to agree to take this back. If I heard him aright, in those circumstances and in spite of every word that has been spoken on this amendment having been one way, I am content to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 15:

Page 13, line 32, at end insert— ("( ) If a person presenting or directing the performance is not shown to have intended to stir up racial hatred, it is a defence for him to prove—

1. (a) that he did not know and had no reason to suspect that the performance would involve the use of the offending words or behaviour, or
2. (b) that he did not know and had no reason to suspect that the offending words or behaviour were threatening, abusive or insulting, or
3. (c) that he did not know and had no reason to suspect that the circumstances in which the performance would be given would be such that racial hatred would be likely to be stirred up").

The noble Earl said: This amendment provides defences for the director or presenter of a play the performance of which was likely to stir up racial hatred, who can prove broadly either that he had no reason to suspect that was likely or that he had no reason to suspect that the words or behaviour were threatening, abusive or insulting; or, where the performers depart from the script, that he had no reason to suspect that such words or behaviour would be used. It is broadly comparable to subsections (3), (4) and (6) of Clause 22. I beg to move.

Lord Elwyn-Jones

I confess that I am somewhat puzzled by this amendment. It says: If a person presenting or directing the performance is not shown to have intended to stir up racial hatred, it is a defence for him to prove", first, that he did not know and had no reason to suspect that the performance would involve the use of the offending words". But he is the director or the producer.

Then paragraph (b)says: that he did not know and had no reason to suspect that the offending words or behaviour were threatening, abusive or insulting". But surely he can read. He can read the script, he being the person presenting or directing the performance. Also, I am not sure about the third point: that he did not know and had no reason to suspect that the circumstances in which the performance would be given would be such that racial hatred would be likely to be stirred up". Does he not command the circumstances? Of course he may decide to withdraw the play everywhere except to selected audiences made available beforehand. I am sorry, but I do not see the sense of this at all.

The Earl of Caithness

I think that the argument used against me in the last amendment with regard to the words spoken in "The Merchant of Venice", would provide the defence that the director or presenter needed. There is also the case where the actor may depart from the script and the director may not be present, or he may be totally unaware of the circumstances in which the actor was going to depart from the script. We have tried to protect the innocent presenter or director in such circumstances.

Lord Elystan-Morgan

If the noble Earl the Minister is really concerned, as I suspect he is, with situations of ad libbing, I venture to suggest to him that where one has to choose between two evils—that is, between an innocent director (innocent in the sense that he has no knowledge that the words are going to be used) or the other evil that substantial racial hatred would be engendered (and I prefer that word to the term "stirring up")—I should have thought the lesser evil would be to make the director responsible. But of course in such a situation any court would regard that as a massively substantial factor in mitigation. I am not sure whether that is what the Minister had in mind, but if he had a different situation in mind I should be very grateful if he would spell out to us exactly what he had in mind.

Lord Jenkins of Putney

I find myself equally puzzled about this matter. I have no knowledge of the source of the amendment or anything of that kind, but I ask: why is the director thought to be in need of special protection? One can see that a director might falsify the intention of the writer, and therefore one might perhaps wish to protect the writer who writes words but, in the hands of a wicked director, finds himself having expressed racial hatred, which he had no intention of doing. Or what about an innocent actor who, directed by the malicious director, finds himself expressing racial hatred in a series of actions or gestures which he is instructed by the director to carry out and which, taken as a whole, express racial hatred?

I think we are in some difficulty and some genuine puzzlement here. I should personally like to hear from the noble Earl, Lord Caithness, something which I have not heard yet; that is: what is the object of the exercise? Where does it come from? Why is the director in need of special protection? If he is in such need, then it seems to me there are others who are in even greater need of special protection. They are, first, the writer, and, secondly, the performer.

The Earl of Caithness

It slightly troubles me that noble Lords opposite are taking a different attitude on this amendment from that which they took on Amendment No. 14. I should have thought that, to be consistent, they would welcome the amendment. All one is doing in this instance is saying that there is to be a defence for a presenter or director in various circumstances where he did not know or had no reason to suspect that various offences would be committed. Surely that is a logical protection for a presenter or director. It will be for the courts to decide whether he would have known; but one can well imagine a situation where an actor ad libs and his words create a situation which engenders racial hatred. I do not think that in those circumstances the person presenting or directing the performance should be held responsible. When it comes to the writer, I would point out to the noble Lord, Lord Jenkins of Putney, that the writer would fall within Part III of the Bill.

Lord Monson

I can understand the point of paragraph (a), which protects a director where an actor ad libs, and I can understand paragraph (c), which has to do with the composition of the audience, of which the director obviously can have no foreknowledge. But I cannot understand the purpose of paragraph (b). How can it be that the director would not know that any words or behaviour were threatening or insulting? It could only happen if he were directing a play in a foreign language which he did not understand. I suppose that can be the only explanation.

The Earl of Caithness

No. The purpose of paragraph (b) is to cover the situation where the actor deviates from the script; in which case how could the presenter or director know what the offending words or behaviour were going to be?

Lord Hutchinson of Lullington

I am afraid that I take a rather different view from that of my noble friends on the Labour Benches about this matter. It seems to me perfectly straightforward that if somebody ad libs in a play and introduces words which are not in the script or behaves on the stage in a way that the director never directed him to do, the director should have some protection. Surely all this does is protect the director in those circumstances. So far as the—

Lord Elystan-Morgan

If the noble Lord will give way on that matter before he moves to the next point, perhaps I may say that surely the protection in practice for a director in that situation is in Clause 27—one which of course requires the consent of the Attorney-General before a prosecution can be embarked upon.

Lord Hutchinson of Lullington

Surely it is bad in principle. One has heard so often that everything will be all right because the law will be administered sensibly. Surely all of us who practise in the courts know that the law is not administered sensibly, over and over again. I cannot see why the noble Lord, Lord Jenkins of Putney, should be so upset that the director should be given a special defence. He is the person upon whom the responsibility rests in the production of a play. Surely he will not attend every performance of a play. After he has put the play on, the actors may get up to all sorts of tricks and may ad-lib and behave in a way about which the director knows nothing. Surely in those circumstances he should be given protection.

So far as the actor himself is concerned, he surely is covered by Clause 20(3). For the purposes of the clause, a performer in a performance directed by another shall be treated as a person who directed the performance". He is therefore covered.

6 p.m.

Lord Jenkins of Putney

May I explain for the benefit of the noble Lord, Lord Hutchinson, why I am worried about this? I am not worried because the director has protection. I think that is very reasonable. I am worried about the picking out of the director for protection which is apparently not afforded to others. The noble Lord believes that it is, but I venture to suggest that for every occasion on which an actor does something which a director does not want him to do, there are many occasions on which an actor is required to do something which he would rather not do unless the director had told him to do it. This draws special attention to Amendment No. 15(b) which states, that he did not know and had no reason to suspect that the offending words or behaviour were threatening, abusive or insulting …". I cannot see how it would be possible for a director not to know that the words which he already knew about were not as they were.

I am not objecting to this clause as such, but I am worried about the idea that the director is the chap who needs protection and that neither the writer nor the actor do. If the clause could be reconsidered and we could be assured that the protection afforded to one responsible area was spread over other possibly responsible areas, I should feel much happier with it.

Lord Hutchinson of Lullington

Will the noble Lord not agree that subsection (3) covers that?

