HL Deb 28 November 2001 vol 629 cc385-446

8.25 p.m.

House again in Committee on Clause 17.

Lord Phillips of Sudbury moved Amendment No. 49: Page 7, line 7, after "authority" insert "pursuant to an authorisation order

The noble Lord said: This group of amendments is important. Amendment No. 89 sets out a proposed new clause dealing with what are called "authorisation orders". Such orders would be the only method by which public bodies could be put in the position of having to consider disclosure under Clause 17.

In the light of what the noble Lord, Lord McIntosh, said earlier, I should explain briefly why we believe that this major change to the Bill is essential to its fairness and fair working. The noble Lord made the point two or three times that many of the objections to Clause 17 are misplaced because the workings of the clause will have to be consonant with the requirements of the Human Rights Act, and he referred to the aspects of the Human Rights Act which deal with proportionality and reasonableness.

However, although I am a great supporter of the Human Rights Act, both in concept and now, it has always seemed to me—I am not alone in this—that it would be a bad day for Parliament if it resorted to legislation which failed to grapple with the details, particularly as they may affect civil and individual liberties, but in every case fell back on the parrot cry, "Well, don't worry, old son, you've got the Human Rights Act". We on this side of the House feel very strongly—and I know that the main Opposition party concurs—that it is vital that the protections which, in our view, should be integral to what the noble Lord, Lord McIntosh, admitted was a huge extension of disclosure, should be clear, practical and useable. Above all, using the Human Rights Act to get at your remedy if the remedy is not on the face of the Act is an extremely uncertain business, not only because the Human Rights Act is couched in the most wide and general terms but because the only way of getting those protections is by court process. I need hardly tell the Committee that going to law to obtain protection against unfair disclosure, or against the denial of a disclosure that should be given, is not practical. There is no legal aid for that sort of case. The costs are way beyond the resources of anyone, other than through an organisation with a strong commitment to the legislative principles.

Therefore, we are convinced that the Government will do well by their own purposes, and certainly by those who have to use the provision—and it will be mightily well used—if they provide the clear authorisation procedure proposed in the amendment. We are not hanging our hat on every jot and tittle of the proposal. We are open to suggestions from the Government as to how it might be improved and these could be examined at the next stage of the Bill.

In addition, there is a big problem for applicants for disclosure, as well as for those in respect of whom the disclosure applications are made. Without the provision suggested in the amendment, the public authority receiving the request for disclosure will, first, have to decide whether it falls within the terms of subparagraphs (a) to (d). Secondly, it will have to decide whether the Human Rights Act comes into play. In order to determine that, it will probably have to engage in a dialogue with the person making the request in order to elicit a good deal more information. It will then have to apply the Human Rights Act to the prevailing facts and circumstances. That will be an extremely difficult task. If the Human Rights Act does apply, it will then have to decide whether the disclosure can be made, and whether it should exercise its discretion in making the disclosure. The final decision will be subject to judicial review although, again, that may be more a theoretical than a real problem.

In all this, I have made no mention of the individual whose confidential information is the subject of the disclosure request. Let us not forget him or her. As matters stand, if all we are doing is relying on the Human Rights Act, he or she will not even know that a request has been made, let alone by whom or why. The person will not know whether the request has been granted, or whether the disclosure request has been dealt with fairly. There is no oversight of the whole system or the working of this vital part of the legislation, such as is provided for in the Regulation of Investigatory Powers Act in the form of the commissioner.

For all those reasons, and others, we believe that it is in the interests of public authorities and the individuals whose confidential information is at stake, and in the public interest, to have a clear system of controlling the disclosures allowed for by Clause 17.

Perhaps I may turn briefly to the particular proposal. In relation to subsection (1), it requires a judge to determine the applications made for disclosure. In relation to subsection (2), if he makes an order it must specify the information to be disclosed—that is surely helpful to all concerned—and the purpose for which the order is made; namely, whether it is made under sub-paragraphs (a), (b), (c) or (d). The authorisation will make the disclosure subject to such requirements as the judge thinks fit. That is an extremely useful provision. It will allow a judge to make necessary conditions in all the circumstances, one of which may be that the order is brought to the attention of the person whose confidential information is at stake. Then the order must be served on the public authority in respect of which the disclosure request is made. We go on to prescribe evidence on oath. There must be reasonable grounds for believing that the public authority holds the information, that the information is not liable to disclosure by other means, and the whole is to be heard in secret.

Such provision may seem cumbersome, but it provides a clear framework within which all of this could function. It would reduce at a single stroke the widespread public concern over Clause 17 as drafted. On those grounds, I commend the amendment to the Committee. I. beg to move.

8.30 p.m.

The Earl of Onslow

Is it right for a Back-Bencher to enter the debate at this stage? The noble Lord, Lord Phillips, has demonstrated, first, that he has a complete grasp of an extraordinarily complicated subject, which I, frankly, do not have. I am not a lawyer. If I wanted to bring a case under the Human Rights Act, I think I should instruct the noble Lord, to the immense benefit of his practice, I hope.

The noble Lord is pointing out that there is an element of sloppiness in the Government's thinking. That is either due to idleness or because they have not had time to get it right. It could be a case of, "We just want to make sure that we can do anything, just like that. We can grab anything. If the legislation is not tight, it does not matter". That attitude of mind runs all through the Bill. It is an unattractive attitude of mind. I hasten to add that when some of my noble friends were in government such temptation did not always pass them by. It is a habit of government.

Those of us who, for the benefit of their country, have never been allowed near a Front Bench in any circumstances are entitled to point this out. We are by nature natural libertarians and rebels. We want the Government to legislate tightly. If they do not, my learned friends buy more villas in Zurich out of the fees that they generate by going to the human rights court on this matter or that. It is as simple as that. My noble friend Lord Phillips—I call him "my noble friend" because I have always been attracted to his libertarian point of view—is doing himself out of pounds, shillings and pence by making sure that the Bill is properly, tautly and correctly drafted so that the objects that the Government say they want are clear and concise and we know absolutely where we are.

There is too much sloppiness. That was demonstrated in relation to the previous amendment. The Minister said that when making a forfeiture order we may not know that it is to do with terrorism when we start. I did not like that. That tendency runs the whole way through the Bill. I suggest that it is the duty of this place to tighten up the legislation, not only for the sake of the country but for the sake of the quality of government legislation.

Lord Elton

The trouble with this procedure is that Back-Benchers like myself do not have time to inform themselves to the extent that they should, and therefore have to ask questions which would otherwise be superfluous. I do not know whether this is the occasion to ask for this information from the Minister, but I hope that he will find an occasion to explain to me the effect of subsection (2). I understand that it places all the provisions listed in Schedule 4 in a new sort of category described in paragraphs (a) to (d). That is clear enough. But the effect of those categories is not clear. No doubt it is clear to noble Lords who are familiar with this ground. It would help in our assessment of what is said if we could be told.

Lord Hylton

As was mentioned in the debate yesterday, the words "any criminal investigation whatever" and "any criminal proceedings whatever" are very wide indeed. This seems to me to have a bearing on personal privacy, on confidentiality and on economic and business matters. On those grounds this series of amendments is helpful. The amendments give clarity and precision to the Bill and I am strongly in favour of them.

The Earl of Northesk

I support the amendment of the noble Lord, Lord Phillips. I also apologise for returning to the Chamber a little later than I would have wished. I accept the strictures of my noble friend Lord Onslow about the complexity of the issues before us.

I want to make one important point. As I suggested at Second Reading, the provisions of Part 3 taking in tandem with those of Part 11 represent a regime of management of personal date by public authorities which is of an entirely new character. These proposals could be said to constitute a form of data matching and/or data sharing throughout the machinery of government.

Perhaps I may address the Minister's remarks prior to the dinner break. In so far as the Minister argues that there are "no new gateways" he is correct. That is not the point at issue. It is, to use the Minister's words, that there is a widening of the gateway. I am not convinced that the Minister has satisfactorily explained that point. No one should underestimate the significance of this issue in terms of giving Government control over citizens or how open to abuse such a system would be.

Because the regime would integrate data in entirely new ways, it involves categorically new and more perilous dangers. Necessarily, therefore, new methods should be contemplated to offer protection. Unfortunately the Data Protection Act was not constructed to address this problem. Indeed, the words of the noble and learned Lord, Lord Falconer, which I quoted at Second Reading would seem to imply that the policy contained in these proposals was not even a twinkle in the Government's eye during the passage through Parliament of the Data Protection Act. As a result, although useful, that Act provides no concrete limitations as to how data can or should be dealt with once it has been lawfully acquired by law enforcement.

Moreover, principally because of the enactment of the Regulation of Investigatory Powers Act the ability of the Data Protection Act properly to enforce subject rights and the data protection principle has been compromised, at least in part, because of what could be called tensions between the two Acts. They pull in different directions.

For those reasons, an entirely new authorisation procedure, as suggested by the amendments, is necessary, partly to address the very much greater risk posed by the wholesale data matching regime being made available to public authorities and partly because the Data Protection Act was not designed to deal with this problem.

Baroness Buscombe

I support the remarks of the noble Lord, Lord Phillips of Sudbury, in relation to the amendment.

Lord McIntosh of Haringey

Let me agree with the noble Earls, Lord Onslow and Lord Northesk. These are complex problems and they are complex amendments. I pay tribute to the care which has gone into their framing. The central aim of this part is to allow—with the safeguards of the Human Rights Act and the Data Protection Act (and I shall return to that point in more detail in a moment) and the duty of confidentiality which is not taken away by this Bill—public authorities voluntarily to disclose information to agencies involved in criminal investigations. They are already permitted to do so—I have said this more than once but it is important to state it—in relation to criminal proceedings and, as the noble Earl, Lord Northesk, recognised, I said that this part simply widens the gateway to include investigations.

Let me pause for a moment to consider the ability under present legislation to disclose information in relation to criminal proceedings. That has been going on for a long time. If it had caused any of the problems suggested here, surely those problems would have arisen by now.

8.45 p.m.

The Earl of Onslow

How does this clause affect September 11th?

Lord McIntosh of Haringey

I shall develop my argument. I shall make that point, as I have done in response to preceding amendments. It is a valid question and I do not duck it because it is important.

It is important that we should realise the practical effect of the amendments. It would be to transform the aim that I have described in this part of the Bill into a form of judicial control over disclosure which might well prevent some of the most important pieces of information being disclosed in time. The noble Earl, Lord Onslow, buries his head in his hands. He has a continuing complaint about our argument that it is not possible always in advance and in time to define what is a terrorist offence because there is no proper definition and, therefore, we have to include criminal investigations and criminal proceedings. But if we are investigating someone who is a potential terrorist, we have to act on the spot; we have to act at the time. The effect of the amendments would be that an authorisation would have to be sought from a judge by the person seeking the information. That information would have to specify what is being sought and it is not always possible to know what is being sought. That procedure would have to take place before the request for information could even be put to the public official who has to decide whether to give the information.

The Earl of Onslow

As regards the history of obtaining warrants, magistrates can be woken up in the middle of the night. Judges can be incredibly rapid in producing the right permission if they are asked by the right person. They will be woken up in the middle of the night. It is possible to do that. All one is saying is that the ancient rights of Englishmen should not be sacrificed through a perfectly justifiable fear of what occurred on 11th September. We must always be careful to protect those rights. The system is sufficiently flexible if it is properly channelled to protect those rights. I think that that is what the noble Lord, Lord Phillips, is saying. That is what the noble Lord, Lord McIntosh, does not accept as possible. I know that he is sincere; I know that he is a good lad. But I do not believe him in this case.

Lord McIntosh of Haringey

I think that every Member of the Committee should put themselves in the position of those involved in investigations of terrorists and consider the ease with which supporters of Al'Qaeda, whoever they may be, can move from one country to another, from one place to another, and can conceal or destroy evidence which might connect them with the organisation. In this country, we are not always in the position of the retreat from Kabul where the Al'Qaeda had to leave houses full of evidence of their involvement in international terrorism. It does not work that way in this country. If we have delay of the kind involved in prior judicial control, we will lose the scent; we will lose the information; we will lose the opportunity to deal with potential terrorists. It has to be done immediately.

The Earl of Northesk

As I explained at Second Reading, under the RIP Act, the law enforcement authorities are given authority to obtain and retain data, and so on. I do not see the virtue of the argument that the provisions are about giving information to law enforcement that it would not otherwise have.

Lord McIntosh of Haringey

The argument is that we have had the power to ask for information relating to criminal proceedings. If we restrict the power to criminal proceedings, we shall lose the scent and the ability to catch people who are terrorists or supporters of terrorism in this country. That is why it is being extended from proceedings to investigations. If there had been a major problem with proceedings, no doubt somebody would have told us.

