HL Deb 21 November 2001 vol 628 cc1223-34

8.43 p.m.

Lord Campbell of Alloway rose to ask Her Majesty's Government, given that they are proposing to legislate to proscribe incitement to religious hatred, why they do not consider it appropriate to treat such incitement as an aggravating circumstance under existing law to afford a greater sentence.

The noble Lord said: My Lords, I rise to ask my Question with an expression of sincere gratitude to the noble Lord, Lord Rooker, for his ready agreement that we should have an exploratory discussion on Part 5 of the Bill and not be restricted to the terms of the Question on the Order Paper. My Question is an attempt to identify aspects of concern. It is an irenic exercise to seek an exchange of opinion on matters of general importance which affect the approach to Second Reading of the Bill.

Before we enter into the matter, as I have no other opportunity, perhaps I may acknowledge with gratitude the help from Lambeth House, from right reverend Prelates who are unable to attend this debate and all noble Lords who are due to speak, including the right reverend Prelate the Bishop of Oxford

On 15th October the noble Lord, Lord Rooker, heralded the introduction of new laws, as he put it, to make incitement to religious hatred a criminal offence which, when presented in Part 5 of the Bill as a series of "grafts" on existing law as aggravating circumstances to afford an increased sentence, adopted the very suggestion made when this Question was tabled.

The parliamentary draftsman, faced with a cat's cradle of complexity, is to be congratulated on having produced a simple, straightforward and satisfactory result, perhaps subject to reservations on paragraphs (d) to (f) of Clause 38(4), with which I shall deal in principle but not in detail when I conclude.

The problem with which Part 5 was devised to deal—this is part of the essence of the debate—was identified by the right reverend Prelate the Bishop of Birmingham as the misuse of religion as a proxy for other purposes: the exploitation of religion as a cover for racial hatred in this country where Islam is perceived as an Asian religion and attacks on Islam are used for incitement of hatred against people of Asian origin. If one studies the Official Report—I shall not quote from it because there is not time—that analysis was, I believe, accepted by the noble Lord, Lord Rooker. The noble Lord said that the Government did not intend to define religion as that was not the issue.

The problem is that, if such be the essence of the problem in our country—I have had another word with the right reverend Prelate the Bishop of Birmingham and, although he cannot attend, he confirmed that that analysis is correct—certain questions arise which assuredly I am not able to answer. Is there any need to introduce new measures if one can deal with the stirring up of racial hatred under the law as it stands? To me, that question begs any simple answer. On the other hand, can one empty religion—a source of identity, allegiance and way of life—into some other category of container?

The next question as to our approach is whether the introduction of new laws as proposed by Part 5 would be effective to serve their intended purpose or perhaps defeat such purpose. Is not Part 5 more likely to be used against Islam, which writes and speaks as a matter of belief with overt contempt of Christianity, than against adherents to the more tolerant faiths?

The next question that arises, as I see it—although I am no expert in this affair—is: are there not problems of definition as to what is religious in the context of hatred? There are many sects which claim to be religious—we know them all, or at least most of them—which are not recognised as such.

Another problem arises on an approach to the Bill. If satirical or serious aesthetic, agnostic or religious expressions of opinion on religion are not excluded from the prohibition, the new laws will not conform to Articles 9 and 10 of the convention covering freedom of expression and belief. But the noble Lord, Lord Rooker, will be aware that those provisions have either been used or misused, for example, to ensure that the appointment of an administrator to a religious institution shall be open to those of no religious belief. That is a form of anti-discrimination or equality of opportunity which, in my opinion, has gone right over the top.

There is another problem. As we are concerned with an indigenous domestic problem of ethnic proportions in our country to protect the subjects of Islam, is it appropriate to seek to deal with this in a Bill to contain and defeat international terrorism? I do not know the answers to these questions; I raise them as questions because I am not competent to answer them. Is it appropriate or requisite that incitement to religious hatred should be included in the Bill?

The other day, I had a discussion with the noble Lord, Lord Rooker—always in amity—about recruitment. Apart from that, I ask whether there is any connection between religious hatred and international terrorism? Lastly, I ask respectfully: if we are to introduce new laws as proposed in Part 5, ought that not to be the subject of a separate Bill and removed from Part 5?

