HL Deb 16 June 1994 vol 555 cc1889-956

House again in Committee.

Clause 137 [Offence of racially inflammatory publication etc. to be arrestable]:

Lord Lester of Herne Hill moved Amendment No. 157: Page 112, line 35, at end insert: ("( ) In section 17 of the Public Order Act 1986 for the words "racial hatred" there shall be substituted the word "hatred".").

The noble Lord said: I do not know whether it will be convenient for me to speak to Amendments Nos. 158 and 159 at the same time as moving Amendment No. 157. They have all been grouped together and it seems to me that that would be a convenient course. I beg to move Amendment No. 157, which stands in my name on the Marshalled List. In one sense, all three amendments are related but in another sense they can be looked at as separate topics.

Amendments Nos. 157 and 158 essentially seek to apply to the law of the mainland of England, Wales and Scotland the position which obtains at the moment in Northern Ireland. They do that by extending under Sections 17 and 18 of our Public Order Act 1986 the offence of incitement to racial hatred to include incitement to religious hatred as well.

In Northern Ireland, the Public Order (Northern Ireland) Order 1987 makes it an offence to stir up hatred or arouse fear and defines the terms "hatred" and "fear" by reference to religious beliefs as well as race. On the mainland, the Public Order Act 1986 builds on the Race Relations Act 1976, creating the offence of incitement to racial hatred. That means that in England, Wales and Scotland the only protection that minority groups such as adherents of the Jewish faith, Sikhs, Moslems or Hindus have against serious public order offences is if they are perceived as racial groups rather than as religious groups.

However, with the resurgence of anti-Semitism and in the light of the settlement in this country of a large Moslem population and other religious minorities, the Committee may think that it is particularly important that the law should signal Parliament's recognition of groups who define themselves through their religious beliefs and that the law should offer them some measure of effective protection against words or conduct that deliberately stir up hatred against them because of their beliefs.

I should in a sense declare an interest, because I am a trustee of the Runnymede Trust, which published in January 1994 a report of a distinguished commission which was chaired by the right reverend Prelate the Bishop of Oxford and which included the noble Baroness, Lady Perry, among its members. The report called for the creation of a law on incitement to religious hatred in mainland Britain, as there is in Northern Ireland. The report (I was not a member of the commission) argues that a move of this kind seems to be implied by Article 20 paragraph 2 of the International Covenant on Civil and Political Rights, to which this country is a signatory, which provides that,

"Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".

This would give effect in our domestic law to that international obligation, which is at the moment fulfilled only on the other side of the Irish Sea In Northern Ireland.

In the same way, in its report on blasphemy, to which I shall come briefly in a moment when I speak to another amendment, the Law Commission in 1985 made the point that, if it were thought necessary to replace the existing common law Offence of blasphemy with some other offence, then the candidate that the commission suggested would be precisely what is contemplated by this amendment; namely, to widen the offence of incitement to racial hatred to cover religion as well.

I suggest that Parliament should not waste this opportunity to recognise and protect communities whose reference point is their religious belief.

The first and second amendments to Clause 137 have therefore been adopted, as I say, from Section 8 of the Public Order (Northern Ireland) Order 1987. They have the effect of criminalising acts intended or likely to stir up hatred against a group of persons in Great Britain defined by reference to their religious belief. The offence would be committed by the use of words or behaviour or the display of written material, by publishing or distributing written material, by public performances of a play, by distributing, showing or playing a recording or by broadcasting a programme. Furthermore, unlike alternatives such as the offence of group defamation, which I know that the noble Lord, Lord Irvine of Lairg, will advance later, this amendment, which focuses on incitement to hatred akin to violence, cannot legitimately, it seems to me, be said in any way to threaten the right to free expression.

One other benefit of these amendments is that they will ensure common standards in this area throughout the United Kingdom. It is hard to see why in Northern Ireland racial and religious incitement should be covered while it is not covered in this part of the kingdom.

Perhaps I may now turn to Amendment No. 159, on the subject of blasphemy, which I am moving. Its purpose is to give effect to the careful, cogent and convincing recommendations made by a majority of the Law Commission chaired by Mr. Justice Peter Gibson, as he then was, in its report published nine years ago in June 1985. That report was made after extensive consultations on the working paper which it had published in April 1981. I am convinced that there is a pressing need for the removal of this antique, outmoded and unnecessary common law crime of blasphemy.

The very existence of a blasphemy law which protects only the tenets of the Church of England is, I suggest, an unnecessary source of grievance among members of the Moslem community in particular, who regard it as discriminatory. It is unnecessary because the Church of England, as the established Church, does not require the protection of a special criminal offence against those who choose to vilify or ridicule its tenets. To contend otherwise would suggest a surprising lack of confidence about the strength of the Church in this country. The Church has not needed to invoke blasphemy law in modern times. It would surely be too defensive to suppose that its abolition could possibly create any threat to the continuing strength and great vigour of the established Church of England.

I also believe that any extension of blasphemy law to protect other religions would be a source of divisiveness and intolerance as between the adherents of different religions, and would menace freedom of expression. This amendment gives an opportunity to Parliament to give a lead on this matter. I recognise that it can happen only if there is support from all parts of the Committee. I also recognise that the issue is sensitive and needs to be handled with courage, sensitivity and care. It should not be rushed, but neither should it be indefinitely deferred.

By way of background I should remind the Committee of what constitutes the offence of blasphemy. At common law, indecent descriptions applied to sacred subjects may amount to the crime of blasphemy. The offence relates to outrageous comments about God, holy personages, or articles of the Anglican faith. It is constituted by vilification, ridicule or indecency.

Between 1883 and 1922, there were only five prosecutions for blasphemy. Since 1922, there has been only one prosecution for blasphemy: the controversial case of Whitehouse v. Lemon, where Gay News published a poem about a homosexual's conversion to Christianity which metaphorically attributed hom-osexual acts to Jesus Christ. The jury convicted by a majority, and the House of Lords confirmed, by a majority of 3 to 2, the trial judge's ruling that the publisher's intentions were irrelevant, and that there was no need for the prosecution to prove any risk of a breach of the peace. Whitehouse v. Lemon was a private prosecution brought without official support. Its wisdom was, as we later read, much doubted by many distinguished Anglicans.

In 1990, because of the outrage felt among the Moslem community at the publication of Salman Rushdie's novel The Satanic Verses, an attempt was unsuccessfully made to persuade the Divisional Court to rule that the offence of blasphemy protects not only the Anglican faith but also Islam. I declare an interest since I defended the publishers, Viking-Penguin in that case—

8.45 p.m.

Lord Elton

Will the noble Lord permit me to intervene? He said "the Anglican faith". Did he mean that, or did he mean the Christian faith?

Lord Lester of Herne Hill

In terms of blasphemy, I meant the Church of England and its tenets, as I explained.

The Satanic Verses case highlighted the sense of unfairness felt by many Moslems that the criminal law gives no protection to their religion.

In its report on the law of blasphemy in 1985, the Law Commission recognised three fundamental defects in the law. The first was that its ambit is so wide that it is impossible to predict in advance whether a particular publication would constitute an offence; the second was that the sincerity of the publisher is irrelevant; and the third that blasphemy protects only Anglican beliefs (the tenets of the established Church), whereas the criminal law is not an appropriate vehicle for upholding sectional religious tenets.

The Law Commission rejected the argument that abolition would lead to the publication of a flood of blasphemous material which would be without any substantive legal control or sanction. They found this argument dubious in itself and entirely speculative as to the likely result of abolition. They found that it was likely that abolition in present circumstances would have no greater effect than the abolition or repeal of other offences which have outlived their usefulness.

The Law Commission also rejected the argument that society might see Parliament's abolition of the common law offence without replacement as in some sense the bestowing by Parliament of its approval on conduct currently penalised by the criminal law. Such an inference, it believes, would be unwarranted. Abolition would be seen, quite properly, as disapproval of an unsatisfactory and archaic offence. It might even be seen as removal of the protection by means of the criminal law of a particular religion, a particular form of protection which many in modern society, where people profess a variety of faiths or no faith at all, would regard as unnecessarily discriminatory. The Law Commission lucidly explained why the fact that material might be published which would be offensive—even acutely offensive—to some, and yet not be subject to the criminal law, is not a sufficient argument for constraints upon its publication or availability in our modern, open, democratic and plural society, with its respect for fundamental human rights and freedoms, including freedom of religion, freedom of speech and equal treatment without discrimination.

Although some have suggested that the law should be extended to protect all religions, the Law Commission despaired of any definition that could draw workable distinctions between Baptists, Scientologists, Rastafarians, Anglicans and Moonies. The Law Commission concluded that a reformed law of blasphemy would serve no purpose necessary to a modern society. The claims of public order, morality and the rights of individuals provide insufficient justification.

As regards the protection of public order, with which this part of the Bill is primarily concerned, the Law Commission regarded the existing statutory offences protecting public order as sufficient and pointed out that, if there were a gap in the law as regards incitement to religious, as distinct from racial, hatred, it could be dealt with, if necessary, by appropriate specific amending legislation. That gap has now to some extent been narrowed by the Committee's acceptance of Amendment No. 154R earlier in the debate, because the new offence of harassment will apply to harassment on religious as well as other grounds.

The Law Commission's conclusion is reinforced by the absence of prosecutions for blasphemy in England between 1922 and 1977; by the withering away of the crime in Scotland, where there are no recorded cases since the 1840s and where it is doubtful that the offence any longer exists at all; and by the demise of prosecutions in Northern Ireland, despite the tragic sectarianism there. The scope of the offence in Wales is also uncertain because of the disestablishment of the Welsh Church in 1920. For my part, I agree with the authors of a leading media law textbook, Robertson and Nicol, that a criminal law that holds a publisher strictly liable for an artistic work liable to shock the Christian on the Clapham omnibus is inappropriate to an age in which the creeds of passengers to Clapham are many and various.

The Rushdie affair demonstrated the absurdity of blasphemy law either as a protection for Christianity or, in an extended version, as a protection for all religious susceptibilities. In that case the Divisional Court apparently favoured the abolition and certainly not the extension of blasphemy law to other religions.

If the offence were to be extended—as some people, especially some Moslem leaders or spokesmen, have suggested —to cover attacks on religious doctrines, tenets, commandments or practices other than Christianity, the existence of an extended law of blasphemy would encourage intolerance, divisiveness and unreasonable interference with freedom of speech. Fundamentalist Christians, Jews or Moslems could then seek to invoke the offence of blasphemy against each other's religion, doctrines, tenets, commandments or practices—for example, for denying the divinity of Jesus Christ, for denying that the Messiah has yet to come, for denying the divine inspiration of the Prophet Mohammed, and so on. An extended law of blasphemy which applied to all religions could be used as a weapon between Protestants and Roman Catholics in Northern Ireland or by fringe religions such as the Church of Scientology. The fact that the offence was committed only in cases of scurrilous attacks would mitigate but not eliminate the resulting intolerance, divisiveness and unreasonable interference with freedom of expression. There are fundamental differences which would be capable of setting one religion against another under an extended law of blasphemy.

For all those reasons—I apologise for having taking so long to summarise them—I respectfully submit that the offence should not be extended but should be abolished. Therefore I commend the amendment to the Committee.

The Archbishop of York

I am grateful to the noble Lord, Lord Lester, for speaking to the three amendments together. It seems to me that they hang together. I was a little fearful lest we should look simply at Amendment No. 158 and not see that Amendment No. 159 might be held to be consequential upon it. We need to look at the whole package.

The Church of England is totally opposed to stirring up hatred against any group, whether religious or not. Hence, one cannot possibly oppose the aims of the amendments which the noble Lord put before us. But, before the Committee considers whether the amendments are right and appropriate, we have to ask some questions. What message will their acceptance convey? Will the new proposal work? Will the proposal to have religious hatred as the key to the law adequately replace the present law, even if we grant that the present law leaves a great deal to be desired, as I think we must?

The point is that legislation arouses expectations. If a new criminal offence is put on the statute book without a reasonable expectation that it will prove effective, it may do more harm than good. That is particularly important in this case, where we are very properly seeking to protect and reassure groups which feel themselves to be vulnerable. If the legislation proves to be ineffective or is found to be directed towards the wrong target, such groups, which may be placing great hopes in Parliament to do something for them, will feel particularly let down.

At the height of the Salman Rushdie affair, Archbishop Runcie, as he then was, and I met for quite a lengthy period with a group of Moslem leaders to discuss what might be done. We explored the possibility of trying the extend the law against blasphemy to other faiths in addition to Christianity. We were conscious of the very difficulties which the noble Lord, Lord Lester, outlined. They were difficulties with regard to stirring up religious factional strife and difficulties about the definition of religion.

But, interestingly, there was no enthusiasm among that group for abolishing altogether the law of blasphemy. It was perceived by the Moslems present that, despite its shortcomings, nevertheless it signals a general presumption that blasphemy of any kind in our society is to be deplored. We were sympathetic towards the proposal contained in the noble Lord's amendments about a new offence on the Northern Ireland lines, but we doubted whether it would in fact do the work intended of it. Northern Ireland itself does not provide an encouraging example. According to the reports of the Commission for Racial Equality in 1982, the clause about religious belief has seldom been used in Northern Ireland. I believe that it has never been used successfully. In a country where religious belief is much easier to define—perhaps too easy to define—than in England and where one would expect offences against it to be relatively common, one surely needs to ask why this clause has not been effective in Northern Ireland before we start thinking about extending it to England.

The difficulties referred to in trying to define religious belief have been much discussed. It does not seem to me that one can solve those difficulties by drawing up lists, leaving juries to decide or passing the problem on to the Attorney General, as some have suggested. In that case there would be grave uncertainties in the law, as there are at present.

The answer to my first two questions, therefore, is that the amendment is likely to leave a false impression and arouse false hopes. It will lead to disappointment because it is unlikely to work. Even if it does work in a limited number of cases, I believe that it does not go to the real heart of the problem as seen by religious leaders. That problem lies in the question whether and how in a society those things and beliefs which are held sacred can be protected against outrage. It is not just about hatred; it is about being outraged.

The problem presents itself in different ways in different religions. Let me repeat that the Church of England is entirely sympathetic to the idea that it is not the Church of England belief or Christian belief alone that should be protected. But we must be careful against offering too many temptations to religious groups who would use any law litigiously. The way these matters work now means that the protection afforded to one faith—a faith that is after all the faith of the established Church and a faith adhered to with varying degrees of enthusiasm by between 70 and 80 per cent. of the population—provides a sort of umbrella from which others can benefit; not directly through the law, but through the presumption against blasphemy which the existence of this ancient legislation still retains within our legal system.

If the crime of blasphemy were to be abolished, we should be saying something quite inviting to many of those people who are looking for opportunities. Let me stress that this is not primarily about protecting Christians. In the end it is about protecting the quality of our society from the erosion of values which we observe going on within it. Many of those values are encapsulated in those things we hold sacred. I want therefore firmly to resist any idea of abolishing laws until we are absolutely certain that we have something much better to put in their place.

The noble Lord referred to the 1985 report of the Law Commission. He described it as a "majority" report, as indeed it was. I wonder how many Members of the Committee know that that commission consisted of five members, two of whom—including the chairman— signed the minority report. It was not therefore striking evidence of firm conclusions. Indeed, the commission divided precisely along those lines as to whether there were sacred things which needed to be protected. Of course we must recognise that in 1985 there was a good deal more optimism about the effects of liberalising legislation. We now have more experience of what vicious publicists can do if they are given the chance.

The minority report of the Law Commission argued centrally that there would be a gap in the law if the present offence were removed. Again, it is not about things which are already covered by obscenity laws or laws about hatred. It is precisely about those peculiarly and specially religious things which are so near the hearts of religious believers and many of those who are perhaps not quite so obviously religious believers. The minority report said, Those cases could be so serious that, in our view, to be subjected to outrage of religious feelings in consequence of such activities, solely from the desire to inflict that outrage, would be seen by a substantial number of people as an experience little different in disagreeableness, or in its power to cause unhappiness, from that of being subjected to threatening words which do not result in actual violence. Thus it seems to us that abolition without replacement would leave a significant gap in the protection afforded to society by the criminal law which would not be effectively covered by other provisions. We do not have a viable alternative at the moment. I believe that it would be unwise to rush into changes. However, I hope that the Government will take up the suggestion of the Commission on Racial Equality made in 1992 that there should be a thorough review of the 1986 Act, particularly as this clause applies in Ireland. I hope that the Government also will consult widely in the process. I am sure that the Churches would be most happy to co-operate in any such review and in any attempt to find a better way forward. But I hope that the Committee will reject this particular way.

9 p.m.

Lord Robertson of Oakridge

I wish to speak to Amendment No. 159. By and large I take the line given so well by the right reverend Primate the Archbishop of York. The noble Lord, Lord Lester of Herne Hill, raises an important subject. Indeed, part of what he proposes has some attractions. I simply wish to say that there is a strong case for retaining the common law offences of blasphemy and blasphemous libel. First, what are we talking about? The case of Whitehouse v. Lemon in 1978 led to the following definition of blasphemy: Any writing about God or Christ or the Christian religion or some sacred subject in words that are so scurrilous or abusive or offensive that, if they are published, they would tend to vilify the Christian religion and would tend to lead to a breach of the peace". We are not therefore talking about misuse of the Lord's name as a swear word, wretched though that is; neither are we concerned with mere heresy. We are dealing with something deliberately outrageous, calculated to shock and wound. To Christians in particular, whose religion is essentially a personal relationship between the individual and our Lord Jesus Christ, blasphemy can be especially hurtful.

I have heard three main arguments for abolishing the law on blasphemy. First, it is said to be an anachronism because Britain is no longer a Christian country; secondly, it is stated to be an unnecessary restriction on freedom of speech; and, thirdly, it is said to be one-sided. The Salman Rushdie case showed that only the Christian religion was protected by the law.

My answers to those points are as follows. Britain is a Christian country. The very title of our monarch contains the words, "By the grace of God". Christianity permeates virtually all our institutions and our national heritage. Just as in Islamic countries where the law is based on the Koran, most of our law has its roots in the Bible. What is more, most of our people, if they get themselves into a real jam, would ask God to get them out of it, even if they might blame him for getting them into it in the first place. Retention of the present blasphemy laws is an affirmation of our Christian basis

Although we naturally want to preserve the right of freedom of speech, it is not an absolute right and is already curtailed in respect of, for example, libel, slander and pornography. Indeed there are further restrictions in respect of the latter point in Part VII of the Bill. The fact that in this century there have been less than a handful of prosecutions for blasphemy does not mean that the law is of no value; rather it confirms that the law is accepted as a deterrent of last resort against publication of scurrilous attacks on God and the Christian religion.

To extend the blasphemy law to other religions would be to put God on a par with gods of those religions. It would raise the question: which other religions? It would also be impossible to determine what constitutes blasphemy. For example, the doctrine of the Trinity, which may be important to Christians, is an outrage to Moslems whose prime article of faith states that God is indivisible. One might well reach a situation where it was impossible to preach the Christian gospel without risking prosecution for blasphemy.