The Earl of Northesk

I apologise to the Committee, but I should like to clarify that point by quoting directly from the front page of today's Evening Standard, which says: The initiative, codenamed Operation Landmark, was the result of a painstaking 10-month investigation by the National Crime Squad and follows an analysis of 16 days' internet traffic to 33 paedophile internet groups. Officers discovered data from 9,800 individuals throughout the world who were asking for images of children". The law enforcement authorities appear already to have the necessary powers on the disclosure of information.

Lord McIntosh of Haringey

I cannot complain about the noble Earl, Lord Northesk, quoting from the front page of the Evening Standard, because I have already done the same this evening, although from an earlier edition. I have not seen the article to which he refers, so I do not have anything useful to say about it.

However, I have something useful to say about the other constraints on the process. The noble Lord, Lord Phillips, spoke as though the only constraint was the Human Rights Act and the Data Protection Act was not effective for this purpose. The Data Protection Act will apply in most cases, imposing restrictions on disclosure. It also gives the individual the right to ask the data controller what disclosures about them have been made in certain circumstances. The Data Protection Act is policed by the Information Commissioner. Surely that provides an alternative avenue of redress. If we add to that the fact that the duty of confidentiality on public officials towards patients or customers is in no way diminished by the provisions of the Bill, it will be seen that, although this is an extension, it is a justifiable one.

I wish that the noble Baroness, Lady Park, was in the Chamber, because this is about intelligence. All that we know about the prevention of terrorism has highlighted the need for the co-ordination of agencies, particularly when there is a clear case for the free flow of information and a need for clear and effective channels. All that is implicit in the Bill. The prior judicial control required by the amendments would put at risk the intelligence work that is essential for that incredibly difficult task.

The provisions will mean that public officials understand their obligations better, especially thanks to the publicity that has been given to the matter in the past few days. That means that they are more likely to respect the safeguards.

I have to come back to the point made by the noble Earl, Lord Onslow. Of course we cannot limit the provisions to terrorism as such, because of the interaction between terrorism, drug trafficking and money laundering. Drug trafficking and money laundering are very often precursors to terrorism or tools for terrorists. If the powers covered only the act of terrorism, we would weaken our ability to deal with terrorism. That is why we need a wider definition.

The Earl of Onslow

The noble Lord mentioned drug trafficking and money laundering. We all agree with the Government that those activities have to be properly policed and stamped on and that people who indulge in them should be chucked away to get a striped suntan. Nobody is arguing with that. We are arguing that using the powers produced by emergency legislation to go on a hunt for a drug trafficker arid then incidentally coming up with something on terrorism is the wrong way to do it. By all means do it properly—I believe that there is a new 400-odd clause Bill on the subject in another place—but for heaven's sake let us concentrate on terrorism aspects in this emergency legislation, which is difficult enough for us to understand anyway. It is complex and we do not really have time to digest it. Let us limit its scope as much as we can, not because we are pro-drug trafficking or pro-money laundering, but because we want to get the legislation right in both cases.

The Earl of Northesk

Before the Minister answers that point, perhaps he will address the substance of the question. Do the provisions in the Bill open up the possibility of an enormously wide range of data matching and data sharing across public authorities? Parliament has previously sanctioned such behaviour on a case-by-case basis via primary legislation.

Lord McIntosh of Haringey

I think that I can deal with both those points at the same time. The noble Earl, Lord Onslow, talks about a hunt and the noble Earl, Lord Northesk, talks about data matching. They are both basing their comments on the false assumption that it is possible for investigatory authorities to conduct a trawl for information. That is not the case. Clause 17(2) simply defines in extenso what is meant by a criminal investigation. There is nothing more sinister than that. Public authorities involved in criminal proceedings or investigations can ask public officials for information relevant to their search. The list of such public authorities is quite limited. It does not remotely cover all public authorities and is nothing like the definition of public authorities provided in the Human Rights Act. If they are required to specify exactly what they want in advance to a judge, they will run the risk of missing it and of asking for the wrong thing.

Under the clause, the public official has to decide whether there should be disclosure of the information that he has in his power. He has to bear in mind the relevant data protection and human rights legislation, the duty of confidentiality and all the other protections that we have when weighing up whether it is relevant to the case and whether he is justified in disclosing it for the purposes of the investigation. I repeat, if we deny that possibility, we will weaken the intelligence effort and reduce the chances of catching terrorists. That will leave us all a little bit more at risk.

To require judicial control at the beginning would not only cause a delay, it would require the investigatory authorities to know more precisely what they are looking for than is likely at the early stages of investigation and it would prevent public officials from volunteering information that they suspect is relevant to an investigation relating to terrorism. Those are serious defects in the amendments.

Lord Elton

Will the Minister explain to me, as I plod along behind the Committee trying to understand, what there could be in Section 9(1) of the Diseases of Fish Act 1983 or Article 6(1) of the Sex Discrimination (Northern Ireland) Order 1976 that it would be necessary to treat retrospectively as though it were connected with terrorism?

9 p.m.

Lord McIntosh of Haringey

No, I cannot. It is not retrospective, but that is not the point. I could have been briefed on every one of them if we had had enough time. That is a defect of hasty legislation—I shall give the noble Lord that for nothing.

Each Act has been included in the schedule because there are items of information collected under statutory powers that could be relevant. I repeat that it is only those items of information that are collected under statutory powers, and each item of information provided under those Acts must be covered by the existing statutory restrictions on disclosure. That applies to the Diseases of Fish Act 1983 just as much as it applies to the Health Act 1999.

Lord Phillips of Sudbury

I am grateful to the Minister for endeavouring to defend the Government's position. I am totally dissatisfied with what he said. The issues around Clause 17 are of the greatest possible moment and the Minister's answer does not hold water. His main point is that, unless the Bill is enacted as it stands and the Government refuse to have a framework or system for obtaining disclosure, terrorists will run amok and the chances of the security and police authorities catching them will be destroyed. That is nonsense.

It has been made clear in interventions that the law as it stands, and as it has always stood, requires that citizens whose houses are to be searched or whose possessions are to be confiscated should be subject to the protection of a magistrates' warrant or order to allow the police to proceed. That action can be carried out with the greatest rapidity. Applications to a judge under the procedure provided for by the amendment could be done virtually instantaneously. A duty judge would be available at a moment's notice to deal with the matter, which can be done entirely orally. We totally reject the notion that the proposal is defective.

I grant that the amendment could be improved if there were added to it something that specifically addresses the imminent threat that might be posed by the discovery of certain potential terrorist activity. But that amendment could be made, which reduces the vestige of the justification of the Minister's argument.

Constant references to the Data Protection Act do not assuage my anxiety or that of anyone else. There was a reference in Clause 45 of the previous Bill, which can be found in Clause 18 of this Bill but which has been excised from Clause 17, to the effect that nothing authorised the making of any disclosure that was prohibited by any provision of the Data Protection Act 1998. In effect it said that the framework of the 1998 Act should not he punctured by the provisions of this Bill.

Protection for the framework of the 1998 Act is punctured by the absence of that provision in Clause 17 of this Bill. The Data Protection Act 1998 is one of the Acts of Parliament included in Schedule 4. The provisions of Clause 17 are as wide as the blue sky—at least we all agree on that. The exceptions will now be part of the Data Protection Act arrangements, which means that the restrictions on disclosure provided by that Act vis-à-vis its present and former commissioners, staff and agent, no longer hold and that Clause 17 provisions are written into it.

We view this—I was about to say lacunae, but it is a huge black hole at the heart of the Bill—as undermining its effect. It may look good to give authorities the widest powers that they will enjoy under the Bill, although the Minister's constant references to public officials and official agencies betray the fact that the measure extends far beyond the police and state authorities, as I tried to explain earlier. We on this side of the Chamber will have to give a great deal of thought to what to do at Report stage. We shall certainly table an improved amendment, but I sincerely hope that the Government will consider what has been said tonight. It is not insignificant that not a single speaker in the Chamber has supported Clause 17 as it stands.

The Earl of Onslow

Before the noble Lord, Lord Phillips, withdraws his amendment, I seek a scintilla of hope for those of us on this side of the Chamber who have genuine and deeply held doubts. Will the Government perhaps reconsider and say that it is just possible that we may be right? That would enhance the reputation of the Government and this Chamber. I know that the noble Lord, Lord McIntosh, and I am beginning to know that the noble Lord. Lord Rooker, are both men of independent minds who will listen. They do not have to do anything too publicly but they could say to the Government, "There was something in what old fuddy-duddy Onslow and young Phillips and Northesk had to say, so perhaps we should consider the issue again". That is all that we ask.

I hope that the noble Lord, Lord Phillips, will table some more amendments at Report stage, and I hope that the Government will listen more carefully and intelligently than they have done so far.

Lord McIntosh of Haringey

I want to say something to those who believe what has been said as sincerely as they do; and let us try to avoid personalising the issue: of course it is necessary for us, as far as we can, to restrict the scope of these disclosure provisions. I have explained how we have sought to do so. In so far as the pressure is to continue to restrict the scope of these amendments, those who are trying to do so have an argument on their side which we recognise and share. But at the same time they have to recognise how essential it is in the present circumstances—not just in this country but in the whole world—not to allow potential or actual terrorists to slip through our fingers because of defects in the law. That has been happening and must not be allowed to continue.

Lord Phillips of Sudbury

In the spirit in which the Minister made those last remarks, one of the problems with the pace of the Bill's proceedings is that one does not have the usual opportunity to review and discuss. None the less, if the Minister would make time available to contemplate some of the issues that we have talked about tonight, I should welcome that.

I remind the Minister that the Regulation of Investigatory Powers Act that his Government introduced only last year has all the protections for which we are calling in the amendment. It has an Interception of Communications Commissioner; it requires authorisation for every directed surveillance, it has a warrant for all sorts of interventions; it has appeals by Surveillance Commissioners. All that framework is presently contained in the RIP Act. This is a more potentially important piece of legislation than RIPA.

Lord McIntosh of Haringey

First, this Bill does not override the statutory restrictions on disclosure. That is why we need these provisions. Secondly, my noble friend Lord Rooker has already said that he has booked the Ministerial Conference Room 10A on the first floor from 11 o'clock every morning. Anybody from any party who wants to come along after midday on any day that the House is sitting to talk about any aspect of the Bill will be welcome. My noble friend says I have gone a bit wide. But of course we are open to talking to anybody.

Lord McNally

Yesterday both Front Benches paid tribute to the noble Lord, Lord Rooker. He made that offer at that time. Perhaps it would be helpful if we were to serve notice that my noble friend Lord Phillips intends to come along at 12 noon tomorrow and explore with the noble Lord, Lord Rooker, and his officials the areas which are causing concern.

Lord McIntosh of Haringey

It is certainly better to give notice. We can then ensure that the officials who know about this particular part of the Bill are present.

Lord Phillips of Sudbury

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 50: Page 7, line 10, after "any" insert "counter-terrorist

The noble Baroness said: In moving Amendment No. 50, I shall speak also to Amendments Nos. 50A, 51, 53, 53A, 54, 72 to 75, 77, 77A, 78, 91 to 96.

Paragraph 3 of the Explanatory Notes to this Bill states: The purpose of this Bill is to strengthen legislation in a number of areas to ensure that the Government, in the light of the new situation arising from the September 11 terrorist attacks on New York and Washington, have the necessary powers to counter the increased threat to the UK".

We shall be covering ground that in some senses has already been covered this evening. But I make no apology for that. Clauses 17 and 19 of this Bill, as presently drafted, go way beyond that purpose.

Clause 17 permits disclosure by public authorities to assist in any criminal investigation or criminal proceedings being carried out in the United Kingdom or abroad. Clause 19 allows the commissioners of Inland Revenue and Customs and Excise departments to disclose information to assist any criminal investigation or criminal proceedings being carried out in the United Kingdom or abroad, and also allows disclosure to the intelligence services in support of their functions.

This new power to disclose information, which may have been given in confidence, extends to assist any criminal investigation or criminal proceedings rather than merely terrorism. It therefore goes way beyond the purpose of the Bill and we seek to limit Clauses 17 and 19 with these amendments to permit disclosure to assist any investigation or proceedings relating only to terrorism.

We have serious misgivings about allowing such disclosure, particularly where information has been given to the public authorities, the Inland Revenue or Customs and Excise in confidence. Terrorism is the greater of the two evils and we must prevent terrorism at all cost—almost at all cost. We therefore support the Government as regards Clauses 17 and 19 in so far as they are limited to disclosure for the purposes of countering terrorism.