If such be the broad parameters of debate, may we look at the broad structure of Part 5, which would not appear to be incompatible with Articles 9 and 10 of the convention—and I accept the noble Lord's certificate, save perhaps as regards Clause 38. Although this complex structure, a kind of cat's cradle of criminality, is set out in Clauses 36 to 41, the devil is in the detail and it would not be appropriate to deal with that tonight. We are concerned with matters of principle and that can be dealt with on Second Reading of the Bill.

But this complex structure of criminality is relevant, as I see it, when considering some of the questions within the parameters of the speech that I have made. However, I respectfully suggest that Clause 38(4)(d) to (f)—there is no need to look at those paragraphs at the moment—which concerns the public performance of plays, distributing, showing or playing a recording, broadcasting or including programmes in cable television services, is really beyond the scope of any Bill. One may well ask whether such provisions are proportionate to protect the Asian community within the ambit of Articles 9 and 10 of the convention, if Part 5 were enacted.

It is appreciated that it is easier to ask questions than to answer them.

8.56 p.m.

Lord Haskel

My Lords, I am most grateful to noble Lords for staying late this evening, and of course I include the noble Lord the Whip on the Front Bench and the Deputy Chairman. The right reverend Prelate the Bishop of Oxford has been up for a long time. I think that I heard him speak on the radio early this morning and so he has had a long day. I had thought that rather more noble Lords would have been tempted by the Question put down by the noble Lord, Lord Campbell. They could have used it to have a preliminary canter around the terrorism Bill, in particular Part 5. I must confess, like the noble Lord, Lord Campbell, that was partly my motivation for speaking in the debate. However, our numbers are small and I shall be brief.

For eight years I have sat opposite the noble Lord, Lord Campbell, and have constantly disagreed with him. However, tonight may be the one occasion on which he and I are in agreement, but perhaps for different reasons. I am not a lawyer and so my knowledge of the law is rather simplistic. In my simple way I had always thought that in this country we have freedom of speech. However, if by abusing that freedom a person incites others to break the law, that person can be prosecuted if it is in the public interest. It does not matter whether the cause of the incitement is religious, racial or whatever.

Perhaps I may illustrate my point. I should say straightaway that I do not expect the Minister to comment in detail on the material to which I shall refer because it is now in the hands of the police. I have with me some disgraceful recent examples of religious hatred. I have a leaflet which states that paradise will not come until all the Jews are killed. I have the transcription of an audio tape purchased earlier this year in Luton. It gives 19 reasons why there cannot be peace in the world as long as there are Jews: that is why they must all be killed. The justification for that murder is religious.

Surely that kind of incitement is contrary to the time-honoured British civic tradition and law which allows people freely to organise themselves as religious and cultural communities but within civil society and within the law. That is why I think that the noble Lord, Lord Campbell. may be right. Incitement to break the law through hatred is already a crime under existing law and religion can be no excuse for crime.

Indeed, I go further. I am rather nervous of any attempt to create a kind of class legislation as far as religion is concerned. Perhaps I am a little sensitive about it. My sister and I came to this country because that kind of class legislation made life impossible for our parents. Noble Lords may recall that in countries under the control of the Nazis or under the communists, the law gave protection to some religions but not to others. It was against the law to steal but it was all right to steal from Jews or gypsies. This had the effect of codifying religious hatred and religious prejudice, and we all know what that did to Europe only 60 years ago. So I am against any vestiges of attempts to separate religious crime from any other kind of crime. Why separate religious hate from other kinds of hate?

No, religious legislation relating to religious and theological issues should be avoided. Indeed, it should be the other way round. Membership of a synagogue or a mosque or a church, or following any religion in Britain, should remain a voluntary, autonomous, individual act fully compatible with the rights and responsibilities of British citizenship and complete equality in British society but within the law.

Here I must declare an interest. I am a deputy chairman of the Institute for Jewish Policy Research. This organisation is a think-tank which was established in London in 1948 by some far sighted people precisely to look at these matters; to study, to inform and to advise on the social and cultural aspects of Jewish life in Britain and Europe. It does not deal with religious matters.