However, it would be unacceptable if religions other than Christianity could be vilified with impunity. The danger of breaches of the peace would increase. I agree with the suggestion made by the most reverend Primate that a study should be made as to whether the laws on public order should be amended to include incitement to religious hatred, rather than the specific form suggested by the noble Lord, Lord Lester of Herne Hill.

This is an urgent matter, but it is also a difficult and delicate one. It needs more study than can be given by your Lordships to a last minute amendment to the Bill. The legislation resulting from such a study would not replace the blasphemy law but would run in tandem with it.

I have heard it stated that God does not need the protection of a blasphemy law. That is not the point. As the North Korean situation reminds us, we live in a dangerous and increasingly unstable world. The human race now has the capacity to destroy most, if not all, life on this planet. We need the protecting hand of God as never before. Even at Dunkirk and on D-Day the nation turned to God in prayer. The last thing we need to do is to end the vestigial honour paid to Him by destroying the blasphemy law and opening the door to unlimited vilification of His name.

Furthermore, if the honour of the name of God were to be denied even the minimal consideration of the existing law, we would be moving a step nearer to a society where nothing was honoured, nothing respected and nothing held to be of value, except the licence of the individual to conduct himself exactly as he pleased, without regard to the interests and feelings of others. I conclude, firstly, that the common law offences on blasphemy and blasphemous libel should be retained. Secondly, the blasphemy law should not be extended to cover other religions. Thirdly, the laws on public order should be reviewed to determine whether they should be altered to protect all recognisable religious groups from threatening, abusive or insulting words or behaviour used with intent to outrage members of those groups. It may well be that action will result from the debate but I hope that the noble Lord, Lord Lester, will not press the amendment to a Division.

Baroness Seear

I have added my name to the amendment. I realise that this is an extremely difficult issue and one on which there will be divided opinion in your Lordships' House. I do not propose to go into the arguments in great detail because they were put extremely fully and extremely well by my noble friend Lord Lester.

However, I should like to make two points. We have today, all around us—and it must be obvious not only in this country but across continental Europe—growing racial feeling, growing bitterness between racial groups and a real danger of a rise of the nastiest kind of nationalism and racial feeling which some of us hoped we had seen the end of 50 years ago. That is a matter of the greatest concern when we are considering the amendments.

Such feeling can be stirred up in the name of religion, and very often is stirred up in the name of religion; and that is used as an excuse rather than a reason for fierce anti-group, anti-racist attacks. Therefore, it is necessary to include action on the grounds of religion along with the other elements which we have legislated against. That is covered in the first amendment.

I want to talk particularly about the second amendment, which deals with blasphemy. We are, whether we like it or not, a multi-faith society Those of us who are practising Christians recognise that we have much to learn from many of the other faiths and that we can only gain from a more tolerant and respectful attitude towards other faiths. Members of those other faiths naturally and understandably resent the fact that the blasphemy laws cover only Christianity.

The most reverend Primate the Archbishop of York said that members of other faiths have expressed some support for the blasphemy laws, but it is surely an anachronism that in the country as it now is the laws cover only one faith. Only yesterday I was at a press conference at which strong feelings were put forward by members of other faiths about the attitude in this country towards their faiths. One way to proceed would have been to attempt to extend the blasphemy laws to other religions. But anyone who has looked at the matter carefully agrees that that would be an extraordinarily difficult thing to do. One could of course, as a number of noble Lords no doubt would wish to do, retain the blasphemy laws exclusively to Christianity, but we have to take very much on board the sincerity of the strength of feeling and support for other religions. Some of it is fanatically held and some of it would no doubt be much disapproved of by Members of your Lordships' House, but it is a reality. That should be combined with the growing racial feeling in this country. Last year the number of racially motivated attacks was very alarming indeed. We want to do everything we can to diminish rather than to exacerbate those feelings.

I find it extraordinarily difficult to justify maintaining a blasphemy law exclusively for one religion in a country such as this. I very much hope that Members of the Committee will consider the importance of race and the growing exacerbation of racial feeling which is undoubtedly taking place in this country.

9.15 p.m.

Lord Renfrew of Kaimsthorn

While I recognise the great depth of feeling which this amendment naturally touches upon, I rise to support this raft of amendments. In doing so it pains me to observe that I think there is a very serious error of drafting, which occasions surprise. I should perhaps refer to it first as I think it is an embarrassment for those wishing to support the amendments. The amendment states: In section 17 of the Public Order Act 1986 for the words 'racial hatred' there shall be substituted the word 'hatred'". However, if one deletes "racial hatred" in Section 17 and substitutes "hatred", that leaves one with the other sections of the Public Order Act 1986—Sections 18, 19, 20, 21, 22 and 23—where the term "racial hatred" is used with great regularity and with great clarity. Its use there depends on the definition offered in Section 17. This could readily be rectified. For instance, had the amendment read, In section 17 of the Public Order Act 1986 for the words 'racial hatred" there shall be substituted the words 'racial or sectarian hatred'", the difficulty could be avoided. It is difficult to read the Public Order Act 1986 and to delete the word "racial" from Section 17 without leaving it floating embarrassingly in the subsequent sections.

Lord Lester of Herne Hill

Perhaps the noble Lord will allow me to respond. It is purely a drafting point and does not go to the substance of the matter. I have simply copied the formula used in the Northern Ireland order which uses exactly the same approach. I agree with the noble Lord that a consequential amendment would have to be made to the other sections. However, it does make sense if one looks only at Sections 17 and 18 read together. It does not make sense with regard to the other sections. This is purely a technical and drafting point and I am sure that the noble Lord wishes to address the substance of the matter. If the spirit were accepted I am sure the form could be translated into proper language.

Lord Renfrew of Kaimsthorn

I was coming to the substance but I think it is pertinent when we are talking about amendments that they should be correctly drafted. I support the amendments but it is unfortunate that as drafted they would not work satisfactorily. However, it is my purpose to support the amendments although I should like to see them in correct form, so to speak.

I support the points that were made by the noble Lord, Lord Lester and the noble Baroness, Lady Seear, in relation to the offence of blasphemy. It had always seemed a little anomalous to me that, as the noble Baroness said, in a society of many faiths and many persuasions the law of blasphemy should apply specifically to the Christian religion. Although I was previously aware of the position with regard to blasphemy, my attention was drawn to it in much more pointed form as a consequence of the outrage that I felt at the fatwa pronounced on Salman Rushdie by the clerics located in Iran. It seemed to me to be a most monstrous event. It deeply shocked me. I can well understand that in terms of the faith of those clerics in Iran and, indeed, much more widely, Salman Rushdie's remarks could be regarded as "blasphemous", as those Islamic clerics might define the term. Although I was greatly scandalised by the fatwa I found myself very much embarrassed when discussing the matter calmly with friends and students, some of the Islamic faith, when it was pointed out that had Salman Rushdie made such observations in relation to the Christian faith they might well have been regarded as blasphemous and he might therefore have been committing an offence. Therefore, it was not possible for one to say that the fatwa was outrageous or to say, "What a terrible infringement of the principles of freedom of speech" because those people could say, "Your Christian faith is entirely protected because of the blasphemy provisions".

As I thought about the matter more deeply it became clear to me that it would not be appropriate to extend the provisions of blasphemy to cover other faiths for very much the reasons which have already been put forward. It would lead to all kinds of complications, particularly since the views of one faith are often blasphemous when viewed from the standpoint of another faith. Such an extension of the provisions would lead to an impossible contradiction. It seemed to me, therefore, that the only appropriate measure was to abolish the offence of blasphemy altogether. That case has been argued very effectively.

However, I have been very much impressed by the sincerity with which it has been argued that abolishing the offence of blasphemy would be inappropriate. We live in a nation of many faiths and many cultures. Moreover, we live in a nation in which the minority faiths and minority cultures are at present very much in need of protection and support. That is the first point that I want to make.

My second point is that surely, whatever one's faith, the truth does not need the protection of the law. That is the most important point. If one is standing up and upholding the truth as one sees it, as the most reverend Primate did, and if it is one's role in life to proclaim a great truth, I really cannot believe that that great truth needs the protection of the law. Surely armed with the breastplate of righteousness, or whatever, one should be able to go forth and argue those principles effectively. If others care to argue against them, even in derogatory language, one should be able to bear it.

The Earl of Lauderdale

Following the noble Lord's interesting observations, is it not the case that the trouble that we are dealing with is that blasphemy, however it is regarded by whatever religion, is often very close to the offence of inciting violence? Something that is blasphemous to one religion or insensitive to another is not necessarily good for society as a whole. Therefore, the case for an overall anti-blasphemy law is very strong, if only in the interests of peace.

Lord Renfrew of Kaimsthorn

That point might carry some weight were it not, I believe, for the effectiveness of Amendment No. 158, which is part of this raft of amendments. That amendment introduces "religious belief as one of the criteria. It would provide that "racial hatred" or "racial sectarian hatred" would mean hatred against a group of persons defined also on the basis of religious belief. Under Section 18 of the Public Order Act it would remain an offence for somebody to intend to stir up racial or religious hatred in circumstances where racial or religious hatred is likely to be stirred up. I thank my noble friend for his intervention, but it highlights the fact that that point is adequately dealt with in Amendment No. 158.

I have made the points that I wished to make. Not only is the offence of blasphemy, as currently defined, inegalitarian and insensitive to those minorities whose sensitivities so much require our support and attention at the present time but it is unnecessary. When it comes to the stage of stirring up hatred or inciting violence, that is very well covered by the existing law and, in particular, would be well covered by Amendment No. 158. I warmly support these amendments.

Lord Monson

I have an open mind about the blasphemy laws and therefore I shall confine myself to the first two amendments spoken to by the noble Lord, Lord Lester. The trouble with widening a law to include questions of belief in addition to questions of irreversible fact is that, logically, one must include deeply held political beliefs as well as deeply held religious beliefs, in particular as the border line between the two is not always hard and fast.

Moreover, one cannot pick and choose the religions to protect. That is unlike the Moslems who, in theory at any rate, afford special protection to those they term "the people of the Book"—adherents of Islam, Judaism and Christianity—while giving themselves carte blanche to persecute, when they feel inclined, those who fall outside that category; notably, the Baha'is. In other words, the Moonies, the Scientologists and the worshippers of pagan gods at Stonehenge on Midsummer's Day must also be included. I do not suggest for one moment that these religions, or quasi-religions, should be persecuted—far from it. However, it is worth pointing out that the amendment has wider implications than might seem evident at first sight.

Lord Campbell of Alloway

Perhaps I may make a brief intervention in order to try to clear the air a little. This Bill is concerned with the maintenance of public order. The maintenance of the law of blasphemy is not conducive in the climate of our current society to the maintenance of public order. The reasons for that have been given by more than one Member of the Committee, in particular in the careful and sensitive speech of the noble Lord, Lord Lester.

The next point that arises is whether we should extend blasphemy to cover all sects of the Christian faith in our country and all other religions. As I understand the law, it covers only the Church of England; the established Church. I also understand that it is common ground between the right reverend Primate, the noble Lord, Lord Lester, and all Members of the Committee who have spoken that extension is not on.

We then come to abolition. As regards that issue the right reverend Primate says—as he would say and naturally must say—"No, we can't abolish this. It encapsulates values". But the argument on the other side is: by encapsulating values, does it afford any protection to society? Is that encapsulation relevant to the maintenance of public order? One can only speak personally, but I do not believe that it is. Other noble Lords and the noble Baroness, Lady Seear, do not believe that it is in the climate in which we live.

Many noble Lords wish to speak. I wish not only to congratulate the noble Lord, Lord Lester, on the way in which he introduced the matter but I agree with him also that this is not a matter with which we can deal adequately today at this hour. It is so important that it requires further study.

9.30 p.m.

The Lord Bishop of Oxford

I am grateful to the noble Lord, Lord Lester, for his amendments, especially Amendments Nos. 157 and 158. Hatred of a person on religious grounds is as ugly as hatred on racial grounds. The law should offer protection with regard to both forms of incitement. As the noble Lord pointed out, the present law affords protection to people only in their racial identity and not in their religious identity.

As the most reverend Primate the Archbishop of York said—and I agree with him—there is something to be said in favour of the present law of blasphemy to which Amendment No. 159 refers. I believe that more can be said for it than is commonly supposed and—I say this with all due respect—perhaps more than some noble Lords who have spoken so far have recognised.

It should be abolished only if something better and workable can be put in its place. Nevertheless, the Church of England would certainly wish the protection afforded to its own members to be extended more widely, if that can be done. The Church of England is as fully committed to respecting the deeply held convictions of Jews, Moslems and other religious believers as it is to its own beliefs. In that light, the present law seems too narrowly focused and does not reflect the kind of multi-faith society which we now enjoy, as the noble Baroness, Lady Seear, and other noble Lords have rightly pointed out.

The question is whether the amendment proposed by the noble Lord, Lord Lester, can achieve that wider protection. I hope that it can. If it is the judgment of your Lordships' Committee that in the present form it cannot, then I hope that it will be possible to bring forward legislation standing in its own right based on further work in that area. But whether through this amendment or through different legislation based on further work, I believe that we should make legal provision to outlaw incitement to hatred of groups based on their religious identity as much as hatred based on their racial identity.

Lord Renton

I hope that I may be forgiven for saying a few words, although I am sorry to say that I missed the first part of the debate.

I wish to refer briefly to Amendment No. 159. It is regrettable that blasphemy is included in the same amendment as the matters dealt with in paragraphs (b) and (c). Disturbing a religious service or religious devotions of any faith should be a distinct offence. All members of society, whether they are atheists, agnostics or whatever, should at least respect others who wish to worship. Therefore, I should be strongly opposed to any provision which abolished as a distinct offence the disturbance of a religious service.

I feel the same about the offence of striking a person in a church or churchyard. Surely we owe it to the dead lying beneath the earth not to have fights around their tombs. Therefore, although we should be grateful to the noble Lord, Lord Lester, for giving us the opportunity to discuss these matters, I hope that this will be regarded as an exploratory debate.

Lord Ashbourne

I am glad that we have the opportunity to debate briefly the important issue of blasphemy as a result of the amendments in the name of the noble Lord, Lord Lester. However, I should prefer a longer discussion at another time when we can do justice to the subject. I share some of the noble Lord's concerns, especially those about the lack of protection for those of other religions whose feelings—and, indeed, their well-being—may be threatened by deliberately provocative oral or written statements.

Religion is a deeply personal matter. As a society we need to show respect for different religious traditions, as the noble Lord, Lord Renton, has just so clearly expounded. Therefore, there are attractions in the proposal in Amendments Nos. 157 and 158 to extend the Public Order Act 1986 to include the offence of incitement to religious hatred. However, I disagree with the noble Lord's proposal that the various common law offences relating to blasphemy should be repealed. Members of the Committee may be aware of my profound concern to protect the Christian traditions of this country. Our Parliament, monarchy, education system and other aspects of our national life are rooted in the Christian faith.

As many Members of the Committee have expressed concern about the non-Christian religions, I should like just to make the point that we are talking here about less than 5 per cent. of the population. Of course, Members of the Committee must judge for themselves on the matter, but in my humble judgment we are not talking about a large percentage of the population. I therefore believe that it is entirely right to continue to accord the Christian religion a special place in our society.

However, giving Christianity a special place in our society —which is why I want to retain the common law offence of blasphemy—does not mean that other religions should go unprotected. I do not see why we cannot retain the blasphemy law but possibly add a new offence or offences such as those mentioned in Amendments Nos. 157 and 158. Should the noble Lord, Lord Lester, press the matter to a vote, I have to say that I would vote against Amendment No. 159 because I believe that we should retain the common law offence of blasphemy.

Lord Desai

As a person who is neither a Christian nor someone who was born into one of the religions of the Book I hesitate to speak; indeed, I am not even very religious. However, when the noble Lord, Lord Renfrew, spoke a very interesting contrast emerged in my mind. We have, quite rightly, decided to protect Salman Rushdie against the possible effects of the fatwa. That is not because he may not have blasphemed against the religion according to people who strongly hold that religion but because we think that the consequences of blasphemy should not be visited as they were threatened to be.

As I recall, in the most recent case of blasphemy which was successful in this country a magazine was shut down. We had an attack on freedom of the press because someone brought a case of blasphemy. All it was was a poem in which someone said something which offended someone else. The common law case was successful and, as I said, the magazine had to be shut down. It is a paradox when, quite rightly, one can spend millions of pounds on protecting the freedom of a writer and yet shut down a magazine just because the blasphemy was against the Christian religion rather than against Islam, Hinduism or Buddhism.

I strongly urge against extending the blasphemy provisions to all religions. If one only looks into the number of religions that exist—and they are of a terribly dubious variety—one would find oneself in a morass. As far as I understand it, though I may be wrong, I believe that the common law offence of blasphemy was really meant to prosecute Christians who blasphemed against Christianity. People can blaspheme against their own religion but they cannot blaspheme against other religions. That is why I believe Amendment No. 158 covers precisely the case of people insulting someone else's beliefs. I believe that Amendment No. 158 would protect all religions. I believe that Amendment No. 159 should be adopted along with it. In that way the law of blasphemy, and especially the invidious effect it is having currently, could be removed.

Many Members of the Committee have said that this is a Christian state and that our laws are rooted in Christianity. I would say, as Bagehot said many years ago, that there is a decorative aspect of the constitution which is Christian and an effective aspect which is not Christian. I do not think that one would not have the allegiance of people who are either non-Christian or non-religious as regards believing that our laws are derived from the Christian faith. While I admit that the decorative part of the constitution has Christian roots, I do not believe that any of us seriously believes that our laws derive from that faith.

Viscount Mountgarret

I am afraid that I cannot agree—it pains me to say so—entirely with the most reverend Primate, with whom I would be loath to cross swords, particularly bearing in mind where I come from. I find it rather sad that the noble Lord, Lord Lester, has grouped these three amendments together because, like other Members of the Committee, and my noble friend who has spoken, I believe that Amendments Nos. 157 and 158 stand on their own, as distinct from Amendment No. 159. Other Members of the Committee have made reference to this and I wish to add my voice to those who would support the first two amendments. Hatred is hatred the world over. It either is or it is not and it matters not whether it is racial hatred or any other sort of hatred. Therefore, in my view it is correct to delete the word "racial".

I also believe that religious belief encompasses all kinds of religion which should be tolerated not only in our society but in every society. In my view that matter has nothing whatsoever to do with colour. I reiterate that I believe those two amendments should stand on their own and should be supported. However, as the most reverend Primate said—I agree with him 100 per cent. —it is probably worth while suggesting that these problems should be looked at with a view to seeing whether it is desirable to carry out the proposals in Amendment No. 159. But I for one cannot see the advantage of taking something away which has stood us in perfectly good stead without having something constructive to put in its place. Therefore I am unable to support Amendment No. 159.

Lord Elton

On the matter of the need to replace whatever is removed, I hope the Committee will remember what the nature of blasphemy is, which is what I have been sitting here asking myself. It differs from other sorts of libel and insult not simply because it is an insult to the Creator but because for Christians who love God it is deeply upsetting to have Him insulted. Anyone who has loved anyone and who has heard that person being insulted knows the awful shake to the system that gives and the volatile reaction one is in danger of making. In that context let us remember what the most reverend Primate has said about sending signals, and particularly signals in the context mentioned by the noble Lord, Lord Renfrew, who I believe suggested that there was some sort of parity of weight between afatwa which permits the assassination of someone anywhere in the world and a common law offence which permits a modest punishment in the country in which the offence is committed.