Lord Elwyn-Jones

While my noble friend ponders that question, may I submit that this is making terribly heavy weather. We have now discovered that all we are concerned with is to protect the director from the adlibber—and the liberal too, apparently! Surely the matter can be covered by language such as, the words or behaviour used were not authorised by him". That covers everything. This tortuous and complex surplusage of words would not be necessary. May I present that offering to the Minister for further thought?

The Earl of Caithness

I take that offering in the same spirit in which it was offered, if that is the right terminology. I hope that the Committee will accept the amendment because of the arguments which I have elucidated, but I shall of course take the noble and learned Lord's point and see whether it can be refined.

The Deputy Chairman of Committees (Lord Alport)

The Question is that Amendment No. 15 be agreed to. As many as are of that opinion will say Content—

Lord Elwyn-Jones

I am sorry. Has the noble Earl moved Amendment No. 15 as it stands? I am sorry to challenge the Chair.

The Earl of Caithness

I have moved Amendment No. 15, yes.

Lord Elwyn-Jones

I understood that the noble Earl was undertaking to look again at the language of Amendment No. 15. Perhaps I am guilty of optimism—not for the first time.

The Earl of Caithness

I said that I hoped the Committee would accept the amendment but that I would look at the noble and learned Lord's point to see whether it could be refined.

Lord Mishcon

Will the noble Earl bear with me for a moment? We are very short of time in the programming of this Bill and the Minister has been good enough to say on a number of occasions that he would look again at various amendments that have been put. The difficulty is that, with the greatest of good will so far as he is concerned, looking at it will entail a response either by way of letter or by other means which may not reach those of us who have moved amendments until the closing stages of this Bill. One knows that certain rules apply to amendments at Third Reading.

I make that point on this occasion because it is obvious that in the debate a number of ideas have cropped up and it is the first time we have had an opportunity of discussing the noble Earl's amendment. Would it not be sensible (and I think that this is what my noble and learned friend Lord Elwyn-Jones was anticipating) if he would say that because of discussions, in the same way that we have withdrawn amendments so that the noble Earl can consider the matter, he will withdraw his amendment? Obviously he can put it in at a later stage if he feels he has to, but perhaps he can look at the whole question in the meantime. That is what we have done and I ask him to consider doing the same in reciprocation.

The Earl of Caithness

I am conscious of the time and it was for that reason that I phrased my reply to the noble and learned Lord, Lord Elwyn-Jones, as I did. My suggestion was to accept it now and I would then look at it to see whether it could be refined. If that is not acceptable to noble Lords opposite, I think it is something I ought to take away and look at. I had hoped we could deal with it by accepting it and looking at it at the same time, but if that is not acceptable to the noble Lords then I will have another look at it.

Lord Mishcon

I thank the noble Earl very much.

The Earl of Caithness

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 and 17 not moved.]

Clause 20 agreed to.

Clause 21 [Distributing, showing or playing a recording]:

Lord Mishcon moved Amendment No. 18: Page 14, line 33, after ("record") insert ("(including a film)").

The noble Lord said: This is a quick point. I could not be sure, in looking at the Bill as it now stands, that a film was included and I ask the noble Earl whether it is included: if so, how? If not, why not? I beg to move.

The Earl of Caithness

The quick answer is "yes". The word "record" does not merely mean a disk. On the contrary, Clause 21 is intended to cover films, videos, gramophone records, sound recordings and anything else from which one can reproduce visual images or sounds. We are thus concerned with the means of storing images and sounds, and that covers film. I hope that that satisfies the noble Lord.

Lord Mishcon

It does, and I am most grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Lord Mishcon moved Amendment No. 20: Page 14, line 43, leave out subsection (4).

The noble Lord said: I hope I can be equally brief with regard to Clause 21(4) which says: This section does not apply to the showing or playing of a recording solely for the purposes of enabling the recording to be broadcast or included in a cable programme service".

Could the noble Earl spell out the reason for this exception and what the exception covers? I beg to move.

The Earl of Caithness

Clause 21 is concerned with showing films or videotapes. Clause 22 is concerned with broadcasts and cable transmissions. Clearly some programmes which are broadcast or transmitted by cable originate on film or videotape which in due course are shown or played. The purpose of Clause 21(4) is to limit overlap between the two offences. In other words, if a cable company were in showing to transmit a racially inciting film, simply to transmit it the company should be prosecuted for the act of transmission under Clause 22.

I would draw your Lordships' attention to the fact that subsection (4) includes the words "solely for the purpose". It would not, for example, absolve the cable or television company which showed to the public racially inciting films at the same time as they were being transmitted. Then there is a mischief which Clause 21 can address. It is to stop the overlap that we have worded it as we have.

Lord Mishcon

I wonder whether the noble Earl will forgive me for asking this question on this important subsection, because it contains an exception to the general rule. If it got as far as being seen by the employees of the cable company concerned—obviously, it had not reached the transmission stage—and it was racially offensive to those employees, would the exception operate in his view? It seems to me that it would. Again, I am throwing this at the noble Earl from one Dispatch Box to another, which is not very fair. It may very well be that the answer is available, but if not I shall be content if he would care to write to me.

The Earl of Caithness

I think it would be better if I wrote to the noble Lord on this point.

Lord Mishcon

I am most grateful. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clause 22 [Broadcasting or including programme in cable programme service]:

Lord Elwyn-Jones moved Amendment No. 21: Page 16, line 11, leave out subsection (7).

The noble and learned Lord said: Clause 22 deals with the position as indicated in subsection (1), which reads: If a programme involving threatening, abusive or insulting visual images or sounds is broadcast, or included in a cable programme service, each of the persons mentioned in subsection (2) is guilty of an offence if—

1. (a) he intends thereby to stir up racial hatred, or
2. (b) having regard to all the circumstances racial hatred is likely to be stirred up thereby."

So we are dealing with a serious business. Why is it that in subsection (7) it is stated baldly: This section does not apply— (a) to the broadcasting of a programme by the British Broadcasting Corporation or the Independent Broadcasting Authority"?

I think that the Committee is entitled to some explanation and some indication of what alternative protection is provided and will be provided in the various bits of legislation in this field; for example, the Broadcasting Act. To what should we look for adequate alternatives to Clause 22 which applies to cable programmes? Why not consolidate the legislation that is relevant in the same Bill? I agree that it would have to be a longish clause, but why not consolidate the protection that is provided for the BBC and the IBA?

We may be told: "You need not worry. The BBC and the IBA programmes are never guilty of the wicked things that are suggested in Clause 22(1)." I hope that is so. I do not know whether the noble Earl would care to go on oath to say that, but we are not on oath in these proceedings and perhaps that is an irrelevant hypothesis. But we are entitled to some explanation.

It is not wholly enough to say: "The internal regulations of the BBC protect the public all right." Has the moment come when there should be less hole in the corner protection and more clearly stated statutory provision for the protection of the BBC and the IBA, in view of the enormous power of the media these days? They operate in almost every home in the land with remarkable and immediate effect.

I do not know whether I have given sufficient time in my observations to enable the Minister to answer these rather broad questions. But I think that the public would be interested to know the answers, which is why I put down the amendment. I beg to move.

6.15 p.m.

The Earl of Caithness

Responsibility for what is broadcast on radio and television rests with the broadcasting authorities—the BBC, the IBA and the Welsh fourth channel authority, S4C—whose governing bodies are appointed as trustees for the public interest in broadcasting. In carrying out their responsibilities, they have the duty to inform, educate and entertain and to ensure that programmes maintain a high general standard. In addition they have specific obligations concerning the content of programmes.