We are in two minds as to whether disclosure should be permitted to assist criminal investigations or criminal proceedings. We can see that as regards serious crime the balance probably comes down in favour of disclosure. On the other hand, we could not support disclosure for the purposes of minor criminal offences.

In particular, in Amendment No. 96, we ask the Government to amend the Bill to ensure that terrorism has the meaning given to it by Section 1 of the Terrorism Act 2000 and I ask Members of the Committee to refer to Part I of that Act where it makes absolutely clear that "terrorism" means, the use or threat of action where … the use or threat is designed to influence the government or to intimidate the public or a section of the public, and … the use or threat is made for the purpose of advancing a political, religious or ideological cause … [if it] involves serious violence against a person … involves serious damage to property … endangers a person's life, other than that of the person committing the action … creates a serious risk to the health or safety of the public or a section of the public, or … is designed seriously to interfere with or seriously to disrupt an electronic system".

It reads very differently from this current Bill.

A line will have to be drawn somewhere, but now is not the time or place to discuss exactly where. There must be wider consultation and further consideration of these two clauses in so far as they will permit disclosure as regards any criminal investigation or criminal proceedings. I thank the Minister for suggesting that we have further discussions outside the Chamber on this particular point. We believe passionately that such a wide power is not appropriate in emergency legislation.

In particular, the General Medical Council has expressed serious concerns with regard to the possible extent and purpose of disclosure of, for example, identifiable patient records under the Bill. I would very much appreciate some assurance from the Minister with regard to the concerns of the General Medical Council. In fact, I am saying this on purpose because, if anything, we can at least this evening seek to try to reassure various bodies beyond the Palace of Westminster in relation to these clauses. Unfortunately, as yet we remain unconvinced of the Government's argument. However, I believe that it will help all of us if we have an opportunity now to flush out some of our differences, as we have already begun to do this evening, and also perhaps to check on the record where reference has been to made to this part of the Bill in the media.

The General Medical Council states: We are concerned that this Bill may introduce measures that could require the disclosure of identifiable patient records held by the Commission for Health Improvement and the Audit Commission as part of criminal investigation anywhere in the world".

The GMC continues: Currently, we advise doctors that they may disclose information in order to 'assist in the prevention, detection or prosecution of a serious crime', usually a crime which will put someone at risk of death or serious harm (such as terrorism). That is because only serious matters will expose third parties to a risk so serious that it outweighs the patient's privacy interest. Disclosure of medical records in relation to non-serious crimes may seriously undermine the trust that is central to the doctor-patient relationship. The Bill does not appear to place any restrictions, or conditions on disclosure of data and it is possible that a police force could simply require records to be disclosed without any justification. [For example, say] we are looking for people who have had 'X' condition or shown 'Y' symptoms). A criminal investigation in this context is defined by the Bill as 'an investigation of any criminal conduct, including an investigation of alleged or suspected criminal conduct, and an investigation of whether criminal conduct had taken place'. We are, therefore, keen to establish the possible extent and purpose of disclosure of identifiable patient records under the Bill. The Audit Commission has access to records and does demand patient information for some investigations. CHI also holds copies of patient records and we are seeking to establish their position on this issue. The Bill also gives the Treasury, by Statutory Instrument, the ability to add provisions contained in subordinate legislation to the list given in the schedule (4) to the Bill. If there are confidentiality provisions contained in subordinate legislation (and we believe there may be) then it is possible that they might be added in the future".

Perhaps I may also refer very quickly to a transcript of an interview on Radio 4 yesterday, which was included in the "Today" programme, with Beverley Hughes MP. She stated: Schedule 4 of the Bill lists all of the pieces of legislation that at the moment regulate that and the only thing Clause 17 is doing is simply making it clear to officials that they can give the specified information earlier on in an investigation and as regards to the NHS the only provisions that are included are the disclosure of the price of medical supplies and information relating to the Audit Commission's financial enquiries into the NHS. There is nothing at all to do with patient records or the doctor/patient relationship whatsoever and as I've said it is an example of the kind of scare mongering we had in relation to parts of the Bill which is very misleading".

The General Medical Council and a fair number of other bodies have been in touch with us in the past 24 to 36 hours on this point. They all say that they cannot agree that the Bill, as currently drafted, reads like that at all. So we are offering the Government an opportunity to clarify the situation. So far we are not convinced, but we and many others would like some kind of reassurance on this matter. I beg to move.

Lord Thomas of Gresford

The width of these provisions has already been discussed in previous amendments, but the extension of the existing disclosure powers from proceedings to investigations, and even beyond that to deciding whether an investigation should take place, is, as I understand it, to apply to everything and not simply to terrorism. The purpose of this group of amendments is to try to confine the scope of the provisions; that is obvious.

My Amendment No. 51 seeks to include the words "involving terrorism". Its purpose is to limit the scope of an inquiry for the purpose of this emergency legislation. Those are broad words, "involving terrorism". We have to deal with the argument that the Minister has put forward; namely, that the Government want these wide powers because investigating bodies will not know whether a case involves terrorism until they decide to investigate and then carry out the investigation. I have used the words, "involving terrorism" in my amendment to enable those who seek such information to say, "We are from the security services and it is our duty to investigate the possibility of terrorism and information you may have which may assist us". That limits the scope of the people who can make that inquiry.

If a local police constable goes down to the fish counting centre and says, "I demand to see your records of anthrax infected salmon that have come into the River Dee in the course of the past few months", I imagine that his application for that information may be resisted as it would not appear from such a request that he was a person involved in investigating, or considering the investigation of, terrorism. It seems to me that this clause attempts to encompass the widest investigation or disclosure of information when it could be limited to the scope of the emergency provisions.

Lord Phillips of Sudbury

My name is attached to several of the amendments in the group. I want to make only one point in elaboration of what the noble Baroness, Lady Buscombe, said vis-à-vis health matters and to pick up a point made by the noble Lord, Lord McIntosh, before the dinner break when he was categoric in saying that doctors would not come within the purview of Clause 17. I have to tell him that that is not what Human Rights Practice, which is one of the standard works in relation to the Human Rights Act, states.

The Health Act 1999 is one of the statutes enumerated in Schedule 4. Whereas at the moment health records can be obtained by police only on a circuit judge's order, and only then in respect of serious arrestable offences in respect of UK criminal proceedings, if this measure passes without this set of amendments being accepted, that will no longer be the case. The wide provisions of Clause 17 will be incorporated into the Health Act 1999. There will be no requirement for the criminal matters concerned to be serious arrestable offences. There will be no requirement for the criminal matters to be confined to UK criminal proceedings.

As I said earlier, Human Rights Practice states explicitly that doctors working within the NHS, and therefore within the framework of the General Medical Council, are part of a public authority and their records are therefore—certainly in terms of Clause 17—available for disclosure.

Lord Hylton

I believe that this series of amendments is helpful and my sympathies are with it. However, I should like to ask whether the Minister is able to give an assurance that, in principle, no officially held information will be disclosed to countries—for example, those in the former Soviet Union, in the Middle East and in a good many other places—which have criminal justice and human rights systems greatly inferior to our own. I ask that because I believe that such disclosure could put at risk asylum seekers and refugees already in this country and their families who may still be in overseas countries. Such people who remain overseas could be in danger of torture and other serious malpractice.

Viscount Goschen

This series of amendments appears to crystallise the arguments that we put forward in connection with a number of other amendments, including the group containing Amendment No. 37, earlier in this evening's proceedings. The Government have made it clear in a number of statements that the purpose of this legislation is very specific and that the Bill is targeted particularly at countering a heightened terrorism threat. That is why we are agreeing to the swift procedures.

In debate on an earlier amendment—I believe that it was Amendment No. 37—when we discussed the question of including words such as "counterterrorism" in order to make the Bill more specific, the Minister appeared to indicate that that was altogether the Government's intention but that, in that case, the inclusion of those words would limit the freedom of the Government.

In this situation, as I read Clause 17(2)(a), these amendments are being inserted after the statement that the purpose of any criminal investigation must be to counter terrorism or must involve terrorism, to use the words of the noble Lord, Lord Thomas. Surely that gives the Government all the latitude that they need. The criminal investigation itself must be dedicated towards a counter-terrorism purpose, as is already stated in Clause 17(2)(a). But if, for example, another investigation which was not terrorism-based suddenly threw up information about terrorism, presumably at that stage there would be a fresh investigation which would be dedicated towards counter-terrorism.

Therefore, I believe that a number of noble Lords would be interested in listening to the Minister if he said that the word "counter-terrorism" was in some way not broad enough. As I suggested earlier this evening, the act might, for example, be a terrorist threat or a threat to national security, however broadly the Minister wishes to draw the phrase. However, to leave the matter totally open appears to question the Government's statement that the aim of the Bill is purely to counter terrorism. I believe that this provides a very good opportunity for the Minister to confirm whether that is still the case or whether the Government wish the Bill to be applied more widely to issues that have nothing whatever to do with terrorism.

Lord McIntosh of Haringey

As has already been said, the arguments here, which are central to Clause 17, were visited when we dealt with previous amendments. I shall be required—indeed, I shall require myself—to give the same answers as I gave on previous occasions. I shall have something very specific to say about the General Medical Council, and one or two new points have been made to which I also want to respond.

However, fundamentally, I want to explain again what we are trying to achieve in Part 3 and. in particular, in Clause 17. The provisions of Part 3 are designed to clarify to public authorities whether or not they may disclose information. Restricting their disclosure solely to cases of terrorist offences would be a significant impediment to them. In each case it would force them to satisfy themselves, for fear of acting illegally, that the information was directly related to criminal conduct in relation to terrorism.

I heard the noble Lord, Lord Thomas, make the point that his amendments which use the phrase "involving terrorism" are different. They do not appear to be different but I shall examine the point and consider between now and Report whether there is a significant and helpful difference in wording.

Under the present drafting, individuals need to satisfy themselves that information would be relevant to a criminal investigation or proceedings. The amendments would limit the provisions and render them significantly weaker—and "weaker" is not meant in an abstract sense. It means weakening the pursuit of terrorism. I come back to that point time and again.

The Earl of Onslow

The Minister started by arguing that we can go looking for any criminal but then said, "If we cannot do that, it works against our ability to act against terrorism". That is a logical inconsistency of the first order. Either one is looking for terrorism or one is looking for offences such as parking on double yellow lines or brothel-keeping. There is no point in saying, "Yes, we are going to look for brothel-keeping", and hope that by accident we shall uncover terrorism. The Bill should not allow one to go trawling for brothel-keepers. Let us by all means pass an Act that allows us to go trawling for brothel-keepers but let us restrict the terrorism Bill to terrorist offences. That is the point that those of us on this side have been hammering home. The Minister argued that we can start with other offences and that accidentally we shall come on to terrorism. That cannot be the right approach and it is not what the Bill should do.

Lord McIntosh of Haringey

I disagree with the noble Earl on a point of logic, quite apart from his argument about terrorism. When the anti-terrorist squad, for example, or any other body is looking for terrorism, they are looking for activities that one can discover but which may not themselves be terrorist activities. Those activities involve other criminal activities that could lead one to terrorists. There is no alternative way to start an investigation involving terrorism other than by looking more widely.

Viscount Goschen

The Minister is being extraordinarily patient and I apologise for intervening again, but I am not sure that he is right. Clause 17(2)(a) states that the purpose of the investigation has to be to counter terrorism. My noble friend Lord Onslow pointed out that the Minister said that the investigation could be into anything. The Minister's argument is rather like suggesting that one should be given the authority to intercept all telephone calls on the off-chance that something criminal might be said. The authority has to be satisfied only about the purpose of the investigation, not that every little piece of information is definitely terrorist related. It has to be satisfied about the situation in which a person comes to it and says, "I am a counter-terrorism officer"—or an officer of the security services, for example—"and my intention in asking for the information is to pursue terrorism". That does not involve asking the authority to judge whether that piece of information is terrorism-related or not; nor does it involve conclusions about the way in which the original inquiry came about.

Lord McIntosh of Haringey

I do not know how the noble Viscount can avoid asking the authority to judge whether terrorism is being searched for or not, because its ability to disclose information depends on whether the approach falls within the scope of the clause. That is why it is not enough for me to have a flash on my shoulder saying, "anti-terrorist squad" and it is not enough to say that the offence that I am seeking to uncover is a terrorist offence. All sorts of other offences are—to use the jargon—the gateways to terrorism. Those who are looking for terrorists have to go through other routes in order to discover those terrorists.