I am advised by that organisation that, for Jews, this matter of religious law versus civic law has been settled business for many years. The principle, which I shall quote in English for the benefit of those whose Aramaic may be a little rusty, is that, The law of the land is the law". This dictum was made by the authority of a Rabbi who lived in Mainz, Germany, from 960 to 1028. Its original purpose, interestingly, was to deal with the number of wives that Jewish men could have depending on whether they lived in an Islamic country or in a Christian country. It still applies.

Indeed, this principle was used in the recent past in Sweden when the Jewish method of animal slaughter was banned. Of course people complained, objected and made a fuss, but in the end the ban became the law. Under the principle that the law of the land is the law, the Kosher method of animal slaughter was stopped in Sweden. For those who want it, Kosher meat can be imported freely from Denmark, where ritual methods of slaughter remain legal.

So I ask the Minister, does he not agree that legislation on religious matters is a very dangerous and slippery path which malevolent people will exploit? Does he not agree that it is up to religious and cultural communities to organise themselves within the law of civil society? The legal weight given to religious authority is up to the individual. People must decide for themselves how far they submit to religious jurisdiction, as long as it is within the existing civil and criminal law. If so, no further laws are necessary to deal with religious hate. The noble Lord, Lord Campbell, may well be right.

9.3 p.m.

The Lord Bishop of Oxford

My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for introducing the Unstarred Question. It provides an opportunity for a more reflective discussion than usual on an issue that can be genuinely perplexing for people of good will.

The Church of England has long supported the principle of extending the protection of the law to all major faith communities in this country. Indeed, I supported two amendments put forward by the noble Lord, Lord Lester, who has long championed this cause, in relation to the Criminal Justice and Public Order Bill in June 1994; and I moved an amendment in July 1994 with substantially the same content as the clause in the anti-terrorism Bill.

The clauses in the anti-terrorism Bill have two main sections. First, Clause 39 amends Part II of Chapter 37 of the Crime and Disorder Act 1998 so that offences can be religiously as well as racially aggravated. This has the great merit that one of the nine crimes so proscribed has first to be demonstrated. In addition to that, it may not be easy to prove that there was a religious element in the crime, but at least there is a clear crime first to which the aggravation would refer. This, I suspect, is why the noble Lord, Lord Campbell, is drawn to this aspect of the Bill. There have been about 21,000 cases of racially aggravated offences, so clearly this is an offence which it will be possible to pursue and prosecute.

Secondly, Clause 38 amends Part III of the Public Order Act 1986 so that it becomes an offence to incite hatred of a group, not only on racial grounds but on religious ones. It is this clause in particular which has given rise to serious questioning, as the noble Lords, Lord Campbell and Lord Haskel, have said. For example, the word "religion" itself is left undefined.

There is a fear that healthy criticism of religion might be inhibited. Religion needs criticism and should not get too bothered by lampooning. Those columnists who fulminate against religion are a familiar and much loved feature of our cultural landscape. We would not want a society in which such expressions of dislike for religion were inhibited.

In their response to the Select Committee in another place, the Government gave assurances that legitimate criticisms of religion, humour, artistic depictions of religion and scholarly analysis would not be liable to prosecution in the proposed legislation. I am encouraged by Section 18 of the Public Order Act 1986, which the anti-terrorism Bill seeks to amend, because subsection (1) of that section states: A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—

  1. "(a) he intends thereby to stir up racial hatred, or
  2. "(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby".
Subsection (5) of the same section goes on to state: A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not intend his words or behaviour, or the written material, to he, and was not aware that it might be, threatening. abusive or insulting". I am encouraged and, to some extent, reassured by those words. It is clear that for an offence to be proved there must be a proven intention as well as a judgment that racial hatred is likely to be stirred up.

Nevertheless, I believe, with the noble Lord, Lord Campbell of Alloway, that this whole issue needs to be probed further. It would be disastrous if a genuine desire to protect all faiths in their central convictions from criminal hostility should lead to any diminution in the right to free speech. It also needs to be pointed out, as has been mentioned already, that a variety of Muslim organisations who gave evidence to the Select Committee in the other place also expressed a number of reservations about this legislation. They feared that in the present climate it could work against rather than protecting them.