Under the Broadcasting Act 1981 the IBA and S4C must satisfy themselves, so far as possible, that nothing in their programmes offends against good taste and decency, is likely to encourage or incite to crime, lead to disorder or is offensive to public feeling. The BBC's board of governors has given a similar undertaking which is published in the annex to the corporation's Licence and Agreement.

These obligations, we believe, are stricter than the definition of "offence" in Clause 22 and have proved effective in keeping off the screen material of a racially offensive nature. They are capable of dealing with matter which would not in itself constitute an offence, but which would be undesirable to be shown on television. I hope that with that explanation I have answered the global point of the noble and learned Lord about why they have been exempted from the Bill.

Lord Elwyn-Jones

It is useful to have that on the public record. I have no reason to think that the powers are abused in the way that we are seeking to protect the public from potential damage. It is good that this degree of public education should be communicated as the Minister has just done. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 22:

Page 16, line 17, at end insert— ("(8) The following provisions of the Cable and Broadcasting Act 1984 apply to an offence under this section as they apply to a "relevant offence" as defined in section 33(2) of that Act— section 33 (scripts as evidence), section 34 (power to make copies of scripts and records), section 35 (availability of visual and sound records); and sections 33 and 34 of that Act apply to an offence under this section in connection with the broadcasting of a programme as they apply to an offence in connection with the inclusion of a programme in a cable programme service").

The noble Earl said

These provisions of the Cable and Broadcasting Act 1984 are concerned with ensuring that scripts and recordings of programmes may be obtained and, in the case of scripts, are evidence of what was included in a programme. Schedule 3 to the Bill inadvertently repeals these provisions in their application to the offence of transmitting by cable racially inflammatory programmes. This amendment now reinstates them.

Had we had a little more time to put down the amendment—noble Lords will be aware that we put it down in order to give maximum time—we would have picked up this mistake and I apologise for this not having been done earlier. As well as reinstating these provisions for cable programmes, the amendment achieves a similar result for broadcasts by extending Sections 33 and 34 to broadcasting. I beg to move.

On Question, amendment agreed to.

Clause 22, as amended, agreed to.

Clause 23 [Possession of racially inflammatory material]:

[Amendment No. 23 not moved.]

Clause 23 agreed to.

Clause 24 [Powers of entry and search]:

Lord Mishcon moved Amendment No. 24: Page 17, line 4, leave out from ("oath") to ("that").

The noble Lord said: If Members of the Committee will be kind enough to turn to Clause 24—and this is a very simple point—they will find that on a justice of the peace being: satisfied by information on oath by a constable that there are reasonable grounds for suspecting that a person has possession of written material", and so on, he can issue a warrant authorising any constable to enter and search the premises.

I do not know why the information on oath has to be sworn by a constable before the justice of the peace can issue his warrant. Why should not a member of the public be able to do this? Why should not a representative of an organisation, whether it is the commission dealing with race relations or whatever, be entitled to send a representative to satisfy the court by information on oath? Why has a constable always to be obtained in order to do this? I repeat that before the warrant is issued the justice of the peace has to be satisfied, so there is no question of a warrant being issued recklessly. I beg to move.

The Earl of Caithness

I appreciate the points which the noble Lord has just made in moving this amendment. There may well be occasions when an individual has information which leads him to believe that another person has possession of matter in contravention of Clause 23. In such circumstances it is right that a warrant should be issued to the police to search the premises where the material is held. But in such a case, we consider that the individual should in the first instance make his suspicions known to the police. If a warrant is to be executed by the police, it is appropriate that the police should apply for it.

The issue of search warrants to the police in England and Wales under any Act (which will include Clause 24 of this Bill if it receives Royal Assent) is governed by Sections 15 and 16 of the Police and Criminal Evidence Act 1984. Section 15 provides certain safeguards in that it lays down the procedure to be followed. These statutory safeguards would not apply if another person were to apply for a warrant to be issued. Section 16 also provides a number of safeguards concerning the execution of the warrant. It is right that the safeguards contained in these sections should apply when warrants are required for the purposes of Clause 24. The intention behind Sections 15 and 16 of the Police and Criminal Evidence Act is clearly that the safeguards they contain should apply in all cases when the police require a search warrant. We therefore consider it appropriate that under Clause 24 the police should apply for the warrant, and the safeguards in the Police and Criminal Evidence Act should automatically come into effect.

In practical terms we see no advantage in providing a justice of the peace with the power to issue a warrant to the police on the basis of information provided by another person. As the police will execute the warrant, it is right that the relevant information should first be made available to them and that they should apply for the warrant.

We have looked seriously at this matter and have considered some of the cases that could occur if the amendment were accepted—a member of the National Front might deliberately go to seek a warrant without giving the information to the police. We were reminded when we looked at this matter in close detail that it was the government which the noble Lord, Lord Mishcon, supported in 1967—the Wilson Government of the day—who introduced the Criminal Justice Act. This amended Section 3 of the Obscene Publications Act 1959 so that only the police could seek warrants under it. That came about because of difficulties. We envisage similar difficulties with this Bill, and we hope that it will become an Act for the good that it can do. Although we have considered the point of the noble Lord's amendment we have come down on the side that it should be the police who give the information on oath and not the individual.

Lord Hutchinson of Lullington

Before the noble Lord, Lord Mishcon, presses his amendment, will he take on board the possible results of informers scurrying around informing against people and giving information that in their bottom drawer there is a good deal of material which should be examined? Exactly the same matter arose with the Obscene Publications Act. I am sure that the noble Lord recollects the problems which arise from having private prosecutions in that area. Surely the same thing is liable to apply here if he presses his amendment.

Lord Mischon

I confess that I am not happy, but the Committee does not exist in order to make me happy. I feel that there is a difficulty here where there is an urgent need to obtain a warrant and where it may be very difficult in the circumstances—time may be of the essence—to convince a perfectly able police constable, who I am sure would want to take a very full note and then apply to his superior for authority as to whether information should be sworn. This shows little faith in the justice of the peace, who would not issue a warrant unless it were proper for him to do so—unless one takes the view of a justice of the peace that a constable has only to appear before him and he will automatically do it, which, again, is not complimentary to the justice of the peace. But I see that there is division in the Committee, and from a learned source as well. I do not intend therefore to press the matter at this stage. I ask the leave of the Committee to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clause 25 agreed to.

Clause 26 [Savings for reports of parliamentary or judicial proceedings]:

Lord Monson moved Amendment No. 25: Page 18, line 18, leave out from ("authority") to end of line 22.

The noble Lord said: There may be some reasonable explanation for the extremely severe limitations imposed by this subsection but on the face of it it seems to be an extraordinary restriction upon freedom of speech and freedom of the printed word. How can restrictions on the publication of proceedings in a court of law be justified? Why is such a sweeping step necessary? I await a satisfactory answer from the noble Earl, and I beg to move.

The Earl of Caithness

I appreciate the concern of the noble Lord, Lord Monson, in raising for debate an aspect of the general exemptions provided in Clause 26 for the publication of fair and accurate reports of court proceedings. I hope that I can persuade the Committee that it is necessary to retain the present effect of this clause by explaining that the noble Lord's amendments would open a loophole in the offences which those who have been convicted of offences under these clauses, or their supporters, would be ready to exploit.