I have accepted interruptions, which I do not resent in any way, but I want to finish my earlier argument about why the matter can become so difficult. We cannot separate the matter from what public officials are able to disclose or the need for them not to be restricted in what they are able to disclose. Let us consider, for example, overseas investigations. How will public officials assess whether such investigations relate to terrorist offences? The amendments would prevent those officials from disclosing where they could not satisfy themselves that overseas investigations were being carried out as part of terrorist investigations.

We are talking about the ability to disclose, not about what they are told. Serious criminal offences, such as drug dealing and money laundering, are often fundamentally bound up with terrorism. It is important that public officials are able to disclose information related to those offences in order to assist in the fight against terrorism.

Lord Phillips of Sudbury

I thank the Minister for giving way. Does he not appreciate that these dilemmas, the boundaries and definitions of statutory entitlements and duties, are the everyday experience of magistrates, judges and police? If he had permitted the introduction of the authorisation procedure that we pressed on the Government half an hour ago, the problems of which he is making a chimera would not be there at all.

Lord McIntosh of Haringey

I shall ask the noble Lord a question in return, which I shall try to make rhetorical. Is the noble Lord, Lord Phillips, not aware that all of the problems which he and everyone else are introducing into this legislation are ones which exist with existing legislation? All of these powers of disclosure exist for criminal proceedings. What is happening here is that they are being extended to criminal investigations. What on earth is wrong with that? It is in the early stages of catching terrorists that we need this power of disclosure. That is the change in this part of the Bill.

The Earl of Onslow

I shall answer the question the Minister asks. What is wrong is that this is emergency legislation concerning terrorism, not general legislation concerning criminality. That is the exact answer. It is not a chimera, which I believe is a Greek image which vanishes. The noble Earl, Lord Russell, is not in his place. He would certainly tell me if that is right. That is the difference. That is the point on which those of us on this side of the House take a different line to the noble Lord, who is doing his level best. I do not think that it is good enough. He is doing the best he can. That is the argument which we are trying to get through to him.

Lord McIntosh of Haringey

If the objection is so fundamental, why did not the noble Earl, Lord Onslow, vote against Second Reading? Why does he not vote against Third Reading instead of bringing this up at every single point on every single amendment? If the objection is as fundamental as that and impervious to the argument we put forward on the amendments before the Committee, there is nothing else I can do to persuade him. I shall try to finish my argument as quickly as I can.

In practical terms the criteria set out in Part 2, with which we have already dealt, provide a clearer basis for action than terrorism, which allows for a more subjective interpretation. The noble Lord, Lord Phillips, asks for wider consultation and further consideration. Frankly, that is a delaying tactic. This is not an issue which merits or justifies delay. We are two-and-a-half months away from the worst terrorist attack which has taken place in the western world within a century. Historians would go further back. We have to respond in a timely way. We see investigations take place in Spain, Belgium, Britain, the United States, and all over the world. Are we to be the one country in the world which does not have the powers to pursue those investigations properly? I find it inconceivable that that is what noble Lords would wish to do.

I turn briefly to the General Medical Council. Under the Health Act 1999 and health legislation there is some information held by the health service which fulfils the qualifications in this legislation. In other words, it is covered by the existing statutory restrictions on disclosure and is information collected under the statutory powers. It is true that under certain circumstances under statutory powers the Audit Commission can demand certain patient records. However, I understand that they are demanded in statistical form rather than that which is identifiable to individual patients. To the very limited extent that health information is collected under statutory powers it is covered by this legislation. It does not cover doctors. Whatever may be the case for other purposes, I give the assurance that doctors are not public officials for this purpose. The information that they hold on medical records is not covered.

At present individual patient records can be disclosed if they are required for criminal proceedings. The noble Baroness, Lady Buscombe, fairly read out the ruling of the General Medical Council about what can be disclosed for serious crime. She defined that clearly. Terrorism is a serious crime. The GMC's agreement and the ethical standards that it applies to medical staff will he extended from criminal proceedings, which it accepts at the moment, to criminal investigations.

If there is some doubt about the role of the Audit Commission's work we shall look at that between now and later stages of the Bill. Even in the event of medical records in the hands of the Audit Commission becoming subject to one of the statutory restrictions which we are modifying, that does not necessarily mean that disclosure will be permitted. The Data Protection Act, the Human Rights Act and the duty of confidence will apply. If the information in question is confidential then disclosure will be difficult. This is not a question of the police coming and asking for records and trawling for whatever they want to know even if they do not know what they want to know.

Lord Phillips of Sudbury

I thank the Minister for giving way. How on earth can the Minister make that assertion? He has no control over the police. The police on occasions do things that they should not. They have obsessions that they should not have. How can he say that?

Lord McIntosh of Haringey

That is an extraordinary question. The police have statutory duties for the pursuit of crime. The fact that I have described the limitations on what the police can do does not mean to say that there are not those who break the law, which is what the noble Lord, Lord Phillips, is suggesting.

Lord Phillips of Sudbury

That is my very point. It would not involve a breakage of the law because these powers are so wide that unscrupulous or ill-advised or unwise use of them could be permissible under the legislation, which is what we are trying to prevent.

Lord McIntosh of Haringey

I have risked—if not worse than that—wearying the House by repeating the substantial constraints that there are, both legal and in the drafting of the legislation. We land up with the position where the noble Lord, Lord Phillips, does not believe me. There is not very much that I can do about that. I have stated the position. I hope that I have given the noble Baroness, Lady Buscombe, the assurance that she sought. I know that I have not convinced those who want to restrict the whole of this part of the Bill in this way. But I put it to them that the greater good of the international pursuit of terrorism and our participation in that deserves some consideration.

Lord Thomas of Gresford

There are very few constraints in the way that this clause is drafted. It is drafted in the widest possible terms. However, I am very grateful to the Minister for his saying that over the next few days before we come to Report stage he will consider the expression that I have used in my amendment which involves terrorism.

Lord McIntosh of Haringey

I do not think that the noble Lord, Lord Thomas, was here before dinner. When speaking to Amendment No. 48A I set out precisely the very extensive constraints on the clause and the way in which it has been written as represented in public. I suggest that before commenting further the noble Lord reads Hansard.

Lord Thomas of Gresford

I think that I was here—I referred to it as the Grand National course that the Minister will require. In answer to my point, the Minister said that it will not be enough for a person to have a flash on his shoulder reading "anti-terrorist squad" or to say to a person from whom he is demanding information, "I am investigating terrorism". Yet of course any person who goes to an authority for such information must demonstrate that he has a right to that information. As the Bill is drafted and as the current provisions for criminal proceedings—

Lord McIntosh of Haringey

He has the right to ask for that information. That is the only right that he has and unless he does it convincingly he will not get it.

Lord Thomas of Gresford

Exactly, he must establish that he is a police officer, for example by showing a flash on his shoulder, by producing his warrant card or by demonstrating that he is investigating a crime. It is only one step further for him to say, "The crime that I am investigating involves terrorism. That is my interest. That is my duty. That is why I want the information that you can provide". I hope that the Minister will consider that when he considers the wording of my amendment.

Lord Hylton

While the Minister considers that, I return him to my point about overseas. Clause 17(2)(a) and (b) both refer to criminal investigations and proceedings, in the United Kingdom or elsewhere". Given that, I hope that the Minister can give me the assurance that I sought. He may say that my worries are covered by Clause 18, but it is written in such convoluted language that I have great difficulty understanding it. Can the Minister explain it or produce any other reason to allay my concern?

Lord McIntosh of Haringey

I think that I had better write to the noble Lord on that subject.

Baroness Buscombe

I thank the Minister for his full and robust response to this group of amendments. As my noble friend Lord Goschen said, it crystallises the nub of our concern, which is that the gateway is too wide. In the brief time that we have had to consider the implications of the Bill, we have encountered significant opposition to it. We do not want to weaken the pursuit of terrorism—there is no question of that. All that we want is to limit the Bill to say that the purpose of the investigation should at the outset be the genuine pursuit of terrorism. I again thank my noble friend Lord Goschen for making that point.

We want to ensure that authorities can pursue investigations properly but in a way that means that they are genuinely limited to terrorism. Whether they turn out to be successful pursuits of terrorism is another matter, but terrorism should be in the minds of those authorities when they set out in their task to require the disclosure of information.

I thank the Minister for his assurance when he said that doctors are not public officials. I shall invite the General Medical Council to read tomorrow in Hansard what the Minister said. I also thank him for his reassurance that if there is any doubt—and we have doubts about the role of the Audit Commission—he will consider the matter further before we, in a sense, say goodbye to the Bill in the coming days.

There are several issues relating to Clause 17 that we shall want to pursue, but, for our part, we shall endeavour to be brief, because we shall want to return to them on Report. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 50A to 55 not moved.]

Lord Phillips of Sudbury moved Amendment No. 56: Page 7, line 16, leave out paragraph (d).

The noble Lord said: This amendment and Amendment No.80 seek to exclude paragraph (d) from Clause 17(2) and paragraph (e) from Clause 19(2). The paragraph concerned refers to, the purpose of facilitating a determination of whether any such investigation or proceedings should be initiated or brought to an end". It is apparent to the Minister that everyone in the Chamber bar the Government Front Bench believes that that entitlement to disclosure is far too wide. It means that an individual or body can engage in a pre-review of whether he wants to begin an investigation which may give rise to proceedings. We believe that that is far too wide and it serves no useful purpose. Given everything that has been said, I beg to move.

Baroness Buscombe

I rise simply to say that I entirely support what was said by the noble Lord, Lord Phillips of Sudbury.

Lord McIntosh of Haringey

I have said almost everything I wanted to say about this amendment when speaking to other amendments. If the power of disclosure is to have any effect, it must have effect when the suspicion first arises. I am not so much concerned with the provision of the initiation of an investigation because if I were to ask for disclosure of information I would merely say, "Yes, I have started the investigation. I started five minutes ago. Can you help me?" I do not believe that that is the problem.

The reason that we need the provision is for bringing to an end any investigation of proceedings. It will allow the authorities to clear an individual's name by providing information which shows he is innocent and allows the investigation to be closed. It will also be able to help the police to determine whether an investigation should start by providing information on an individual thought to have left the country or thought to be dead.

Both of those circumstances seem to me to be entirely inoffensive. The first could easily be overcome if the provision were not made, but the ability to use it to clear someone's name seems to me to be extremely valuable.

Lord Hylton

I note that subsections (2)(c) and (2)(d) do not include the words "in the UK or elsewhere". Nevertheless, I suspect that that phrase may be read into them. If it is capable of being read into them, it reinforces what I said earlier in the debate on the clause about disclosure to overseas countries.

Lord McIntosh of Haringey

They refer to "such investigation or proceedings", which relates back to subsections (2)(a) and (2)(b). Therefore, it means the United Kingdom and elsewhere.

I believe that I can set at rest the mind of the noble Lord, Lord Hylton, because there is no question of information being disclosed to those abroad who would misuse it. He gave the example of eastern Europe, but probably there are better examples. However, I shall write to the noble Lord giving all the details of the constraints which make it impossible under the legislation for information to be passed to those who would misuse it in the way he fears.

Lord Phillips of Sudbury

I should love to have a clear example of a non-terrorist case which falls within paragraph (d) because it would represent 99.99 per cent of the cases within that provision. I should like a clear example to show why the Government believe that only paragraph (d) provides the kind of protection that is needed for non-terrorist offences. However, I shall not have such an example, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 57:

Page 7, line 17, at end insert— () Information to which subsection (2) applies shall not be disclosed by the public authority until such time as that public authority has undertaken a pre-disclosure assessment of the request for information and it has been shown by the requester—

  1. (a) that there are reasonable grounds for suspecting that the information in question would be relevant to an inquiry into terrorist activity;
  2. (b) that the data subject has committed an offence related to terrorism; or
  3. (c) that the request to disclose information on a particular individual is proportionate in the context of the offence in question."

The noble Baroness said: In rising to move Amendment No. 57, I shall speak also to Amendments Nos. 64 and 88. The purpose of these amendments is to add appropriate safeguards to the provisions. We shall try again. Clause 17 provides that information obtained by a very wide range of public authorities under a vast array of legislative provisions listed in Schedule 4 would be capable of being disclosed for the purpose of a criminal investigation into, or criminal proceedings for, any offence in the United Kingdom or elsewhere, or for the purpose of, facilitating a determination of whether any such investigation or proceedings should be initiated or brought to an end".