Therefore, I hope that the Committee will regard this as a matter to be dealt with with great delicacy and not in haste, and will take the advice of those who said that we should reflect on the matter before we move.

9.45 p.m.

Earl Ferrers

I rather fancy that we may be here for a long time and I do not want to truncate the opportunity for anyone to have their say. But it may be helpful if I put the Government's view at this stage.

The noble Lord, Lord Lester, has drawn us into an area of great sensitivity and provided the opportunity for an interesting debate. It is an area of sensitivity in which our beliefs and our relationship with the Church and the Almighty, and people's reactions to that, can all interact with the criminal law and the law of the land. We must tread with great care.

I agree with the most reverend Primate the Archbishop of York when he asked what message would be conveyed if we passed amendments such as this. He said that legislation invites expectations and we should not encourage hopes which may not materialise. I respect his caution in that respect.

Of course we all respect the importance of ensuring that the courts can deal effectively with those individuals who try to incite hatred against others. The Government utterly condemn any attack or criminal act which is motivated by such hatred. We are well aware of the effect which such crimes can have both on the victims and on the confidence of the communities of which they are a part.

However, we are not convinced that the amendments proposed by the noble Lord, Lord Lester, reflect the principal mischief of inciting hatred because of a person's race. I fear that the amendments would be difficult to operate without giving rise to problems which might be just as great as those which they seek to solve.

The amendments seek to extend the current offence of incitement to racial hatred under Section 17 of the Public Order Act 1986 by making the offence also cover hatred on the grounds of religious belief. At the same time Amendment No. 159 would abolish the existing common law offences of blasphemy and blasphemous libel.

In effect that would enact the recommendation of the minority of the Law Commission in its 1985 report Offences Against Religion and Public Worship. In 1985 the majority of the Law Commission recommended that the blasphemy laws should be repealed and should not be replaced by anything. The majority of respondents to the Law Commission's earlier working paper on this subject seem to have favoured retaining the blasphemy laws.

The Government did not accept either of the Law Commission's recommendations on that occasion. The strong views which were and are held on all sides were illustrated by the fact that, very unusually, as the most reverend Primate reminded us, a minority of two out of the five commissioners made their own separate recommendation. In our view it would be a mistake to legislate on a matter such as this in the absence of a wider consensus as to the best way forward.

If anything, our view has been strengthened by the increased sensitivity of this subject which has been caused by the subsequent controversy over the publication of The Satanic Verses and the issuing of the fatwa against Mr. Salman Rushdie, to which my noble friend Lord Renfrew referred and by which he was so offended, as were many others.

It is already an offence under Part III of the Public Order Act 1986 to incite hatred against a group of people on the grounds of their colour, race, nationality or ethnic or national origin. The courts have held that some religious groups—including Sikhs and Jews—are also ethnic groups and are therefore covered by that definition.

Protection against incitement to religious hatred has now been sought by some other groups which are not ethnic groups, particularly by the Moslems. However, we are not aware of any evidence to suggest that there is a significant problem on the mainland of Great Britain either of discrimination or of incitement to hatred on the grounds of a person's religious beliefs as opposed to his racial or ethnic background, where there is a problem. The position in Northern Ireland is, of course, different and that is reflected in the law there.

The evidence which has been presented to us suggests that understandable distress is created when adverse comments are made about particular religious beliefs or religious practices. But that is not the same as incitement to hatred. And, what is more important, it is something which is faced by all religious groups, living in what is regrettably becoming a largely secular society.

Our institutions, leaders, and beliefs may all be held up for criticism or ridicule in ways which cause offence. There is plenty of evidence of that. It is a fact of life which I personally find less than glorious but that is the price we pay for living in a society which respects freedom of expression. It would, I believe, be very dangerous if we were to start to curtail our freedom of expression on the grounds that the views expressed may be offensive to some.

The existence of the current law of blasphemy, and the special protection it gives to the beliefs of the established Church, may certainly be criticised. But it is worth bearing in mind that the law does not punish the simple expression of views which are considered to be offensive, blasphemous or heretical by believing Christians, and the law does not protect the Church of England from criticism or even derision. Indeed, the scope of the law of blasphemy is so restricted that only one successful prosecution, as the noble Lord reminded us, has been brought in the past 70 years, and that was a private prosecution.

Governments have held to the view that we should only begin to curtail freedom of expression when there is the likelihood, and intention, that the result is likely to produce a threat to public order. We do not think that it would be appropriate to change the law in order to punish those who merely offend other people's religious sensibilities.

Even if we were persuaded that there was a significant problem of incitement to religious hatred, any proposal to bring religious belief within the scope of the Public Order Act would come up against the difficult question of the definition of religion. Race is a relatively simple matter. It is a matter of fact. People are what they are because of what they are. But religion is not nearly so simple. It is a matter of personal belief and personal assent. Clearly, mainstream Christianity, Judaism, Islam, Hinduism and Sikhism are major world religions, and they would be protected under the amendment.

But how would we offer protection to some smaller belief groups such as, for example Jains, Baha'is, Farsees and small sects of major religions; for example, some of the independent Christian groups such as the House Church movement without at the same time protecting extreme sects and cults from the severe criticism, and even attacks, which they may rightly deserve? Members of the Committee need only think back to the siege at Waco in Texas which centred around a religious group, or the mass suicide by Bob Jones and his followers in Guyana, to appreciate the potential difficulties.

There are other minority cults which advocate what amounts to the sexual abuse of children as an alleged religious practice. If the noble Lord's amendment were accepted, anyone who sought to write a critical leading article on the anti-social beliefs or criminal practices of such groups might be caught. I think that that would really not be desirable.

The Government are in discussion with different faith communities on these difficult problems. Only recently my right honourable friend the Home Secretary discussed them at some length with a group of Moslems. We will continue to listen and we are ready to look at evidence which demonstrates that there is a significant problem of inciting religious hatred as opposed to offending against religious sensibilities. But at the moment I am bound to say that the Government see too many practical difficulties and—I agree with the most reverend Primate—too little evidence of a real problem to justify advising the Committee to accept the amendment.

Lord Lester of Herne Hill

It has been an illuminating and reflective debate on a complex subject. I am grateful to all Members of the Committee who have participated. I share fully the values expressed by the Minister in his reply, especially his concluding observations about the right to free speech in a modern, open, liberal society. Nothing that I h'ave put forward could possibly be justified if it represented an unnecessary interference with free speech. That would be the last thing I would intend, just as I would not intend in any way to encourage any scurrilous attack on anyone's faith or beliefs.

If I may say so with respect, I have been impressed by the counsels of caution which we have heard from the most reverend Primate the Archbishop of York and, with different emphasis and I suspect from a slightly different approach, from the right reverend Prelate the Bishop of Oxford. The last thing I would wish to do is to rush in on such a complex area. However, I believe that the subject is and will continue to be a running sore in this country, which now has over 1 million Moslems, until some government—I hope this one—finds the means of achieving a consensus among rational people, across political parties and across religions. We must find some way of ridding ourselves of an offence that has only been used once in 72 years in a private prosecution. It is really not necessary to protect the established Church of this country for the reasons given.

I am sure that I shall win popularity from all sides of the Committee if, having heard the debate, I say that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 158 and 159 not moved.]

Clause 137 agreed to.

10 p.m.

Lord Irvine of Lairg moved Amendment No. 159A: After Clause 137, insert the following new clause:

("Racially motivated violence.—

(1) A person shall be guilty of an offence of—

  1. (a) racially motivated manslaughter,
  2. (b) racially motivated grievous bodily harm,
  3. (c) racially motivated wounding with intent,
  4. (d) racially motivated common assault occasioning actual bodily harm, or
  5. (e) racially motivated common assault if, with racial motivation he commits manslaughter, grievous bodily harm, wounding with intent, assault occasioning actual bodily harm, or common assault respectively.

(2) In this section "racial motivation" shall mean motivation on the grounds of colour, race, nationality (including citizenship) or ethnic or national origins.

(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding five years in addition to, and consecutive to, the sentence applicable for conviction of the offences of common assault, assault occasioning actual bodily harm, or assault occasioning grievous bodily harm respectively.").

The noble Lord said: I rise to move Amendment No. 159A, the first of a number of amendments in my name designed to combat the rising tide of racism in the country. To those who may argue that the law should keep out of these areas, I say this. True, the law is no magic panacea. But it is a powerful weapon in promoting a plural society respectful of group diversity and committed to equality and full participation by every group in our political processes and national life. That is the rationale of our existing anti-discrimination legislation. Above all, the law can embody respect for the individual dignity and worth of every human being, regardless of race, colour or creed. I believe that there may be much support for the amendments in the Committee, with its broad experience and long memory.

In 1993, 8,779 incidents of racial attacks and harassment were reported to the police in England and Wales. That represents a 100 per cent. increase over 1988. Since only a small percentage of racial incidents are reported, their actual number is much higher. The carefully researched British Crime Survey estimated that in 1991 the number of incidents of racially motivated crime against adults was between 130,000 and 140,000. The past two years have seen 14 murders of blacks and Asians, some particularly vicious. Even the figure of 130,000 to 140,000 incidents may be too low. If the survey had not excluded the Jewish community and a large number of so-called low level incidents of racial harassment against blacks and Asians, the figure would have been higher.

Racial violence is directed against its victims not because of what they happen to own or have done but because of what they naturally and inescapably are. Racial violence is therefore in a category of its own. First, the violence is directed against the victim not as an individual but as a member of a specific community. It injures and humiliates the victim because of the uncontrollable factor of birth.

Secondly, there is a political dimension to a racially motivated attack. The violence signals a refusal to accept a specific community as members of the whole community, entitled to equal acceptance and respect.

Thirdly, racial attacks arise from racism. Racism is the enemy of the values of a liberal democracy, which the law should uphold. I regard it as entirely rational for the law to recognise a distinct category of race specific violence, thus reflecting the community's collective commitment to equal citizenship. It would give a signal to the ethnic minorities that the state is serious about stamping out racist violence. To introduce these offences is not to favour blacks and Asians but to bring their protection up to the level that is enjoyed by the rest of the community; to equalise them, not to privilege them.

The Minister in the other place suggested that we did not want to bring about circumstances in which a mugged pensioner could say, however unfairly, that if he had been black his assailant would have had to receive a much heavier sentence, and asked why we should introduce a potent source of misunderstanding. That argument should be rejected. To declare through the criminal law that there is a distinct category of racially motivated offences against the person is not an affront to victims of non-racist crime, whatever their colour or creed. It is no more than a legislative signal to a mature society of the threat from racism and a determination to deter it. There is a rise in extremist associations in continental Europe and in Britain. The time is ripe to create these new offences.

Of course, an argument against the introduction of these offences is the imposition of an additional burden of proving not only that the offence occurred, but also that it was racially motivated. No doubt it will be said that racial motivation will be difficult to prove. That does not, however, mean that the offences should not exist. There will be no risk of total acquittal from a failure to prove racial motivation. In a manslaughter case, for example, the first count in the indictment would allege manslaughter, and the second racially motivated manslaughter. Obviously, there could be a conviction on the first and an acquittal on the second, or conviction on both. It would be for the jury to be satisfied of racial motivation, just as it is for the jury to decide dishonesty or other difficult questions of intent.

Just as those who opposed indirect, as distinct from direct, racial discrimination under the Race Relations Act 1976 on the grounds that it could not be proved were shown subsequently to be wrong, so also, I believe, will those who oppose these new offences on the grounds of the difficulty of proving racial motivation be shown to be wrong.

I recognise that the Government may say that judges are already expected to take aggravating factors into account when sentencing and that those include racial hostility. It is, however, for the judge to decide whether or not to take racial motivation into account in passing sentence. Our argument is that this should not be a matter of discretion; that racially motivated violence is a distinct, recognisable evil which should be declared by the criminal law to be a distinct offence.

If we were to create these new offences, we should be in good company. Several American states have enacted statutes providing for a greater penalty for racially motivated unlawful conduct. France's Interior Minister recently announced his country's intention of introducing legislation providing two years' imprisonment for crimes relating to racial hatred and violence. All liberal democracies under threat from racism should recognise the need for these new offences, and not least ourselves. I beg to move.

Lord Renfrew of Kaimsthorn

I must apologise to the Committee. Circumstances dictate that I shall need to leave the debate on this series of amendments before it is concluded. I hope that the Committee will allow me to say that I should particularly have wished to support also the amendments of the noble Baroness, Lady Flather, Amendments Nos. 159F to 159H, although I realise that they are not grouped with this series.

I am a little overwhelmed by this series of amendments, with many of which I feel in sympathy. I refer not only to Amendment No. 159A, which we are now discussing, but also to Amendments Nos. 159B, 159C, 159D and 159E; and to Amendments Nos. 159F, 159G and 159H in the name of the noble Baroness, Lady Flather. The Committee has already approved Amendment No. 156B, which was moved by the noble Earl, Lord Ferrers.

I am not quite sure which of the amendments one should support. I feel that to pass them all might be more than is required in the circumstances. I should simply like to make the observation, which I am sure that many noble Lords would echo, that we do face the terrible tide of racist violence referred to by the noble Lord. I am sure that all sides of the Committee agree that we must be more successful than we have been so far in turning that tide. It is a tide which, as has been noted, is seen in full force not only in this country but on the Continent of Europe.

I am not quite certain of the right measures to take. We are all well aware that simply passing laws or introducing new offences is far from altogether solving the problem, although it may well be a step in the right direction. I have little doubt that my noble friend the Minister will argue that already existing legislation goes much of the way that is required and that it has been or will be strengthened by the amendment on harassment which has been accepted this evening.

However, several Members of the Committee rightly made the point that, although the amendment had many merits, it did not specifically focus on and target racial offences per se. Indeed, it did not intend to do so. The noble Lord made very clear that it was the Government's intention that the situation in relation to racial hatred would be improved by accepting that amendment. I have no doubt that such is the case. But I am also persuaded that the present amendment, or something like it, is very desirable. It may well be that the amendments of the noble Baroness, Lady Flather, offer the right answer.

I do not feel able this evening to indicate what may be the appropriate approach. I very much hope that at the conclusion of the debate on these amendments it may be thought possible for just one or two amendments to be introduced at Report stage which might encapsulate the wisdom that has arisen from it. I feel that it is necessary —although much has been done already by the Government's amendment, I hope that my noble friend the Minister might be able to take note of this point—for us to send out some signal by further addressing explicitly racially motivated offences. I hope that either this amendment or something like it will emerge before the Bill reaches the end of its passage.

Lord Lucas

This is not a good amendment. It would make people who have committed racial offences very difficult to convict. It is an offence on which it is intrinsically hard to convict. If people were charged with such offences, it would make it less likely that they would be convicted of the junior offence. Their counsel would doubtless throw doubt on the whole set of charges on the basis of the part of the offence that was hard to prove, which would be racial motivation. It would tend to be divisive because it would offer something to one section of the community which was not available to another, as the noble Lord, Lord Irvine, pointed out, and it would be extremely disappointing to those groups which it was intended to help because it would result in few convictions and more guilty people going free.

However, there is a problem with racial offences. If we are to address that problem, we should follow the Government's line and look at a general offence. That general offence is surely one of committing a crime which induces fear in a substantial part of the population. If someone shoots my next-door neighbour, I might feel a little afraid, but that it is probably just his affair. If someone gets up an organised campaign to shoot hereditary Peers, I have reason to feel more afraid, even if I am not the immediate object of attack.

There is a general class of crime which is directed at more than just the immediate victim. That should be the subject of additional punishment, but to my mind most suitably along the lines suggested by my noble friend Lady Flather. I believe that that would solve the problem that this amendment seeks to address.

Lord Lester of Herne Hill

I agree with the object of Amendment No. 159A. I agree also with the noble Lord, Lord Irvine of Lairg, that there is a serious social evil of racial violence in this country which is increasing and must be effectively combated. I agree also that the criminal law must be effectively enforced in a way that has not been done in the past.

I understand fully the reasons behind the amendment, which I support in principle, but I feel that I must express one note of caution from my experience as a recorder trying cases in which there have been clear racial overtones. Much to my disappointment I have found that whenever the prosecution brought racial motivation into the prosecution case, or when I, as a judge, in summing-up to the jury attempted to bring home to them the fact that there was a clear racist background to the offence, with depressing regularity juries would acquit accused persons who seemed to be clearly guilty of the offence.

My anxiety about introducing this offence is simply that if two offences are placed on the indictment, one with a racial motive and one without, a jury may perversely be led to acquit the guilty, even of the less serious non-racially motivated offence, through sheer prejudice. Having said that—and I feel bound to give the benefit of that experience to the Committee—I wholly agree that it is necessary to take extremely effective action against racially motivated offences of this character. I am quite sure that the Lord Chief Justice and other senior judges will wish to ensure that judges are able to sentence much more severely those who commit offences with racial motives.

I do not wish to say anything this evening that would give the impression that I was not four-square behind the noble Lord, Lord Irvine of Lairg, in what he seeks to do. For that reason I support the amendment but with the note of caution that I expressed.

Lord Renton

From my own experience I feel bound to endorse what the noble Lord, Lord Lester, said. I shall come back to that in a moment. I wish also to endorse what was said so wisely by my noble friend Lord Lucas. We must remember that in every criminal offence under our law we have to prove the fact of the offence having been committed as well as the criminal intent. But that is the more difficult. The facts are generally not too difficult to prove.

When an accused person and whoever is defending him finds that he will risk up to five years being added to his sentence if it is proved that he was racially motivated, he may say that he committed the offence but that it was not racially motivated. If the jury are told by defending counsel, "Be careful about your decision in this case because if you find that it was racially motivated the accused will perhaps be given an extra five years on his sentence", what will be their reaction?

I am sorry to say that, though I respect the purpose behind the amendment and the reasons which prompted its tabling, it may be self-defeating.

Lord Monson

All unprovoked attacks on anybody, for whatever reason, racial or otherwise, are deplorable and should be severely punished if and when the culprits are caught—but there is the rub.

On matters pertaining to almost anything other than race, the Opposition Benches normally criticise the Government for constantly proposing longer and longer sentences for a wide range of offences, pointing out, quite justifiably, that the important thing is not longer and longer sentences but certainty of arrest and conviction. Therefore, in a sense they are behaving illogically in suggesting a totally contrary course here.

Moreover the first amendment goes extraordinarily far, in that it provides for an additional five years for common assault if that common assault be racially motivated—and race includes nationality.

Consider the situation after an ill-tempered football match or rugby match in which there have been many fouls. People are congregated in a pub and somebody says, "It is typical of you French (or you Welsh) to commit fouls like that!" and a fight starts. That situation would fall within the definition of a racially motivated assault. Is it to be supposed that someone should get an extra five years for punching someone on the nose in those circumstances?

I could make other criticisms of the amendment, but that is one of the most important points, and with that I conclude my remarks.

10.15 p.m.