So there may very well be a case for further consultation, at least as regards the clause referring to the incitement of religious hatred before a final decision is made. I understand that that is going to be the case in Scotland.

Quite rightly, people point to the difficulty of obtaining convictions for incitement to racial hatred. In fact, since 1988 only 42 defendants have been successfully prosecuted. In 1999 there were only four prosecutions which resulted in only three convictions. But it may be that the smaller number of convictions itself highlighted the case for this kind of legislation. As we all know, the law has a declaratory purpose and a deterrent effect. It could be argued that the laws against incitement to racial hatred have in fact played a role in making such hatred less frequent. It is for that reason that, although I believe that there needs to be further discussion and probing along the lines I have suggested, I am at this stage at any rate inclined to accept both Clauses 38 and 39 of the anti-terrorism Bill even though I do have sympathy with the concerns of the noble Lord, Lord Campbell of Alloway, and believe that we need further probing and reassurances from the Minister, particularly as regards Clause 38.

9.10 p.m.

Lord Dixon-Smith

My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway—as, I am sure, are other noble Lords—for introducing this preliminary skirmish, if one can permit that general phrase, around the question of religious prejudice and incitement and the forthcoming anti-terrorist Bill. I have enjoyed some discussions with the noble Lord before this evening. I believe that this debate can be nothing but helpful to those major debates next week in that to a degree it will clear the air. We are on extremely ticklish and difficult ground because I believe that everyone who has spoken has highlighted the problems of defining the distinction between what is regarded as freedom of speech, which is proper, and what is regarded as incitement to something rather worse, which is clearly improper.

I hope that the right reverend Prelate will forgive me for saying this, but when one considers freedom of speech in the religious sense, if one is dealing with a dedicated evangelical person of any religion, the debate verges on incitement to other things if one is not extremely careful. I acknowledge that most people, certainly in a country such as ours, would not wish to incite anything worse, but the danger is that that can be done inadvertently.

There is a further problem which has been illustrated to some degree in the debate this evening. All too often the use of religion is in fact a surrogate for race. Religion is not a surrogate for race and we should never treat it as such. I hope that I can say without fear of contradiction that on the whole whatever religion people profess in this country, this would be regarded as a Christian society. We may express agnosticism; we may adhere to the Christian faith, the Jewish faith or any other faith; but our history and tenets are those of a Christian society. There are Christian societies all over the world—French, German, American, Australian, and South American. It is easy to make a distinction between such societies on racial grounds.

Precisely the same is true in relation to Muslims. I mention this deliberately because all too often in this country, which is supposedly a Christian society, we behave in an un-Christian way towards Muslims. We do it on a racial basis, and we presume that one is a proxy for the other. But let us consider Muslim society: there are Pakistanis in this country, there are Bangladeshis, there are almost certainly some people of Indonesian extraction, I know some Iranians here, there are Iraqis, Arabs, and people from Malaysia—all of whom are Muslim.

I am grateful to the noble Lord, Lord Ahmed, for a story which has some significance. I am sure that he will not mind my quoting it. In a town which I shall not name, as this is a matter of some shame, a job advertisement was placed for a van driver, added to which were the words, "Muslims should not apply". The matter was referred to the Campaign for Racial Equality on the grounds that the advertisement demonstrated prejudice and was wrong. I believe that we should have no difficulty in agreeing that it was wrong. The CRE could find no redress in law. It found that it was not a racial offence to include a religious distinction in an advertisement. So we need to think carefully what we are about.

My noble friend Lord Campbell mentioned another problem. I agree that there is a difficulty when we come to consider religious incitement. Without quoting the source religion, the noble Lord, Lord Haskel, quoted from some documents that had come into his possession. That religion is not the only offender in this regard. There are those—sadly, not always religious groups—who use religious incitement just as much against a particular faith in the opposite direction, as it were. Everyone present will know what I am talking about. We regard these matters as wrong—I believe that we are in complete agreement on that. But we are used to more tolerant ways than those to which many other countries are accustomed.

