HL Deb 22 February 1995 vol 561 cc1215-44

9.31 p.m.

Lord Avebury

My Lords, I beg to move that the Bill be now read a second time.

Not many generations ago we burned people at the stake here in England for holding the wrong beliefs. Edward VI, Elizabeth I and James I all burned heretics, the last of whom perished at Smithfield in 1610. Although we stopped executing people for religious offences, even as late as the 18th century attacks on the Church and religion were considered to be attacks on the state.

As Lord Diplock said, to cast doubt on the doctrines of the established church or to deny the truth of the Christian faith upon which it was founded was to attack the fabric of society itself'. In the early 19th century it became lawful to deny the claims of established religion, though it still took a lot of courage to do that, as the case of Darwin showed. It was not until 1884 that avowed atheists were allowed to sit in Parliament, and by then the rule had been established that —as Lord Coleridge said in Ramsay v. Foote, if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy". From that point onwards, in order to incur penalties blasphemy had to include an element of scurrility, of vilification, ridicule or extreme irreverence, as well as or instead of the denial of some doctrine.

But in the 20th century, after the case of Gott in 1922 when the defendant was sentenced to nine months' hard labour for comparing Jesus with a circus clown, most people thought that the blasphemy law had fallen into disuse. That was the view of the noble and learned Lord, Lord Denning, who said in 1949, in a lecture on freedom under the law which is so often quoted, the offence of blasphemy is now a dead letter". It is indeed one of the main arguments for this Bill that it eliminates the uncertainty of a law which can be cranked into life again after being dormant for more than 50 years, and amended from time to time by judicial decisions rather than by Parliament, as the blasphemy law was in the Gay News case of 1978.

We cannot tolerate a criminal law which, in the words of the noble Earl, Lord Halsbury, on the last occasion we debated the matter, can hang over the wrongdoer as a vague, numinous threat, inducing caution".—[Official Report, 23/2/78; col. 291.] I hope that most of your Lordships will agree with the Law Commission's proposition that, offences, the elements of which are defined by reference to judicial decision rather than legislation, can have no place in a modern codification of the law". In other countries there are still drastic blasphemy laws. As chairman of the Parliamentary Human Rights Group I have been critical, for example, of Bangladesh and Pakistan. In the former country Miss Taslima Nasreen, the famous writer, was charged under that country's penal code with uttering malicious public statements outraging the religious feelings of the people. Her offence was to say that the Koran should be interpreted in the light of changes in the social background which have occurred since the 7th century AD. That is a good illustration of the fact that what is found to be grossly offensive or scurrilous is culturally determined, because most Christians would think it innocuous to suggest that biblical stories need to be read in the context of the social mores of their time.

In Pakistan recently there has been a notorious case in which a boy—Salamat Masih—has been sentenced to death with his uncle Rehmat Masih, for writing allegedly blasphemous slogans on the wall of a mosque. Salamat was 12 at the time of the alleged offence. The Pakistan High Commissioner explains that the defendants have the right of appeal to two higher courts and that nobody has ever been executed under that law. However, its very existence is a threat, as is the common law offence here.

Of course, the penalties in those countries are far more severe and the scope of the offence is much wider than in Britain, but those are differences of degree, not of principle. I submit that if we are to criticise the law of blasphemy in other parts of the world it is best not to have any such law here at home. That is my main motivation in introducing this Bill now.

It is 10 years since the Law Commission reported on offences against religion and public worship and published the draft Bill which is now before the House. The commission was unanimous in wanting to abolish the common law offences of blasphemy and blasphemous libel, although a minority wanted to create a new statutory offence which would penalise some of the material now dealt with by the common law. If that were done, consideration would have to be given to the definition of things sacred which are to be recognised by the state as deserving protection. That was admitted by the two signatories of the minority report to be a task of peculiar difficulty, and they wisely did not attempt it.

Many people are surprised to learn that blasphemy has a much narrower meaning in the law than in ordinary English usage: profane speaking of God or sacred things; impious irreverence as the dictionary has it. In law, blasphemy is what it is declared to be from time to time by the judges. In the Gay News case the trial judge said that blasphemous libel is committed if any writing is published concerning the question of God, Christ, the Christian religion as a whole, the Bible or any subject sacred to Christians, using words which are scurrilous, abusive or offensive, which tend to vilify the Christian religion, and which therefore have a tendency to lead to a breach of the peace.

The noble and learned Lord, Lord Scarman, said that the risk to public order was not part of the offence but a reminder of its essential character; that the words had to be grossly offensive or insulting and were thus inherently likely to lead to a breach of the peace. The mere denial of any of the doctrines of Christianity, mocking or poking fun at Christian beliefs, or the portrayal of sacred persons or objects in a profane setting would not be enough to satisfy the test. Bad taste—as in the "Life of Brian"—is not a crime.

The main arguments for abolishing the common law offence of blasphemy are the same as they were 10 years ago. I need to summarise them only briefly: the paramount importance of freedom of speech; the uncertainty of the offence; the coverage of most of the ground by legislation on public order and obscenity; and the inequity of giving special protection only to the Christian religion in a multi-faith society.

In addition, the lawyers object to the character of the offence, which is one of strict liability and without an element of intent. The absence of that mental element runs counter to the principle of English law; that intent is an essential ingredient of all crimes. Because the publication of the blasphemous words is an absolute offence, the defendant is unable to give any evidence of his beliefs and purpose, and however sincere the motives of the alleged blasphemer that would not be a matter for the courts.

Let us consider what blasphemous speech or writing would already be covered by other legislation. The use of words which are threatening, abusive or insulting, and are intended or likely to stir up hatred against any group of persons because of their ethnic origin, are among the offences covered by Part III of the Public Order Act 1986. An amendment to extend that provision to religious groups was proposed by the right reverend Prelate the Bishop of Oxford on the Criminal Justice Bill, and received a not unsympathetic reply from the Minister, the noble Earl, Lord Ferrers. However, it was pointed out that an equivalent provision exists already in Northern Ireland, which has been used only twice, and that unsuccessfully, in the past 20 years.

Sections 4 and 5 of the Public Order Act also catch words or behaviour that are threatening, abusive or insulting, and the likelihood of a breach of the peace no longer has to be established. I believe that that is a change since the matter was last dealt with in 1978. Section 5 of the Public Order Act 1936 (as it then was), re-enacted in the 1986 Act, had the ingredient of a breach of the peace deducted from it at that point. Section 4 states that if words are uttered, or distributed or displayed if they are in writing, whereby it is likely that violence will be used, or provoked, that is an offence punishable by up to six months in prison. Section 5 makes it an offence punishable by a level 3 fine if a person within sight or hearing of the utterance or display is likely to be caused harassment, alarm or distress thereby. If blasphemous material is offensive enough to create those effects, it is caught by the Public Order Act 1986, unless it is privately circulated. So it is narrower than blasphemous libel, where the mere publication of the material, without regard to the possible effects it may have, is enough for an offence to be committed—and your Lordships may think that this is one of the most important points to be considered this evening.

Conduct likely to cause a breach of the peace such that violence would occur is also covered by the Justices of the Peace Act 1361 and this ancient law is still in use. A case was reported as recently as December 1994 of a woman who entered the RAF base at Alconbury and it was suggested that the US air staff personnel on that base might have reacted violently towards her presence there, although she was not convicted of the offence.

The difference between the words "threatening abusive or insulting" in the Public Order Act, and "scurrilous abusive or insulting" in the words of the trial judge in the Gay News case is probably not material. But the Law Commission Working Paper No. 79, Offences against religion and public worship, said that because three adjectives lacking in precision have to be applied by a jury, without regard to intent, in blasphemy cases it is impossible to say in advance whether or not any particular publication is blasphemous. That creates serious consequences for publishers, as was found in the Gay News case.

Material which is broadcast is subject to far more restrictive rules. The Independent Broadcasting Authority Act 1973 prohibits the use in programmes of material, which offends against good taste and decency or is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling". The BBC has undertaken to be bound by the same standards. Whether or not those conditions are properly observed is constantly monitored and, I think your Lordships will agree, there is no risk that broadcasters would transmit grossly offensive material about any religion, not just Christianity.