Earl Ferrers

The amendments deal with harassment, assault and hatred on the grounds of race or religion. I share the sense of anguish of the noble Lord, Lord Irvine, over the appalling incidents and I share his wish to take action which would put a stop to at least some of them. Before I respond specifically to the amendment, perhaps he will permit me to make one or two general points.

The Government have set out their position repeatedly and unambiguously. Our abhorrence of racial attacks, assault, and hatred has been stressed at every opportunity. But this is not just a matter of words. The Home Secretary has repeatedly given an undertaking that where we can see an effective way of improving our response to these crimes we will take it. That is why we have brought forward our amendment on intentional harassment, which your Lordships approved earlier.

These are issues of tremendous social concern. They are also issues of immense complexity for legislation. We need to find measures which are genuinely effective, which do not create anomalies within the criminal justice system, and which do not promise to minority communities hopes which cannot turn into realities— that would be the cruellest blow of all. From our own attempts to bring forward a clause on harassment that would work, we are only too well aware how difficult it is to meet those requirements.

I hope that the noble Lord, Lord Irvine, will forgive me if the tenor of my comments seems to be somewhat negative; it is not supposed to be, it merely reflects the difficulty of the subject and not any lack of willingness to make progress. I am afraid that we cannot just wish the difficulties away.

I should like to turn specifically to Amendment No. 159A. The penalties set by Parliament for different offences are designed to cover even the most serious examples. It is for the judge to consider any aggravating or mitigating factors in deciding on the sentence appropriate in any given case. Racial motivation can be, and often is, taken into account as a seriously aggravating factor. Your Lordships may recall the case of Fiaz Mirza, the Asian mini-cab driver who was murdered by his passengers. The two men who were responsible boasted of what they had done and why they had done it; it was because of the driver's race. The account was so appalling that the mother of one of the men gave evidence against him. The judge referred specifically to the racial element in his summing up. He sentenced the murderers to life with a recommendation to serve 22 years. As your Lordships will know, that is way above the normal tariff, and it clearly reflected the appalling circumstances of that case.

Violent offences are deplorable whatever reason for which they are committed. However, I cannot see that it is right that there should be a penalty greater than that which Parliament has provided for violent offences generally. It should not be available specifically and only where racial motivation is proved.

My noble friend Lord Renfrew wanted offences specifically against racial motivation. If the amendment were accepted, I would agree with my noble friend Lord Lucas that Parliament would in effect be saying that racial attacks were in themselves more objectionable than any other form of attack and were to be punished more seriously than any other attack which might be made for any other reason. The amendment would in effect say that, however intolerable, beastly or heinous an attack against a disabled person, an old lady or even a child might be, it could never be as wicked, nor should it be punished as severely, as an attack which had been committed with racial motivation in mind.

If, for example, a black person and a white person were to be victims of similar assaults, I would question whether it would be right or even equitable for the assailant of the white person to get a lesser sentence simply because his victim was a white person and not a black person. The law provides for a range of penalties and it sets the maximum which can be allowed for any one type of crime. The maximum allows for the worst type of offence and the worst type of offence in this instance could well be reached by the fact that the assailant had been racially motivated in his crime. But we do not need more than that.

Not only do I think that the new clause would be wrong in principle, but it would have curious results. In the case of common assault, the offender would face a prison sentence 10 times greater if his offence were shown to be racially motivated than the current maximum penalty for any other form of motivation. For actual bodily harm, the sentence could be doubled. I deplore racial violence as much as anyone else and I want to see the perpetrators dealt with severely by the courts. But the way to achieve that is to make sure that at every stage of the process racial motivation is flagged up, evidence is collected and evidence is put before the courts. It can then be taken into account as an aggravating factor for sentencing. There is work to be done to make sure that all this happens as we would wish but I think it would be wrong in principle to legislate in such a way as to create a separate class of violent crime which is racially motivated, which is worse than all other types, as this amendment attempts to do.

Lord Irvine of Lairg

There is plainly a difference of principle between myself and the noble Earl. He gave an example of an attack on a disabled person. That is undoubtedly heinous. But the disabled person is attacked, no doubt, because he is vulnerable. He is not attacked because of hostility to the disabled per se. I submit that criminal attacks on an individual because he or she is a member of a racial group are a distinct evil which we should legislate against.

Lord Renton

Does the noble Lord agree that white people are also a racial group?

Lord Irvine of Lairg

White people are a racial group. If there were a racially motivated attack upon a person on the ground that he was white, that would be covered by these offences if they were to be brought into law. To fear—because that is what it comes down to —writing racial motivation or racial harassment into the statute book is to put one's head in the sand and to deny the facts of life around one. It is also to deny the educative effect of the law and the signals that it is capable of sending.

I welcome the support in principle of the noble Lord, Lord Lester, for the amendment. I have perhaps a greater faith in the jury than he has. My experience as a Recorder was to trust the jury to get it right. I believe that, in properly presented cases, convictions of racially motivated offences would be secured. I therefore have a higher view of the ability of the jury to recognise racial motivation when proved than perhaps have other noble Lords. I do not begin to accept what was said by the noble Lord, Lord Lucas, that, if a conviction was not secured for a racially motivated manslaughter, that would in any way imperil a conviction for the offence of manslaughter simpliciter.

I have heeded the words of the noble Lord, Lord Renfrew, that in Committee and particularly at this late hour, the amendments test the water. I remain of the view, however, that it is necessary to send some signal on racially motivated offences. This is certainly an area to which we shall return on Report, having reflected on our deliberations in Committee. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Irvine of Lairg moved Amendment No. 159B: After Clause 137, insert the following new clause: ("Malicious communications

  1. .—(1) Section 1 of the Malicious Communications Act 1988 shall be amended as follows.
  2. (2) In section 1(3) after the words "and 'sender' shall be construed accordingly", there shall be inserted the words "references to 'sending' or 'sender' shall further include any person who distributes on behalf of another a letter or article within the meaning of section 1(1) (a) or (b) and if the letter or article comprises printed matter the printer and publisher thereof.
  3. (3) The following subsection shall be inserted after subsection
    1. (3)— "(3A) A person who distributes, prints or publishes any letter or article within the meaning of section 1(1) (a) or (b) shall not be guilty of an offence if he shows—
      1. (a) that he was not aware of the contents of the letter or article, and
      2. (b) that he was not aware that the purpose, or one of the purposes, of the sender fell within section 1(1)".
  4. (4) Subsection (4) shall be amended by inserting after the words "on summary conviction to" the words "imprisonment not exceeding six months or" and by inserting after the words "a fine" the words "or such lesser penalty as the court deems fit".
  5. (5) The following subsection shall be inserted after subsection (4)—
    1. "(5) In this section the words 'grossly offensive' shall include material that is offensive on the grounds of the 1917 colour, race, nationality (including citizenship) or ethnic or national origin of the recipient or of any other person to whom the sender intends that it or its contents or nature shall be communicated.").

The noble Lord said: This amendment is aimed at strengthening the law relating to the sending of letters or articles through the post for the purpose of causing distress or anxiety to the recipient. I think we would all agree that it is intolerable that there should be foisted on people in the privacy of their own homes unsolicited material which is racially offensive.

The amendment: would make three changes to improve the Malicious Communications Act 1988. At present the offence is committed only by the actual sender of the material. In many cases, it is difficult to identify who is the actual sender. The "sender" includes anyone who delivers or causes the material to be sent or delivered. As I said, in many cases that person is difficult to identify. He may operate through a distribution network.

The amendment proposes that the distributor, printer or publisher should be liable in the same way as the sender, but with a special defence that he is not guilty if he shows that he was not aware of the contents of the letter or article; for example, if he was given sealed letters to post and was not aware that the purpose was to cause distress or anxiety. I regard it as an entirely reasonable proposition that any distributor, printer or publisher who cannot avail themselves of this defence should be treated as equally responsible for the sending of offensive material which is sent for the purpose of causing distress or anxiety. That is the first change provided for by the amendment.

Section 1(1) (a) (i) of the 1988 Act catches material which is indecent or grossly offensive. It is a widely held view that the provision is confined to pornography because the expression is covered by the use of the word "indecent". The second change which the amendment would make is to lay down the express provision that material which is offensive on racial grounds and sent through the post unsolicited to a recipient for the purpose of causing him distress or anxiety constitutes a breach of the Act.

A good example of the mischief at which the amendment is directed is the proliferation through the post to members of the Jewish community of material describing the Holocaust as a myth invented by Jews in order to gain undeserved reparation from the German Government for non-existent crimes. What should be criminal is the sending of that material to Jews for the express purpose of causing distress or anxiety.

That offence in no way inhibits the free expression of opinions about the Holocaust, however objectionable they may be to some. What is sought to be prevented is the foisting of those opinions on innocent recipients for the specific purpose of causing them distress or anxiety. The critical question to which I invite the noble Earl to respond in replying to this amendment is: does he believe that under the rubric "grossly offensive" the 1988 Act should cover racially offensive material? If the answer is yes, should the law not be made plain? If the answer is no, what is the reason for excluding racially offensive material from the 1988 Act?

Finally, the Act imposes only a fine. The amendment allows the court, in its discretion, to impose a term of imprisonment where it considers that appropriate; for example, in the case of a persistent offender. I beg to move.

10.30 p.m.

Lord Lester of Herne Hill

I wish to express my support for the amendment and to give one example to serve for all the social evil it is designed to combat and the gap in the law it is designed to fill.

An anti-Semitic, scurrilous, evil pamphlet was distributed recently to members of the Jewish community. It was headed, "Parents, your children are in danger". It attacked a campaign for planning permission to set up an eruv in a seven square-mile area of Barnet. The tract was; signed by two people describing themselves as priests. One was aptly named the right reverend Julius Streicher after the Nazi propagandist of the Church of the Creator and Assembly of St. Julius the Martyr. It claimed that the creation of a modern-day Jewish ghetto would create bitter religious divisions between Jews and gentiles, would seriously reduce house prices on north west London, and would lead to, a further influx of Jews able to buy gentile properties at knock-down prices". That was tame compared with what followed. This vile leaflet explained: We can produce evidence of two sinister practices; Jewish ritual murder and paedophilia associated with those who follow the Jewish way of life". It then purported to give chapter and verse of specific and sickening examples of each. And for good measure it gave a telephone number and an address for those who wished to communicate their support.

That seems to me a serious mischief—a form of public nuisance particularly hurtful and in some cases frightening, humiliating and deeply wounding to recipients. I can think of no good reason why the law should not be extended in the way that this modest amendment suggests.

Baroness Flather

I too wish to lend support to the amendment. Some years ago I received a very unpleasant publication in relation to the Jews and the way in which they had created this, that and the other. I did everything possible and tried very hard to get it stopped. I was told that there was no way in which anything could be done to stop circulation of the publication.

On another occasion an enormous number of copies of a letter were sent out to selected householders purporting to come from the Home Office. The letter stated that an Asian family would be billeted with that particular householder. It suggested how many members of that family there would be, the way in which they would behave, what kind of food they would eat, and so forth. Everything was extremely derogatory about the Asian family. Apart from that, it really frightened the recipients, who, on the whole, were not very sophisticated people.

That kind of activity can cause an enormous amount of disturbance, in particular in a small, relatively unsophisticated community. Furthermore, I object to having to receive material which I consider to be offensive and about which I am unable to do anything.

Lord Renton

For the reasons given by my noble friend Lady Flather, the noble Lord, Lord Lester, and the noble Lord, Lord Irvine, I believe that this amendment should receive sympathetic consideration by the Government.

We have had five years now of operation of the Malicious Communications Act 1988, which importantly broke new ground, but noble Lords have given some examples of what are, in effect, gaps in that Act. I believe that those gaps should be filled.

I wish to refer to only one detail in relation to the amendment. I believe that it is right, as mentioned in subsection (4), that in the worst cases imprisonment should be a sentencing option.

Earl Ferrers

The Malicious Communications Act 1988 covers the sending of indecent, grossly offensive, or threatening material, or material which contains information which the sender knows or believes to be false. An offence is committed if the purpose in sending such material is to cause the recipient distress or anxiety. The Act was passed in order to deal with the nuisance caused by those who send poison pen letters.

As I understand it, with regard to the case cited by my noble friend Lady Flather an offence would be committed if a person sent the offensive material to her and to others. But this amendment seeks to extend the 1988 Act to include those who distribute or who print or who publish the offending material. I do not think that there is any need to extend the Act in this way. If distributors, printers or publishers are involved in sending this sort of material, and if they intend that the recipient should be caused distress or anxiety by it, then they would already be guilty of an offence.

If, however, these categories of people are not responsible for actually sending the material, and if they are, as it were, contractors to another person, I do not see any particular reason why they should be caught by the Malicious Communications Act at all. After all, it is the sending of such material which the Malicious Communications Act is specifically designed to prohibit, and I do not think that it would be appropriate to extend it in an attempt to control the sort of material which people are allowed to print or publish.

The printing and publishing of offensive material is already subject to entirely separate legislative controls. In particular, the Obscene Publications Act 1959 makes it an offence to publish any obscene article; and Part III of the Public Order Act 1986 controls material which is racially inflammatory. Section 19 of the Public Order Act already makes it an offence to publish or distribute material which is threatening, abusive or insulting and is likely to stir up racial hatred.

This amendment suggests that there is a loophole in the law which needs to be closed. I do not think that there is. I do not think it would be right to try to extend the Malicious Communications Act to cover nuisances which are already adequately covered by the criminal law. As I have mentioned, the 1988 Act is directed against those who send poison pen letters and is not primarily a race relations measure.

The noble Lord's amendment would also increase the maximum penalty for the offence. The Government recognise the distress which can be caused by the sending of a malicious letter or an offensive article. The gravity with which we view such behaviour is reflected in the substantial fines of up to £2,500, which are already available. Although we do, of course, keep all the sentencing powers of the courts under review, we believe that the powers they already have allow the courts to punish offenders appropriately. Poison pen writers tend to be rather inadequate, isolated people, and we do not believe it would be appropriate to send them to prison.

The noble Lord, Lord Irvine, referred to what was "grossly offensive". That has its ordinary meaning. It is not intended to equal pornography. I hope that that clarifies that matter.

I hope that as a result of that explanation, the noble Lord will see that his amendments are not necessary in order to deal with the mischief which he believes is taking place.

Lord Irvine of Lairg

I cannot begin to accept that argument. Of course, I accept that the amendment falls into three parts. For the purposes of the Minister's reply and in order to see whether I can get a clearer response, I desire to focus on the words "grossly offensive". There is a widely held body of opinion that the provision is confined to pornography. Do I understand the noble Earl to be saying that that is not his understanding and that the words "grossly offensive" do include racially offensive material? Is that his understanding and does he not accept that there is a doubt about it? If that is his understanding then at least the part of the amendment which makes it plain that the term "grossly offensive" includes racially offensive should be accepted. Can the Minister respond directly to that proposition?

Earl Ferrers

My understanding of the position is that "grossly offensive" would cover a number of different matters, including racial offensiveness. However, we have no evidence of such difficulties. The proposed subsection (5) in the amendment would ensure that racially offensive material is covered under the term "grossly offensive". That term is otherwise not defined in the 1988 Act. Therefore, it takes on its common meaning. Obviously that can encompass a wide range of material, including that which may cause gross offence on the grounds that it attacks or vilifies the recipient's race, family, colour or origin. That is the position.

Lord Irvine of Lairg

I trust that, perhaps on reflection, the noble Earl will consider the amendment in a more favourable light. If the noble Earl genuinely desires to give by way of legislation some signals to the larger community of his sensitivity about racially offensive material being sent through the post unsolicited for the purpose of causing distress or anxiety this would be a very modest amendment for him to accept in order to make that ambiguity plain.

On that part of the amendment which refers to distributors, printers or publishers, if the distributor, printer or publisher is aware of the contents of the letter or the article then he knows perfectly well that it is being printed or published for the purpose of sending. I can see no objection to his being included within the responsibility for it.

Once again, I welcome the support of the noble Lord, Lord Lester, and that of the noble Baroness, Lady Flather. I regard it as a modest amendment, and I am grateful to the noble Lord, Lord Renton, for saying that it should receive sympathetic consideration from the Government. I hope that that is just what it will receive on maturer reflection. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Irvine of Lairg moved Amendment No. 159C: After Clause 137, insert the following new clause: ("Group defamation

  1. .—(1) Any person who publishes, distributes or displays written material which is offensive for the purpose of vilifying, threatening, or exposing to racial hatred or discrimination, any group of persons in the United Kingdom on account of their colour, race, nationality (including citizenship) or ethnic or national origins shall be guilty of an offence.
  2. (2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or such other penalty as the court deems fit.
  3. (3) The words "racial hatred" shall bear the same meaning as in section 17 of the Public Order Act 1986 and the words "written material" shall bear the same meaning as in section 29 of the Public Order Act 1986.").

The noble Lord said: In proposing that there should be a new offence of group defamation or vilification, I proceed from what I am sure is the common assumption of this Chamber; namely, that there can be few concerns that are as central to the concept of a free and democratic society as the defeat of racism.

Racist propaganda is devoid of any redeeming social value. The object of free speech is the discovery and pursuit of truth. By no stretch of the imagination does the dissemination of rascist or anti-Semitic literature assist the discovery of truth. No one could rationally argue that the sweeping generalisations about Jews or other racial groups might be true or advance the search for truth. Racist literature has no redeeming social value. It in no way contributes to the well-being or improvement of society. Racist propaganda is foreign to the values underlying free speech. We pass laws against pornography and obscenity although these encroach on issues of literary worth. Racial vilification is at the very least as objectionable and its effect on society even more pernicious.

I make two basic points. Racial propaganda causes serious injury both to the group targeted and to society in general. First, it strikes at the dignity, worth and the good name of the group. It seeks to degrade, humiliate and cause it pain. As one of the greatest American judges of our century, Mr. Justice Frankfurter, said, A man's job and his educational opportunities and the dignity accorded to him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs as on his own merits".

Thus he continued, Speech conceivably punishable when immediately directed at individuals could also be outlawed if directed at groups with whose position and esteem in society the affected individual may be inextricably involved".

Secondly, racist propaganda is calculated to, and does cause, damage to the perception of a group by the public. A constant barrage of material published only for the purpose of vilifying a particular ethnic group damages not only the group but society. The material is designed to create a caricature or a stereotype of the group that can affect the public's attitude and behaviour towards the group over time. It is anomalous that a group has no legal protection against statements vilifying the group although the statements if made in relation to an individual would be defamatory. Prejudice stems from hostility to the group. That hostility then spills over into prejudice or discrimination against the individual because of membership or links with the group; hence the powerful case for protecting ethnic minorities against group vilification.

I do not ignore, and in fact I respect, the basic: argument against the creation of this offence although I do not accept it. The argument is not that this racist propaganda has any redeeming social value; it is for certain beyond the pail. The argument against rests on the belief that free discussion and debate is; the most effective means of dealing with this material. I wish that I could believe in a rational world in which the pernicious effects of racist propaganda could be eliminated or reduced to tolerable levels by rational discourse. History, however, shows how easily a climate of hatred and intolerance can be created by racist words or writings and the appalling consequences that can then follow. Experience shows that emotion can easily displace reason and, once the seeds of prejudice and intolerance are sown, they can germinate in times of economic pressure or social stress, with devastating effect.