The Government do not wish, of course, to place any unwarranted restriction on the proper reporting of court proceedings concerning offences of incitement to racial hatred. For this reason, the clause in question provides that no offence is committed under Part III—for example, by publishing material likely to incite racial hatred—where the material consists of, or is contained in, a fair and accurate report of proceedings publicly heard before a court or tribunal exercising judicial authority. But this exemption applies only where the report is published contemporaneously with the proceedings in question or as soon as is reasonably practicable or lawful thereafter. There are two important elements to this exemption then: the report must be fair and accurate; and it must be published contemporaneously. The noble Lord's amendment by deleting this second element would allow reports to be published at any time.

Without the limitation of contemporaneous reporting, there would be a serious danger that, when a person had been convicted of an offence under Part III his supporters would seek to use a report of the trial as a means of giving continuing publicity to his original words. This would allow words or material which had been proven to be material to a criminal offence to be used again and again. The Committee will note that, under Clause 25, the courts are required to order the forfeiture of any written material or recording produced to the court and shown to be matter to which an offence relates. The purpose of this is to prevent such material being used again at some future date. But this purpose would be defeated if it were permissible to reproduce the substance of material at any time in the guise of a report of the court proceedings.

This is not to say that such proceedings should not be reported or referred to after the event. But when a person chooses to report or describe such proceedings at a later date, he should not be able to do so intending to stir up racial hatred or, indeed, in circumstances likely to do so. He will, in other words, be required to exercise reasonable discretion. Such discretion must be exercised at all times by those reporting events other than court proceedings; and it seems right that it should be exercised by those who report criminal trials weeks, months or years after the event. I might add that the restrictions in Clause 26 are not unique to this Bill. Similar limitations apply, and for similar reasons, to the reporting of proceedings concerning defamation.

I hope I have been able to convince the noble Lord, Lord Monson, of the serious loophole that, perhaps inadvertently, he would open if he succeeded with this amendment.

6.30 p.m.

Lord Monson

I am grateful to the noble Earl for that explanation but I shall put one question to him before I decide what to do with the amendment. Let us suppose that someone clips out a report of court proceedings and keeps the clipping in his bottom drawer. Five years later it is discovered by a policeman, who accuses him of intending to publish it. What happens then? Would he not be caught by some other clause of the Bill?

The Earl of Caithness

I should have thought that in those circumstances the person would be able to justify to the police officer that he was not intending to publish it. It would be a matter for the courts to decide, if it ever got that far.

Lord Monson

I am grateful to the noble Earl, but it seems to me that the Government are indulging in an extraordinary degree of overkill in this part of the Bill. Nevertheless, in the absence of any support from other quarters, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clause 27 [Procedure and punishment]:

Lord Elwyn-Jones moved Amendment No. 26: Page 18, line 31, at end insert ("or in the case of a second or subsequent conviction, 5 years or a fine or both").

The noble and learned Lord said: Part III of the Bill deals with very grave matters; namely, incitement to racial hatred using, threatening, abusive or insulting words or behaviour and intending to stir up racial hatred. That is in Clause 18. Clause 19 deals with, A person who publishes or distributes written material which is threatening, abusive or insulting", intending, thereby to stir up racial hatred".

Clause 20 refers to the public performance of a play fulfilling the same purpose.

In this part of the Bill we are dealing with a very dangerous subject. The incitement to racial hatred, in certain conditions, could have—and I must not overdramatise—a deadly or near-deadly effect. In our view, while for the first offence on indictment a sentence of two years may be enough—though some may think that a judge should have the power to inflict more in this dangerous field, even for a first offence—in the case of subsequent or persistent offenders in such a dangerous field where riots can be stimulated and fires started, we believe that the power should be for the court, in an appropriate case, on a second or subsequent conviction, to impose a sentence of five years, or a fine, or both. I beg to move.

Lord Donaldson of Kingsbridge

I am not happy about this matter. I have spent the past 25 years trying to get shorter sentences and it is perfectly clear to me that a man who feels race hatred so bitterly is not going to be deterred by a longer sentence. The kind of opinion we are apt to hear expressed from certain people elsewhere is that we must have longer sentences. However, we have spent our lives explaining to them that on the best evidence a longer sentence does not deter.

It seems to me that two years is a longish sentence for anyone. My own view is that it would be a great mistake to increase the sentence at this stage. If the position becomes much worse—and in many ways it now seems to be getting better—one may think about it again, but to put it into the Bill at this stage seems to be entirely wrong.

Lord Elystan-Morgan

The noble Lord, Lord Donaldson of Kingsbridge, as always puts his arguments in a most attractive and forceful way. While I have every sympathy with his general proposition that sentences should be kept to the minimum that is necessary, I do not think it follows in any way that that should affect the maximum term for a specific offence.

No doubt judges can be exhorted in relation to theft to consider—as indeed the Court of Appeal set forward generally in the case of Bibby some years ago—what the appropriate sentence should be in common or garden cases of theft; but nothing would be achieved towards that end by reducing the maximum penalty for theft from 10 years to a lower figure.

What we are concerned with is the possibility that there will be some grave situations calling for a level of punishment higher than that now envisaged in the Bill in relation to Part III. I totally endorse the argument of my noble and learned friend Lord Elwyn-Jones, who says that some situations will arise which are so grave that there will be a necessity for the courts to have that exceptional power. It is not suggested that it should be lightly used. I am in total agreement with the general comments of the noble Lord, Lord Donaldson, and I have no doubt that in these particular cases, quite apart from the general principle enunciated by the noble Lord, the wise sentencer will all the time consider the danger of martyrdom, which will be totally counter-productive, and will perhaps think of lenient sentences far more than one would do generally.

However, that is not the case. There is a strong case for marking the horror of society in relation to the gravity of this offence with the power to impose a sentence of up to five years on a second or subsequent conviction and also to deal with the rare, exceptional case that merits a very high sentence.

Lord Monson

I should like to support the noble Lord, Lord Donaldson. I was interested in what the noble and learned Lord, Lord Elwyn-Jones, said in introducing this amendment, because, as I understand it, the Labour Party has generally taken the view in recent years that prison sentences provided for and imposed in this country are far too severe, especially when compared with those in other European countries.

I should like to quote from an article published a few days ago in the Daily Telegraph concerning the Financial Services Bill, which was debated in this Chamber last night. Part of the article reads: Insider trading used to be a minor irritation until it was made a criminal offence. Now it is generally thought to be rife. The article continues that with, penalties so Draconian that evidence must be watertight, there is minimal risk of getting caught. If one provides what the average man in the street would consider to be disproportionate sentences, one either finds it more difficult to secure a conviction or, if one does secure a conviction, runs the risk of creating martyrs. Indeed, martyrdom has already been mentioned. As a layman perhaps I may stick my neck out and say that I imagine that if the offence were a really severe one, as the noble and learned Lord has suggested might occur, leading to large-scale violence, the person involved could be charged with sedition.

Lord Mishcon

I wonder whether I may interpose with what I promise will be a few brief remarks. If it were the general policy of Parliament, as advocated by the noble Lord, Lord Donaldson, and very often advocated from these Benches as he quite correctly said, that there should be shorter terms of imprisonment imposed because of the various circumstances that have been dealt with when we debated these matters, it would be proper to say that this offence ought to be taken together with all the others. However, where there are maximum sentences which are set in a statute in regard to all criminal offences, one has to look at the situation as it affects society at large, and ask: How do you weigh the gravity of the offence that is being considered?