Those who are concerned about the maintenance or resuscitation of moral standards in our society should direct their attention, as regards broadcasting, to the insidious effects of violence in the media, which may well be undermining the fabric of society, whereas profanity or blasphemy on the air certainly does not have that effect.

Thirdly, there is the Obscene Publications Act, which prohibits material tending to deprave and corrupt readers. Again, some grossly offensive material nevertheless gets on to the shelves of some newsagents, and it may be that the continued diet of violence in publications has done infinitely more harm to society than putative disrespectful or insulting references to sacred things.

Some of the respondents to the working paper argued that special reverence for what is deemed sacred requires protection. Certainly, people may be grossly offended by crude attacks on their religion. The noble Lord, Lord Elton, repeated that point in the debate on the amendment of my noble friend Lord Lester to the Criminal Justice Bill on 16th June 1994. The noble Lord said that blasphemy differs from other kinds of libel because for Christians who love God it is deeply upsetting for Him to be insulted. But if the words are so extreme, they will be caught under Section 5 of the Public Order Act. I hope that the noble Lord, Lord Elton, will have that in mind when he speaks. If he can imagine circumstances which are not covered by Section 5, that would be a material argument for the extension of the blasphemy law to all other religions, as the two minority signatories to the Law Commission report argued.

In the Framework Convention for the Protection of National Minorities, the parties undertook to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their religious identity. Presumably a blasphemous libel is always a manifestation of hostility to the Christian religion. We thus have a situation where the majority is protected against that hostility in a specific way and all the minorities other than Christians are left unprotected. The Copenhagen Declaration of the Organisation for Security and Co-operation in Europe of June 1990 also provides that, persons belonging to national minorities have the right to exercise fully their human rights and fundamental freedoms without any discrimination and in full equality before the law". It cannot be denied that members of the religious minorities in England and Wales do not enjoy full equality before the law because the law of blasphemy does not apply to their religions. I hope that the Government will agree that this is a matter which needs to be put right.

If it is accepted—and I think that it is almost universally accepted—that all religions should be treated equally under the law, but that some offence needs to be defined which is not already covered by the other statutes mentioned, how is one to define that which needs to be protected? The two members of the Law Commission who signed the note of dissent offered three possible solutions. Either the religions to be protected would be listed in the statute or the definition could be restricted to the groups having places of worship certified under the Places of Worship Registration Act 1855, or the term "religion" could be left undefined. None of those proposals is satisfactory, as I think your Lordships would agree. The first two would discriminate against the house Churches which, I understand, are the fastest-growing religious movement in Britain. Some members of the Church of England therefore favour the third choice of leaving the term "religion" undefined. That, I suggest, would be an encouragement to groups like the Scientologists or the Rastafarians, who are not counted as religions in other contexts, to gain recognition by persuading the courts to accept them as complainants under any new law.

If there is a case to be made out for a new statutory offence, then surely the protagonists have an obligation to point out speech or writings that they believe should have been punished. Moslems consider that Salman Rushdie ought to have been dealt with by the courts and, as your Lordships may recall, there was a case in 1990 in which the litigants attempted to show that The Satanic Verses constituted a blasphemous libel. Is that what your Lordships wish to see? The enormous risks of creating a general offence of blasphemy which would apply to all religions must be obvious to all. It would encourage litigation and fan religious antagonisms, and it could lead to interference with freedom of expression. The best way forward is simple repeal, in the light of those dangers, and in the absence of any clearly demonstrated need for a new offence. St. Matthew tells us, Sufficient unto the day is the evil thereof'. I shall say a few words on the rest of the Bill. There have been no reported cases under the common law offences that are mentioned in Sections 1(b) and 1(c), and it is doubtful whether they still exist. The minority of the Law Commission had nothing to say on that matter. Section 2 deletes references to the common law offences which appear in two Acts, and is consequential on the acceptance of the principle of the Bill. The statutory provisions regarding disturbance of religious services, which seem to apply to all Christian denominations and particularly Section 2 of the Ecclesiastical Courts Jurisdiction Act, which was successfully applied as recently as 1988, are left undisturbed. The Law Commission did recommend some repeals of obsolete statutory provisions and these could be considered if the Bill goes into Committee.

I know that some noble Lords believe that the law has a hortatory effect on the public, and that seems to be the view of some Church leaders. In the paper by the committee under the right reverend Prelate the Bishop of London, commenting on the Law Commission report, it is observed that changes in the law concerned with social behaviour since 1945, have led to the acceptance of patterns of social behaviour which exonerate individuals from moral responsibility for conduct which had previously been endorsed by the criminal law as immoral". On this view, the behaviour patterns of people are determined, or at least influenced, by legislation; and the only restraint on what has been called, licentious and contumelious abuse against sacred subjects", is the threat of Parliament's displeasure or punishment by the courts. Would that joyriders, football hooligans, child abusers, burglars and muggers would conform with that model. Those are all growth crimes, whatever is the view of noble Lords in this place, and they can only be stemmed by long-term changes in the family, the education system and the general values of society. The disrespect for things that are sacred and important to people, also, cannot be curbed by stricter laws; nor will it be stimulated by the repeals in this Bill. If we would be, saying something quite inviting to many of those people who are looking for opportunities"—[Official Report, 16/6/94; col. 1895.] as the most reverend Primate the Archbishop of York put it, the signal has to cross the light years of intellectual space which separate this Chamber from the lives and habits of ordinary people. Unhappily, as your Lordships may think it, the readers of the Sun, or even of the Independent, are not hanging on your every word.

Let us also be realistic about the fate of this Bill. If it surmounts the first hurdle of the delaying amendment which is about to he moved by the noble Earl, Lord Halsbury, it will not be given time in another place anyway. The most that can he expected is that it goes into Committee here—and this I hope that your Lordships will allow—so that alternatives can be more thoroughly examined. Nearly 10 years after the Law Commission reported, the view of the Church and of every other person who considers this matter seriously is that the common law offence should be repealed. So let us get on with that. Those who believe that an alternative statutory offence can be drafted to cover blasphemy against all religions can then have their say, and we can see whether any of their views command widespread support. The one thing that we cannot and must not do is to leave this fossil offence alone.

Moved, That the Bill be now read a second time.—(Lord Avebury.)

9.53 p.m.

The Earl of Halsbury rose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at end insert ("this day six months").

The noble Earl said: My Lords, I beg to move the amendment which stands in my name on the Order Paper. Our proceedings tonight are a replay of those that we had almost exactly 17 years ago, on 23rd (rather than 22nd) February of that year. We had to debate under some constraint at that time. The well-known case under the law as it then stood of Mary Whitehouse v. Gay News had been taken over by the Attorney-General. A decision in favour of Mrs. Whitehouse—or the Crown, as it became—had been pronounced and was the subject of an appeal. So under the sub judice rules we had to be rather watchful of what we were saying at that particular time.

Since then, events have moved in different directions in different places. We have the report of the Law Commission, which was not as unanimous as it sounds. On the main point the commission divided two to three, and the two included the chairman. I think one can consider that as near a dead heat as one can get between an odd number of people. Again, we had a scamper over the course last summer on the Criminal Justice Bill. There were a number of amendments dealing with the substance of this Bill, all of which were withdrawn after having been freely considered.

I want to start by making sure that your Lordships clearly understand how far the law as it stands is an interference with the right of free speech and the rights of the subject. You can defend any thesis that you want. You can say, "I am an atheist" and give the reason, or you can say, "I am a deist, a theist, an agnostic, a mystic or anything", and give the reason—provided that you do it with academic good manners. Is that too much to ask? What you are forbidden to do is invent non-factual phantasies of a disgusting character and attribute them to personages for whom the religious have great consideration, as happened in the Gay News case 17 years ago.

In order to emphasise the outrage that blasphemy performs upon the individual, I should like to recite a traveller's tale. It is the tale of a travelling magician who goes from village to village promising to do great magic. That is always accompanied by the warning that the magic will not work if anybody in the village who is watching it dares to think of a red monkey with a green face. The trick does not work, at which point the magician has a well feigned epileptic fit and accuses the village collectively of having thought of a red monkey with a green face, which of course every single one of them has done. So the villagers round on the least popular member of the village and say that it is all his fault. That allows the magician to depart with the gate money, plus a resolution not to play that trick on the same village for the next 10 years or so.