I confess to huge concern at the evidence of a rising tide of racism in continental Europe and in this country. I believe that racist material ought to be prosecuted. I do not believe that reason without the aid of law can be guaranteed to prevail over prejudice, nor do I believe that view to be consistent with a resurgence of racism in Europe despite the unparalleled tragedy of the Holocaust.

The problem with freedoms is that they conflict existentially. Free speech must be accorded a high value but there are other core values in a democratic, multi-racial society. These core values include respect for group identity, cultural diversity and respect for the dignity and worth of every human being regardless of race. These core values also include the right of every racial group to participate on a basis of equality in the political processes and public life of our country. Racism denies these core values. Its object is to relegate particular ethnic groups to a second class status in which they bear a permanent brand of inferiority. A liberal democracy is entitled to take up arms in the shape of the law in defence of its core values.

Article 10 of the European convention recognises that free speech may be subject to restrictions which are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others. Free speech must sometimes yield to the claims of competing public interest. A group has a public interest in protecting its reputation from constant denigration. It is entitled to live in dignity, free from abuse and insult, and free of the insecurity that racist propaganda engenders.

I know that some will say that we should wait before outlawing group vilification until there is a clear and present danger that we shall descend into some kind of abyss if we do not. That free speech objection rests uneasily with the acceptance of the need for legislation to curb incitement to racial hatred and perhaps also with the need for its extension to cover incitement to religious hatred which we discussed earlier in this Committee. I fear that to wait until we stare the abyss in the face is to wait too long.

A new offence of group defamation would bring our law into harmony with many of our European neighbours. It would accord with international conventions that forbid the dissemination of propaganda based on theories of racial superiority. It would comply with the European convention, which permits restrictions when necessary in a democratic society to protect the rights and reputations of others. Above all, it would strike a powerful blow against increasing racism in our society. I beg to move.

The Archbishop of York

Perhaps I may share a problem. I am deeply opposed to racism, but as we have gone through this series of amendments I have found myself increasingly troubled because there is a paradox at the heart of this matter.

What we want is a society in which race does not matter, a racially blind society. The paradox in which we find ourselves is that the more we fix the notion of racism in the law the more we give permanent status to divisions which to an even greater degree we ought to be making irrelevant within our society. I do not know how to cope with that. I am grateful that the noble Lord has so far withdrawn all his amendments. I hope that he will continue to do so, because I would not want to vote against them but find that I cannot vote for them.

I feel that there is something missing in this whole exercise and we need to think of other ways of dealing with the problem of racism in terms of justice for all. That is why one looks for the definition of general offences which will be applied with particular vigour where there is clear motivation of the kind that has been described. However, if we fix these matters in the law, then we shall be stirring up a different kind of trouble for ourselves, because in the end racism does not exist. It exists only in people's minds.

I am afraid that I am not being helpful, but I hope that we shall have a quick process of withdrawal of the remaining amendments.

Lord Lester of Herne Hill

I should like to explain why, of all the amendments of the noble Lord, Lord Irvine of Lairg, in this group, this is the one amendment with which I strongly disagree. I have given the noble Lord notice of my disagreement. In his eloquent speech he attempted to deal with my objection in advance. Therefore, I should like to explain briefly why I think that this is wrong in principle and in practice and is likely to be counter-productive.

If one looks at the proposed crime, one notices that it gives no defence of truth and no public interest defence. That is entirely understandable because the noble Lord, Lord Irvine, would say that there can be no defence of truth or of public interest for what he calls racist propaganda.

I ask the Committee to consider how the offence would work in relation to the vile and evil anti-Semitic pamphlet to which I referred earlier. If they were prosecuted, the publishers of that pamphlet would undoubtedly argue that they were engaged in an important public debate on a matter of legitimate public interest—the planning permission issue for that eruv in north London. They would argue that their aims were political, that they had a right to free political speech. They would rely on the European Convention on Human Rights. They would deny that they intended to attack Jews as a race rather than vigorously criticising the way in which Judaism was being practised by some of its adherents. They would seek, however absurdly, to justify the truth of their vile pamphlet and to persuade the magistrates that the publication was in the public interest.

The prosecution would point out to the magistrates that neither truth nor the public interest was any defence to the crime of group vilification: all that matters is that the pamphlet is offensive, that it has been published for the purpose of vilifying Jews as a race. The trial would arouse widespread publicity for the contents of the pamphlet and for the publishers. If the prosecution were to fail, the publishers would be free to re-publish this tract under the headline, "The truth the Jews tried to ban". If the prosecution succeeded and the evil wrongdoers were imprisoned, they could present themselves to potential supporters on the far Right as martyrs whose right to free speech had been denied by Jewish conspirators.

I do not believe that that is an unreal example. It is exactly what has been attempted in the past when similar kinds of common law and statutory prosecutions were brought. There is a Catch-22 about such an offence. If it succeeds it produces martyrs, however unmeritorious. If it fails, it legitimizes the speech. However much the noble Lord, Lord Irvine, and I may think that the pamphlet is untruthful and cannot be justified by truth or public interest, there would be this defence of political speech.

The noble Lord quoted Justice Frankfurter, that great American judge, in defence of his position. It is true that Justice Frankfurter was on that side of the argument. But an equally great American judge spoke on the other side of the argument in his magnificent concurring judgment in a case called Witney v. California. He said: Fear of serious injury cannot alone justify suppression of free speech … Men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to believe that the apprehended danger is imminent". He continued: No danger flowing from speech can be deemed clear and present, unless the incidence of evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence". My view—it is an optimistic view about the human condition—is that more speech rather than enforced silence is the right approach. I say nothing about incitement to racial hatred and other such offences. But I regard this proposed offence, I am afraid, as misconceived.

Lord Annan

I rise to speak because the remarks of the most reverend Primate fascinated me. Indeed, in a way he has put his finger on our difficulties in the debate as to how far one goes on one side and how far on the other. However, the truth seems to me to be this. Marx and his successors always believed that class divisions in society overrode any cultural or racial divisions. That was at the heart of communism. Indeed, one of the things we have seen with the collapse of the communist regime in Russia is the way in which these racial hatreds have emerged which were damped down under the repressive forces of that vile regime.

However, the truth is that people's culture matters to them much more than class divisions and that cultures are the thing which divides society. What we must do tonight is to try to find ways in which we acknowledge those divisions, acknowledge that those hatreds will continue to exist because they cannot be extirpated. Somehow, we have to find ways in which we can balance freedom of speech on the one hand against the necessity to control these hatreds, particularly when, in our lifetime, our own country has become multiracial. We must not expect that this affair will somehow disappear. It may disappear in three or four centuries, but certainly not today or in the immediate future.

11 p.m.

Earl Ferrers

I agree with the noble Lord, Lord Annan, that the somewhat quizzical intervention of the most reverend Primate was very impressive. He said that he did not know the answer, but he drew attention to the difficulty in which we all find ourselves. I agree with him when he says that the more you write into law matters which you want to see virtually expunged, the more you signal and solidify the existence of the problem. I remember that at school one learnt about Boyle's law, Ohm's law and Faraday's law; I coined a law which modesty compels me to admit I call Ferrers' law, which says that everything has the reverse effect from that intended. If you are not careful, you can put into legislation various matters for one purpose and you find that the result is completely the reverse of what you anticipated.

I share the concern of the noble Lord, Lord Irvine, about the publication of offensive material which is directed against particular groups of people, but it is important that we should recognise the significance of what is being proposed. Over many years governments have maintained the principle that freedom of speech should be curtailed only where there is a threat to public order. That is the basis of the offence of incitement to racial hatred in Part III of the Public Order Act 1986.

Amendment No. 159C takes a very different position. It criminalises the publication of material where it is both offensive and has the purpose of vilifying a particular group. One of the difficulties would lie in whose estimation the material is considered to be offensive and who is to determine what amounts to vilification. There will be an inevitable and serious tension between the expectations of different groups who have been offended by particular material, only to be countered by perfectly justifiable arguments from those who have produced it saying, "Well, after all, it's only fair comment". It would certainly be possible for academic articles or leader columns to fall within the scope of this clause, depending on how a court were to choose to construe its terms. More important than that, a number of groups would expect such material to be covered by the new law and would be deeply concerned if the new legislation failed to match their assessment of what is offensive or vilifying.

There are many things which offend all of us. Some of them we may believe are said with the deliberate intention of traducing our origins, but that is not necessarily a reason for criminalising such behaviour. Part III of the Public Order Act already deals with material which incites racial hatred. The proposed offence in the amendment would be much wider and I doubt whether it could be justified in the absence of any threat to public order. It is not the function of the criminal law to preserve our individual dignity.

Even apart from the arguments of principle, in practice such a measure could well be counter-productive. If the amendment were to be incorporated into the Bill, a splendid platform will have been provided for racists to demonstrate that the purpose of their publications was not to vilify certain groups but simply to provide what they would describe as "accurate and justifiable" information or to correct the "misconceptions" of others.

These are not easy matters. The balance of freedom of speech and civil liberties is never easy. The Government do not believe that there is at present a case for a change. I suggest that we would be ill-advised to make such a fundamental shift as this clause proposes without further and very careiul consideration as to what would be its long-term effects.

Lord Irvine of Lairg

The most reverend Primate the Archbishop of York assured the Committee, when there was no need for such assurance, of his deep opposition to racism. But, with respect, I take issue with him to the extent that he is suggesting that the solution is to pretend that it does not exist. It does exist. I do not sympathise with the proposition that you simply pass laws that do not mention the dirty words "racism", "racial harassment" or "racial motivation" It is the fact that racist motivation is a character of the commission of many offences which many of us would think ought to be criminal. The fact that racist propaganda propagates myths does not mean that it can be ignored. It does not mean that the criminal law should not outlaw it and its evil consequences and that we should pretend that it does not exist.

The noble Lord, Lord Lester, who was kind enough to give me notice of his position in this argument, suggests that if a prosecution for group vilification were to succeed, then it would produce martyrs; if it were to fail, then that might operate to justify the very material complained of.

Just as I said earlier that I have greater confidence in the jury than the noble Lord, so also I have greater confidence in the law. I believe that the law can perform an educative function. It can improve the quality of the public mind. That was the philosophy that underlay the sex and race relations legislation of the 1970s. I believe that an offence of group vilification would lead to the public abhorring group vilification and that convictions would be secured without creating martyrs. But the Committee would not welcome my extending the argument further at this hour of the night. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Irvine of Lairg moved Amendment No. 159D: After Clause 137, insert the following new clause:

("Incitement to racial hatred

.—(l) part II of the Public Order Act 1986 shall be amended as follows.

(2) In section 12(1) (a) of the Public Order Act 1986 there shall be added after the word "community" the words "on racial, religious, ethnic or other grounds,".

(3) In section 12(1) (b) of the Public Order Act 1986 there shall be added at the end after the word "do" the words "or to stir racial hatred".

(4) Part III of the Public Order Act 1986 shall be amended as follows.

(5) For section 17 there shall be substituted the following provision—

"Racial hatred.

17. In this Part 'racial hatred' means hatred, hostility,, violence or discrimination against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins".

(6) For section 19(1) the following subsection shall be substituted—

"(1) A person who publishes, distributes or displays written material is guilty of an offence if—

  1. (a) he thereby advocates, promotes or intends to stir up racial hatred, or
  2. (b) having regard to all the circumstances it is reasonably foreseeable that racial hatred may be stirred up thereby.

(7) Section 19(2) is repealed.

(8) In section 19(3) after the words "or a section of the public" there shall be inserted the words "or any member of the public"."

(9) For section 23(1) the following subsection shall be substituted—

"(1) A person who has in his possession written material or a recording of visual images or sounds with a view to—

  1. (a) in the case of written material, its being displayed, published, distributed, broadcast or included in a cable programme service, whether by himself or another, or
  2. (b) in the case of a recording, its being distributed, shown, played, broadcast or included in a cable programme service, whether by himself or another, is guilty of an offence if he advocates, promotes or intends racial hatred to be stirred up thereby or, having regard to all the circumstances, it is reasonably foreseeable that racial hatred may be stirred up thereby".

(10) Section 23(3) is repealed.

(11) In section 25 after subsection (4) there shall be inserted the following subsections—

"(5) A court by or before which a person is convicted of—

  1. (a) an offence under section 18 relating to the display of written material, or
  2. (b) an offence under section 19, 21 or 23, may order that the person convicted shall not display, publish or distribute written material, or distribute, show or play a recording of visual images or sounds, which is the same as or substantially similar to any written material or recording produced to the court and shown to its satisfaction to be written material or a recording to which the offence relates.

(6) Any disobedience to an order made under section 5(5) above shall constitute a contempt of court and be punishable as such.

(7) An order made under subsection (5) may take effect, if the court so determines, in the case of an order made in proceedings in England and Wales before the expiry of the ordinary time within which an appeal may be instituted or when an appeal is duly instituted, before it is finally decided or abandoned but will cease to have effect if the appeal against conviction is allowed".

(12) In section 27(1) there shall be substituted for the words "of the Attorney General" the words "of the Director of Public Prosecutions".").

The noble Lord said: Dissemination of racist, and perhaps in particular anti-semitic, hate literature is growing. The existing law against incitement to racial hatred has been ineffective to curb the flow. Since the enactment of the current law in 1986 there have been only 14 prosecutions for incitement—a tiny number by contrast with the prevalence of the material.

We welcome—and it is right that I should say so —the Government's late decision to provide by Clause 137 that the publication and distribution of, material intended or likely to stir up racial hatred", will be an arrestable offence. The present law, permitting the police to arrest a person who makes a racist speech, but not a person who publishes or distributes racist pamphlets or leaflets, was obviously anomalous. So this change, which we welcome, will enable culprits to be apprehended and evidence to be obtained which might not be obtainable at a later stage. A power of arrest is insufficient if the law is too weak to enable a successful prosecution be brought.

This amendment is in two parts. The first addresses Section 12 in Part II of the Public Order Act 1986. Its purpose is to enable a senior police officer to give directions in relation to the holding of a public procession in circumstances in which that senior police officer reasonably believes that the holding of that procession is for the purpose of stirring up racial hatred or where he reasonably believes that the procession may result in serious public disorder, serious damage to property or serious disruption to the life of the community on racial, religious, ethnic or other grounds.

So this amendment is well within the area for which the noble Earl accepts that it is appropriate for the law to enter in order to prevent disorder. The purpose therefore is to enable the police to regulate public marches or demonstrations which the police reasonably believe either to be intended to stir up racial hatred or may have the effect of causing disorder, damage or disruption on racial or religious grounds.

I believe that senior police officers have indicated that they would welcome such an enhancement of their powers to regulate overtly racist processions. If the noble Earl is not minded to accept this part of the amendment, no doubt he will explain why the Government decline to empower the police in this way.

The second part of the amendment addresses Section 19 in Part III of the Public Order Act 1986. Section 19 is concerned with the distribution of material intended or likely to stir up racial hatred. That section has proved conspicuously ineffective in curbing the distribution of racist material which is taking place in the country virtually with impunity. The tiny number of prosecutions compared with the volume of material being freely distributed demonstrates the impotence of the section. Those who peddle that material are inevitably emboldened by the failure of the law to catch their activities.

This amendment is designed to give teeth to Section 19. Firstly, it revises the definition of "racial hatred" to include matters which are less extreme than hatred itself, such as hostility, violence, or discrimination against a racial or ethnic group—words which derive from an international convention to which this country subscribes.

Secondly, the law should cover not only the active stirring up of racial hatred but activities which involve the advocacy or promotion of racial hatred. That would cover pseudo-academic or scientific discussion to establish the inherent inferiority of particular groups and the need for those groups to be marginalised or wholly excluded from political processes.

Thirdly, Section 19 is presently confined to material which is "threatening, abusive or insulting". This amendment proposes that those words, which are words of limitation, should be deleted. The amendment proposes that all racist material should be caught, not merely that which is obviously threatening, crudely abusive or vulgarly insulting. Racist material which is, for example, intended to stir up racial hatred should not fall outside the legislation because it is expressed in carefully drafted language to fall outside the labels "threatening", "abusive" or "insulting". It is all the more insidious when clothed in false moderation, although the intent is plain.

Fourthly, Section 19 requires racial hatred to be intended or to be likely to be stirred up. The amendment recognises that the word "likely" in Section 19(1) (b) imposes too stringent a test for the securing of convictions. The amendment proposes that it should be sufficient to show that it is reasonably foreseeable that racial hatred may be stirred up by the distribution of the racist material.

Fifthly, the amendment extends the definition of "the public or section of the public" in Section 19(3) to include any member of the public, in order to close a loophole in the law, which held that distribution to a single individual was not distribution to the public.

Sixthly, the amendment incorporates amendments to Section 23 which are consequential on the earlier amendments. Section 23 deals with the possession of written material or recordings. The amendment provides for an offence where it is intended or reasonably foreseeable that racial hatred may be stirred up by the material or recordings in the defendant's possession.

Seventhly, Section 25 allows a court before whom a person is convicted of an offence, for example, under Section 19 of the Public Order Act, to order forfeiture of the material to which the offence related It is a salutary power but it would not, for example, prevent reprinting —say from a word processor—and redistribution at a future date. The amendment therefore proposes that the court should have power to order that no further copies of that material in the same or substantially similar form should be published or distributed. Disobedience would be punishable as a contempt of court.

Finally, the amendment proposes that the consent of the DPP, rather than that of the Attorney-General, should be required for the institution of proceedings. To require the Attorney's consent is to give the decision an apparently political character, whereas the decision whether to prosecute or no should be taken by the DPP as an ordinary matter of business.

The amendment includes a battery of suggestions to which I hope the noble Earl will feel able to give serious consideration. I beg to move.

11.15 p.m.

Lord Monson

Once again I must say that a well-meaning amendment moved by the noble Lord, Lord Irvine, goes much too far. In view of the late hour, let me give just one example. Section 19(1) of the Public Order Act 1986 requires that written material must be threatening, abusive or insulting before any offence can be committed. However, Clause 6 of the proposed new amendment totally removes that requirement. What would the consequences be? A newspaper which, for example, published a report alleging that 10,000 West African immigrants had been smuggled into Britain during the past six months could find itself prosecuted under the terms of the amendment, even if every word in the article were totally true, because, under Clause 6(b), having regard to all the circumstances it would be reasonably foreseeable that a certain amount of racial hostility—not hatred—would be stirred up thereby.

When speaking to his previous amendment, the noble Lord, Lord Irvine, extolled what he termed the "pursuit of truth". If this amendment, is accepted, the pursuit of truth, where it touches upon racial matters, would be rendered dangerous if not impossible.

Lord Annan

Perhaps I may again make an intervention in regard to incitement. It is a serious problem, particularly the recent incitement against Jews in this country. Until very recently this country probably had the best record in Europe, indeed in the world, in its toleration of the Jewish community. It is wrong, of course, to try to make any kind of distinction between that and the tragedy that struck the Jewish community at the time of the Holocaust. But in some way one could say that the Russian and Polish Jews were used to persecution and accepted that they would be persecuted. But the country on the Continent, as opposed to our own country, which had in a way the greatest tolerance of Jews, was Germany.