As my noble friend Lord Elystan-Morgan said, in no way does one say then to the judges: "You ought to impose greater sentences. You are merely looking at society, the harm that can be done to society and at the present moment making that the criterion on which it is judged what a maximum sentence should be".

I can think of no graver crimes committed in our society at this moment than the ones we are dealing with in Part III as regards their effects upon society. We have seen riots, disturbances, unhappiness, and claims of all kinds as to what people who incite to racial hatred are doing to our nation as a whole. That in no way in any reference of mine excuses aggressive or violent behaviour, but we have to root out the cause of a great evil in society. The man who is absolutely dedicating his life, as it were, to committing such damage must be discouraged from undertaking that course of conduct and if there is a second offence after the first the court ought to be enabled—and I underline the word "enabled"—to say: "This is so serious to our society and especially at this time that I intend to use the powers given to me by Parliament". That is all that this amendment says, and I think it needs support especially at this hour.

6.45 p.m.

The Earl of Caithness

The Committee will recall that we considered the general question of enhanced penalties for second or subsequent conviction in our debate on Clause 14 (and this can be found in the Official Report for 6th October in cols. 49 to 56). The reasons I advanced at that time for resisting the introduction of enhanced penalties must apply also to this amendment. Under Clause 27(3)(a) as it stands, the maximum penalty available to the Crown Court for offences of incitement to racial hatred is two years' imprisonment, or a fine or both. No doubt many Members of the Committee will have seen some of the unpleasant and offensive material to which Part III is likely to apply. These are serious offences, and this must be reflected by appropriately heavy penalties. The maximum penalty for offences under Part III is already higher than for any offences under the Bill other than riot, violent disorder, affray and contamination of goods. It is in this context that the appropriate maxima have to be considered, and I think that Clause 27(3)(a) strikes the right balance.

Under Clause 27 the courts have sufficient and appropriate powers to deal with those who are convicted of offences of incitement to racial hatred. The powers proposed in this amendment would be disproportionate and over-punitive. For example, it would mean that an offender would be liable to the same maximum penalty for incitement to racial hatred as for violent disorder under Clause 2. Although incitement to racial hatred is a serious offence—and I do not dispute that in any way at all—I do not consider that it is on a par with the use or threat of unlawful violence causing a person to fear for his personal safety. We must ensure that the punishment fits the crime.

Aside from the importance of ensuring that the penalty is proportionate to the offence, the introduction of an enhanced penalty would be inconsistent with the general principle that an offender should be dealt with for the offence which has brought him to court and not for his past conduct. As the Committee will be aware, the statute book used to contain a number of enhanced penalties similar to the one proposed here. I am glad to say that they have nearly all been removed, mostly by Sections 35 and 36 of the Criminal Justice Act 1982. I regret to have to tell the noble and learned Lord that for those reasons I cannot accept his amendment.

Lord Jenkins of Putney

Perhaps I may take a leaf out of the book of the noble Lord, Lord Beloff, and say that on this occasion I am persuaded by the arguments put forward by the Government and I hope that my noble friend will not press his amendment.

Lord Foot

Perhaps I may say, too, on behalf of myself and, I, believe, on behalf of the majority at any rate of my noble friends, that we agree with the argument of the noble Lord, Lord Donaldson of Kingsbridge, and very much hope that this amendment will not be carried to a Division.

Lord Elwyn-Jones

It is common ground that we are dealing here with a very serious feature of our social life; namely, the stirring up and incitement to racial hatred which can cause appalling disorder and chaos. In this amendment it is suggested that where someone who has already been dealt with and convicted of an offence offends again, in an appropriate case society ought to give the judge the power to make a decision. This is a power given to the judge. It is not in any sense an automatic power; on the contrary.

I agree that severe sentences should be imposed only in extreme cases but I should have thought that the gravity of such misbehaviour and such criminal misconduct in our society has now reached a stage where it ought to be recognised as the serious disturber of the calm of our community which we have been suffering in recent years. Certainly I am neither a hanger nor a punisher for its own sake. It may seem surprising to some of my noble friends who know that I have taken a somewhat different view on punishment, but there are exceptional crimes for which I think that a judge, who has the facts and the evidence before him, should have this power. There is a great demand for increased power in another aspect of criminal conduct, which I shall not go into because it is not comparable.

However, I do not wish to go against the flow of opinion in the Committee or to appear to be a mere punisher. All I can say is that I hope we shall not regret refusing to pass this amendment. All I hope is that in the future there will be no such disorders, fires and the consequences that can burn up communities when mad racialists deliberately set out to create racial hatred. I hope that that will not happen. In the circumstances, in view of the current of opinion in the Committee I shall not move the amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clauses 28 and 29 agreed to.

Schedule 2 [Other amendments]:

The Earl of Caithness moved Amendment No. 27:

Page 35, line 36, leave out paragraph 5 and insert— ("5.—(1) The Cable and Broadcasting Act 1984 as it extends to England and Wales and Scotland is amended as follows. (2) Omit section 27 (inclusion of programme in cable programme service likely to stir up racial hatred). (3) In section 28 (amendment of the law of defamation), at the end add— ("(6) In this section "words" includes pictures, visual images, gestures and other methods of signifying meaning.". (4) In section 33(2), in the definition of "relevant offence" omit "an offence under section 27 above or". 5A.—(1) Section 27 of the Cable and Broadcasting Act 1984 as it extends to Northern Ireland is amended as follows. (2) For subsections (1) to (5) substitute— (1) If a programme involving threatening, abusive or insulting visual images or sounds is included in a cable programme service, each of the persons mentioned in subsection (2) below is guilty of an offence if—

1. (a) he intends thereby to stir up racial hatred, or
2. (b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) The persons are—

1. (a) the person providing the cable programme service,
2. (b) any person by whom the programme is produced or directed, and
3. (c) any person by whom offending words or behaviour are used.

(3) If the person providing the service, or a person by whom the programme was produced or directed, is not shown to have intended to stir up racial hatred, it is a defence for him to prove that—

1. (a) he did not know and had no reason to suspect that the programme would involve the offending material, and
2. (b) having regard to the circumstances in which the programme was included in a cable programme service, it was not reasonably practicable for him to secure the removal of the material.

(4) It is a defence for a person by whom the programme was produced or directed who is not shown to have intended to stir up racial hatred to prove that he did not know and had no reason to suspect—

1. (a) that the programme would be included in a cable programme service, or
2. (b) that the circumstances in which the programme would be so included would be such that racial hatred would be likely to be stirred up.

(5) It is a defence for a person by whom offending words or behaviour were used and who is not shown to have intended to stir up racial hatred to prove that he did not know and had no reason to suspect—

1. (a) that a programme involving the use of the offending material would be included in a cable programme service, or
2. (b) that the circumstances in which a programme involving the use of the offending material would be so included, or in which a programme so included would involve the use of the offending material, would be such that racial hatred would be likely to be stirred up.

(5A) A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not know, and had no reason to suspect, that the offending material was threatening, abusive or insulting. (5B) A person guilty of an offence under this section is liable—

1. (a) on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both;
2. (b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.".