There is much wisdom in that traveller's tale. You cannot forbid yourself from thinking of something unless, by thinking of it, you have reminded yourself of what it is you have forbidden yourself. That is the outrage that people perform through blasphemy on the innocent minds of their audience.

I want now to account for why there is a kind of bifurcation of opinion among lawyers on this matter. It very much depends on the type of practice in which two different types of lawyer are engaged. One lawyer is a perfectionist who wants to see every jot and tittle of the law tidied up so that he can give his lay clients an absolutely clear indication of which side of the law they are on. He does not want any kind of ambiguity if he is to conduct his practice as he would like. The second type of lawyer is of a more philosophical disposition. He believes that the ghost of a moribund statute or a moribund doctrine is, as I have described it on an earlier occasion, a vague, numinous threat which persuades people not to take the kind of action that the first type of lawyer would like the freedom either to forbid or to enjoin.

At this point I should like to pray in aid one of our legal luminaries, my noble and learned friend Lord Scarman, with the judgment that he made on these matters in the case that I described to your Lordships. He said: I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the Kingdom"—

the purpose of law: to safeguard the tranquillity of the kingdom. He continued: In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt".

Later he added this to his judgment: I will not lend my voice to a view of the Law relating to blasphemous libel which would render it a dead letter, or diminish its efficacy to protect religions from outrage and insult. My criticism of the Common Law of Blasphemy is not that it exists but that it is not sufficiently comprehensive

That is the opinion of one of the most distinguished lawyers in the land—my noble and learned friend Lord Scarman. I wish he were here tonight so that he could add his voice to my quotation of his opinions. I commend the amendment to the House.

Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at end insert ("this day six months").—(The Earl of Halsbury.)

10 p.m.

The Earl of Longford

My Lords, I shall not detain the House for more than a few moments, standing between the noble Earl who has just spoken with such authority against the proposal of the noble Lord, Lord Avebury, and the right reverend Prelate the Bishop of London, who will be listened to with close attention.

I speak entirely for myself, as indeed will my noble friend Lord McIntosh who speaks last on this side of the House. I have come to admire him as a sincere and effective humanitarian in another field. I am sure that on this occasion he will be well aware that the leader of the Labour Party today is a Christian Socialist. It may be said that half a dozen other members of the shadow Cabinet are also Christian Socialists, and I am sure that my noble friend speaking from the Front Bench will make sure that those views are well reflected in his final remarks. He is a man of honour; I am sure he will.

No Christian can doubt that widespread blasphemy would be damaging to the Christian religion, and no Christian could fail to regard that as a most damaging fact and something inimical to the best interests of this country. No Christian would doubt that. We must therefore ask what a Buddhist such as the noble Lord, Lord Avebury, may think. Can we win the Buddhists over? Perhaps not tonight. Again, there are others who are not Buddhists and not necessarily Christians. We must ask how they look at these matters. I venture to submit to those people who do not like to call themselves Christians that what is damaging to Christianity is damaging to Christian ethics. I repeat that. What is damaging to the Christian religion is damaging to the maintenance of Christian ethics. And where would this country be without Christian ethics?

We all recall, because he has been often quoted—not least by myself—what Lord Attlee said on this matter. I admire him more than any statesman of our time. When he was asked, "Are you a Christian, Lord Attlee?" he replied, "I accept the Christian ethics. I cannot stand the mumbo-jumbo". When asked, "Are you an agnostic?", he replied, "I don't know." Asked, "Do you believe in the afterlife?", he said, "Possibly". That was the way Lord Attlee looked at things and maybe many other people too.

I take one moment more to make the submission that Christian ethics would be imperilled and fatally undermined if Christianity suffered the kind of damage that would be created by widespread blasphemy. Therefore, in my eyes blasphemy must be tackled firmly by the law. I have been long familiar with the arguments about freedom of speech; we had all those during the debates on pornography. In the end, however, all the great liberals draw the line somewhere. They want to prosecute people who attack things which are dear to them. Quite rightly, they want to prosecute those guilty of racism and anti-Semitism, but they all draw the line somewhere. The question is whether they are ready to defend widespread blasphemy. If they do not want to see it and recognise it as a great evil, not only theologically but ethically, they should support the noble Earl, Lord Halsbury.

10.5 p.m.

The Lord Bishop of London

My Lords, when I first learnt of this Bill, one of the initial questions I asked was this: what does the crime of blasphemy actually cover in English law today? The answer, I understand, is that it is very narrow in scope—far narrower than blasphemy in the religious sense and in the sense in which it figures in some other legal systems. I am assured that it does not prevent anyone from denying the truth of the Christian religion, or indeed criticising religion in general, provided that it is done in a reasonable and temperate way "within the limits of decent controversy". Rather, the essence of the criminal offence is something relating to God, Jesus Christ, the Bible or the doctrines of the Church of England which, as the lawyers put it, is "contemptuous, reviling or scurrilous" and therefore may have a tendency to lead to a breach of the peace. Indeed, as your Lordships will be aware, there has been only one successful prosecution for blasphemy in the past 70 years.

I think it is clear from this that the current law does not present any real threat to the reasonable exercise of freedom of speech. There are some who have drawn a comparison between our law and the current case in Pakistan. However, the crime of blasphemy in Pakistan is based, as I understand it, on Islamic law, which would certainly not be comparable with our English common law. The implications and significance of our own law are surely demonstrably different.

I appreciate that, at first sight, one might think that, since the law is apparently not a great deal of use to anyone and since the majority of the Law Commission recommended in the latter's report in June 1985 that the crime of blasphemy had unsatisfactory features and should be abolished, then there is no real reason to keep it.

Since the Law Commission reported, there has of course been a new development sparked off by the book The Satanic Verses, to which reference has already been made, in that people in this country of some faiths other than the Christian faith have found it unacceptable that the law protects the religious feelings of Christians, and particularly members of the Church of England, from contempt and reviling but does not give similar protection to the members of other faiths. As a result, what some have asked for is for the present law to be replaced with something which puts all faiths on the same basis. What they do not ask for is that the law of blasphemy be abolished altogether.

This concern is something the Church of England takes very seriously, and I am certainly not here this evening to insist that the Church of England, or indeed the Deity, is in particular need of special privileges in this field. The search for an alternative to the present law has been going on for some time—indeed, I know your Lordships' House considered two possible alternatives in debates on the Criminal Justice and Public Order Bill last year. So it is not as though your Lordships' House has been unwilling to consider the matter. But so far it has not produced any new criminal offence which could be generally accepted as satisfactory, and in this respect the Church of England has moved on since the reports in 1981 and 1988 by a working group under the chairmanship of my predecessor as Bishop of London. The more carefully we have examined the various options, the more obvious, it would seem, have the difficulties and drawbacks become. But the Church is still very willing to engage in a constructive debate about the way forward, though there is unfortunately no reason to think that success is just around the corner. In fact, it appears to me that there is really no consensus yet, either for abolishing the law or for any particular proposed alternative.

When the most reverend Primate the Archbishop of York spoke in your Lordships' House last year in one of the debates that I have mentioned, he pointed out that, at the height of the problems over The Satanic Verses, he and the then Archbishop of Canterbury, the noble Lord, Lord Runcie, met a group of Moslem leaders, and that one of the things they found was that there was no enthusiasm among that group for abolishing the law of blasphemy altogether, as opposed to replacing it with something better. I believe that that is because there is an important principle at stake here that is recognised by people of all faiths and many people, it has to be said, of no faith. It was recognised clearly in the powerful Note of Dissent by two of the five members of the Law Commission when it produced its report.

That principle is that, if our society is to hold together, yes, it must have some shared values, and one of them is that spiritual things do matter—that we cannot simply live our lives on the basis of "the material" alone—and that it is right and, indeed, essential to treat with reasonable and proper respect and reverence those persons, things and concepts which those who accept the teaching and disciplines of religion, Christian and other, regard as sacred.

We may not all recognise precisely the same things as sacred, but I believe that as a society we should see to it that that sense of "the sacred", as I have described it, is something which is to be recognised and safeguarded by the state as deserving of such protection as the state can give without impairment of the rights of others". Such protection in law is surely in the interests of our society as a whole.