Frederick the Great ran in Prussia a liberal regime as regards religious toleration, and that spilled over so that Bismarck had his own great Jewish financier, Bleichroeder, who again was accepted as part of the regime. In the 1920s no Jewish community ever made a more penetrating attempt to become accepted as part of the country; as the right reverend Primate said, in a sense they were almost trying to pretend not to be Jews. They tried to assimilate more man any other Jewish community. Why did the tragedy strike? It was due to deliberate racial incitement by the Nazis, who used every weapon of propaganda to stir up hatred against the Jewish community. Here was a country in which there was great toleration of the Jewish community and yet it was the country which in the end created the Holocaust. That is why we must take the matter more seriously than the noble Lord, Lord Monson, was suggesting. We must take the business of incitement extremely seriously because, once it starts, it is a poison which strikes at our own society.

Earl Ferrers

As the noble Lord, Lord Irvine, stated, the new clause falls into two distinct parts and it poses a battery of questions. The first matter relates to Part II of the Public Order Act 1986, which deals with the police powers to control demonstrations, and the second relates to amendments concerning incitement to racial hatred under Part III of the Public Order Act.

Section 12 of the Public Order Act gives the police the power to impose conditions on a procession where they reasonably believe it may result in serious public order, serious damage to property or serious disruption to the life of the community, or that the purpose of the procession is to intimidate others.

The police officer is asked to make a judgment about the practical effect of a particular procession. The grounds on which that effect may be caused are not relevant to the exercise of his judgment. Specifying racial, religious or ethnic grounds, as is proposed under subsection (2) of the amendment, would give the officer no new power. The police are well aware of the potential for racial tension to be caused by processions and they already have the power to take the necessary action.

Subsection (3) would add "stirring up racial hatred" as an additional reason for imposing conditions on a procession. Under the amendment, the police officer would no longer be asked to make a judgment about the likely practical outcome of a procession—clearly a public order matter—but he would have to consider whether or not the procession would be likely to have the effect of stirring up racial hatred. This is a much more difficult matter. It would expose the police to arguments about what effect a procession would have on the emotions of third parties—irrespective of whether those people, as a result of the procession, were moved to take any unlawful action. I do not think that these proposals would offer anything which would help the police control processions.

I turn now to subsections (4) to (12) of the amendment, which would amend Part III of the Public Order Act 1986 by extending the scope of offences in this part of the Act and lowering a number of the tests which must presently be satisfied.

This is not an easy area. However, while nobody wants to see material which spreads racial hatred being freely circulated, it is the job of Parliament to decide where the boundary falls between protecting sections of our community and preserving freedom of speech. I think that this amendment goes too far in bringing within the scope of the criminal law some matters which should stay firmly outside it.

Starting first with the definition under subsection (5), the noble Lord would extend racial hatred to include "hostility, violence or discrimination". I cannot really see what hostility or violence would really add in law to the test of hatred, but the reference to discrimination seems out of place here. Racial discrimination is quite properly unlawful under the Race Relations Act 1976, but it is not a criminal offence. The effect of this amendment would be that incitement to racial discrimination would be a criminal offence, but discrimination itself would not be. Not only would this be bizarre, but it would enormously widen the scope of Part III of the Public Order Act.

Subsections (6) to (10) deal with the publication or possession of material which might have the effect of inciting racial hatred. There are, however, a number of fundamental flaws. First, the amendments would remove the requirement for relevant material to be "threatening, abusive or insulting". This would bring serious or academic works within the scope of the Act. A factual description of the horrors of the slave trade, for example, might well have the effect of stirring up racial hatred. News broadcasts of outrages committed between different communities elsewhere in the world could equally stir up racial hatred between members of the same communities in this country.

I shall not go through each subsection, but under subsections (7) and (10) the noble Lord also proposes removing the defence for an accused who has not been shown to have intended to stir up racial hatred and who is able to prove that he was not aware of the contents of the material. There would be no defence—as there is at the moment—for an innocent distributor such as a bookseller or publisher. And I would remind the Committee that the material would no longer even have to be threatening, abusive or insulting. That would, I think, threaten even the most responsible of booksellers distributing factual material.

Subsection (12) would replace the consent of the Attorney-General for prosecutions under Part III with the consent of the Director of Public Prosecutions. Since the Public Order Act came into force in 1987, consent to prosecute has been granted by the Law Officers on 14 of the 19 applications made by the Crown Prosecution Service. Where consent has been refused, it has been on standard grounds applicable to any prosecution decision such as the age of the defendant or the likelihood of securing a conviction. There is nothing to suggest that the consent provision operated to impede prosecutions which would otherwise have taken place.

The Attorney-General's consent was originally thought necessary in order to ensure that decisions effectively curtailing the freedom of speech should be made by someone who is accountable to Parliament. The proposals put forward in this new clause as a whole would vastly increase the ability of the law to curtail free and fair comment. In this context there is, if anything, even greater justification for the Attorney-General's consent. However, the Government will be looking further at this issue in the light of any recommendations made by the Home Affairs Select Committee.

While I understand the concerns which prompted the noble Lord to bring the new clause before your Lordships, I think it would create unacceptable problems. The Government share the noble Lord's concern to deal effectively with repugnant racial material. But we do not think that the new clause is the best way to do it.

Lord Irvine of Lairg

I shall read carefully in Hansard the noble Earl's detailed response, delivered, understandably at this late hour, at somewhat breakneck speed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Irvine of Lairg moved Amendment No. 159E: After Clause 137, insert the following new clause:

("Racial harassment

  1. (1) Part 1 of the Public Order Act 1986 shall be amended as follows—
  2. (2) After secti6n 5 there shall be inserted the following new section—

"Racial harassment.

5A.—(1) A person is guilty of an offence if on racial grounds he—

  1. (a) commits any trespass or nuisance whereby any occupant of any dwelling is likely to be caused harassment, alarm or distress, or
  2. (b) uses words or behaviour or displays any writing, sign or other visual representation which is threatening, abusive or insulting within the hearing or sight of any person likely to be caused harassment, alarm or distress thereby.

(2) A constable may arrest a person without warrant whom he reasonably suspects of conduct constituting an offence under this section.

(3) In this section "racial grounds" means any of the following grounds, namely colour, race, nationality or ethnic or national origins.

(4) A person guilty of an offence under this section is liable—

  1. (a) on conviction on indictment to imprisonment for a term not exceeding 12 months 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 minimum or both.

(5) A person is guilty of an offence under this section if a reasonable person would have expected any such trespass or nuisance to cause harassment, alarm or distress, or any such words or behaviour, or any such writing, sign or other visual representation to be threatening, abusive or insulting within the hearing or sight of any person likely to be caused harassment, alarm or distress.").

The noble Lord said: I can deal with this amendment shortly largely because of the debate we had a little time ago on the noble Earl's Amendment No. 156B. I made particular criticisms of that amendment, albeit that it has now been passed. I pointed out, for example, that it would not cover the intentional playing of loud music outside the home of the victim; nor the deliberate creation of a din in neighbouring premises. I pointed out that it would not cover entry upon the victim's premises which was not threatening but designed to cause annoyance or irritation. I pointed out that it would not cover daubings on the walls of the victim's house unless those daubings were either threatening, abusive or insulting; nor would it cover the distribution of pamphlets or other written material to the victim's house which was offensive without being insulting.

This amendment is expressly concerned with harassment on racial grounds. As was pointed out in our earlier discussions on Amendment No. 156B, the noble Earl's amendment covered broadly the same grounds as Section 5 of the Public Order Act. It did not address other forms of harassment which the Government described in the other place as low level harassment. This amendment deals expressly with harassment on racial grounds. It deals not only with threatening, abusive or insulting words, behaviour or displays, but it also covers acts of trespass or nuisance likely to cause harassment, alarm or distress. Trespass would cover unauthorised entry on the victim's property. Nuisance would cover acts which make life unpleasant, irksome or intolerable for the victim. It would clearly cover all the examples that I have given of annoying, offensive conduct or conduct contemptuous of the victim's rights which the Minister's amendment does not reach. It was for those reasons that I suggested that the Minister's amendment did not afford adequate protection to those who suffer racial harassment in all its forms on a daily basis. I beg to move.

11.30 p.m.

Lord Lucas

If this amendment were enacted, it would be an excellent example of Ferrers' law. It would, for instance, have a devastating effect on the gypsy community and almost no effect on New Age travellers.

Earl Ferrers

While I can sympathise with the intention of this clause, I am afraid it also raises a considerable number of difficulties. The offence requires proof of racial motivation, and motivation is, as we know, one of the hardest things to prove in a court of law. But even leaving that aside, the substantive matters of the offence raise too many difficulties.

Section (l)(b) repeats the language of the existing Section 5 offence. There is no problem there. But new Section 5A(l)(a) refers to any trespass or nuisance which is likely to cause harassment, alarm or distress. The trespass or nuisance does not in itself even have to be threatening, abusive or insulting. There may indeed be nuisances or minor acts of trespass between neighbours, such as garden bonfires or music played too loudly, which can cause distress. But I doubt whether the noble Lord really means that that sort of conduct should now come within the scope of the criminal law and that there should be for that relatively harmless behaviour an unqualified power of arrest and a maximum penalty of 12 months' imprisonment.

Subsection (5) makes it clear that the only requirement is for a reasonable person to have expected such behaviour to cause harassment, alarm or distress. At present a person is guilty of an offence under the existing Section 5 of the Public Order Act only if he either intends his conduct to be threatening or is awaire that it may be so. The new clause hugely extends the range of conduct which may be regarded as criminal. It lowers the tests which have to be satisfied, but it strengthens the arrest power and increases the sentence. I do not think that this is the best way to proceed.

With regard to the penalty, the Public Order Act provides a range of criminal offences with a graduated series of penalties to reflect their severity. The present Section 5 is the lowest of these and it merits a maximum fine of £1,000. The next up the scale is Section 4, which covers behaviour which is intended to provoke the immediate use of violence or which may lead a person to fear such violence. This attracts a maximum penalty of six months' imprisonment and/or a fine. I do not think that it can be right that conduct which is covered by the new clause, which involves behaviour no more serious than the present Section 5, should attract a sentence which is double that which is available for more serious behaviour involving a threat of actual violence.

The new clause would also make it an offence to trespass or to create a nuisance which causes distress, but only where it is racially motivated; and threatening, abusive or insulting behaviour would attract a substantial prison sentence but only if it were racially motivated. If the victim of the same conduct was a frail old lady, a disabled person or any other vulnerable person, but who happens to be of the same race as the offender, the conduct would merit no more than a £1,000 fine. I do not think that it would be either right or sensible for the same conduct to be liable to such very different sentences depending only on the motivation. That is why the Government's new clause of intentional harassment makes a higher penalty available for all cases of more serious conduct, whatever the motivation.

Lord Irvine of Lairg

At this late hour, I shall not prolong the debate. This is a subject to which we are likely to revert on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Flather moved Amendment No. 159F: After Clause 137, insert the following new clause:

("Amendment of Criminal Justice Act 1991

.—(1) In section 29 of the Criminal Justice Act 1991, the following subsections shall be inserted after subsection (2)—

"(2A) In considering the seriousness of any offence which in the opinion of the court was committed with a racial motivation, the court shall treat the fact that it was committed with that motivation as an aggravating factor.

(2B) In this section "racial motivation" means a motivation on grounds of colour, race, nationality or other national origin.").

The noble Baroness said: This is a very modest amendment and despite the length of time that the Committee has already spent discussing this subject, I hope that your Lordships will consider it seriously.

The first new clause requires a court, when sentencing an offender, to regard racial motivation as an aggravating factor. It would apply both to racially motivated violence and also to non-violent offences committed with a racial motivation; for example, criminal damage to a householder's property involving the daubing of racist graffiti. That would make explicit in statute a duty which is already placed on courts implicitly by statute and also by guidance contained in Court of Appeal judgments. Section 3(3) of the Criminal Justice Act 1991 requires courts considering the seriousness of an offence to, take into account all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it".

The Court of Appeal has also made it clear in appeal cases that racial motivation constitutes an aggravating factor. It could, therefore, be argued that it is unnecessary to make this duty explicit in statute in the way that the new clause does. However, it is submitted that the need to ensure that the courts always take it into account is so important that it is right to reinforce the courts' duty in this way. In the Criminal Justice Act 1993, which is a good precedent, the Government amended Section 29 of the Criminal Justice Act 1991 to stipulate that courts should regard as an aggravating factor the fact that an offence was committed on bail. The 1993 Act inserted into the 1991 Act a new Section 29(2), which states: In considering the seriousness of any offence committed while the offender was on bail, the court shall treat the fact that it was committed in those circumstances as an aggravating factor".

It could have been argued that this provision was unnecessary because on a number of occasions the Court of Appeal had held that the courts should regard the offending on bail as an aggravating factor. However, the Government regarded it as so important to ensure that the courts took this into account that they considered it right to single it out for special attention in statute in this way.

It is submitted that the need to see racial motivation as an aggravating factor is just as important. A specific statutory duty of this kind would increase the likelihood that courts would reflect this in their sentencing as well as sending out a clearer signal from Parliament that racial violence and harassment is not to be tolerated. It would seem that this factor is unlikely to appear on the face of the Bill in any other place. That makes it even more important that mis clause should be included.

I wish to speak also to Amendment No. 159G. This second new clause places a duty on the prosecution to place before the court any information or material tending to show that the offence was committed with a racial motivation. If courts are to fulfil their duty (either their existing duty or the strengthened statutory duty contained in the new clause) to regard racial motivation as an aggravating factor they will be better able to do so if the prosecution is under a duty to provide them with any such information. There is good reason for tabling the amendment. On many occasions, it has come to light that the court was not fully informed about the racial aspects of the case. I took part in a recent "Panorama" programme which had investigated a number of cases in which the courts had not been informed of racial aspects. It was felt by those who were interviewed afterwards that had the court been fully informed, it might have taken a different view when sentencing.

I believe that that is an extremely important point. It is obviously understood that that matter should be taken into consideration but it would give a tremendous boost to the sense of security of the victims if those two clauses were placed on the face of the Bill. I beg to move.

Earl Ferrers

I have a lot of sympathy with the intention of the first two of my noble friend's proposed new clauses. Racially motivated crimes are abhorrent. The prosecution should put forward what evidence it has where there may be a racist motive. The sentence, which is passed by the court, should reflect that. No one could disagree with those principles.

Courts are, of course, already required to take into account all the factors which aggravate or which mitigate the seriousness of offending behaviour. This long-standing and well established principle was given statutory force in the Criminal Justice Act 1991. A number of aggravating factors are widely recognised in case law—racial motivation is one of those. Other factors, which the courts will regard as aggravating the seriousness of an offence, include where an offence is carried out by a group or a gang; where an offence is committed against a young, elderly or otherwise vulnerable victim; and where an offence involves abuse of trust or when an offence is planned.

I hope that your Lordships would agree that where one or more of these factors was present it would be highly unusual for any court not to regard the seriousness of the offence as having been aggravated. It would seem curious, though, to single out just one of these factors as being so different that it, and it alone, should require to be separately specified in statute.

With regard to Amendment No. 159G, there is already a duty on all those who prosecute in the name of the Crown, after conviction or a finding of guilt, to inform the court of the circumstances of the offence and the character and antecedents of the offender. At present the prosecutor has a duty to inform the court of any factors which make the offence unusually serious— which includes information that an offence was racially motivated—and also to inform the court of any mitigating circumstances if those are known.

The Government are concerned to ensure that evidence, which goes to show racial motivation, should be clearly indicated at every stage of the process—from the first report of the incident, through its handling by the police and the Crown Prosecution Service, to sentence passed by the court. Achieving that will mean that the prosecution and the courts will have before them the information on which they can act effectively. That requires the co-ordination of the work of different agencies and it may be more a matter for administrative action rather than legislation. The police and the Crown Prosecution Service are already taking steps to identify cases where there is evidence of racial motivation. That is an issue which can be dealt with more effectively through additional guidance and training for all agencies involved in the criminal justice system rather than by legislation.

I turn now to the new offence of racial harassment —Amendment No. 159H. Here the position is rather more difficult. Racial harassment is an appalling feature of the lives of too many of our citizens. It can do enormous damage to individuals and to relations between different communities. The new offence would take the behaviour already covered by Section 5 of the Public Order Act 1986

Lord Monkswell

I am sorry to intervene but the Minister is speaking to an amendment that has not been moved or spoken to. I wonder whether it is in order for the Committee to hear the Government's response before an amendment has been moved or spoken to in the debate.

Earl Ferrers

I understood that all the amendments were grouped together but if my noble friend wishes to move that amendment separately, I am quite happy for her to do so.

Baroness Flather

I had intended to move the racial harassment amendment separately but I was not going to say anything new. I shall say my piece after the Minister's speech.

Earl Ferrers

The proposed new offence would take the behaviour which is already covered by Section 5 of the Public Order Act 1986 and provide an immediate arrest power and sentence of up to two years' imprisonment, but only where the behaviour is on racial grounds. It is always difficult for prosecutors to prove motivation beyond reasonable doubt. But the proposal raises a more fundamental question. The same behaviour and the same distress may occur to two different people. In the first case, it may be a young child, a woman, an elderly person or someone disabled. That would be an offence under the existing Section 5 which would be punishable with a maximum fine of £1,000. In the second case, which would be distinguished only by race, there would be a maximum penalty of two years in prison. I do not think that that can be right. It would be difficult to distinguish between similar behaviour in such an arbitrary way. To have a vastly different penalty for race cases only would send a wrong signal and would do more damage to race relations than it would improve them.

It is because of those difficulties that the Government introduced their new clause, to which Members of the Committee agreed earlier this evening, concerning causing intentional harassment. That effectively takes the most serious conduct under Section 5—namely, deliberate harassment actually causing distress—and makes it liable to six months' imprisonment. It deals with racial harassment, but it also deals with harassment on any other grounds. I hope that Members of the Committee will agree that that is the most sensible way to proceed.

11.45 p.m.

Lord Monkswell

Perhaps I may intervene in the debate. I support the noble Baroness in Amendments Nos. 159F and 159G to which she has spoken. It seems to me that the noble Baroness made a very good good case; indeed, there is an overwhelming case that racial motivation should be seen as an aggravating factor and that facts relating to racial motivation should be placed before a court.

In his response, the noble Earl identified a number of factors which the courts already take into account in terms of identifying whether there are aggravating factors involved. I believe that the noble Earl mentioned that they are a well-established and accepted part of court procedure. I believe that the Minister also said that racial motivation should also be taken into account as an aggravating factor by the courts. However, if the Government are not prepared to accept the amendments, what steps are they taking to ensure that, on the one hand, courts have placed in front of them evidence of such aggravating factors and, on the other hand, they take them into account in determining sentence? It is not clear from what the Minister said that the Government are actually taking action to ensure that both of those characteristics are taken into account.

Earl Ferrers

I shall reply to the noble Lord fairly briefly. The whole way through out debates on such amendments I have explained that our great desire is that racial motivation or racial harassment should be flagged up at every stage whether by the police, the Crown Prosecution Service or the courts. That is what we wish to see happen. Of course, governments cannot impose that: what we have to do is encourage it and give the courts the power to impose higher sentences where there is an aggravating factor. Indeed, I gave examples earlier of how courts have done so.