The clauses in Part 3 are identical to those in Part 2 of the Criminal Justice and Police Act which came into force earlier this year. The Joint Committee on Human Rights has considered the provisions of the current Bill. In its report published on 14th November 2001 the committee referred to its earlier criticisms of provisions in the Criminal Justice and Police Bill. In particular it concluded that, There is a need to introduce adequate safeguards into this legislation. Consideration should be given to amending these provisions to include … a requirement that there should be reasonable grounds for suspecting that the information in question would be relevant to a criminal inquiry or that the data subject has committed an offence, and a requirement that a pre-disclosure assessment be made of the proportionality of disclosing information on a particular individual in the context of the offence in question. Consideration should also be given to limiting the very wide power to make disclosures 'for the purposes of initiating … any such investigation or proceedings'. We draw the attention of each House to these provisions, and consider that necessary safeguards should be provided to ensure they are compatible with the right to privacy".

It is our view that the provisions as drafted are much wider than is necessary for the prevention of terrorism. We wholeheartedly endorse the views of the Joint Committee in pressing for the need for appropriate safeguards to be included in the provisions. Clause 17(2) relates to the disclosure of information by or on behalf of a public authority. The definition of "public authority" in Clause 20(1) is by reference to Section 6 of the Human Rights Act 1998 which is in very wide terms and includes courts, tribunals and, any person certain of whose functions are of a public nature".

When the Joint Committee considered the provisions in the Criminal Justice and Police Bill it heard evidence from Mr Hartnett who said: we have described a 'public authority' as that which has the same meaning … as in Section 6 of the Human Rights Act. So we feel that that not only deals with the specific point about disclosure, but the fact that we have anchored this … to Section 6 or the Human Rights Act means that any disclosure that a public authority makes must be compatible with Article 8 of the convention … and thereby it has to meet the tests of reasonableness and proportionality which we understand the committee was concerned about in January".

However, it cannot be assumed that the Bill will he interpreted in such a way that disclosure will be compatible with Article 8 of the convention. By including a clause which makes express provision for tests of reasonableness and proportionality means that there can be no doubt that Article 8 should be complied with. The fact that there may be a need for this anti-terrorism legislation to enter the statute books fairly quickly is not an excuse to sacrifice certainty. I beg to move.

10 p.m.

The Earl of Northesk

I support the amendment. I agree with every word of my noble friend's introduction of this group of amendments, specifically in regard to the human rights issue. However, I should like to add a few thoughts of my own.

I know that the Minister is not entirely in concurrence with my view on this point, but. I repeat, my concern is that Part 3—particularly when taken in tandem with Part 11—represents carte blanche for data matching and/or data sharing throughout the machinery of government. The worth of the amendments is in limiting the scope for the use of such techniques to matters relating solely to terrorist activity as well as subjecting them to a proportionality test. In this way we could perhaps be assured that there will continue to be a presumption that authority for the future application of such measures will be on a case-by-case basis via primary legislation. At the very least, as my noble friend suggested, that will deliver greater consistency with the ECHR.

There is a subsidiary issue, albeit one of important significance. I refer to some of the concerns that were inadequately debated in the context of the Criminal Justice and Police Bill during the previous Session. As far as I am aware, the existing statutory disclosure provisions as they relate to the Revenue authorities, while limited in scope—I accept that—have operated well, striking the right balance between the rights of the individual, the requirements of the state and the public interest. Part 3 is a fundamental departure from the principles upon which this regime is based; namely, that information disclosed to tax authorities for tax purposes should be used only for tax purposes.

I can understand the desirability of disclosure, particularly in terms of the terrorist threat, but, none the less, its potential for undermining the successful operation of the existing regime, especially the so called Hansard procedure, was a principled objection to Part 2 of the Criminal Justice and Police Bill in the previous Session. It is even more of an objection in the face of the drafting before us today.

To get back to the point, the Minister will not be surprised to hear me say that the situation is exacerbated because of the vast scope for data matching when cross-referenced with Part 11. By imposing the test of proportionality and limiting the scope of the disclosure regime to terrorist activity, the amendments go at least some way towards addressing the problem.

I would add one other thought. The Bill has been severely criticised for the way in which it introduces elements of, as it were, non-emergency legislation. Necessarily, this suggests a less than adequate process of consultation. This is becoming a matter of particular anxiety for the financial services sector in respect of this part of the Bill. I very much hope that the Minister does not underestimate how deeply harmful these provisions could be if they are enacted as they stand. The amendment is justified on this basis alone as it would ensure that a wider and more appropriate disclosure regime could be developed, with appropriate consultation and in a less hurried way.

I do not gainsay in any way the Government's purpose in bearing down on the financial aspects of terrorism. Nor do I mean to be alarmist. But to take risks with the pre-eminence of the City—and the position could be that serious—by legislating too broadly and quickly would, I suggest, be both unwise and unreasonable. As I said, I support the amendment.

Lord McIntosh of Haringey

I think—and I hope—that there is a profound misunderstanding and that we are not as far apart as may at first appear.

The noble Baroness, Lady Buscombe, quoted the Joint Committee of January this year. But, of course, the Joint Committee was referring to the Criminal Justice and Police Bill as it was before the House prior to the election. Most of that Bill disappeared during the wash-up; it was abandoned because there was still disagreement about it. However, the important issue is that there are huge differences between the proposals in the Criminal Justice and Police Bill and what is provided in this Bill.

The Joint Committee recommended in January of this year in regard to the Criminal Justice and Police Bill that, inter alia, there should be a pre-disclosure proportionality test which would oblige the individual disclosing the information to assess the proportionality of disclosing information in the context of the offence in question; that there should be a time limit placed on the grounds on which information should be disclosed—specifically, as they stand in this Bill, at Clause 17(2)(c) and (d); and that Clause 19(2)(c) and (d) should be narrowed.

Since then, we have provided on the face of the Bill that only public authorities can disclose. That covers all of these points. It means that the Data Protection Act and the Human Rights Act apply to all of these disclosures. That, in turn, means that the recommendations of the Joint Committee—for example, on proportionality—are available here. It is necessary to look at the difference between the pre-election Bill and this Bill in order to understand the extent to which we have taken into account all of the recommendations of the Joint Committee.

Baroness Buscombe

I must apologise to the Minister. I have been a bit slow on the uptake. While I was saying that it is our view that Part 3 of the Bill is identical to Part 2 of last year's Criminal Justice and Police Bill, I was actually quoting from the report by the Joint Committee on Human Rights which was published on 14th November.

Lord McIntosh of Haringey

I am grateful for that. If it means that I have to think about something that I have said, I shall certainly do so. The differences between this Bill and the previous one certainly are of huge significance.

The amendment is complicated. Perhaps I may make three points. First, the amendment is framed in terms of public authorities facing requests for information. While it may be the case that such requests are made, the intention is to allow bodies to volunteer information where this would be helpful in preventing or investigating crime, without having to be asked for it first. It will be for the body holding the information to decide whether to disclose it. There is no element of compulsion or obligation on the public authority to disclose.

Secondly, the Human Rights Act already obliges any public authority to consider, before disclosing, whether disclosure is proportionate. We have provided that the disclosures under Clause 17 will only be from public authorities, so that the Human Rights Act, unlike the Criminal Justice and Police Bill, applies to all of these disclosures.

The third point relates to the problem of restricting the disclosures to terrorist offences. We have gone over that ground and I shall not weary the Committee again. I must repeat, however, that in cases where a criminal investigation is in its early stages it may not be clear that a terrorist offence has been committed or that the investigation will become a terrorist investigation. In such cases, if the amendment were accepted officials would not be able to disclose potentially vital information.

The rest of the arguments used in relation to the amendment are ones to which I responded during debates on previous amendments. I hope that the amendment will not be pressed.

Baroness Buscombe

I thank the Minister for his response. Again, I apologise for my rather late intervention, which was not particularly helpful.

I shall be brief. The Minister said that the amendment is complicated in three ways. Perhaps we should re-think our drafting. I shall consider his remarks with care—although I should forewarn him that my initial response is that we cannot agree with what he has said. However, we should like to read his remarks in Hansard. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 and 59 not moved.]

Baroness Buscombe moved Amendment No. 60: Page 7, line 18, after "may" insert ", after consultation with the Scottish Ministers.

The noble Baroness said: Again, I shall be brief. In moving this amendment, I shall speak also to Amendment No. 61, which is a Liberal Democrat amendment, and to my Amendment No. 66.

Amendments Nos. 60 and 66 are probing amendments. They relate to one of the provisions in the Bill which impact on an area of devolved competence, criminal law and procedure. To take full account of the devolution settlement, we have been asked by the Law Society of Scotland to recommend that provision is made on the face of the Bill for consultation with Scottish Ministers prior to an order being issued by the Treasury.

We entirely support Amendment No. 61 tabled by the Liberal Democrats. I beg to move.

Lord Goodhart

Amendment No. 61 stands in my name and that of my noble friends Lord McNally and Lord Thomas of Gresford. Clause 17(3) states: The Treasury may by order made by statutory instrument add any provision contained in any subordinate legislation to the provisions to which this section applies". It can add by order any secondary legislation to the 53 statutes set out in Schedule 4. Under Clause 17(4) that statutory instrument is subject to the negative resolution procedure.

Amendment No. 61 gives effect to a recommendation of the Delegated Powers and Regulatory Reform Committee that the Committee should consider converting that from the negative to the affirmative resolution procedure. That is what Amendment No. 61 provides. I understand from something that the Minister said earlier that the Government may he minded to accept that. If so, I need say nothing further.

The Earl of Mar and Kellie

I have put my name to Amendments Nos. 60 and 66. I hope that the Minister's response to these amendments will be that there was a simple omission; and that the devolution settlement devolved criminal law and criminal procedure in Scotland. While I accept that Parliament reserved to itself the power to override the Scottish Parliament and therefore does not need to consult Scottish Ministers, I believe that that would be bad politics. Accepting the amendments would be good politics.

Lord McIntosh of Haringey

As the noble Lord, Lord Goodhart, anticipated, I can confirm that we shall follow our usual practice of bowing down before the Delegated Powers and Regulatory Reform Committee. We shall produce amendments to provide for the affirmative resolution procedure.

I think that the noble Earl is trying it on a little with Amendments Nos. 60 and 66. If on every occasion that secondary legislation involved devolved administrations we had to put into the legislation that we shall consult the Scottish Ministers we would have a substantial increase in the size and scope of legislation and more Scottish forests would fall as a result. Of course, we shall consult with Scottish Ministers but we do not have to say so. We have a Sewell memorandum on this Bill. All the primary legislation has been agreed by the then Acting First Minister as appropriate to be applied to Scotland It is hardly conceivable that when we come to secondary legislation we should face these difficulties.

The Earl of Mar and Kellie

My one complaint about the use of a Sewell Motion procedure is this. No doubt the Minister of Justice approved the Bill when it was published. The Scottish Parliament does not have the chance to see the Bill until after it has become an Act during the process of which it may have been modified.

Lord McIntosh of Haringey

It was agreed not to debate it. It will have the chance to see it and we shall discuss all the subordinate legislation with Scottish Ministers. We do not need to put that on the face of the Bill.

Baroness Buscombe

I thank the Minister for his response and accept what he has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

10.15 p.m.

Baroness Buscombe moved Amendment No. 62: Page 7, line 25, at end insert— () Nothing in this section shall authorise the disclosure of information which is subject to legal privilege. () For the purposes of this Part, information is subject to legal privilege if it forms part of communications made in connection with, or in contemplation of, legal proceedings and for the purposes of these proceedings being communications which would in legal proceedings be protected from disclosure by virtue of any rule of law relating to the confidentiality of communications.

The noble Baroness said: The amendment relates to legal privilege. I shall be very brief. The remarks of the noble Lord, Lord Brennan, on the principle of legal privilege during the Second Reading debate on the Criminal Justice and Police Bill in April this year are relevant here. He said: Legal professional privilege enjoys its historical importance in our criminal and civil law because it protects the citizen against unreasonable interference by the state. Citizens can talk to their lawyer in private and by so doing protect their human rights and protect their desire to prove their innocence if charged, if they can. In the view of many, that is still a vital part of our democracy. It distinguishes us from a totalitarian state where such concepts are regarded as irrelevant. It is an important feature of our legal life and of our system of human rights as we now have them and it should not be damaged or diminished without the most careful consideration".

I hope that the noble Lord, Lord Brennan, will not mind if I quote from him a little further. He went on: In an age of electronic records, I find it difficult to accept that the Bill will allow the seizure of electronic material by people who have no idea what they are doing in terms of distinguishing between what is privileged and what is not. Once obtained, even with an obligation to return it as soon as possible if it is privileged, are we really to think that the information obtained by the police if it is privileged will not be stored, at least mentally if not in some permanent form? I find that extremely concerning. It could give rise to a state of affairs whereby, at one extreme, lawyers do not record their advice and, at another, they encrypt their communications with their client or their records of them".—[Official Report, 2/4/01; col. 684.]