At the same time, however, I do not believe that even in a multi-faith society we can ignore the particular and historic position of Christian faith, culture, history and heritage in this country, and so I would not wish to lose any specific reference to the Christian faith in any changes which may yet properly be made. There is surely a very real sense in which Christian beliefs and values—the Judaeo-Christian tradition—are part and parcel of our way of life, thought and culture, and are thus of special importance still in giving cohesiveness to our society.

In the same way, I believe that the law rightly recognises disturbing religious worship in a violent or riotous way as something different from the general run of public order offences.

It seems to me that the most appropriate way to proceed in this matter is not through a Committee stage of this House on an abolition Bill. Such a course of action would, I believe, send a very negative signal which I do not believe we should send and which would be unacceptable to a great many people, Christians and non-Christians alike. It would certainly be abolishing something without any sign or prospect of agreement on a more acceptable and satisfactory way forward. Until that is achieved, I am of the opinion that the present law on blasphemy should remain.

10.13 p.m.

Lord Hutchinson of Lullington

My Lords, to follow the right reverend Prelate is a privilege, if a somewhat daunting one, but this debate involves acute matters of law as well as matters of faith. I shall address the matter from the point of view of a lawyer.

Perhaps I may begin by advising the noble Earl, Lord Halsbury, who has tabled the amendment, that the Law Commission was unanimous on the question of abolition. The minority report was simply on the question of whether there should be a replacement. The majority thought that there should be abolition and no replacement. I repeat that the Law Commission was unanimous on the question of abolition.

The question for the House tonight is twofold. First, is the present law as it stands appropriate and effective or is it a bad, ineffective and archaic law and should it therefore be got rid of? The second question is: if that is so, should there be a replacement or are we better off with no law of blasphemy? It seems to me that there are those two questions. It is not merely a matter of getting rid of the whole idea of a law of blasphemy.

I hope that the House will feel that this is a subject worthy of consideration and going to Committee, because if the Law Commission, after detailed thought and evidence and a great deal of time spent on it, came to the conclusion that it is not a good and effective law, and is one which should not remain on the statute book, surely that is a matter which should be discussed, and discussed in some detail.

I approach the question as one who profoundly respects the Christian tradition and the susceptibilities of those who support that faith, but also as someone who has spent a professional life seeking to apply the criminal law to the unpredictable, arbitrary, often eccentric and sometimes wicked, behaviour of my fellow human beings. The attempt to apply the ordinary criminal law to a war situation in Northern Ireland, for instance, has succeeded only in bringing upon it a general loss of respect. It is a serious question, not just for the Christian religion, but for the law itself, as to whether it is appropriate in the 21st century to apply criminal sanctions, which are unlimited in their instance, to the protection of the feelings of Christian believers alone. Could it be that persuasion is a better protection than coercion?

It is the history of the blasphemy law which is decisive, and should be decisive, in our deliberations tonight. It is to that history that I should like to refer. In the Gay News case, the noble and learned Lord, Lord Diplock, described that history as, "long and, at times, inglorious". It is a history of judge-made law, and as Lord Sumner said in a case in 1917: There is nothing in the general rules of blasphemy and irreligion which prevents us"— that is, the judges— from varying their application to the particular circumstances of the time". Aye, there's the rub.

Your Lordships may well remember the Quaker, William Penn, and his exchange with the Recorder of London when he was charged with the wholly bogus offence of preaching in a public place and causing a tumultuous company to assemble. "By what law?", he pertinently asked the Recorder. "The common law", thundered the Recorder. "And where is that common law?", said William Penn. The nonplussed judge could reply only, "You are an impertinent fellow—It is lex non scripta, which many have studied for 30 or 40 years to know —Would you have me tell you it in a moment?"

As we have heard, when the king's courts in the 17th century assumed jurisdiction from the ecclesiastical court, Christianity was held to be, parcel of the laws of England". Mr. Taylor was set in the stocks because to say that religion was a cheat was, to dissolve the obligations whereby civil society is preserved". Even then, there were contrary views. For instance, Bishop Jeremy Taylor said: You may as well cure the colic by brushing a man's clothes or fill his belly by a syllogism as prosecute him for blasphemy. Instead of erecting a trophy to God, you but build a monument to the Devil"— words which perhaps the persecutors of Salman Rushdie might take to heart.

In 1841 Chief Justice Denman shifted the law. The judges are always shifting the law in this common law offence of blasphemy. The irony of invoking the law of blasphemy against free thinkers such as Tom Paine or Darwin was appreciated even by the judiciary. To prosecute a man for propounding a philosophy which asserted the existence of God but based on reason rather than revelation was hardly acceptable. Denman moved the offence from a simple attack on the faith to the mode of the attack, about which we have already heard. However, an attack on the whole Roman Catholic faith was held to fall outside the law. A humble vicar publicly protested, I know not on what evidence, that a local nunnery was no more than a brothel for the priesthood. The judge said: You may attack Judaism, Mohammedism or any sect of the Christian Church. Only the established religion is protected by the law". Chief Justice Coleridge, as my noble friend was pointing out, shifted the law again in 1883. The intention of the offence was now to be an essential element, which it had not been up until then. As my noble friend has already said, more than 40 years later the noble and learned Lord, Lord Denning, said that the offence was a dead letter. But before that the judiciary went over the top, as it sometimes does, in developing the common law, for a Mr. Gott came before Mr. Justice Avory, who was the most terrifying judge I ever saw—thin lipped and parchment skinned—for describing Jesus Christ as, entering Jerusalem like a clown on the back of two donkeys". Avory sentenced him to nine months' imprisonment for that observation. After the noble and learned Lord, Lord Denning, had said that the law was a dead letter, so it remained. I suggest to the House that it is of the greatest possible relevance that for 50 years in England and Wales and Northern Ireland the law was never once invoked; and in Scotland, not for 150 years.

It was not the Attorney-General and it was not the DPP but the wicked fairy, Mary Whitehouse, disguised as Princess Charming, who brought blasphemy back to life in the Gay News case. Once again the judges shifted the law; and they shifted it where? Back to where it had been 300 years before. Out of the window went intent; out of the window went breach of the peace; and so on. In that case the defendant, Professor Kirkup, who wrote the offending poem, was forbidden, as indeed he would be today, from explaining the purpose of his poem, which was, to give comfort to homosexuals by making them feel there is room for them within the Christian religion". No public good defence was, or is today, available in this offence, as it would have been had the prosecution, as it could easily have done, proceeded under the Obscene Publications Act.

In that case, yet again, the judge went over the top and imposed a nine months' suspended sentence. That top was quite a climb because in his autobiography the learned judge tells us that throughout the trial he felt suspended over the trial rather than part of it and was convinced that he was under the guidance of some superhuman power when writing his summing up. Geoffrey Robertson, defence counsel in the case, later reviewed the autobiography and said drily: If there was such heavenly guidance it is surprising to find so marked a bias towards the prosecution! Again, that is a danger of that form of common law offence.

Where does all that history lead us this evening? I suggest that the following is clear—and some of these points have already been well made by my noble friend Lord Avebury. First, the offence is uncertain to a quite unacceptable degree. Secondly, it can be judged only ex post facto; that is, by guessing what the subjective view of the judge or the jury may be in future. Thirdly, it is made, quite unjustifiably, an absolute offence; that is, there is no intent, no mens rea, as we call it, and the purpose of what is written or said is wholly irrelevant. Fourthly, defences under the Obscene Publications Act are denied. Fifthly, it protects the tenets of only one faith in a multi-ethnic and increasingly secular society. Lastly, it is altogether too heavy-handed as a protection.

I quote Geoffrey Robertson again from his book Media Law. Surely he is right when he says: Democracy today demands that the criminal law should originate in the legislature rather than in the antipathies of the judiciary". The old ecclesiastical offences of apostasy, adultery and immorality are now gone. The right of the most reverend Primate to cite a person for heresy went only 30 years ago but at least but that has also gone. Is it not time now to complete the process and remove the last remnants of the ecclesiastical laws?

Should we replace them? Speaking personally, I should not attempt to do so for the reasons given by the Law Commission. To extend the law to cover all religions would surely encourage intolerance and divisiveness. It is simply not possible to define religion to make it justiciable with secular humanitarianism at one end and the Moonies at the other. Surely it is the strength of their own belief which is the defence of Christians against abuse.