I am trying to pick my way gently through a situation that is extremely difficult. It is all too easy when discussing this issue to give offence one way or the other. We are fortunate in one regard. We are not in a situation in this country where we have to stand up and be counted for our religious views. That is not the case in many other parts of the world, and we should remember that—I do not know whether with pride or humility. We are blessed in that regard.

If a law is introduced to deal with religious prejudice, I say in the strongest terms that it must apply with equal force to all religions within this country. For it to do anything else would be improper. If the concern expressed by my noble friend Lord Campbell of Alloway is real—namely, that such a law might impact on the Muslim religion—we should not withdraw from such action because that might be the case. I know for a fact that within that religion there will be those who would regard that fact as a matter of protection for themselves. For moderate and ordinary Muslims who are, as it were, more attuned to the philosophy to which we are accustomed in this country, extremists are an embarrassment. They are an embarrassment to the majority of the Muslim community. We should regard in the same way any Christian who was so fanatical about his beliefs that he preached against other religions in such a forceful way as to incite hatred. Because the situation is not properly covered, there probably is a case for legislation in this area.

That leaves a second question. Is trying to resolve that issue appropriate in the present context? An antiterrorist Bill is being introduced in an emergency situation and with great speed. This House has agreed to throw all of its normal legislative practices to the winds. However, I am bound to say that we are being treated quite generously—this House is being allowed eight days to discuss the Bill, whereas the House of Commons has to pass it in three. When I heard today that those who are against cloning for reproductive purposes will have to steer a Bill through all of its stages in one day, I thought that we had been fairly generously treated!

These issues have very serious implications for freedom of speech—grave implications run across society. Those issues deserve considerably more discussion—the word "consultation" is not quite right—in the wider community than has been possible with regard to the Bill. I have grave doubts about whether it is appropriate to include the proposal in the Bill. I should vastly prefer it—we shall go into this next week in much more detail—if the subject were not part of the Bill. The matter should be given much more careful and considered attention in a separate Bill, which could be introduced in the near future for full consideration by Parliament. It has to be said—I shall say this again next week—that the enormous haste with which the Bill is being pressed through means that the consideration that has been given to it is not really sufficient to deal with this fundamental issue.

9.23 p.m.

The Minister of State, Home Office (Lord Rooker)

My Lords, I am extremely grateful to the noble Lord, Lord Campbell of Alloway, for initiating this brief debate and to my noble friend Lord Haskel, the noble Lord, Lord Dixon-Smith, and the right reverend Prelate the Bishop of Oxford for their contributions.

I do not intend to make a long speech or give the speech that I, or one of my colleagues, will deliver next week. To the best of my knowledge, this part of the Bill has not yet been debated in the other place—I believe that that will be done on Monday. I shall not prejudge any of the decisions that may be taken in the other place. It is therefore best that I stick to the central issue.

We have had a run round the course and some interesting questions have been raised. That will be helpful to Ministers and those in my department who are considering the issue. We do not in any way regret this debate or that on Monday when we had in effect two debates—one was closely related to the Bill and the other was related to anti-terrorism and to other Bills. I have no problem at all about that.

I shall give an overview of the way in which the clauses are contained in the Bill. At present there are two kinds of race hate laws on the statute book. First, in relation to incitement to racial hatred, there are six offences contained in Part III of the Public Order Act 1986. They are offences that deal with stirring up racial hatred by, for example, making speeches or distributing inflammatory leaflets. Secondly. there have been introduced into the Crime and Disorder Act 1998 nine racially aggravated offences, based on four types of existing offence: offences against the person, including assault and malicious wounding, criminal damage, threatening behaviour and protection from harassment. Where there is evidence of a racist motive or racial hostility in connection with the offence. those aggravated offences carry higher maximum penalties than the basic offences. That is how the law currently stands. It has, of course, been much debated iii both Houses over the past 30 years since the original Race Relations Act.

In the Anti-terrorism, Crime and Security Bill, we are proposing that those two groups of offences should be expanded to cover incitement to religious hatred and religiously aggravated offences. Regrettably, since 11th September some people in this country have sought to stir up tension between communities and have attacked people apparently on the basis of their perceived religious beliefs. The Government do not believe that that kind of behaviour is acceptable in our society.