That entirely supports the concerns expressed earlier this evening by my noble friend Lord Kingsland. I beg to move.

The Earl of Mar and Kellie

The Law Society of Scotland suggested the amendment to us. I shall restrict my remarks to the simple point that not including the amendment will lead to ambiguity, whereas including it would prevent that. That is particularly important when so much in the Bill is rightly being done behind the backs of suspected terrorists. The public need to know where we stand on the issue.

Lord Phillips of Sudbury

We strongly support the amendment. People dislike bestowing statutory privileges on lawyers, but this is one privilege that is for the benefit of people.

Lord McIntosh of Haringey

The Committee is not going to catch me disagreeing with the noble Lord, Lord Brennan, about legal professional privilege. However, the relevant Acts in Schedule 4 already contain provisions that prevent people being compelled to produce information that is subject to legal professional privilege. Nothing in the Bill will extend those duties or possibilities. It is very unlikely that information that is subject to legal professional privilege will be obtained under the provision listed in the schedule. Information subject to legal professional privilege will certainly not be obtained by compulsion under the existing enactments. Only information that is required by statute is covered.

Although the amendment has such distinguished provenance, it is misconceived. This part of the Bill deals with the disclosure of information, not the obtaining of information. There are already protections in place to ensure that information that is subject to LPP is not obtained under the listed enactments.

There is a possibility that the information could be provided to a public authority voluntarily. It could then be disclosable under the new gateways. But it would still be necessary to consider the other restrictions such as confidentiality. If a person discloses legal advice to a third party in confidence, that duty of confidence would still prevent disclosure even if the new gateway applied. We support the thinking behind the amendment, but I hope that it will be recognised that it is not necessary.

Baroness Buscombe

I thank the Minister for his response. The amendment may appear misconceived but it is there for a purpose. Our purpose has been achieved, which was to obtain the Minister's reassurance. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 63 to 65 not moved.]

On Question, Whether Clause 17 shall stand part of the Bill?

Lord Phillips of Sudbury

We have had a long and at times arduous debate on Clause 17, but disclosure is at the heart of the Bill. The clause has the widest ramifications. Those of us who view it as too wide are unhappy at the outcome of tonight's debate. I am also tempted to reflect again on the fact that not a single speaker—beyond the Ministers involved—has defended the clause as it stands.

The Minister has admitted that it provides a huge extension of rights of disclosure. There is no doubt that a public authority to which a request for disclosure is made under Clause 17 will be unable to refuse it without good reason. That would be a judicially reviewable decision. The Minister is indicating that that is not true, but a public authority to which a request for disclosure was properly made under Clause 17 could not simply refuse to comply. It would be a reviewable decision according to Wednesbury principles and it represents a right on the part of those requesting the disclosure.

The provision is not confined to terrorism, which is the purpose of the Bill; it is not confined to UK offences; it is not confined to serious offences; and, it is not confined to disclosure by government departments and state bodies. It extends to public authorities—hybrid authorities, in particular, so a vast array of organisations will be subject to the measure.

It is not confined to disclosure to public authorities. The Minister has confirmed tonight that individuals carrying on private prosecutions will be able to use Clause 17 along with authorities. It will also—this was a surprise—extend to all those who are accused in respect of private or public prosecutions. Therefore, a vast new array of potential users of the clause come into view.

It will not be confined to individuals in this country but includes individuals abroad. It will not be limited to reasonable, relevant or proportionate requests for disclosure. On all that, the Minister says that there is the Human Rights Act, which, as everybody knows, will be an unreachable remedy for the vast majority of people.

Clause 17 and the extended powers it gives are not confined just to the 66 statutes in Schedule 4—they can be added to; they are not confined to requests for disclosure from abroad only where there are comparable legal rights and protections for UK citizens; they are not confined to requests for disclosure from abroad only where there is a comparable integrity of the administration and application of those foreign laws; and they are not even confined to requests for disclosure in connection with actual prosecutions or investigations. As we know, paragraph (d), as it currently stands, will allow a far wider disclosure than that.

Not at any point are any of these disclosure arrangements subject to the say-so of a magistrate or a judge, not even to a warrant. Attention was drawn to the vastly different regime under the RIPA Act which does indeed provide the sort of protections we sought in the amendment on authorisation. There is nothing here except the dim and expensive prospect of legal proceedings by way of judicial review or under the Human Rights Act. And it relates not only to future effect; it also relates to retrospective facts—those already in the kitty, so to speak.

All in all, we feel that this clause disfigures an already problematic Bill. It is offensive to our traditions and to the real but limited needs giving rise to it, and indeed to common sense. It is condemned by Liberty, Justice, the Law Society, the Bar Council, the BMA and the General Medical Council. We have all been showered with representations soberly made by sober organisations which fear for the extent of this measure.

Finally, there is no sunset provision in the legislation. If it was truly a measure that related to terrorism, a sunset clause would be added here as it has been added elsewhere in the Bill.

I do not intend to reiterate what I said less than 24 hours ago at Second Reading on the background to this. But we believe strongly—I think I can speak for both Benches on this side of the Chamber—that it should be withdrawn and resubmitted in a fair and sensible form. At this hour of the night I do not intend to press for a vote.

Baroness Buscombe

I rise simply to support the words of the noble Lord, Lord Phillips of Sudbury. I hope that we can pursue some of these areas further outside the Chamber between now and Report stage.

Lord McIntosh of Haringey

I believe I have responded to virtually all the points made by the noble Lord, Lord Phillips, in the deliberate statement that I made on Amendment No. 48A before we broke for dinner. The only new element in what he said is to say that there would in effect be an obligation on public authorities to disclose.

That is simply untrue. Nothing is provided either here or anywhere else which forces public officials or public authorities to disclose any information. What is given in this clause is the power to give information. I have already described the safeguards in place. I have already commented on the fact that a large amount of public debate on this issue has been on the basis of serious misconceptions about the provision.

Lord Goodhart

Does the Minister agree that since the authorisation means that the officers of a public authority are exercising a public function in deciding whether or not to agree to a request for information, their decision would in fact be reviewable by a court and therefore they would be bound to act reasonably in deciding whether to give the information? If they were acting unreasonably in refusing it, they could be ordered to give it.

10.30 p.m.

The Earl of Onslow

This has been quite a depressing debate. It has reminded me of my grandmother. When she became engaged to be married, my grandfather said to her, "Marriage is a question of give and take" to which she replied, "You give and I take".

In my view the arguments on this side of the Committee have been overwhelming, not just because I have tried to advance some of them. I sincerely hope that if I can be persuaded by an argument on the other side, I will be. I was. I was very influenced by what the noble Lord, Lord McIntosh, said as regards the first amendment. He said in relation to it that the magistrates are quite capable of dealing with the question of drug money confiscation and that they had done so for 10 years. So I was influenced by what he said. In other words, I was prepared to listen to what he said.

The impression I have is that, however good the argument on this side, the noble Lord has been given instructions to resist, resist and resist. None of us is arguing in any way that terrorism should not he defeated as quickly and efficaciously as possible. The noble Lord suggested that I should divide the House the whole time. He would not like me to carry out his instructions. There are 185 amendments. That figure, multiplied by 20 minutes, is something in the region of 90 hours of parliamentary time, which I suspect takes us beyond next Easter or something like that. I am sure that that is not part of the Government's programme.

All I am saying is that in my view the arguments have been overwhelming. They have been resisted with charm and great ability by the noble Lord. But he has not convinced one single Member of his own Back Benches to speak in his support. He is unable, however much he has tried, to counter the arguments put brilliantly by the noble Lord, Lord Phillips. Some of us have tried to chip in as well. It is very depressing when one hears intelligent people producing intelligent arguments, not just for "yah boo" sakes, being resisted and resisted. That is all I have to say tonight and I am now going home to bed.

Lord McIntosh of Haringey

I did not say to the noble Earl, Lord Onslow, that he should divide the House on every amendment. I said that he is irreconcilable and there is nothing that we can do about meeting his requirements. He should have divided the House at Second Reading and he can still do so at Third Reading. It is not about the detail.

I have huge affection for the noble Earl and it is permanent. I have had it ever since he opposed the poll tax on the grounds that it was unfair that he and his head game keeper should pay the same local tax. That will never go away. The affection and admiration that I have for him over that will never disappear. But he is irreconcilable. He does not want any part of this Bill. The only proper thing to do is to vote against it as a whole and not on every single amendment.

I respond only to the single new point that was made; namely, the possibility of a refusal to disclose on request being reviewed. In theory that is the case and it is possible. But how would it succeed? The public authority does not have, and is not given, a duty to disclose. It is only in the unlikely circumstances that it could be said that a public authority was unreasonable—and unreasonable, as the noble Lord, Lord Phillips, said himself in the Wednesbury sense—in refusing to disclose that there could be any question about it. It is a power and not a duty. I am sorry if I am being repetitive, but the public authority will be subject to the Human Rights Act and the Data Protection Act. The Human Rights Act does not require somebody else to pursue the public authority to secure that the human rights provisions are complied with. It is a duty on every public authority to comply with that Act. It would be an offence not to do so.

I conclude as I believe that we can bring this matter to an end. We believe that Clause 17 with the restrictions that I have set out—which have been so widely misunderstood by the public—is a significant help in combating television.

Noble Lords


Lord McIntosh of Haringey

I meant to say terrorism. It is "Newsnight" time; I am sorry.

I have set out the safeguards that are in place. I have made it clear that the measure is aimed at terrorism but that it will help with criminal investigations. I recognise that the responses which have been made to Clause 17 are sincerely felt although I believe them to be misconceived. If there is anything we can do between now and Report to remove misconceptions and to narrow the distance between us, we are, of course, willing to try to do that.

Clause 17 agreed to.

Schedule 4 agreed to.

Clause 18 [Restriction on disclosure of information for overseas purposes]:

[Amendments Nos. 66 to 68 not moved.]

Lord Phillips of Sudbury

Amendment No. 68 seeks to—

Lord McIntosh of Haringey

Amendment No. 68 was discussed with Amendment No. 63.

Lord Hylton

I hope that I may say a few words regarding Amendment No. 68, whether or not it has been moved.

The Chairman of Committees (Lord Tordoff)

With respect to the noble Lord, there is no amendment before the Committee at the moment. The movers of the amendment say that it has not been moved. If the noble Lord wishes to move it, he is, of course, perfectly entitled so to do.

Lord Hylton moved Amendment No. 68: Page 8, line 38, at end insert— ( ) Nothing in this Part authorises the making of any disclosure to an authority of a country or territory outside the United Kingdom unless the law of that country or territory provides, in relation to the use, retention and disclosure of the information in question, equivalent safeguards to those applicable under the law of the part of the United Kingdom in which the information is held.

The noble Lord said: I move the amendment. I had not read the amendment when I sought to obtain an assurance from the noble Lord, Lord McIntosh, on precisely this subject matter. This amendment expresses more elegantly than I did the kind of thing that I want. I suggest the inclusion of only two words to those who drafted the amendment; that is, to add the words, "and practice" after "the law" in the second line. That would cover the huge discrepancy which exists in many countries between what the law says and what actually happens. I strongly commend the amendment to the Minister although he has kindly offered to write to me. I beg to move.

Lord Phillips of Sudbury

As the noble Lord, Lord Hylton, has got the matter into play, I say briefly that I think his proposal is absolutely right. If foreign public authorities are to have the advantages of our legislation, they must provide comparable protections and that must go beyond mere law to practice because, as we know, the manner in which some judicial processes are carried on in other jurisdictions is not such as would give real protection to our citizens and public authorities.

Lord McIntosh of Haringey

I have given the noble Lord, Lord Hylton, the principal assurance that he sought; namely, that there are severe restrictions in terms of human rights with regard to who outside this country can receive information disclosed under this part of the Bill. However, this particular amendment is about data protection systems. The Data Protection Act already restricts the extent to which information can be disclosed to countries outside the European Economic Area. The significance of that is that data protection legislation is virtually common within the European Economic Area.

Before making disclosure for the purposes of an investigation where no proceedings are immediately in prospect, the data controller must usually ensure that the country has an adequate system of data protection in place. I repeat: an adequate system of data protection. That does not mean a formal law which is then disobeyed. Therefore, I believe that I shall be able to add to the letter which I am writing to the noble Lord, Lord Hylton, and which I shall place in the Library of the House, the assurance that is necessary for Clause 68.

Lord Hylton

I am delighted to find myself in complete agreement with the noble Lord, Lord Phillips. I note what the noble Lord, Lord McIntosh, said. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19 [Disclosure of information held by revenue departments]:

[Amendments Nos. 69 and 70 not moved.]