Lord Monkswell

I am sorry to rise again, but if the Government do not have the power to advise the courts on what they should take into account and what type of information they should have in front of them, perhaps it is up to Parliament to give the courts and the prosecution authorities those powers. That is exactly what the amendments seek to do.

Earl Ferrers

Had the noble Lord been present in the Chamber earlier this evening when we discussed other similar amendments, he would have realised that the courts already have such powers; indeed, they have the powers to give higher sentences for aggravated offences, and they do so. It is for the police to gather the information and then it is for the Crown Prosecution Service to prosecute on the cases. In all those instances and at all those stages aggravated offences are taken into account. Moreover, where it is plain that there is an aggravated factor involved—that is, a matter of racial harassment, racial hatred or any of those things—such offences are aggravated offences which courts do take into account; which they have the power to take into account; for which they have the power to give greater sentences; and, indeed, for which they do give greater sentences.

Baroness Flather

If I had been able to speak to my Amendment No. 159H, I might have saved my noble friend the Minister some time, because it is not my intention to press that amendment in view of the Government's proposal which was accepted earlier. But I believe that that in itself makes it even more essential that my other amendments, Nos. 159F and 159G, should appear on the face of the Bill.

I take note of what my noble friend the Minister has said about administrative changes and administrative pressures and the fact that what we are discussing is probably happening already. But I have to say that that is not going to be enough. It is essential to flag this up using the very same words as my noble friend the Minister used when he said, "We have flagged this up". But it is not flagged up in this Bill and it is important that it should be flagged up.

Many people have asked why racial harassment and racial violence are any worse than any other kind of violence. Indeed every kind of violence is dreadful. We were given an emotive example of a woman in a wheelchair who had stones thrown at her. But we have not talked about all the women who have stones thrown at them every morning when they take their children to school in Tower Hamlets. Can we say how many women, or indeed men, in wheelchairs have had stones thrown at them? But we can say how many thousands of people have been victims of racially motivated behaviour.

This is also a question of degree and of quantity. If society is suffering from a spate of a certain type of behaviour which we do not wish to see happening, then we have to do something about it. If there was a spate of women in wheelchairs being stoned, I would be standing here asking the Chamber whether it was not time that we introduced a special penalty for people who threw stones at women in wheelchairs. But that offence does not occur every day and I am not asking for that special penalty. However, I am asking for a remedy for something which has proved to be a blight on society. I am sorry to see that the most reverend Primate is not here. Earlier, he talked about protecting our society from an erosion of values. I think those words are appropriate to racially motivated behaviour. We need to protect our society from an erosion of the values of fairness, and the value of allowing people the liberty to go about their lives in the normal course of events.

I am not much moved by the argument that it is difficult to prove a racial motive or that the courts will be reluctant to find a racial motive, or that juries will be reluctant to find it. We have also been told there is a lower burden of proof in discrimination cases and therefore they are successful. But I remember very clearly when cases of racial discrimination were first taken to industrial tribunals. The noble Lord opposite knows perfectly well how difficult it was to persuade the industrial tribunals to find racial discrimination. They are getting better at finding it. Therefore it is a question of education, of training and of getting society to accept as a norm that racially motivated violence and racially motivated behaviour are not acceptable in our society.

I say a final word to the noble Lord, Lord Annan. It is not a matter of culture. It is a question of how people perceive other races. I am sorry to tell the noble Lord that, as the victim of a serious racial attack, I do not take such an abstract view as he does. It is very easy to sit here in this Chamber and take an abstract view of the lives of people outside. I do not believe that we should do that. We should think about how people's lives are blighted day by day.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 159G and 159H not moved.]


Clause 138 [Prohibition on use of cells from embryos or foetuses]:

[Amendment No. 160 had been withdrawn from the Marshalled List.]

Lord Walton of Detchant moved Amendment No. 160ZA: Page 113, line 9, at end insert: ("( ) After the section 3A inserted by subsection (2) above there shall be inserted the following section—

"Modification of effect of Act

3B.—(1) Section 3A above does not apply in such circumstances (if any) as may be specified in or determined in pursuance of regulations.

(2) Regulations made by virtue of this section may provide that other sections of this Act shall have effect with such modifications as may be specified in the regulations." ( ) In section 45(4) (regulations under the Act) after the words "section 3(3) (c)" there shall be inserted "3B".").

The noble Lord said: The Human Fertilisation and Embryology Act established a statutory Human Fertilisation and Embryology Authority, of which the chairman, deputy chairman and the majority of the members must be neither doctors nor scientists involved in any aspect of research covered by the Act. That authority has dealt with many difficult issues since it was established. Last year it consulted the public on sex selection of children and said no to such selection for social reasons, just as it had said no to mechanisms of artificially producing identical twins.

The authority considers the use of donated ovarian tissue to be an important matter upon which the public should be consulted. The consultation document which it has published and circulated has aroused enormous public interest, and some 20,000 copies have been distributed on request. Replies have been received from an enormous range of organisations and individuals. Public meetings have been held to encourage debate, and the media have taken great interest in the issue.

The consultation document identifies many matters relating to the use of ovarian eggs and ovarian tissue derived from adult women, from females who have died, and from aborted foetuses. The Secretary of State for Health asked the authority for its advice following the consultation process, which began on 7th January and is to continue to 15th July, after which a report will be made to the Secretary of State which will include consideration as to whether legislative changes may be needed.

I am satisfied, as is the authority, that it has the necessary powers to regulate and strictly control embryo research and fertility treatment under its present terms of reference. Any research or treatment using foetal ovarian tissue would need a licence from the authority, which has no present intention of giving one. In fact, fertility treatment in adult women using foetal ovarian tissue is not going on, no one is contemplating it, and, even if they were, such a possibility would not be likely to arise for a minimum of 10 to 20 years from the present date.

It is, of course, the case that under the terms of reference and recommendations of the committee chaired by that distinguished cleric and academic, the Rev. Dr. John Polkinghorne, foetal tissue may under certain specific circumstances be used in research. As the Committee will be aware, brain tissue derived from aborted foetuses has been used with modest success in the treatment of Parkinson's disease. But all such research and the use of foetal tissue in other research projects is very carefully controlled.

In the Nuffield Department of Obstetrics and Gynaecology in Oxford there is a research team headed by Professor David Barlow. It has an international reputation and is in many respects leading the world. The team is undertaking a research project in which it is examining the development of human foetal ovarian tissue. That research is crucial, as it will provide useful information on the growth of immature human eggs which could well improve success rates in the treatment of adult patients. The use of such tissue in that project has been approved by the Central Oxford Research Ethics Committee and is being conducted according to the full Polkinghorne guidelines. Those include the provisions that the researcher may have no contact with the patient from whom the aborted foetus is obtained, that the decisions for the termination of pregnancy and the use of tissue in research are separated by an intermediary, and that full consent has been given by the patient. While parallel work using adult ovarian tissue supplied by volunteers undergoing sterilisation is also in progress, this is likely to prove much less successful because of the significantly lower numbers of eggs present in such tissue, which makes their isolation and study very much more difficult.

Many doctors and scientists are deeply concerned that Clause 138 as it stands could well discourage, perhaps even outlaw, certain research methodologies using foetal tissue which could now or in the future be invaluable in leading to the prevention of miscarriage, of ovarian cancer and of premature menopause., among many other possibilities.

When the Human Fertilisation and Embryology Bill was debated some years ago in your Lordships' House, I indicated how crucially important to the future of humanity was the research on early human embryos. Many of the prospects which I then discussed relating to the prevention and indirectly to the treatment of devastating human diseases such as cystic fibrosis, muscular dystrophy and others, have subsequently become a reality or are very close to being so. Future developments in this vital field of human embryo research will be determined by the availability of eggs with which embryos may be produced for such research. The richest source is the human foetus, and the unanimous view of the medical and scientific bodies which I have consulted is that, if licences for such work are eventually granted by the HFEA after full consultation, the potential benefits to human; health will be incalculable.

Having made those points, perhaps I may say that I understand the motives which led Dame Jill Knight to introduce into the Bill now being considered in Committee Clause 138 to render the use of foetal eggs in infertility treatment in adult females illegal. Nevertheless, I must say that it seems extraordinary that such a clause should, without any prior consultation with the medical and scientific community about its potential implications, have been inserted into a Bill dealing with a very different topic. What is even more remarkable is the fact that it would appear that the insertion of this clause may have received some support from Government at a time when a statutory authority was undertaking an extensive consultation process in order to advise the Secretary of State upon all relevant issues. It is almost certain that that consultation would have ended with advice being given to Government by the Human Fertilisation and Embryology Authority that the use of foetal ovarian tissue for infertility treatment of adults should be banned by law.

I must express the personal view that I, along with others, would for a number of reasons have found such a use both distasteful and objectionable. In that respect, I therefore support the objectives underlying the clause now standing as part of the Bill, while deeply regretting the indecent haste with which it came to be included. For the latter reason, I therefore have considerable sympathy with the noble Baronesses and the noble Lord who have indicated their intention to oppose the continuing inclusion of this clause in the Bill.

However, after consultation with distinguished scientists, including Professor Marcus Pembrey, the Government's own consultant adviser on clinical genetics, and taking account of the views of Dame Anne McLaren, Foreign Secretary and Vice-President of the Royal Society, one of the world's most distinguished embryologists, I have tabled this amendment in order to bring to your Lordships' attention a major problem of which I am sure Dame Jill Knight and her supporters in another place were unaware when Clause 138 was added to the Bill. I was indeed tempted to set down yet another amendment accepting the prohibition at present specified in the clause, subject only to such recommendations and proposals as the Human Fertilisation and Embryology Authority might now or in the future make after wide public consultation. I did not do so as I wholly recognise that this is a matter of such great importance to society that it is proper that major new developments, however vital they may be to the prevention and treatment of disease, should be fully considered in the future in both Houses of Parliament.

Accordingly, the amendment which I have set down maintains the general ban on the use of foetal germ cells and tissues in fertility treatment as provided for in Clause 138. However, it makes possible the introduction of regulations by the Secretary of State, having taken advice from the HFEA, regulations which must then be subject to approval by Parliament by affirmative resolution requiring debate in both Houses. Such regulations, if accepted, would permit the use of foetal eggs in research in exceptional circumstances specific-ally concerned with the prevention or treatment of serious human disease or dysfunction.

May I endeavour to explain one compelling reason why such an amendment is essential? All human cells contain a nucleus in which the majority of the body's DNA, embracing the genome or genetic constitution of the individual, is located. The cell itself is bounded by a membrane, but the nucleus rests within a substance called cytoplasm which in most cells occupies the greater part of its volume, being substantially larger than the nucleus. Within that nucleus are tiny structures called mitochondria which are the energy storehouses of the cell and which also contain a small number of genes, though these represent but a tiny fraction of human genes in comparison with those residing in the nucleus.

When the Human Fertilisation and Embryology Act became law in 1990, a clause in the Act indicated that a licence awarded by the HFEA could not authorise replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any other embryo or with the subsequent development of such an embryo. This clause on nuclear exchange was properly included to prevent cloning of human embryos so as to produce several genetically identical individuals. What was not fully appreciated then was that this clause would also outlaw a method of exchange of cytoplasm in an embryo produced by straightforward in vitro fertilisation; that is, the product of an egg fertilised by sperm from the woman's partner.

At that time medical science had not yet discovered the extent to which many serious diseases are caused by defects in the genes carried in the mitochondria in the cytoplasm, and treatment methods to control these conditions were not then under consideration. In the past few years it has become increasingly apparent that many different diseases causing, for example, severe epilepsy, mental handicap or dementia, muscular weakness or paralysis, various forms of deafness and adult-onset diabetes, can all be caused by mutations in mitochondrial genes. Such genes, too, have a most unusual pattern of inheritance, being exclusively passed on through the female line. Thus a healthy or mildly affected woman carrying such a mutation in just a small proportion of her mitochondria carries the considerable risk that any child of hers, of either sex, could develop severe mitochondrial disease. Hence, all children born to such a mother are at risk and methods of prenatal diagnosis, which are allowed under the Human Fertilisation and Embryology Act and which are proving successful in many other conditions, are by the very nature of mitochondrial inheritance, unreliable. Only within the past two years has it become clear that a form of cytoplasmic exchange in conjunction with standard in vitro fertilisation in adult human subjects would be able to free the baby and its descendants from mitochondrial disease. This would be a permanent cure.

Such a possibility could only follow a proposal from the Human Fertilisation and Embryology Authority under Schedule 2(3) of the 1990 Act, clearly stating that a licence under this paragraph cannot authorise altering the genetic structure of any cell while it forms part of an embryo, except in such circumstances (if any) as may be specified in or determined in pursuance of regulations.

The use of cytoplasm from foetal eggs could fulfil this objective, but would still need to be approved on the recommendation of the HFEA by resolution of each House of Parliament. The use of eggs from aborted foetuses may prove in the future, through research, to be useful in many other as yet unpredictable but widely acceptable ways.

For this reason, I and the scientific community believe that the amendment which I have tabled and which, as I said at the outset, maintains the ban on the use of foetal eggs for adult fertility treatment, will nevertheless allow such crucial developments in research and in the prevention of human mitochondrial diseases to be carried out, but only after the fullest consultation under regulations approved by both Houses of Parliament. I beg to move.

Lord Kennet

The House will have listened with the greatest care and attention, as it always does, to what the noble Lord, Lord Walton, had to say. It is very late and I shall be extremely brief, but I would like to make four points.

Mrs. Knight's clause in the Bill does not mention research. It can have no effect in banning research, and I am puzzled as to why anybody should think that it could. Since the noble Lord is content with the proposed ban on the use of foetal eggs for the generation of new persons, it seems to me that another approach is needed.

The idea of introducing the new clause which the noble Lord proposes permitting regulations to be made is extremely broad and non-specific. He stated that these regulations would be used only to secure research. He even outlined the kind of research to which the use of the regulations would be confined. But of course that is not what the noble Lord's new clause says. It leaves infinite power to introduce regulations on this subject and on any other subject.

The Committee will have noticed that subsection (2) of the new clause would empower the Government to change by regulation any part of the 1984 Act. That is clearly unacceptable, and the Committee would be wrong to accept it.

Lastly, if there is a piece of research which has been inadvertently prohibited—as the noble Lord said, if I understood him correctly, not by this Bill but by an earlier Act—I submit that this Bill is a very good opportunity for the introduction of the perfectly straightforward amending clause concerning the earlier Act in this one particular.

The Duke of Norfolk

I should like to speak just to Amendment No. 160ZA in the name of the noble Lord, Lord Walton. Surely this is the most obvious example of a Henry VIII provision. The noble Lord is suggesting that if this clause is passed, the Department of Health will be empowered to change, not only the Human Fertilisation and Embryology Act, and add to it and amend it, but also the abortion Acts. It would be most undesirable for the Committee to pass the noble Lord's amendment, which would give a complete blanket authority. It is well described as being a Henry VIII provision. I should like to speak later about Clause 138.

12.15 a.m.

Baroness Jay of Paddington

I should like to speak in support of this amendment. In doing so, I have put my name to the amendment but I should like to make it clear that that is done in a personal capacity, and if the noble Lord, Lord Walton, decides to test the opinion of the Committee there will, of course, be a free vote on these Benches, as I understand there will be on the government side.

I am very grateful to the noble Lord, Lord Walton, for the way in which, as always, he gave a most lucid explanation of what is scientifically a very complex area. In supporting the amendment, perhaps I may make a few points which I would describe as "lay" ones.

The noble Lord, Lord Walton, demonstrated in discussing the new work on the mitochondria how fast medical science is advancing in this field. I have to confess that the word "mitochondria" was totally unfamiliar to me until about six weeks ago when I started to listen to some of the arguments about Dame Jill Knight's new clause in this Bill. The Committee heard from the noble Lord, Lord Walton, that when the 1990 Bill was passed the importance of the mitochondria was not understood. Now scientists in this country have discovered that defects in the mitochondria can cause the very serious conditions to which the noble Lord referred.

I say to my noble friend Lord Kennet that my discussions with the scientific community—obviously much more superficial and less wide and deep than those of the noble Lord, Lord Walton—suggest precisely what he was saying did not occur with this Bill; namely, the sense that a research blight will be cast over their entire field if this clause stands part of the Bill. Once again, in the whole area which the noble Lord, Lord Walton, described so clearly, British scientists have been international leaders, as they have been ever since 1978 when the first test-tube baby following in vitro fertilisation was born in Oldham in Lancashire.

Our scientists have pioneered discoveries in this wide-ranging area. They have done it responsibly, sensitively and with great concern for the ethical dilemmas that their work can create. Many couples in this country have been helped towards great happiness as parents by the therapeutic application of some of the new scientific techniques. One is bound to remember that one in 10 couples in this country is officially categorised as medically infertile. But the technique of using donated ovarian tissue or foetal eggs to solve infertility is, as the noble Lord, Lord Walton, said, not possible today and is unlikely to be possible for another 20 years. As I said, the clause will cast a research blight over an area of research which may produce therapies that may help infertile couples but which may also produce important findings, as the noble Lord, Lord Walton, described, about inherited diseases and other serious problems such as ovarian cancer, miscarriage and premature menopause.

At this stage we just do not know where the scientific inquiry will lead. But we should not be frightened by that. Equally, we do not know what public attitudes may be in the future towards knowledge and techniques which we cannot yet foresee. But the clause places a blanket ban on an area of science in which, as I said, we have been world leaders. We should be proud of that. We should be encouraging and supporting these exciting developments and not attempting to suppress them.

We have also been leaders in regulating the experimental work in this very sensitive area. A charitable view of the present situation could be that the Department of Health officials and Ministers in another place did not realise the extent of the potential damage to science when they encouraged and helped Dame Jill Knight's amendment through the other place. The charitable view, frankly, is one that I should like to accept, given that the Government have previously had a good record on appropriate legislation in this field; and I should like to accept it in the hope that this amendment will prove to be acceptable.

After all, until now the Government's approach has been to introduce rigorous regulation after extensive consultation. The Committee may remember that the 1990 Bill—I was not here at that time—was introduced six years after the noble Baroness, Lady Warnock, had reported on the subject. Those six years allowed time for wide discussion of all the social issues involved as well as practical debate about the most effective and trusted form of regulation. That was precisely the process that the Human Fertilisation and Embryology Authority was following in its consultation on ovarian tissue donation when the whole operation was hijacked by Dame Jill Knight's Clause 138. It was slipped through the other place at an even more inhuman hour than we are now at tonight.

The amendment we are discussing would allow the HFEA consultation to go on. It is worth reminding the Committee, as did the noble Lord, Lord Walton, that 20,000 consultation papers were sent out, that 8,000 replies have already been received and that the consultation period has been extended until July to allow a special BMA conference on this subject to be held.