As the noble Lord will know, it is an offence to incite another to commit a criminal offence. However, there is no criminal offence of religious hatred, nor is there a criminal offence of racial hatred. Racial hatred per se is not a crime. That is why there is a specific offence of incitement to racial hatred and why that offence has existed in various forms since the 1960s when it was first enshrined in the Race Relations Act.

Of course, religious hatred and racial hatred may be motives for other crimes, such as assault or criminal damage. Prior to 1998 it was the case, on the clear direction of senior judges, that a racist motive should have been considered by a judge as an aggravating factor in any offence meriting a higher sentence within the maximum available. The racially aggravated offences in the Crime and Disorder Act 1998 were introduced to put that guidance on a statutory basis and to provide for higher maximum penalties for racially aggravated offences. There was a clear perception by communities and by victims of those crimes that judges did not consider racist motives as aggravating factors, or, if they did, were not making that fact known.

Religious hatred may also be reflected in other public order offences. Noble Lords may have in mind the offences contained in Sections 4, 4A and 5 of the Public Order Act 1986. Those offences essentially outlaw the use of threatening, abusive and insulting behaviour, but are different from the incitement to racial hatred provisions because they deal with the direct effect that such behaviour would have on an individual. For example, under Section 4, it is an offence to use towards another person threatening, abusive or insulting words or behaviour with intent to cause that person to believe that immediate unlawful violence will be used against him. Those three offences also have racially aggravated versions with higher maximum penalties.

We need the Part III incitement offences and the Sections 4, 4A and 5 offences because, although they may in some respects seem similar, they deal with different circumstances and address different harm. Because of experiences since 11th September, we need to expand those provisions to religious hatred. It is true that many people outside—I do not refer to Ministers or Members of both Houses—initially demanded those provisions and, having reflected on them, may subsequently have thought that they are not such a good idea.

Our proposals will end the unquestionable anomaly in the law whereby some religious groups, by virtue of a distinct ethnic identity, have been considered by the courts to be racial groups and, therefore, offered protection under the race laws, whereas others have not.

That is one reason why those of the Islamic faith feel that they are second class in that sense. It is clear from court decisions that some religious groups—I shall not go into a debate on the details because it is known that there are two—have a close affinity with an ethnic racial background, which means that they are covered under the race laws. There is an anomaly that can be exploited by those who seek to cause problems.

As the right reverend Prelate said, we are not looking to snuff out vigorous debate and discussion about the merits or practices of various religions—far from it. We are certainly not looking to knock out humour or jokes—or what is intended as a joke. That is the opposite of what we intend.

We are not looking to stifle free speech. There are restrictions on free speech. The classic example is that to stand up in a crowded theatre and shout "Fire!" when there is no fire is an abuse of freedom of speech. Everybody accepts that. We are not looking to create windows into people's minds—far from it.

Looking back at some examples from recent years, I felt incited by the sight of people burning books many years ago. I consider that to be a heinous crime. I do not mind getting rid of a CD or a tape but as a working class boy I have a thing about books. You do not get rid of books and you certainly do not burn them. I felt incited to commit a public order offence when I saw photographs of people burning books because they did not agree with what had been written in them. The hatred in that case was stirred up against the author, not as claimed. I think that our laws should be more likely to catch the book burners than the book writers in some respects.

There is a debate to be had and we shall have it in the next couple of weeks. Having had a run round the course, we should start our debate on the detail after the other place has concluded its consideration of the Bill, however short that consideration may be. I do not want to pre-judge anything that may be said in the other place.

We are not looking to stifle free speech—far from it; the exact opposite is the case. However, when people use threatening, abusive or insulting words or behaviour with the intention or likelihood of stirring up racial or religious hatred, we have to deal with it. That is not a limitation on the free speech that we have fought hard to protect in this country. I do not want to pre-judge the debates in the other place and I look forward to the debates that we shall have in this House over the next two or three weeks.

House adjourned at twenty-seven minutes before ten o'clock.