If we are to agree with the noble and learned Lord, Lord Scarman—of course it is always difficult not to agree with him but I remind the noble Earl that he was in a minority also in the Gay News case—then surely the new offence should be in the form of a small amendment to the Public Order Act, as my noble friend suggested, because that could be achieved by the simple addition of three words, or it should be made a branch of the law of nuisance carrying a limited financial penalty only, with no imprisonment. In that way the antipathies of the judges can be avoided and the emotion which inevitably surrounds this sort of matter can be extracted from the proceedings. It is a fundamental mistake to pitch too high offences which are essentially subjective in the end.

I end by quoting the words of Lord Macaulay in 1833 on this question. He said: If a man exhibits at a window in the Strand a hideous caricature of that which is an object of awe and adoration to 999 out of 1,000 people who pass down that great thoroughfare: if a man in a place of public resort applies opprobious epithets to names held in reverence by all Christians—such a man ought to be punished—not for differing in his opinion but for committing a nuisance which gives pain and disgust. He is no more entitled to outrage our feelings and, obtruding his impiety on us, to say he is exercising his right of discussion than he is to establish a yard for butchering horses close to our houses and to say at the same time that he is exercising his right of property". Even if, today, it is more like 500 people out of the 1,000 who would be passing down the Strand, I suggest that he got it just about right.

10.30 p.m.

Baroness Ryder of Warsaw

My Lords, the matter under debate this evening is whether or not the criminal offences of blasphemy and blasphemous libel (and certain other offences against religion) should be abolished. I propose to focus on the issue of blasphemy and of blasphemous libel.

Blasphemy consists of the publication of contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, the Bible or the Christian faith. It is not blasphemous to speak or publish opinions hostile to the Christian faith or to deny the existence of God if the publication is couched in decent and temperate language. The test is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves.

Those who propound the views that it should be abolished do so because, they say, it serves no useful purpose in a multi-cultural and multi-faith society, protecting as it does the Christian but no other.

The reason why the law of blasphemy protects only the Christian faith is historical. When the law was first laid down, to attack the doctrines of the Christian faith was to attack the fabric of society itself. That was seen as subversive and the offence existed primarily to safeguard the state against subversion. Nowadays, insulting the Christian faith is no longer seen as subversive.

However, even in a pluralist society such as that of modern Britain it cannot be right that a person should be allowed with impunity to cause pain and distress to others—perhaps leading sometimes to civil disorder—by insulting deeply and sincerely held beliefs which have been the foundation of our country's civilisation and stood the test of centuries.

If the law of blasphemy is overthrown, then anyone can vilify the Christian faith. The offence should stand and the Bill should be rejected. Perhaps I may quote from Ezekiel: It is not for your sake oh House of Israel, that I am about to act but for the sake of my holy name which you profane among the nations and I will uphold the holiness of my great name".

10.34 p.m.

Viscount Caldecote

My Lords, perhaps those of us who hold to the Christian faith and a belief in an all powerful loving God should declare an interest in this debate tonight. But I believe the law on blasphemy is not only a religious issue, although it is of course of great significance to Christians and the Christian ethic. That aspect of the debate has been well covered by earlier speakers. I would like to make the point that the subject of this Bill raises much wider issues impinging on the whole question of personal relationships in our community and of living in peace and harmony and mutual respect.

As has already been said, civilized discussion on different religions is helpful in promoting better understanding among people of different faiths. But that is a far cry from making offensive and hurtful attacks on strongly held beliefs of others. Freedom of speech is of course one of the great pillars of any genuine democracy, but freedom without consideration for others is abuse of freedom and harmful to our society and to a healthy consensus based on mutual tolerance.

Over the past 40 years or so there have been huge changes in all kinds of censorship and control of what can be published and broadcast. Perhaps earlier regimes were too restrictive, but can we honestly assert that the quality of life has been improved by the almost total relaxation of standards in the interests of free speech? No, responsibility must be a partner of freedom. To pass this Bill would not only be offensive to the Christian faith on which so much of our life is based; it would also send out from this House an entirely wrong message, encouraging extremists of any faith or of none to stir up trouble and disunity in our society. Therefore, I strongly support the amendment of the noble Earl, Lord Halsbury.

10.36 p.m

The Lord Bishop of Peterborough

My Lords, I am grateful to the proposer of the Bill for his history at the beginning and for the exposition of the law over the years. I would take the House back to rather earlier history. The concept of blasphemy is essentially a political one in that after long years of division the nation became one and the religion of the nation, which was the Church of England, was part of the nation. Therefore to preserve the nation, but joined together recently, against both Protestant and Papist incursions one would hold to that religion. To defy the Church of England and to bring it into calumny was equivalent to defying the Monarch and bringing him into calumny, or this House.

This has left those of us like myself, members of the Church of England, extremely embarrassed in that the law of blasphemy seems to home in on us and pass everybody else by. I feel this embarrassment not essentially for the new religions, or the great world religions which have come here in recent years—although I feel that—but much more perceptively for those great Christian bodies which have been here a long time, for the Roman Catholics and for the great historic Free Churches of every sort of shape. It seems awkward to live in such a society where the blasphemy in the end is narrowed down very much towards our own Church. Plainly, therefore, I think we may need some change. Where I am bothered is that we have now a proposal to ban this measure without any thinking publicly in this House or elsewhere about an alternative. I recognise the difficulty as regards an alternative. Everybody who has tried to propose alternatives has rather bit the dust in this place and has been turned down, as I have seen in the debates which have been sent to me. Nevertheless, I think we ought to try.

I am concerned that we should not simply throw this out for two major reasons. The first is to do with religious persecution. The noble Earl, Lord Longford, was absolutely right in saying that Christian ethics have their basis ultimately in Christian doctrine and Christian belief. This century has a desperate record of one religion persecuting another. I am reminded of the speech of Spurgeon to a great Baptist assembly when he said, We Baptists have never persecuted anyone". This remark was received with prolonged applause. He then said, We have never had the opportunity". That remark was treated with total silence.

It is a basic characteristic of human beings that they will eventually home in on others who are different from themselves. I therefore do not want to create some kind of free-for-all by removing any form of protection, as may happen if the existing provisions are thrown out. I am uneasy about that.

I am also uneasy at a deeper level. The concept of God is written deep into our history. One cannot understand English life unless one understands the history of religion and the place of the concept of God in it. The fact that as a religion we are unfashionable in this century is neither here nor there, because we did very badly in the 18th century. We did rather well in the last century, and we shall do splendidly in the next. But at the moment we are out of fashion. Therefore, an important assembly such as this should be very thoughtful before passing anything which moves the idea of God to the periphery.

I recognise that people do not go to church, but the English have never been to church. At the height of Victorian churchgoing, when Horace Mann made his assessment of all the churches, fewer than 40 per cent. of the people went to church. There has been a steady decline since. We do not go to church in the same way as the Celts or others. After 40 years of ministry, it is a source of embarrassment to me that I have not cracked the problem.

That is neither here nor there when one talks to the English about God. Every sociological survey tiresomely turns up the fact—however clever the questions—that, by and large, the idea of God is deep within people. They have it in them. They do not express it in ways that I would like or that are acceptable to religious people, but it is there.

Because history says that about us, because of the great western European tradition and because the people still have that concept of God, I am very hesitant about passing anything here which seems to be dismissive of it. I would much rather support the amendment and hope and pray that in the six months granted before the Bill comes back, as it ought to come back, there will be a series of proposals which would safeguard that which matters not simply to people like me, or to protagonists of other faiths or other Churches, but matters deeply to people who feel about England and about God, of whom there are many more than we sometimes imagine.

10.42 p.m.

Lord Elton

My Lords, the noble Lord, Lord Avebury, asked me whether I still felt the same as I did a year ago about the need for people who perceive the majesty and love of God and hold it close to their hearts to have protection from the offence of blasphemy. The answer to that is yes, I do.

The noble Lord went on to ask me whether that defence was not provided by Section 5 of the Public Order Act. The answer is no, if one follows the noble and learned Lord, Lord Scarman, as represented by the noble Earl, and more specifically not in any case which occurs in a dwelling place. Nor, I believe, would any blasphemous libel be caught, because Section 5 applies only to the display of any writing, sign or visible representation. Therefore, the answer to the noble Lord's question is no. A number of cases fall outside Section 5.