(3) In subsection (8) (consents to prosecutions), for the words from "shall not be instituted" to the end substitute "shall not be instituted except by or with the consent of the Attorney General for Northern Ireland.". (4) In subsection (9) (interpretation) for " 'racial group' means a group of persons" substitute " 'racial hatred' means hatred against a group of persons in Northern Ireland". (5) After subsection (10) insert— (11) This section extends to Northern Ireland only").

The noble Earl said: This technical amendment follows on from our revision of Part III. The racial incitement offences in Part III apply to Great Britain only, and they incorporate and extend the offence of incitement under the Cable and Broadcasting Act 1984. This amendment removes those offences from the 1984 Act in the case of Great Britain and establishes a separate offence for Northern Ireland, which is not covered by Part III of the Bill, but which corresponds to the cable offence in Clause 22. I hope that, with that explanation, and in view of the earlier comments of the noble Lord, Lord Mishcon, the situation is clarified. I beg to move.

Lord Mishcon

I thank the Minister for those courteous words. He has explained the matter to me and I now understand things much better.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to,

Remaining Schedule agreed to.

House resumed: Bill reported (in respect of Clauses 17 to 29 and Schedules 2 and 3) with amendments.

Then, Standing Order No. 43 having been dispensed with (pursuant to Resolution of 9th October):

The Earl of Caithness

My Lords, I beg to move that this Report be now received. This is perhaps a convenient moment to apologise for a printing error on the Marshalled List. Six amendments, Amendments Nos. 30 to 35, have been omitted from the Marshalled List due to the printing error that I have just mentioned. The amendments omitted are those of my noble friends Lord Swansea, Lord Stanley of Alderley and Lord Clinton and of myself. The amendments relate to parts of the Bill that will not be reached until Thursday. They will, of course, be printed in the revised Marshalled List for that day. I beg to move.

Moved, That the Report be now received.—(The Earl of Caithness.)

On Question, Motion agreed to.

Report received.

Clause 4 [Fear or provocation of violence]:

7 p.m.

Lord Hutchinson of Lullington moved Amendment No. 1: Page 3, line 17, leave out from ("another") to end of line 19.

The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendment No. 3. This is a considered attempt to improve Clauses 4 and 5 which deal largely with problems of hooliganism. At the Committee stage there was, I believe, agreement on all sides about the mischief, spelt out by the Minister at the time. The mischief was one of defenceless or wholly innocent people being put in fear by the aggressive behaviour of others. It was generally agreed that the mischief was a very real one. The only differences that arose were the limit of the criminal sanctions being proposed in the two clauses.

Your Lordships will probably remember that the Government said in the White Paper, There would be justifiable objections to a wide extension of the criminal law which might catch conduct not deserving of criminal sanctions". It is against that background that the House should, I suggest, consider these two amendments. Neither amendment was moved in Committee. As your Lordships will remember, it was decided that they would be subsumed in the debate on the question that Clause 5 stand part of the Bill. As that clause remains in the Bill, I now wish to put forward these two amendments that were not put forward at Committee stage.

The first amendment removes words from Clause 4(1) at line 17 in the sense that a person is guilty of an offence if he uses towards another person threatening, abusive or insulting words or behaviour with intent—I disregard paragraph (b) for the moment—to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another. There follow the words that we wish to remove, namely: or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked".

This offence under Clause 4 carries the penalty of a fine or six months' imprisonment. There was much criticism on both sides in relation to these words. I hope that I assess fairly the essence of that criticism when I say that if these words are left in the Bill, the police officer and the magistrates will first have to consider the intent of the defendant, the intent to cause the person to believe that immediate unlawful violence will be used—his state of mind. They will then have to consider the belief of the victim, that is, whereby the person is likely to believe that such violence will be used". So they will have to consider the intent of the accused person. And they will then also have to consider, appropriately, the belief of the victim as to whether violence would be used. This means the state of mind of the accused person and the state of mind of the victim, remembering that there is no necessity to call the victim as a witness. In assessing this, one will be deciding the matter on the evidence given by the witness for the prosecution who, in all probability, will be a police officer.

The noble Viscount, Lord Colville—I am sorry that he is not in his place at the moment—drew the attention of the Committee most forcefully to Clause 6(3) which says, A person is guilty of an offence under section 4"— that is the one that we are discussing— only if he intends his words or behaviour …to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting". So the third matter that the court or police officer will have to consider is the defendant's awareness—a new concept, so far as I know, in the criminal law. As the noble Viscount, Lord Colville, pointed out, the court would have to consider in addition the likelihood of the victim's belief, and/or the likelihood in the police officer's mind, that violence would be provoked.

It is very difficult to read that without seeming to be a lawyer who is trying to confuse the issue; I hope that I have not appeared as such. However, it appears—and this was the nature of the criticism from both sides of the Committee—that it is an impossible task and a lawyer's bean-feast if these words are left in this clause. If one gets rid of the words, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked", there is a perfectly straightforward job for the police officer or the magistrate to do. They will simply have to see whether the person used the threatening, abusive or insulting words. It would have to be decided in the normal way whether the words or the behaviour used were such that it was done with an intent to cause a person to believe that immediate unlawful violence would be used, and then a decision would have to be made on guilt or innocence.

The amendments which we have put down seek to make out of Clauses 4 and 5 two perfectly simple and straightforward offences. Clause 4 involves intent; and Clause 5 does not require intent. I am sad to see that the noble Lord, Lord Renton, is not in his place this evening. If I remember rightly, the noble Lord also found those words far too complex. Even the noble and learned Lord, Lord Denning, added his voice. The noble Lord, Lord Renton, asked the Minister to take the matter away and come back on Report with something simpler. It is a great sadness that that does not appear to have been done.

Clause 4 is modelled on Section 5 of the Public Order Act, which penalises threatening behaviour whereby a breach of the peace may be occasioned. The Law Commission pointed out that threatening behaviour did not always occasion a breach of the peace. Hence the new wording in this clause, which we support, because abusive or threatening behaviour is not always liable to cause a breach of the peace. The Minister said in Committee, in view of the criticism about these words, that he would look at the matter to see what could be done.

Moving to Clause 5, the lesser offence, it reads in this way: A person is guilty of an offence if he—

1. (a) uses threatening abusive or insulting words or behaviour, or disorderly behaviour, or
2. (b) displays any writing"—

and so on— within the hearing or sight of a person likely to be caused harassment, alarm or distress". It is the words "caused harassment, alarm or distress" which we seek to remove in this amendment and to substitute for them "put in fear of violence". In this clause there is no need to have a victim; and there is no intent. It is merely the, threatening, abusive or insulting words or behaviour…within the hearing or sight of a person likely to be put in fear of violence, which would make the offence. This offence carries no imprisonment.

In this amendment we seek to remove the words "caused harassment, alarm or distress" because, as was pointed out again on both sides of the Committee, they are so broad in their meaning that they would bring in behaviour which should never be made criminal. With this amendment the police officer or the court would simply be able to concentrate on the likely consequences of the defendant's behaviour; that is, to make an objective judgment. It would also be a convenient procedure for a summary offence, carrying no power to impose imprisonment and no need to prove any intent.

The noble Lord, Lord Broxbourne, alas, is not in his place this evening. Your Lordships will remember that it was he who in Committee was so upset that the amendment was not moved that he broke into Latin and protested that he was denied the rare and refreshing pleasure of being able to be in accord with those of us on the Alliance Benches. If my recollection is right he invited the Minister to come back on Report with a redrafted clause more in line with this amendment. I was looking forward to being able to say to the noble Lord that his cup is full this evening because here is the amendment and he would have been able to join with us and support it.