Lord Thomas of Gresford moved Amendment No. 71: Page 9, line 9, leave out paragraph (a).

The noble Lord said: This amendment deals with an entirely different matter. However, I do not propose to worry the Committee for long because it is essentially a probing amendment. Paragraph (a) of Clause 19(2) refers to disclosure, for the purpose of facilitating the carrying out by any of the intelligence services of any of that service's functions".

This is an entirely new provision which did not appear in the Bill that was withdrawn last May. That Bill contained only paragraphs (b), (c), (d) and (e).

Therefore, for some reason, an addition is made to the policy by permitting disclosure of the information held by the commissioners of Inland Revenue and the commissioners of Customs and Excise to the intelligence services for any of their functions—that is, for any purpose whatever. It does not refer to an investigation; it does not refer to criminal proceedings; and it does not refer to the possibility of determining whether there should be an investigation or proceedings. It is the broadest clause in this part of the Bill that one can find. It is linked with Amendment No. 84, which I now appreciate is badly drafted. However, that amendment was consequential only, and I do not intend to refer to it further.

I want to know from the Minister for further consideration on Report why such wide powers are granted and what is the true purpose behind this provision. I beg to move.

Lord McIntosh of Haringey

I confess that I was not aware that this matter was not referred to in the Criminal Justice and Police Bill. I simply looked at the amendment on its merits on the face of this Bill. The amendment seeks to remove from Part 3 the references to the intelligence services. Therefore, it seeks to remove a new statutory gateway which in their view—I am talking about the Security Service, the Secret Intelligence Service and GCHQ; that is what is meant by "intelligence services"—would assist them in their vital function of combating terrorism.

One of the central objectives of the Bill is to assist the Government in combating terrorism. If vital information cannot be passed to the security services or, as the Bill states, the intelligence services, that would represent a serious impediment to that effort. I understand the concerns that the noble Lord, Lord Thomas, has in making a comparison with the previous Bill. But I cannot believe, in the specific context of terrorism—even though the noble Earl, Lord Onslow, has gone home—that it would be right to exclude reference to the intelligence services from the provisions of the Bill.

10.45 p.m.

Lord Thomas of Gresford

The powers that are being sought are novel and extensive. They mean that the files of all taxpayers in this country will be available for consideration by the security services for any reason whatever. As I have said, the investigation of terrorism need not be involved. Having pondered the matter, I shall return to it.

Lord McIntosh of Haringey

Before the noble Lord concludes, I must say that what he suggested simply is not so. The same restrictions that I described in relation to Clause 17 also apply to Clause 19. Tax records are not held for statutory purposes and therefore cannot be disclosed in the same way. It simply is not the case that the intelligence services can do things outside their own statutory functions. The statutory function of the security services includes the prevention of terrorism and is quite well defined. They cannot simply require any information for any purpose.

Lord Thomas of Gresford

As I understand the position—perhaps the Minister will confirm this—the remit of security and intelligence services has been extended way beyond questions of terrorism and into the investigation of drugs, serious crime and so on. Just how far their remit goes we do not know.

Lord Avebury

People trafficking?

Lord Thomas of Gresford

I hear my noble friend's intervention.

Encapsulated in this provision is a grave extension of principle. I understand that the security services can act only within their statutory framework and I bear in mind what I describe as the Grand National course, which was outlined in relation to Amendment No. 48A. I accept that there is a framework but, within that, the security services control what they like.

Lord McIntosh of Haringey

Tax information is covered by Clause 19.

Lord Thomas of Gresford

The Minister has admitted his first failure of the evening—it is the first time that he has been wrong. We hope that he will accept that he may be wrong in principle in relation to this huge extension of power. I shall not pursue the matter further now but I give notice that I shall pursue it with more information on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 to 88 not moved.]

Clause 19 agreed to.

[Amendment No. 89 not moved.]

Clause 20 [Interpretation of Part 3]:

[Amendments Nos. 90 to 96 not moved.]

Clause 20 agreed to.

On Question, Whether Clause 37 shall stand part of the Bill?

Lord Campbell of Alloway

I am not going to take much time because there has been a full debate on these matters on two occasions.

This is the first of a series of amendments to oppose the Question that Clauses 37 to 43—the whole of Part 5 of the Bill—stand part concerning incitement to religious hatred. By leave of Members of the Committee, I shall deal with them all en bloc. This is not an exercise in confrontation. As my noble friend Lady Buscombe said, and I support, it is a hope and belief that through the power of argument in this place we shall have another opportunity to persuade the Government.

If that is the approach, what could be more persuasive than the sense of this House as expressed yesterday and early this morning on the important area of Part 5 of the Bill in the light of reports of the Joint Committee on Human Rights, the Delegated Powers and Regulatory Reform Committee and the Constitution Committee that floated into the Printed Paper Office today, and debate in your Lordships' House on 21st November in which the right reverend Prelate the Bishop of Oxford sounded a note of caution and in which the noble Lord, Lord Haskel, said that for the first time he had found himself in agreement with anything I had ever said in your Lordships' House, albeit there was controversy as to whether criminalisation of incitement to religious hatred would or would not protect our Islam communities or work an unintended mischief?

There was controversy as to the scope of safeguards for the freedom of expression by those of any faith or none in favour or against any religion regarded as such. On those matters there was an area of controversy. But there was unanimity on the crucial issues, save from the noble Baroness, Lady Whitaker, who I had the privilege of having a word with today, who supported the Government for reasons which, with respect to her, did not convince me. They were that because of acts of terrorism, they have increased prejudice and created the present danger. With that dissent—I have been right through the Official Report; that was the only dissent—what was agreed by the House was, first, that there was no or no sufficient connection with terrorism and that Part 5 should not be included in the Bill. It runs right through the speeches in this House. Secondly, much further discussion, thought, safeguards and assurances, for which we all know there is no time, are required before Part 5 could be accepted as drafted or amended.

The Lord Bishop of Southwark

I thank the noble Lord for giving way. It is not quite accurate that there was total agreement that those clauses should not be part of the Bill. In my contribution I suggested that the matter needed to be tackled, even as part of this Bill. I also suggested: There is some merit in having the legislation in this Bill. September 11th and its aftermath placed stresses and strains on the religious fabric of society".—[Official Report, 22/11/01; col. 223.]

Lord Campbell of Alloway

I apologise to the right reverend Prelate. That is fairly watery support. If I misread it I hope he will forgive me.

The Attorney-General (Lord Goldsmith)

As the right reverend Prelate has made that point, can I also draw the attention of the noble Lord, Lord Campbell of Alloway, to what was said by the noble Lord, Lord Harris of Haringey. He said that the time was right now. I understood my noble friend Lord Ahmed also to accept that it was appropriate now that this should be in the Bill, although he had doubts in relation to it.

Lord Campbell of Alloway

I certainly do not take that interpretation of those speeches. But let us not discuss that.

Assume that the noble and learned Lord's intervention is totally justified in those instances and assume that I am wrong. The fact remains that the broad sense of this House—whatever the noble and learned Lord may say, whatever the right reverend Prelate may think or say and whatever may be the position—was clearly in favour that there was no or no sufficient connection with terrorism and that Part 5 should not have been included in the Bill. From that I will not retract.

Secondly, the broad sense of the House was that much further discussion, thought, safeguards and assurances for which, as I have said, there was no time, are required before Part 5 can be accepted or indeed amended.

Thirdly, the broad consensus of the House was that if incitement to religious hatred is to be criminalised that should be done after discussion on a comprehensive basis in another Bill. The right reverend Prelate, if I remember correctly, assented to that proposition, but I may be mistaken.

It is the hope that the Government shall defer to the broad sense of this House between today and Report stage by a concession to remove Part 5 from the Bill for the reasons that I have given. If in certain particulars they were in error in the opinion of Members of the Committee, it cannot be contended that they do not represent the broad sense and advice of this House. I ask the Government to yield to persuasion.

11 p.m.

Earl Russell

First, I owe an apology to the right reverend Prelate the Bishop of Southwark. During his speech I was talking into the other ear of the noble Lord, Lord Campbell of Alloway, about the possible wording of an amendment on which I hope that we have now reached agreement. So if he did not absorb everything that the right reverend Prelate said, the fault is mine. I am sorry for that and I offer an apology.

We have three separate questions here. First, should incitement to religious hatred be an offence? Personally, I am inclined to the view that it should. As a 17th century historian I know something about religious hatred. I know that people have died as a result of it. I remember reading of an occasion when Archbishop Laud on trial before this House rashly expressed the opinion that the Pope was only probably anti-Christ. He was therefore denounced over and over again as the very pander and broker to the whore of Babylon.

That makes one of my points. But I am not certain whether or not such language is covered by the Bill. Before any such Bill reaches the statute book I think that it would be well to know whether or not that is the case.

Therefore, in principle, because as a House of Parliament we must be concerned with keeping the peace, we should be prepared to consider legislating on the subject. That leaves us with the two questions: whether we should legislate in the Bill and whether we should legislate in the draft. My noble friends as a whole say that we should not do it in this Bill. Such a provision is not emergency legislation. It needs to be drafted with immense care, sensitivity and thought, after the widest consultation and after consideration of all the possible ways in which it could be misinterpreted in court. We do not think that the provision will receive that within the timetable allowed for the Bill. The consequences of that could be serious.

I appreciate the force of the argument repeated by the right reverend Prelate the Bishop of Southwark: that September 11th has put a strain on the social fabric where religion is concerned. I am on record—the noble Baroness, Lady Uddin, will bear me witness—as having spoken up about the need to protect the reputation and standing of British Muslims before any Bill was in evidence. I feel strongly about that need. The Bill does not meet it. There is something inherently paradoxical about saying that one is doing two things at the same time because they are not connected.

Those Members of the Committee who have faced discrimination because they happen to be women will know that such discrimination is usually preceded by the words, "This is not because you are a woman, but …". Those who have faced discrimination on grounds of race are familiar with the phrase, "It is not because of your race, but …". Those who have been discriminated against for being from public school have faced the phrase, "It is not because of your education, but …".

The mere conjunction of the two things reinforces in the minds of many people the idea that we are in fact engaged in hostilities with the Muslim community, which is the very idea that we most want to avoid. There is opinion poll evidence to that effect, as well as my experience from talking to large and varied collections of people on the matter. So although the objective of including the provision in the Bill was good, and one that I share and respect, we will not achieve it.

But what I am really worried about is the drafting. It seems to be assumed in the drafting of the whole of Part 5 that one can make a read-across from racial to religious hatred—that one can use the same legislative framework to deal with both. That strikes me as a dangerous and misplaced assumption. After all, thank God, race is not an opinion; race is not protected by free speech. Correspondence in the press, much of it based on misunderstanding—but misunderstanding that the Bill as drafted does not do enough to dispel—is concerned that freedom of speech and freedom of thought in religious matters should be preserved. I share that concern.

What we need is a clear distinction that we hate the sin and hate the sinner. I look in the Bill for that distinction and I do not find it. We also need a test of mens rea, which must take account of circumstances. I am reminded of John Stuart Mill's famous passage on the corn chandler. We need something along those lines in our drafting. The opinion that all property is robbery, or that corn dealers are starvers of the poor, ought not to be prohibited when merely circulated through the medium of the public press but ought to be prohibited when orally delivered to an excited mob before the house of a corn dealer.

That is a clear distinction that goes to the point of intention. It is a distinction that the Parades Commission in Northern Ireland has attempted to apply in practice.

I can remember that when I was young, magistrates ruled that Mosleyite processions were not allowed to go through certain Jewish areas, although they were allowed to go through other areas, because the sheer decision to go through such an area was considered conduct liable to provoke a breach of the peace. I can understand that reason and I can respect it. The choice of route on occasion may be a deliberate expression of hostility and it is for that reason, rather than the fact that it is a parade, a speech or whatever, that it should be restricted.

We need some attempt at mens rea in the Bill. We need something in the words which are to be complained of to express an implied threat. I am rather disinclined to prohibit the view that the Pope is Antichrist if it is expressed purely as an abstract proposition. But the words spoken to Edmund Campion on the scaffold—"In your Catholicism all treason is contained"—are words which, I hope, will be covered by a properly drafted Bill.

We have a vitally important distinction which I believe is not beyond the skill of our present parliamentary draftsmen. We have not even attempted to look for it. There is something here we ought to be doing, but we need to go back to the drawing board and start again.

11 p.m.

The Lord Bishop of Blackburn

There may be few Members in the Chamber tonight, but I do not believe that we should underestimate the number of people who are listening and will be reading the purport of the debate. We are dealing with a most sensitive subject and I believe that there is a direct relationship between incitement to religious hatred and the events of 11th September. They have totally transformed the lives of the people among whom I live and work in East Lancashire, where Christians and Muslims—the two faiths—work together but face each other within the local communities. I cannot overestimate to the Committee the significance of the events of 11th September to those communities.