Lord Avebury

My Lords, I am grateful to the noble Lord for giving way. He should look at subsection (1) (a), which refers to the use of threatening, abusive or insulting words or behaviour, or disorderly behaviour. Subsection (1) (b) concerns display. Therefore, there are two legs to the offence in Section 5, one of which consists of using words in a public place and the other of displaying writing in a public place.

Lord Elton

My Lords, both relate to a public place. It remains the case that matters which occur in a dwelling are excluded. I believe that there are also wider exclusions, but I shall go back to the books after the debate. It is slightly academic, because I believe that it would be an atrocious error for such a small gathering, at such a late hour, to take what to many of us would be a fundamental step and change the law of this country. However, on the assumption that that is what some noble Lords wish to do, perhaps I may conclude briefly.

The question that then arises is this. Does the legislation cited in the Bill provide the protection to which the noble Lord refers? Those noble Lords who have addressed that question have always seemed to me to have stopped at the point where the Law Commission raised the objection regarding the difficulty of identifying mens rea. As the noble Lord, Lord Hutchinson, said, that difficulty was removed by the judgment in Whitehouse v. Gay News ex parte. Therefore the law gives a measure of protection which is wider than the Public Order Act and of the nature that we wish.

Is the fact that it does not protect non-Christians a reason for removing the protection from Christians? Plainly in logic, no; and I note that when we last debated the issue it was clearly stated that the Moslems did not wish it to be removed for reasons which chime in very much with what the right reverend Prelate said. I refer to a general perception of the sanctity of God and the necessity of all mankind to recognise that. Any removal of that protection is the wrong signal, as my noble friend Lord Caldecote said.

We then go to this question. Should non-Christians be protected? The answer self-evidently is yes. That is difficult, and no one has yet discovered how to accomplish it.

I add only one other reflection. I do not see it as necessary that the protection should be afforded by the same legislation. The protection afforded by the blasphemy Act is afforded to people who subscribe to a faith which came to these islands before St. Augustine set foot on the island of Thanet and has remained the religion of this state and its institutions ever since. It is fitting and proper that it should be distinguished in some way in legislation. That in no way means that the protection and respect given to others should be less. In the debate on education today your Lordships emphasised the importance of the fact that our religious education should not only recognise the primacy of the Christian religion but bring up our children to respect the faiths of others.

I regard it as self-evident that there is but one God and that his Son, Jesus Christ, redeemed us all—the noble Lord, Lord Avebury, as well as me, if he wished to take advantage of it. But I do not feel that I should be protected in that view, which he believes to be wrong, and that he should not be protected in his views, which I believe to be wrong. Finally, what I believe would be wrong would be to remove the protection from everyone altogether in this precipitate manner. I hope that noble Lords will support the amendment.

10.48 p.m.

Lord Robertson of Oakridge

My Lords, there are a number of reasons why I do not like the Bill. I shall confine my remarks to just one aspect of the matter; namely, that it would send out a highly undesirable message. To pass the Bill would be to proclaim to ourselves and to the world outside that we do not mind if God is vilified and his name dragged through the mud. We would be acknowledging that we do not mean a thing when we pray at the beginning of each day's business, Our Father…. Hallowed be thy name". Furthermore, we would be denying that all authority comes ultimately from God, as is recognised by the words, "By the Grace of God", in the very title of our monarch.

In Britain we have a multiracial society in a Christian country. Christianity permeates virtually all our institutions and heritage. For example, just as in Islamic countries the law is based on the Koran, so in this country most of our law has its roots in the Bible. A 22 year-old Moslem said to a friend of mine recently, "This is a Christian country. Never mind what the Government may say, or what the BBC and the press may say. Yet you have more mosques in your towns than you have churches. Why has this happened? What has happened to the Christians? Why don't they all rise up as one man and proclaim the Christian faith all over the United Kingdom? Why ever don't they?"

We have a chance to do so tonight and to show that our Christian heritage still matters to us. God requires us to look after and protect all sections of our community, including ethnic and religious minorities. I cannot see that the Bill does anything for them—quite the reverse. To legalise blasphemy would result in more blasphemy all round, not only for Christians.

We live in an increasingly dangerous and unstable world and our need for God's protection and His protecting hand over us is greater than ever. No one who has even a minimal acquaintance with the Bible could be surprised if unchecked blasphemy were to result in the withdrawal of God's protecting hand from our country. I dearly want to see our nation remaining in God's love and protection. That requires us to do all we can to see that God is honoured at least as much as under the present law. That is the message that I hope will go out from this debate. I therefore urge your Lordships' House to support the amendment of the noble Earl, Lord Halsbury.

10.51 p.m.

Lord Ashbourne

My Lords, I too share the concern of other noble Lords that we are debating this issue once again after the full consideration we gave to it just eight months ago. Sometimes I feel we can debate certain subjects so much that the life goes out of the debate and the purpose becomes unclear.

I am not aware of any widespread and continuing campaign about our blasphemy laws. As the old adage goes, "If it isn't broken, why fix it?" There is the separate issue of protection against incitement to religious hatred for religions other than Christianity, but I do not think we need to tamper with the blasphemy laws to meet that concern, and certainly not tonight.

Some may feel that because the blasphemy laws in other countries are getting a bad press—I think of the horrific case of the death penalty being applied for actions by a 12 year-old Pakistani Christian boy—we should get rid of our own law. But a few moments' reflection show the folly of that suggestion.

Our blasphemy law is not about heresy or theological debate. I may not like the views of other religions or even of other Christians, but I accept the right in our multicultural society for people to express their views. If they scrawl them on a wall, I think we would be more concerned about the graffiti than its content. I am reminded of the message on a Cambridge faculty building one summer: "God's not dead", to which a wag had added, "He's just revising!"

The English blasphemy law is about protecting something which we need to cherish and value; namely, the Christian religion and the risen Lord Jesus, on which so much of our society and its institutions are based. The blasphemy law, when tested in the courts—a very infrequent occurrence—has only ever protected against the most scurrilous kind of written, verbal or artistic abuse. My goodness, if our law meant that every mention of God's name taken in vain led to a prosecution, our courts would be brought to a standstill in no time at all! The BBC alone would be assailed by litigation.

Our blasphemy law is a safety net. God does not need our protection, but we do need to protect each other from chipping away at the very foundation of our society. I believe that the current law provides that protection and I shall be voting to keep it in place tonight by supporting the amendment of the noble Earl, Lord Halsbury.

10.54 p.m.

Viscount Brentford

My Lords, like some other noble Lords, I have received a whole sheaf of letters from people saying, "Retain the law of blasphemy". I do not often receive much mail on legislation in this House and I am intrigued that on this matter there is a feeling around—and I do not know the people who have written to me—that we should retain the law of blasphemy. I find that an interesting point.

I agree with the right reverend Prelate the Bishop of London on one point made by the noble Lord, Lord Avebury, in moving this debate. The distinction between the law of blasphemy in Pakistan and in the UK is a question of principle and not of degree. A legal system where a 12 year-old boy alleged to be illiterate can, on the accusation of one person, be convicted under the law and executed is for us a difference of principle and not of degree. The law of Pakistan should not have any bearing on what we are discussing this evening. It is not a reason for revoking the law of blasphemy in the UK.

My views are most admirably summarised in the remarks made by the most reverend Primate the Archbishop of York on 16th June. I should like to read a few sentences of what he said because it crystallises for me the argument that we are discussing now: 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".—[Official Report, 16/6/94; col. 1895.] That endorses my view far more ably than I could express it.

As was stated by the noble Lord, Lord Robertson of Oakridge, on 16th June, the fact that this law is not often evidenced in the courts shows that the law is successful, and not that it is not needed. I believe very strongly that we should therefore retain the law of blasphemy and leave it alone. I would much rather that the noble Lord, Lord Avebury, withdrew the Bill from Second Reading than that we accept the amendment. But if he is not prepared to do so, then I will vote in favour of the amendment.

10.58 p.m.