The amendment makes the task of the police officer and the court perfectly straightforward, and is simple. I suggest that it meets the mischief which was spelt out in Committee by the Minister. The essence of the effect of hooliganism—of threats, abuse, insults and gangs—is putting somebody in fear. Surely that is the essence of what we are trying to meet. It is the fear that is engendered in the weak and the old by abuse, threats violence and hooliganism. It boils down to fear—of what? It boils down to fear of some kind of physical violence; a fear that if you protest—if you come out of your flat, if you try to stop people doing what they are doing—you will be assaulted in some way.

The essence is not the words as they have been drawn of causing "harassment, alarm or distress". In ordinary life all kinds of behaviour cause the ordinary person alarm and distress which should never be made a criminal offence. It is a part of all our lives that we are caused alarm or distress very often by other people's behaviour. Within these clauses of the Public Order Bill the essence of this whole question is surely fear of some form of physical violence. If these words "put in fear of violence" are inserted in this clause one has two neat, perfectly straightforward clauses.

Clause 4 deals with the more serious matter when someone specifically intends to cause somebody else to believe that they are going to be treated in a violent way. Clause 5 provides for a summary offence before a magistrates' court without imprisonment. One does not have to go into the question of intent. One simply has to look at the behaviour and decide whether it is such as to be likely to put someone in fear of violence without these complicated contortions through which I suggest, in all seriousness, the court and the police officer would have to go if the words are left as they appear in the Bill. I beg to move.

Lord Somers

My Lords, I hope the House will remember that there are many occasions on which it is absolutely impossible to tell what has sparked off violence. Your Lordships may remember an occasion in Brixton some years ago when a policeman went merely to examine the licence of a car which was standing by the kerb. He was immediately set upon by two youths, and as far as I can remember, was injured. That sort of situation frequently arises. Perhaps it is not an exaggeration to say that innocent actions are more likely to spark off violence than guilty actions. However, I leave that to the judgment of the House. It is a pity to lose sight of the fact that the motive may be perfectly innocent.

The Earl of Caithness

My Lords, perhaps before answering the noble Lord, Lord Hutchinson, in detail, I may take up one point that he made with regard to awareness. Although I am sure he does not need to be reminded, perhaps I may say that awareness is not a new concept in criminal law. It is an element of the reckless test, recklessness being a mental element in various offences—for example, the Offences Against The Person Act 1861.

Returning in detail to Amendments Nos. 1 and 3 we discussed these matters during Committee in a debate initiated by the late Lord Plant. Perhaps I may begin my reply to this debate by adding my regrets on the untimely death of the noble Lord. I am sure we shall all miss his intelligence and quick humour. He was a very useful member of this House.

Clause 4 is intended to be a restatement of the existing offence of threatening behaviour in Section 5 of the Public Order Act 1936. Section 5 penalises the use of threatening, abusive or insulting words or behaviour intended or likely to occasion a breach of the peace. Section 5 was itself modelled on Section 54(13) of the Metropolitan Police Act 1839, which penalises threatening behaviour with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. So the likelihood limb of this offence has been in force a long time.

This amendment would delete the tailpiece of Clause 4(1)(b) which is the likelihood limb of the restated offence. Prosecutors would be required to prove the defendant's conduct was intended to cause fear of violence, or to provoke someone into violence. This would seriously weaken the offence and make it much narrower than Section 5 which it replaces. It is often possible to show that where a person uses threatening behaviour, violence is likely to result. It is less easy to prove that that was necessarily the defendant's intent. Perhaps I may be allowed to give an example to prove the point. A person approaches a couple in the street and insults the woman in an obscene way. She may not react violently. But her companion may very well do so. It is unlikely that it could be proved that the accused intended to provoke the man to hit him. It is relatively easy to prove that this was the likely result. If the noble Lords' amendment were accepted the accused would get off scot-free.

Surely if a person has used threatening, abusive or insulting conduct, with the result that someone is likely to be provoked to use violence or is put in fear that violence will be used, that is a mischief that must be dealt with. To deal with it we must retain the likelihood limb of the offence. I would advise the House therefore to reject the noble Lord's first amendment.

Lord Hutchinson of Lullington

Perhaps I may interrupt the noble Earl. The Minister says that the offender will get off scot-free. One would precede against him under Clause 5.

7.15 p.m.

The Earl of Caithness

My Lords, perhaps I may deal later with the noble Lord's amendment with regard to Clause 5 in order to clarify the point. Before doing so, it is right that I should say a few words about the reply of my noble friend Lord Glenarthur at an earlier stage, when he undertook, without commitment, to see whether Clause 4 could be improved and to discuss the whole of the matter with the Association of Chief Police Officers. I have to advise the House that we did not believe that the clause could be improved. I am sorry that the explanation for that decision is rather complicated. However, I will try to put it succinctly.

Clause 4 is intended to replicate Section 5 of the Public Order Act 1936 save that the breach of the peace test used there is replaced by the Law Commission's proposed alternative test of fear of, or provocation of, violence. Clause 4 of the Bill as introduced in another place thus provided that a person would be guilty of an offence if he used offensive conduct towards another person intended or likely either to cause the other to believe that immediate violence would be used or to provoke the immediate use of violence by him.

By spelling out the parties to the breach of the peace in this way, and their respective roles, Clause 4 was inadvertently narrower than Section 5. ACPO were rightly very concerned about this. In particular, it did not catch the following situations both of which are caught by Section 5: first, where the offender's conduct is directed at someone but leads to violence by the victim's associates (for example, where a wife is insulted and her husband responds with violence); secondly, where the offender's words lead to violence by his asssociates (for example, where the leader of the gang taunts the police and his friends then attack the police).

To catch these situations we had to spell out the range of intended or likely reactions that might constitute the offence. That is why at first blush, Clause 4 looks long and complex. However, in the absence of specific mention of all the various reactions of the various parties there is a danger that these examples I have given would not be caught. I am able to reconfirm that we have discussed this with ACPO. They do not believe that the clause will be unduly difficult to work in practice. They would prefer it to stay in its present form.

I turn to Amendment No. 3. The noble Lord has explained that in his view a person's conduct is only criminal in a public order context if he is likely to provoke violence or create a fear of violence. The noble Lord has agreed that this is a similar threshold to that established by the breach of peace test at common law. By contrast, the noble Lord argues that Clause 5 goes too far in penalising conduct which is likely to cause alarm, harassment or distress. He argues that those words are too vague and set too low a threshold.

I hope that the noble Lord, Lord Hutchinson of Lullington, would agree that if we were to accept this amendment, and Amendment No. 2, that we are shortly to discuss, we would in effect create an offence remarkably similar in many respects to that which is in Clause 4 of the Bill: namely, the use of threatening, abusive or insulting behaviour likely to put another in fear of violence. I think that the noble Lord would agree then that taken as a package his amendments are simply designed to wreck Clause 5.

Clause 5 which your Lordships have already accepted overwhelmingly should stand part of the Bill, is a new low-level offence designed to fill a gap in the law in order to combat hooliganism. It gives additional protection for those of our citizens whose lives are made a misery by this modern plight. Among other things it will help to deal with the abusive harassment of our ethnic minorities; the thugs who alarm shoppers in shopping precincts; and the uncaring hooligans who rush about housing estates, creating noise and mayhem in the early hours of the morning, causing much distress to residents, particularly the elderly, living alone.