In the three years of its existence the HFEA has gained wide respect and should be allowed to fulfil the statutory functions intended by this Government, which, after all, set it up. I disagree entirely with the Early Day Motion which has been circulating in another place, criticising individual members of the authority. I hope that the Government will back its appointees both publicly and privately. I have great confidence in the integrity of the HFEA and would be happy to allow it to make decisions about further work on donated ovarian tissue. However, like the noble Lord, Lord Walton, I realise that many Members of the Committee and Members in another place feel that in this area they want further parliamentary safeguards. Those safeguards are provided for by the amendment. Work will proceed only when and if both Houses of Parliament introduce affirmative regulations to allow it to. That seems to offer a sensible compromise. The amendment protects parliamentary authority without undermining the HFEA, which is the statutory licensing body. It leaves open the possibility of vital research which may lead at some time in the future to new fertility treatments. I hope the amendment will be accepted because, in my view, to reject it really is to vote for a flat earth.

Lord Lester of Herne Hill

I speak in support of the amendment which stands also in my name on the Marshalled List, and I can do so extremely briefly because I made a full speech on the subject in the debate on 1lth May initiated by the noble Lord, Lord Kennet.

First, I pay tribute to the Human Fertilisation and Embryology Authority, appointed as a wide and balanced authority with balanced views and expertise. I pay tribute also to the careful process of consultation on the use of donated ovarian tissue which it undertook. But I express regret, as have other Members of the Committee, that the other place was persuaded to accept an amendment which would make the process futile.

I understand the objections raised by some Members of the Committee to the form of the amendment as it stands; that is, as an overbroad delegation of law-making authority beyond Parliament—a Henry VIII clause. I see that objection but I hope that the Minister, whom I previously described as a voice of great moderation and reason in this Chamber, will be able to indicate that the Government can give effect to the aim of the amendment in a more appropriate parliamentary form, the object being to enable the process of consultation to proceed and to back the authority—I very much echo what the noble Baroness, Lady Jay, said in regard to the need to back the authority —in the difficult work that Parliament has given it to perform.

The Earl of Halsbury

I speak tonight as a member of the all-party family and child protection group of both Houses of Parliament. The chairman, Dame Jill Knight, put this clause into the Bill under the 10-minute rule. I have never had the privilege of sitting in the House of Commons, but I understand that it is a device for enabling individual Members to intervene in a debate effectively, albeit at possibly a late hour of the night.

The clause has widespread support throughout the country. It is important to realise exactly what the amendment imports. Dame Jill Knight's Amendment No. 138 cross-references to the Human Fertilisation and Embryology Act 1990. In relation to regulations it says that the Secretary of State—not either House of Parliament— may make regulations for any purpose for which regulations may be made under this Act. The power to make regulations shall be exercisable by statutory instrument. Regulations may make different provisions for different cases", and so forth. We have listened time and time again to positive and negative instruments and the rather dreary debates to which they lead and we have seen our incapacity to do anything about them. We do not appreciate them other than to knock them out of court. There is nothing in Clause 138 that inhibits research. All it inhibits is the final stage of research when one can plant a synthetic egg into a human being. Under the amendment that will not require a regulation but a new Act of Parliament.

As the matter stands, it is a perfect example, as stated by the noble Lord on the Liberal Benches, of a Henry VIII clause; and we should have no truck with clauses of that kind. I add my appeal to my noble friend to withdraw the amendment and reconsider its terms at a further stage of the Bill.

The Marquess of Lothian

I should like to support my noble friend behind me and the noble Lord, Lord Kennet, in what he has stated about the broad effects of regulations. I think that the matter goes too wide on a subject upon which many noble Lords have very sincerely held views and different opinions. We should be very careful about extending the regulations procedures in relation to something which is of such importance and sensitivity and - I hesitate to say this -in some respects possibly some danger to people. Therefore, I hope that the noble Lord will consider withdrawing the amendment or the Minister will consider resisting it.

Baroness Ryder of Warsaw

The idea that the eggs of aborted foetuses should be used to conceive children must give cause for concern for many reasons. Firstly, it involves creating a child whose mother was never born. The effect upon a child of discovering that she exists only because her grandmother chose to have her mother aborted are beyond calculation.

Secondly, what does that situation say about a society which disposes of unwanted children and plunders their bodies for spare parts to create other children? Thirdly, we must ask what right anyone has to use the eggs of a child in that way.

The Human Fertilisation and Embryology Act, which we debated very fully in 1989 and 1990, requires that eggs should not be used without the consent of the donor. Can it ever be right to make a person a parent without their consent, and how can it be possible for an unborn child to give consent? That injustice is compounded, not mitigated, by the fact that the person concerned has been deprived of her own life.

It has been suggested that the use of eggs from naturally miscarried babies would be acceptable. I do not accept that point of view. A child would be created whose mother had died before she was born, and a child would be made a mother without her consent.

It has been suggested that a woman should be allowed to use the eggs of her own miscarried baby to conceive again, which I find a little bizarre. Why would a woman who has successfully conceived need to do that? Would any woman want to carry her own grandchild? If the same man fathered the second child, he would be both father and grandfather and the union would be incest.

It causes me great concern to see medicine going in this direction. For the scientists who are making the proposals, eggs and sperm are simply raw material for some in a manufacturing process designed to deliver a baby. Where they come from is of no consequence so long as they are fertile. However, it does matter. The whole point of donating eggs is that they can be fertilised by the sperm of the man in order that the child will be his. Otherwise, couples would be happy to adopt or have donated embryos, of which there are several thousand in cold storage.

If the origin of the sperm matters to the father and to the child, how can the origin of the egg be of less consequence? How does one cell provide a vital link between the generations while the other is merely an anonymous piece of genetic material salvaged from a disposable donor?

Eggs and sperm are the means by which we pass our identity to future generations. This matters very much to both parents and children, as is evidenced by the number of adopted children who seek out their biological parents. A child created in this way will be deprived of a biological identity. Medicine today often needs to know the ancestry of a child even to treat the patient

Medicine still continues to try to restore fertility when it has been lost. I do not believe it should try to turn human reproduction into a consumer-driven manufacturing process. That we can even contemplate creating children from the bodies of unborn babies shows that we are heading in this direction. I have seen for myself, albeit 50 years ago, medical experiments made by scientists in the Nazi movement. They, too, believed that for the Aryan race their experiments would prove good. I mention that not in any way to decry what scientists and the medical profession do in this country but to draw the attention of the Committee to what could happen in the worst event. As Dr. James Le Fanu, a GP and newspaper columnist, recently wrote: When … research involves … the transplanting of aborted fetal ovaries then the value of human life is degraded and stripped of its mystery". We live in an age of great moral confusion, in which we are reluctant to express a firm view on a moral issue. That is one of the failings of our age. In this matter, I do not think we should have any fear of sending a clear message that these procedures are not acceptable. In doing so, we will have the support of a very large part of the British public, a great number of whom are absolutely unaware of what Is being said here and the serious consequences.

In the Book of Hebrews is written: 'To be alive is no man's gift: It is God's gift". We are mere mortals. We take over God's work: at our peril.

12.30 a.m.

Baroness Warnock

I rise to support the amendment for two reasons. First, it would give the opportunity for the HFEA to complete the survey, come to its conclusions and make its recommendations which it could then present to Parliament. That is a very proper outcome, given that it is fulfilling the functions for which it was set up in making this elaborate questionnaire. Secondly, the amendment would leave open the possibility of the kind of research of which we have heard. That is of enormous importance. I do not believe that any moral judgment, however strongly felt, can be based on ignorance if it is to have any validity.

Our ignorance of these scientific matters is fairly profound. When I say "our", I mean lay persons. However, we have had this evening a very clear explanation of the kinds of research beneficial to medicine but nothing particularly to do with the remedies for infertility which may possibly come from the continuation of this kind of research and which would be under threat from this clause. If the: door were shut to some outcomes of the research, the research might also seem to be under threat.

It is true that though the clause itself says nothing about research, Dame Jill Knight very definitely said that her intention in introducing the clause was to say that scientists might just as well give up this kind of research and give it up for good. That was the intention of the clause as it was first introduced. I therefore think that an amendment such as we are considering is very well worth supporting simply to leave open the possibilities of highly beneficial research. Therefore, I very much hope that the Government may feel that they can accept an amendment that would have the same effect as this, if not this amendment itself.

Lord Kennet

Perhaps I may ask the noble Baroness a question before she sits down. Is the kind of research which tends towards the generation of new babies by this means the same kind of research as that outlined by the noble Lord, Lord Walton, as being of particular value for the future of genetic therapy?

Baroness Warnock

As far as I understand it, the research using foetal tissue would in every case, for whatever it was going to be used, have to come before the HFEA. I suppose that the research would be judged by the HFEA according to whether it was good scientific research and was likely to have a successful outcome, whatever that outcome. So in one sense, as I understand it, it would be the same kind of research because the same kinds of foetal tissue would be used and the construction of the egg would be under examination in either case. My noble friend will put me right if I am wrong on that.

Baroness Strange

I should like to support my honourable friend Dame Jill Knight. There is an old rhyme which begins: Where do you come from baby dear? Out of the everywhere into here". I cannot remember more, but it seems to me to encapsulate what the most reverend Primate the Archbishop of York said, 'The procreation of children is literally a participation in the creativity of God. Its basis is love".

Although unfair to birds, I have to admit that I do not believe that babies are brought in by flocks of flying storks, but I do not believe either that, like rag dolls, they should be made up of discarded bits and pieces of humanity, some of them dead. A baby is a gift from God.

Lord Ashbourne

I cannot commend the amend-ment to the Committee because it would allow the department to change legislation at will. Not only would that render Clause 138 quite meaningless, but it would also mean that any other parts of the Human Fertilisation and Embryology Act could be altered by the department. As the noble Lord, Lord Kennet, and my noble friend the Duke of Norfolk argued so cogently, that ought to be unacceptable to your Lordships. It certainly fills me with a very deep unease. I therefore urge the Committee not to support Amendment No. 160ZA.

Lord Swinfen

I have one quick question. I understand that, under the Human Fertilisation and Embryology Act 1990, the ultimate donor has to give informed consent for the use of material. Who would be able to give informed consent? I should have thought that the consent would have to come from the foetus.

Lord Robertson of Oakridge

I should like to make one point. Before the Committee decides whether to accept the amendment involving a considerable and wide-ranging delegation of power, may I remind the Committee of what the House of Lords' Select Committee which considered the scrutiny of delegated powers stated in its 1993 report? It stated: We were very impressed by the weight of evidence suggesting that parliamentary control over delegated legislation was in many ways so limited as to be ineffective".

Viscount Brentford

I have one question in connection with which I should like to quote from Hansard in another place. On 22nd February this year, Dame Jill Knight said clearly: it is not intended to stop research or to stop the use of human eggs donated by women".—[Official Report, Commons, 22/2/94; col. 151.] The noble Baroness, Lady Warnock, appeared hesitant about the question of whether the provision could stop research. It seems to me that it is not Dame Jill Knight's intention to stop research. Perhaps my noble friend the Minister will be able to tell us whether the provision will stop such research. It seems to me that it is restricted to fertility services. That should be all that we are talking about.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)

I wish to add my gratitude to the noble Lord, Lord Walton of Detchant, for introducing the amendment with his characteristic authority and clarity. The Government's position is one of neutrality both on this amendment and on Clause 138. We have some strong reservations about the effect that the amendment has and that has been addressed by Members of the Committee tonight. I shall come to that later. We believe that this is a very sensitive issue. As the noble Baroness, Lady Jay, said, we believe that this is a matter for individual judgment and conscience of Members of the Committee.

For some of us, important matters of conscience are in conflict with the natural desire to see progress in the understanding and treatment of serious disease. I am a supporter of medical research and I have great respect for the clinicians and scientists who work in this important field. I also fully understand the great concern of those who find unacceptable the prospect of using eggs from aborted foetuses in the treatment of infertility.

Clause 138 prohibits the use of female germ cells taken or derived from an embryo or a foetus to achieve a pregnancy. It also precludes the use of an embryo created by using such cells to achieve a pregnancy. It does not ban research using female germ cells. I understand the confusion referred to by the noble Baroness, Lady Warnock, and my noble friend Lord Brentford. I wish to emphasise that only the use of these cells to achieve a pregnancy is banned, not research in this field.

The Government acknowledge the sorrow and sadness that infertility can cause. Medical science has made great progress bringing hope through in vitro fertilisation to many couples. But Parliament has quite rightly decided that developments in this area should be subject to certain controls.

We are aware that some people, including Members of your Lordships' House, consider Clause 138 to be premature and unnecessary because it pre-empts the Human Fertilisation and Embryology Authority's consultation exercise. But of course the clause addresses only one aspect on which the authority is consulting.

The consultation document addresses wider issues which are not dealt with by the new clause. These include whether ovarian tissue, other than foetal, should be used in infertility research or treatment, as well as the problem of obtaining consent where the eggs are not the woman's but those of her foetus. That matter was referred to by my noble friend Lord Swinfen.

These issues will still need to be considered by the Government, following the advice of the authority after the consultation ends in July 1994. The Government have every confidence in the authority and appreciate the commitment of its members and the work that they undertake. But the Government also respect the will of Parliament and its prerogative to reach decisions on these difficult ethical issues.

I turn to the amendment. We share the views expressed by the noble Earl, Lord Halsbury, the noble Lord, Lord Kennet, and my noble friends the Duke of Norfolk, Lord Ashbourne and Lord Lothian, that the regulation-making power is very broad indeed. The Committee will clearly wish to consider whether such a broad power would be appropriate and whether it is indeed necessary to achieve the purpose of the amendment. Members of the Committee are, of course, cautious about scrutinising proposals for delegated powers contained in Bills. The amendment before the Committee includes a power to modify all other sections of the Human Fertilisation and Embryology Act 1990. In this respect, it goes much further than other relevant powers under the Act. The Committee will also wish to consider the wisdom of taking such a major step without wider consultation than is available during the passage of the Bill.

The noble Lord, Lord Lester of Herne Hill, asked whether the Government will be prepared to give the same assistance to the noble Lord, Lord Walton, as it gave to Dame Jill Knight in providing drafting assistance in order to ensure that her amendment was workable. If it would be for the convenience of this Committee to give effect to its wishes, I will certainly impress on my right honourable friend the Secretary of State for Health that similar facilities should be offered to the noble Lord, Lord Walton.

The noble Lord and the noble Baroness, Lady Jay, in explaining why they consider this amendment to be justified, referred to mitochondrial disorders. As has been explained, it might become possible to help couples at substantial risk of having a child with a mitochondrial disorder to achieve a healthy child. An egg has a nucleus surrounded by cytoplasm which contains mitochondria. The mitochondria consists of DNA which controls aspects of the metabolism of the egg.

It has been suggested that by replacing the cytoplasm of an egg which contains disordered mitochondria with the cytoplasm of an egg derived from a foetus, a healthy egg could be produced. That could be fertilised in vitro and the embryo transferred back to the woman, with the aim of achieving a pregnancy. A child conceived in that way could reasonably be regarded as having a genetic constitution derived from its parents, although its mitochondrial DNA would have come from a separate source. Although this intervention is at the moment purely theoretical, the prospect of achieving it raises wider issues.

The correction of a genetic disorder using such a technique would affect future generations who would inherit the altered genetic material. This is really a form of germ line gene therapy which is not at present permitted in the United Kingdom.

In 1989 the ethical issues raised by the prospect of gene therapy were fully considered by the Clothier Committee. The committee's report was presented to Parliament in 1992. It recommended that germ line gene therapy should not yet be attempted, and the Government accepted that recommendation.

The Clothier Committee's successor, the Gene Therapy Advisory Committee, under the chairmanship of Professor Dame June Lloyd, is responsible for reviewing all proposals for human gene therapy research and for advising on its ethical acceptability. The Government look to that committee for advice on developments in this field, including the acceptability of germ line gene therapy. I suggest to your Lordships' House that it would be more appropriate to wait until the Gene Therapy Advisory Committee and Parliament have considered the wider implications of this form of therapy before reaching any firm conclusions tonight.

Consideration of the ethical aspects of research and treatment using human embryos is one of the Human Fertilisation and Embryology Authority's responsibilities. But the issues involved in germ line gene therapy go wider than the authority's remit and expertise. Parliament has a responsibility to protect future generations. We must safeguard their welfare by ensuring that treatment which involves germ line gene therapy is not permitted in any form until full and thorough consideration has been given to its safety.

This is a free vote issue tonight and, therefore, I leave it to the individual judgment of your Lordships as to which way to vote in a Division if the noble Lord, Lord Walton, chooses to divide the Committee.

12.45 a.m.

Lord Walton of Detchant

I am grateful to all noble Lords who have spoken in the debate. I am grateful to those who have supported the amendment either in its entirety or in principle.

One of the problems that we face in considering an issue of this degree of sensitivity, particularly at this hour of the morning, without going into very great detail, is that there are situations in which it is ultimately exceptionally difficult to separate issues relating to treatment from those relating to research, because the two have margins which are at times blurred. Nevertheless, I have made it clear, and I hope that your Lordships will accept, that the principle underlying the amendment introduced into the Bill by Dame Jill Knight relating to the objection to the use of foetal eggs to create new children by fertilisation of adult infertile females was something which I found repugnant. And that principle is one which I wholly accept. Nevertheless, in my view it would have been better if the Government and Dame Jill Knight had waited until the Human Fertilisation and Embryology Authority consultation process had been completed. A number of noble Lords have talked about widespread support in the country, but we do not know the extent to which that support exists until the consultation process has been completed.

I make one important point relating to the issues raised by the noble Baroness, Lady Ryder, and the noble Baroness, Lady Strange, in looking at the issue of mitochondrial disease, which I highlighted as being one of the reasons why I wished to see the amendment introduced into the Bill.

The important issue is that, if an adult human female who has a mitochondrial disorder and who therefore is likely to pass on that disorder in severe form to all of her children of either sex wished to undergo in vitro fertilisation, it would be possible to take her cells, with the nucleus of her cells, and to introduce simply the cytoplasm derived from foetal cells carrying normal mitochondria to prevent that disease from developing.

In talking about gene therapy, I must say that the Minister is absolutely right: this is a form of gene therapy, even though some 70,000 genes reside in the nucleus of the cell and fewer than 50 genes reside in the mitochondrial. For that reason, the product of that particular pattern of fertilisation would clearly be the child of the mother from whom the nucleus was derived.

It is a complicated matter into which I do not have time to go in detail at this hour of the morning. On the other hand, I wholly accept the strictures of the noble Earl, Lord Halsbury, and of the noble Lords, Lord Kennet, Lord Ashbourne, Lord Robertson and others who said that the proposals in the amendment go far too wide and that they confer delegated powers—indeed, Henry VIII type powers—upon the Secretary of State, much wider than I had contemplated.

When I tabled the amendment, I had, perhaps rather naively, concluded that, as any regulations dealing with the issue would have to be confirmed by both Houses of Parliament, that was a sufficient safeguard. However, I now recognise the validity of the criticisms which have been levelled at that proposal. Hence, while accepting with gratitude, as always, the very courteous reception that my amendment received from the Minister on behalf of the Government, and accepting her offer of help to see whether we can establish an acceptable form of words which would not give a message to the scientific and medical community that the whole purpose underlying the clause is not just to ban treatment but to carry a negative implication in relation to the future of research, if we can devise such a suitable form of words for reconsideration on Report, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 138 agreed to.

Lord Annaly

I beg to move that the House do now resume.

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

House resumed.

House adjourned at seven minutes before one o'clock.