Lord Beaumont of Whitley

My Lords, I rise from this Bench in the first speech after the gap. In doing so, I must make it clear, as I am sure noble Lords are aware, that my Party as such does not have any particular views on this subject. However, I believe all my colleagues on these Benches would agree that there is a very strong Liberal presumption in favour of free speech, and that any limitation to free speech must be made out wholly and fully. It is my judgment that in this debate—in spite of the splendid and almost convincing speech of the right reverend Prelate the Bishop of Peterborough—the case has not been made out. I therefore join, I believe, with most of my colleagues in saying that a repeal of the blasphemy laws is a valuable and necessary step on the path, among other things, towards disentangling religion from the ethical and prophetic functions which religion exists to promote and which religion, as often as not, strangles.

Ethical and prophetic ideals form the most important part of the life of a great many of us. They give us the goals to which many of us strive. They have pioneered all that we most admire in the religions of The Book, in Christendom, in Jewry and in Islam, and they are always in danger of being smothered by institutional religion, particularly in its most extreme form—religious fundamentalism.

We must never forget that it was religion that persecuted Jesus of Nazareth, accused him of blasphemy and brought him to the gallows. It was religion which set up the Inquisition, torturing and burning human beings in the name of the same Jesus of Nazareth. It is religion—it may be said that the case is rather different but it is still religion—which condemns 14 year-old children to death for blasphemy in the Indian sub-continent. It is religion which enforces injustices in Israel in the name of the Torah.

It is religion which insists on blasphemy laws to protect its own image. Why? Surely it is not because God will be hurt by our idiocies. If he is capable of hurt, which is a very difficult theological and philosophical question much discussed at the present moment, the hurt done by blasphemy must be infinitesimal to the hurt done by so many other things that we do by other means. But, no, we are told by most of the intelligent people who think that we must keep the Blasphemy Act that no-one is foolish enough to pass blasphemy laws to protect God. We are urged to pass them or keep them in place to protect the sensibilities of His worshippers.

I suppose that the protection of sensibilities has its place. In fact, I am sure that it has, though I am often reminded of the words of that great Anglican saint and theologian, Charles Williams, who referred with some distaste to the, simple sheep who have trampled underfoot many of the most delicate flowers of Christendom". But if those susceptibilities are to be protected, they should be protected along with others of our deepest susceptibilities.

Those who are rude about God can in some circumstances offend our deepest beliefs. So do those who are rude about our mothers or about capitalism; and in any random collection of adults in this country—as, for instance, in the normal membership of your Lordships' House; I say the "normal" membership of your Lordships' House because it is a select sub-group of it which is present this evening—it would be difficult to guess successfully which of those three rudenesses would most offend. This is an area, in fact, in which God and Mammon are on a par. It is Mammon who should be the most frightened, if we believe, as I do, that it is God who will win out in the end.

Of course we should protect people's susceptibilities, if we can do so without infringing the important principle of free speech, which is what protects prophecy, inspiration and the proclamation of ethics. But we should do so, as we do for the most part, by general laws and not by specific ones. The blasphemy laws of this country are typical monuments to the British tendency to hoard left-over relics of the past which are in no way applicable to the present day and which we are always horrified to find being applied by other countries and other religions.

I pay tribute to my noble friend in his unending battle against bureaucracy and intolerance all over the world. It is a battle which, I venture to suggest, would be highly approved of by most of the great prophets of mankind, whom these laws ostensibly exist to protect. I urge your Lordships to give this Bill a Second Reading.

11.5 p.m

Lord McIntosh of Haringey

My Lords, I begin my remarks as always by repeating that on Private Members' Bills anybody who speaks from this Dispatch Box speaks for himself and not for his party. Having said that, my noble friend Lord Longford challenged me to recognise that there is a powerful Christian socialist tradition in the Labour Party, and I gladly acknowledge that. My father-in-law was an active and deeply committed Christian socialist. But I must ask my noble friend to recognise at the same time that there are some of us who have no religion but who are still committed socialists and still committed in our humanitarian beliefs—to use the word he so kindly used about me.

I have had no religion all my life and I plan to die that way. I will on any suitable occasion—and this is not a suitable occasion—engage in debate with people of any religion, in which I will argue that for philosophical, moral and social reasons the decline, indeed the elimination, of religious belief would be for the benefit of mankind.

The Earl of Longford

My Lords, may I ask my noble friend a question? If I say that tonight I shall pray for him that before the end some light will shine, will he be pleased or sorry?

Lord McIntosh of Haringey

My Lords, my reaction is concerned only with my respect and affection for my noble friend; the prayer itself is a matter of indifference to me. I am sorry; I am brought into this position because so many noble Lords declared an interest, as they said, and declared that their interest as Christians leads them to have a view about this legislation. My declaring an interest as a non-religious person leads me to be able to say that I am the last person in this House who is capable of committing blasphemy. In order to commit blasphemy, like committing heresy or apostasy, one must believe something in order to oppose somebody else's belief. One must believe another religion in order to oppose somebody else's belief.

I am temperamentally and philosophically the last person to wish to insult anybody's religion in the way that would be provided for by the law of blasphemy. We must recognise—and the noble Lords, Lord Avebury and Lord Hutchinson, and indeed most recently the noble Lord, Lord Beaumont, made clear—that the existing law is adequate for all the purposes for which it is intended that the law of blasphemy should be retained. Indeed, any noble Lord who has respect for the coherence of the law—and I have a great deal of respect for the law, very often far more than for lawyers—must surely recognise the force of the arguments which have been made against this law.

As the noble Lord, Lord Hutchinson, made clear, it is a judge-made law in the sense that it has changed many times because of the views of the judges who sought to interpret the common law. It is therefore peculiarly uncertain in its effect. Nobody could have predicted the possibility of the prosecution of a poem written by a professor of English in Japan in which he expressed great affection for Christ but described him as a homosexual. Nobody could possibly have thought that that would be the only occasion in 17 years in which the law of blasphemy would be invoked.

It is a peculiarly defective law in that it does not allow for any issue of public good; any issue of motivation; any issue of intent; any issue of the effect of the so-called offence. It is a defective law because, as I said, alternatives exist. The right reverend Prelate the Bishop of Peterborough in what, almost till the last minute, was a speech with which I thought I would agree entirely, asked where the alternatives are. A number of noble Lords pointed out the difficulty which occurred to the minority on the Royal Commission 10 years ago in looking for alternatives in new law. I suggest to your Lordships that alternatives exist in the present law.

The fact that the law has not been invoked does not mean that it has been successful but that it has been unnecessary. It is hardly plausible to believe that those who wish to commit blasphemy have been deterred by thinking, "There is a common law offence which I might be committing if I were to say a particular thing". No, the noble Lord, Lord Beaumont, was right.

Above all, we must maintain freedom of speech unless there is a very profound reason to go against it. We have protection against stirring up hatred and against abuse. We have protection against causing offence and against public disorder. We have protection against all the things which your Lordships would quite rightly wish us to be protected against. We do not need this law. The Bill should have a Second Reading.

11.11 p.m.

Baroness Blatch

My Lords, the subject of this evening's debate is an extremely sensitive one which raises many important issues: the place of religion and the established Church in our society, the protection of beliefs which many hold most dear and freedom of expression and the proper role of the law.

The Bill of the noble Lord, Lord Avebury, seeks to abolish the current offence of blasphemy and other related offences. Blasphemy is a common law offence. Material is said to be blasphemous if it contains contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, the Bible or the formularies of the Church of England. One of the criticisms of the offence is that it protects only the established Church. Others criticise it on the grounds that it infringes the right to freedom of expression and argue that the law has no place in protecting individual beliefs or feelings in this way.

We have heard noble Lords argue that the offence should be abolished. Others hold the view that it should be retained and possibly expanded. The Government believe that it would be a mistake to seek to legislate on this sensitive matter of conscience in the absence of a broad consensus as to the best way forward. Therefore, we are not persuaded that it would be right to sweep away the current law.

There can be little doubt that the abolition of the blasphemy laws is a contentious issue. It is a subject most recently raised in this House during the Committee stage of the Criminal Justice and Public Order Bill when the noble Lord, Lord Lester, proposed the abolition of the common law offence of blasphemy as part of a wider package including a new offence of incitement to religious hatred.