The noble Lord has said that his alternative to our test of alarm, harassment or distress is basically a restatement of the old breach of the peace test. But such a test does not extend to behaviour which is aggressive behaviour without more. That is why Clause 5 deals with a slightly lower threshold than a breach of the peace. As I said in the last debate, the difficulty is that when the police are called to such a disturbance they often have no powers with which to act.

We are of course debating where behaviour ceases to be merely annoying and when it becomes a criminal mischief. The noble Lord, Lord Hutchinson of Lullington, has passionately argued that it is only when conduct has a potential violent outcome or causes another to fear such does it become criminal. We cannot agree with that. We fail to see why, if hooligans are throwing lids and bottles about outside an old people's home at two o'clock in the morning, causing distress to the residents but not causing them to fear violence, the police should be powerless to act. Nor do I accept that racist abuse and harassment that afflicts so many ethnic minority families is acceptable behaviour as long as these families do not expect actual violence to occur.

Clause 5 as it stands strikes a careful balance approved on an earlier occasion by your Lordships. It is designed to provide protection for citizens against specific mischiefs not already covered by the law. However, it is a low-level offence carrying a maximum penalty of a £400 fine. It also contains important safeguards: the accused must intend or be aware that his conduct is threatening, abusive, insulting or disorderly; if the defendant had no reason to believe that there was anyone within sight or hearing who was likely to be caused harassment alarm or distress, he will be not guilty of the offence; nor will he be guilty if he can show that his conduct was reasonable.

That careful balance would be undermined by the noble Lord's amendment. In short, the clause would not achieve its objective of providing greater protection against hooliganism. By contrast this amendment would be confirming the present state of affairs as setting an acceptable level of hooliganism. That is not good enough.

Lord Monson

My Lords, although I have mixed feelings about Amendment No. 3 in that I would still prefer the highly subjective word "distress" to be qualified by the word "acute" or the word "severe", nonetheless perhaps I may try to come to the aid of the noble Earl the Minister as regards Amendment No. 1.

Is it not the case that Clause 4 as it stands exactly mirrors Clause 18, which deals with the stirring up of racial hatred? Just as a person is caught under Clause 18, whether or not he actually intends to start racial hatred, so someone is caught under Clause 4, whether or not he actually intends to stir up violence. Is it not quite illogical to support Clause 18 as it stands and not to support Clause 4 as it stands?

Lord Foot

My Lords, I am not at all sure that I can add very much to the arguments that have been addressed to the House by my noble friend Lord Hutchinson. This is a very important matter, but it is also an extremely complicated matter. I very much doubt whether those of your Lordships who have not had the opportunity to study this matter in some detail will be able to come to any really informed opinion upon these matters. However, at the same time I cannot help thinking that they are indeed of very considerable importance.

I should like to try to draw your Lordships' attention to the difficulties which will be encountered by the courts if this Bill remains as it stands. As my noble friend has pointed out, a person is guilty of an offence under Clause 4 if he: uses towards another person threatening, abusive or insulting words or behaviour, etc., in two separate circumstances. One is if he does that: with intent to cause that person to believe that immediate unlawful violence will be used", etc. In other words, under that leg there has to be proved a criminal intent—mens rea. The clause then goes on to say that if the intent is not there, nevertheless he can be convicted of the offence if he engages in conduct "whereby that person"—that is, the potential victim— is likely to believe that such violence will be used or it is likely that such violence will be provoked". In other words, the accused person can be convicted of that offence without it being proved that he had any intention to cause violence if only the court is satisfied that the potential victim was likely to believe that violence would be used. Therefore, we can have an offence under Clause 4 either with an intention or without an intention if there has been an effect upon the mind of the potential victim.

The matter does not stop there because it is more complicated when we look at the provisions of Clause 6(3), which states that: A person is guilty of an offence under section 4 only if he intends to use or threatens violence, or is aware that his conduct may be violent or threatens violence.

Therefore, under that provision in some curious way we are putting back into Clause 4 the need for there to be an intention or an awareness on the part of the accused. So we are reversing in Clause 6(3) what we have specifically provided in Clause 4, where we have said that there is no need necessarily to prove an intention; all we have to prove is that the victim thought that something was likely to happen to him or her.

I suggest that the courts will have the greatest possible difficulty in weaving a way through these complicated provisions. It would be my hope that the noble Earl the Minister might be able to say that this is one of those many points which he will look at again.

Perhaps I may conclude by saying that I do not think the noble Earl took in the essential point that was being made by my noble friend. In these two amendments we are seeking, first, to make it necessary for the serious offence under Clause 4 to be proved to show mens rea and a malicious intention. We are then saying that in dealing with lesser offences—for example, matters of hooliganism and the rest—where possibly the prosecution cannot prove intent, there is no need for them to prove intent; they have only to prove that there was: threatening, abusive or insulting words or behaviour, or…displays to another person [of] writing, sign or other visible representation which is threatening, abusive or insulting within the sight of a person likely to be put in fear. We do not have to prove intention there, but we have the safeguard that the penalty there is limited to a fine; it cannot be a penalty of imprisonment. Therefore, a person against whom we cannot prove an evil intention should not be liable to the risk of being imprisoned.

As I understand it, that is the framework of these two amendments, and I cannot help thinking that we should have got things very much clearer if the noble Earl was able to accept the amendments which we propose.

Lord Hutchinson of Lullington

My Lords, as my noble friend Lord Foot has just said, it is perfectly clear that the noble Earl—and I say this with the greatest possible respect to him—has not taken on board the basis of these two amendments. Throughout his reply he never dealt in any shape or form with the complexities of the question of the state of mind of the victim, the state of mind of the accused, the question of the awareness of the accused, the question of the belief in the mind of the police officer and, finally, the defence which can be put forward by the defendant that his behaviour was reasonable.

All these matters, to anyone who has been in a criminal court, are matters of such complexity and are such a field day for a lawyer that one would have expected a rather more detailed reply from the Minister as to how the Government visualised a court of law, a court of magistrates, having to sit back and decide no fewer than possibly four questions at the same time about the state of mind of the persons concerned in the case; remembering always that the victim does not have to be called at all and that what they will be inquiring into will be states of mind inferred from the evidence of a prosecution witness, a police officer.

However, it is clear that this is a matter of the greatest possible complexity. I cannot begin to pretend that I have been satisfied at all by the reply of the Minister. To say that this is a wrecking amendment to Clause 5 is not to appreciate the essence of these two amendments. As I ventured to suggest when I interrupted the Minister, if you could not get home on Clause 4 in the circumstances that he set out, then clearly you get home under Clause 5. That was the whole purpose of these two amendments: so that if you failed on one you could proceed on the other.

However, it is clear that there is very little support in the House at this hour of the night. It is a great sadness that none of the three distinguished lawyers on the government side of the House who in one way or another supported in Committee much of what we are saying in putting forward these amendments, is here tonight. It would have been of the greatest assistance to the noble Earl if he had been able to hear their arguments in the House. But there it is. We have very little support in the House, and in those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness

My Lords, this may be a convenient moment for us to adjourn for a short period. I beg to move that further consideration on Report be now adjourned, and that we should not come back to this Bill until twenty-five minutes before nine o'clock.

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