On an earlier occasion, the noble Lord, Lord Willis, introduced a blasphemy abolition Bill in the wake of Mrs Mary Whitehouse's successful private prosecution of Gay News in 1977. The ensuing debates left little doubt as to the lack of consensus on the issue and it is perhaps significant that the proposal of the noble Lord, Lord Lester, and the Bill of the noble Lord, Lord Willis, were subsequently withdrawn.

As recently as 1985 the Law Commission looked at the scope for reform in this area. In its report on Offences Against Religion and Public Worship the commission recommended by a majority, but not unanimously, that the offences of blasphemy and blasphemous libel should be abolished altogether and not replaced.

Lord Avebury

My Lords, I am grateful to the noble Baroness for giving way. As my noble friend pointed out, it was not the majority of the Law Commission who recommended sweeping away the common law offence; all of them did. The only question was whether it should be partially replaced by some other offence.

Baroness Blatch

My Lords, I do not believe that that is inconsistent with what I said. I simply said that in its report on Offences Against Religion and Public Worship the commission recommended by a majority, but not unanimously, that the offences of blasphemy and blasphemous libel should be abolished altogether and not replaced. However, of the 1,800 respondents who wrote to the commission to express a view on the matter an overwhelming majority favoured retaining the law. The strong views which were, and are, held on all sides were illustrated by the fact that, very unusually, a minority of two out of the five commissioners made their own separate recommendation that a new statutory offence, extending to all religions, should replace the existing common law offences.

I accept that there are strong arguments against the current blasphemy laws. They date from a time when Christianity was inextricably linked with the law of England and when one could be punished for failing to attend church. There was discrimination in favour of the established Church.

There are also forceful arguments in favour of retention; for example, the unique place which the Established Church has in our society. Removal of the special protection which it is currently afforded would, in the view of some, represent another step towards a secular and unprincipled society in which religious belief is a matter of indifference. Indeed, others would argue that blasphemy represents an attack not just on particular religious beliefs, but also on society more generally. To quote from the Law Commission's report, vilifying the sacred beliefs of a significant number of people can, amount to an attack on the fundamental decencies and mutual respect on which society operates, and could damage the stability of a community". It can also, of course, be an attack on individual feelings. In a previous debate in this House, the noble Earl, Lord Halsbury, described blasphemy as, an act of violence to the mind and spirit and deeply spiritual feelings of very large numbers, millions and millions, of people capable of entertaining such feelings. It is an assault upon the mind and spirit just as much as mayhem is an assault upon the body".—[0fficial Report, 23/2/78; col. 290.) The noble Lord, Lord Avebury, proposes the simple abolition of the offence of blasphemy without replacement. That is certainly one approach but, as I and others have indicated this evening, it is by no means an approach which meets with universal applause, and that brings me back to the Government's position on this sensitive issue.

We recognise the strength of feeling on both sides and recognise that there are arguments both for and against the abolition of the blasphemy laws. But, in the absence of any clear consensus, we believe that it would be a mistake to seek to legislate on a matter as sensitive as this and we therefore favour the maintenance of the status quo.

I have responded to this debate on behalf of the Government and as this is a Private Member's Bill the Government would not propose to vote against it. However, it is a sensitive issue and one of personal conscience, as has been said by noble Lords on all sides of the House. Therefore, should the noble Earl, Lord Halsbury, press a vote this evening, I personally shall support him.

11.17 p.m.

Lord Avebury

My Lords, I am extremely grateful to all those who have taken part in the debate and who have remained until this late hour to see what the outcome will be. I should like to express my gratitude particularly to the noble Earl, Lord Halsbury, for the manner in which he spoke to his amendment. At the same time, however, I must respectfully point out to him that this is not exactly a replay of 1978. There are two material differences. One is the report of the Law Commission, which has been much discussed this evening. The second is the extension of the Public Order Act, which I tried to underline as being the most important event in the past few years as regards the scope for a separate offence of blasphemy. However, that factor does not appear to have been taken into consideration by many noble Lords who imagine that, if the Bill receives a Second Reading, it will open the floodgates to blasphemers who will undermine the whole fabric of our society.

We have heard some extreme exaggerations of what might happen. Perhaps I may administer a little corrective: the consequences of giving the Bill a Second Reading will be that it goes into Committee where the alternatives can be canvassed. The Minister repeated what has been said by a number of other speakers: that because there is no consensus, we should not proceed without knowledge of what kind of alternative offence, if any, should replace the common law.

I agree with my noble friend Lord Beaumont and the noble Lord, Lord McIntosh, that the existing laws are perfectly adequate. I am reinforced in that opinion by the fact that prosecutions under the Blasphemy Act are so rare. I think they would be made rarer still by the extension of Section 5 of the Public Order Act to offences which no longer require the ingredient of a breach of the peace being caused. That factor has been seriously underestimated by those who are seeking to kill the Bill by voting for its postponement for six months.

It is a matter that should be tested, because where are the hordes mentioned on a previous occasion -and repeated tonight - by the most reverend Primate the Archbishop of York who will commit the types of offences that have been suggested? What kind of conduct are they likely to commit which will not be caught by Section 5 of the Public Order Act or any of the other statutes that have been mentioned?

What has been most noteworthy in the whole debate is that those who wish to kill the Bill cannot produce any examples of the type of conduct which they believe would become legal as a result of the Bill passing on to the statute book but which is unlawful because of the common law offence of blasphemy. One of the reasons why they cannot do so is, as my noble friend Lord Hutchinson pointed out, that the common law is so uncertain. It is made up by judges as they go along, and if any further cases come before the courts, the decision might well be different or in conflict with previous decisions made by judges.

If we cannot think of any examples of the type of conduct which is caught by the common law offence of blasphemy and which is not dealt with by any of the numerous statutes which have been quoted, I suggest that it is not remotely possible that by allowing the Bill to get onto the statute book we shall be opening the floodgates about which people have been talking. But, if the danger exists, the right place to examine it in detail is in Committee. That is where minds will be concentrated upon the alternative solutions which might be acceptable to the Church, despite the fact that in the 10 years which have elapsed since the Law Commission reported—I do not agree with the Minister that that is a short space of time—there has been plenty of scope for consideration. We have had reports such as that of the right reverend Prelate the Bishop of London which I have mentioned.

However, since no consensus has emerged, and since it is, as I think, vital to remove a protection which applies to one religion only in our country and leaves the rest of them out in the cold, and if any new offence is necessary, let it be considered in Committee where minds will be concentrated, and where, if there is any solution, it can be produced, and if there is not, we can leave matters to be dealt with by the existing statutes.

I hope that on reflection your Lordships will allow the Bill to go into Committee where all those alternatives can be properly and thoroughly considered.

The Earl of Halsbury

My Lords, it would be wrong for me at this late hour to detain your Lordships further by answering all the points that have been made with respect to the merits or demerits of my amendment. I shall not bandy legalisms with the noble Lord, Lord Hutchinson of Lullington. I said that there were two types of lawyer: he identified himself as one of them. I can only refer him to the noble and learned Lord, Lord Scarman, whom I have identified as one of the other.

The time has come for me to test the opinion of the House, after thanking everyone who has contributed to the debate. I commend the amendment to the House.

11.24 p.m.

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 25; Not-Contents, 14.

Division No. 1
Annaly, L. Harvington, L.
Ashbourne, L. London, Bp.
Blatch, B. Longford, E.
Brentford, V. Masham of Ilton, B.
Caldecote, V. Nickson, L.
Carnock, L. Palmer, L.
Crawshaw, L. Peterborough, Bp.
Dean of Harptree, L. Renton, L.
Durham, Bp. Robertson of Oakridge, L.
Elton, L. Ryder of Warsaw, B.
Fitt, L. Saltoun of Abernethy, Ly. [Teller.]
Griffiths of Fforestfach, L.
Halsbury, E. [Teller.] Trumpington, B.
Addington, L. McNair, L.
Avebury, L. Monkswell, L.
Beaumont of Whitley, L. Rea, L.
Hutchinson of Lullington, L. [Teller.] Seear, B.
Sefton of Garston, L.
Hylton, L. Strafford, E.
McIntosh of Haringey, L. [Teller.] Thomas of Walliswood, B.
Tope, L.

Resolved in the affirmative, and amendment agreed to accordingly.

House adjourned at twenty-eight minutes before midnight.