We have a regular annual meeting when the Christians and Muslims meet in some number to discuss general issues; for example, drugs. We had such a meeting in October on family values. There was not a single Islamic speaker, from scholars to ordinary members of the audience, one might say, who did not begin their remarks without referring to "Islamophobia". It was in the air and in the nature of the people in the community at that time.

I have a great deal of sympathy with what has been said by the noble Earl, Lord Russell, but I urge the Government to continue to try to address the matter in the coming days. The time is short. I believe that it is entirely proper that it has a place in the Bill. I have great sympathy with the noble Earl, Lord Russell, who said that the words in the Bill and in the amendment may not be right. One has immense sympathy with Amendment No. 100 tabled by the noble Lord, Lord Dixon-Smith, where he brings in the protection of academic and theological debate and discussion. Everyone wants to include that, yet his amendment loses the provision at Clause 40(4) on page 20 which is the balancing protection for people of no faith.

Having heard the debate and the remarks of the noble Earl, Lord Russell, I do not believe that it is beyond the draftsmen in this House to attempt to produce something within the next few days. It is necessary for the Government and those such as the noble Lord. Lord Campbell of Alloway, who would remove these clauses or amend them to reflect before the Report stage in order to achieve a balance between protecting those in so many of our communities who have genuine fears of incitement to racial hatred which they live with daily and the curtailment of the freedom of speech, of serious debate, which we enjoy.

If we do not get that right, we shall arouse fears in other communities. A number of Christian people have written to me because they are seriously worried about some of the implications of these clauses on what they might want to say about the faith held by others. I believe that the time is now. It will be difficult whenever we do it. But there is a direct link between this matter and the terrorism which we seek to suppress.

Lord Campbell of Alloway

Before the right reverend Prelate sits down, is he aware that today I found in my chambers unsolicited a long e-mail from an Islamic association, at the back of which appendix A listed all the communities—I believe that there were five—that it represented? In essence, it did not believe that enough thought had been given to this problem, it was wholly unhappy that this matter should be rushed and so on. It wanted more time for consideration to be given to this matter. I left the document on a table in the Library and during luncheon someone borrowed it. Therefore, I apologise for speaking to a document which I have read but somehow has gone.

The Lord Bishop of Blackburn

I was unaware of the private correspondence of the noble Lord. However, I understand that two days ago the Muslim Council of Great Britain, which is a significant body, issued a statement which was largely supportive of these clauses. Certainly in the communities with which I have communication and where I live and work there is broad support for this measure, with the realisation that we are in a difficult and sensitive area of legislation.

Lord Williamson of Horton

I am not deterred by the late hour from intervening on this extremely sensitive point where we must be careful to make the right decision. A wrong decision is likely to be exploited and will probably be counter-productive. I am among those who believe that we should not include this provision in the Bill. However, I should like to make one or two brief comments since amendments have been tabled at Committee stage and I am not sure how the issue will finally be resolved.

Like the noble Earl, Lord Russell, I feel that it is important to distinguish between the different questions posed by the amendments which have been tabled. The first question is: should we legislate at all to add religious hatred to offences under the Public Order Act 1986? Secondly, if so, should we do it simply by adding "or religious" after "racial"? I share the view of the noble Earl that that is not a good way to handle the issue. Thirdly, should we increase the penalty, which is the effect of what is proposed, from two to seven years? Fourthly, since Amendment No. 103 is also before the Committee, should we abolish the crime of blasphemy? That has not been mentioned so far, but if we look back to the history of our country that matter has been in the news quite often in past generations. I do not believe that we are ready to insert that offence into this Bill at present.

I should like to comment on the other points. First, if we did go in that direction at this time, which I do not favour, the amendment tabled by the noble Lord, Lord Dixon-Smith, would be a gallant attempt to limit the offence of religious hatred by introducing the criterion of intention to contribute to criminal conduct against a member or members of a group. I believe that it would be an improvement if in the end we went in that direction. Secondly, I consider that the increase in penalty from two to seven years is disproportionate and I do not support it. Thirdly, I support the amendment tabled by the noble Baroness, Lady Whitaker, to remove blasphemy from the list of common law offences.

11.15 p.m.

Lord Desai

As noble Lords will know, I feel very strongly about this issue and have always done so. In answer to the questions posed by the noble Earl, Lord Russell, I would prefer that we did not legislate at all on this matter. If we are going to legislate, I would prefer that we did not do it the way we are doing it now by adding "religious" to "racial" hatred. If we are to go down this route, I would prefer some kind of amendment—although I have not yet grasped the details that would take us down the road suggested by the noble Lord, Lord Dixon-Smith.

Singling out the Muslim community in defence of this clause will do a great deal of harm. I said that yesterday and I will now say it again: it will do a great deal of harm. The partition of India was based on a confusion between religion and nation, and millions of people died in that confusion. When people say that they hate Muslims, it is not a question of religious orthodoxy; it is not about the Koran; it is not about the Pope being the Anti-Christ; it is not a doctrinal dispute; they hate the Pakis basically. They hate a certain group of south Asian immigrants who happen to be Muslims; they hate the Muslim nation in Britain.

But it is not the nation of Islam—as represented in the US by the Black Muslims—which is being targeted. The people being targeted are south Asian Muslims from Pakistan, India and Bangladesh. They are not a race. I do not think that we should raise the whole gamut of problems connected with religious hatred, theology, disputations between sex and Christianity and so on. I strongly believe that religion is the wrong label. I do not know what is the right label, but religion is the wrong one.

There should not be discrimination against British Muslims, but in labelling people by religion rather than as a certain kind of ethnic group we are making a major mistake. The consequences will be horrendous because the Hindu community in Britain will be deeply offended. Although the Bill relates to all religious hatred, everyone is saying that this is a problem connected with Muslims.

The Prime Minister said that we are all children of Abraham. Many people in this country are not children of Abraham, but we have to look after them as well. We do not have a cartel of Christianity, Judaism and Islam—they are very similar religions and so they quarrel all the time—but if you say that the Bill is for Muslims you will offend a large part of the ethnic minorities.

Baroness Whitaker

Does my noble friend accept that people of no belief are also protected?

Lord Desai

As an atheist, I am deeply offended by that. Hindus are not people of no belief. If you say that, you will have a deep problem.

Baroness Whitaker

The Bill refers to people or religion or belief.

Lord Desai

I still believe that we should not go down this road. We will import, in a more excited manner, all the divisions of the sub-continent, and that is not the road we want to go down.

I know that I will not get my way on this—I know that the Government will get their way and that I am wasting my time—but I still believe that I should say it.

The Lord Bishop of Southwark

Perhaps I may briefly make two points. First, the members of the Inner City Religious Council, which has been in existence now for more than a dozen years and consists of members of all religious faiths, have, for all that time, been pressing the Home Office to bring in legislation of this nature. It is not only to protect the Muslims; it is thought to be necessary by the representative people of all faiths.

They have not had a great deal of success over those years with the Home Office. If I may quote from the speech last night of the noble Lord, Lord Waddington, it will indicate why they have not. He said: Having waited for 16 years for it to become law, we can face with equanimity the possibility of having to wait for a few more years".—[Official Report, 27/11/01; col. 189.] Although I do not agree with them, I understand the logic of Members of the Committee who say that this provision should not appear in this Bill. But I do not believe that if the provision were removed from the Bill it would appear in another form in the foreseeable future. It would not appear at all. Now is the time to tackle this issue. Following the events of 11th September, it has become pressing, but it is a matter about which the faiths have felt strongly for many years.

Lord Lucas

The noble Lord, Lord Desai, should not give up hope. There is every hope of postponing this part of the Bill.

I entirely agree with those who say that incitement to religious hatred should be an offence. We can all see instances where what some people get up to or might get up to should be prohibited by law. But religion and race are absolutely not parallel. Race is something that you are born with; religion is something that you choose, or at least partly choose. Religion stretches from being part of the culture that one is born into, to politics. There are elements of religion which are just as disputatious and rightly subject to argument as people's political beliefs. I do not believe that we are about to legislate against stirring up political hatred.

There are things that are done by various parts of Christianity which cause me enormous difficulties and offence. One major example is the Catholic position on birth control and its consequences for the rest of the planet. I should not wish to be restrained in arguing about that; nor should I wish to be restrained in arguing about some of the stranger practices and elements of Sharia law. Also, I should riot want those who express more extreme views about the treatment of animals to be restricted in their criticism of Jewish and Islamic practices in the killing of animals. I do not agree with them, but I do not believe that they should be restricted. They pass reasonable comment on a religious practice which is essentially political. It is not something that should be subject to protection. It should be subject to reasonable criticism.

We have to draw a fine line between someone's intention: whether it is to argue against a particular religious practice or whether it is to stir up hatred against a religious group. That is difficult to do—as the noble Earl, Lord Russell, said—by merely trying to draw a direct parallel between race and religion. The issue of race is simple. We should not accept discrimination in any form, ever. We should not accept the stirring up of hatred or dissent in any form, ever. That does not apply to religion. In religion we have to draw a much more difficult, much greyer, much more human balance; and we need a rather more complicated piece of legislation to do it. I cannot see how, in the time-scale given for this Bill, we can achieve what we should all like to achieve.

Lord Hylton

I shall be brief. We need to remind ourselves that we live in a largely secular society in which attendance at any form of religious worship is dropping and is at a very low level. That is not to say that moral values influenced by religion are not more prevalent than religious observance.

It is true that since early September there has been an increase in attacks on religious buildings—mosques, synagogues and churches. But they are not widespread across the whole country; they are localised. Therefore, I support the view advanced by the noble Lord, Lord Campbell of Alloway, and backed up by the noble Earl, Lord Russell.

I return to remarks that I made in the debate yesterday. This extremely complex and difficult subject would be far better left to more mature considerations, outside of any emergency context. I went on to say that if the Government will not remove these clauses or split up the Bill, they are likely to do lasting harm which they will come to regret.

Lord Dixon-Smith

I may have to apologise to the Committee because even at this hour of the night I do not have the remotest idea how long my remarks will take. I apologise sincerely for that. However, we find ourselves in a serious difficulty.

When the Captain of the Gentlemen-at-Arms pointed out this remarkable grouping, he said that it is to enable us to have a proper discussion over the method by which we take this matter forward. The noble Lord may not have thought those words through but I read into that—I am open to be corrected of course—that in fact the Government were not absolutely certain whether it was right to take forward Part 5 of the Bill at this time. I may be reading far too much into what the noble Lord said. I am happy for him to tell me that that is so. I am prepared to accept that I may be wrong.

Lord Carter

When we saw this extraordinary grouping, I simply explained to the noble Lords, Lord Campbell and Lord Dixon-Smith, that, although on Report we could have an amendment to leave out Part 5, I thought that the intention was to have a general debate on the whole of Part 5. Each clause of the Bill has to be put forward in Committee. The only way to deal with the matter in Committee was to list the whole business as a debate on clause stand part. I assumed that the Committee would welcome a general debate on the whole of Part 5, hear the Government's response and then decide what to do. It is up to noble Lords to decide how to deal with it but by having this grouping it enables the Committee to have a general debate on the whole of Part 5. That is all.

11.30 p.m.

Lord Dixon-Smith

I am grateful to the noble Lord for that explanation. It seems to reveal an uncertainty.

The difficulty is that the grouping seems completely to remove Part 5 from the Bill while at the same time containing amendments of substance, one of which we have proposed, which would attempt to improve the Bill. Although we have done the best we can in the time available, I do not regard that amendment as either the be-all or end-all of what is required in order to make the Bill adequate and sufficient. So we are looking at a general debate as to methodology.

I have a fundamental problem. Having considered the subject with some care, I accept the principle that legislation in this area is desirable. I have no difficulty with that proposition. However, is this provision appropriate as an add-on to the Bill? That is what it is. Except in the most indirect of indirect ways, I cannot find any linkage between this part of the Bill and anything to do with anti-terrorism. Similarly, I cannot find anything that relates it to security or national security. I would resent the suggestion that it had anything to do with crime. Those areas are encompassed in the Title of the Bill. Therefore we have a difficulty.

I have already described this as a premature Bill. I do not doubt the Government's honour and intentions in bringing the measure forward. I am sure that it was done for the best of reasons. However, given the timescale in which the Bill has had to be drafted—it is still only 11 weeks since September 11th—and the pressures that there have been throughout that period, one would have to have the gravest doubts about the adequacy and, even more significantly, the depth of any consultation across religious groupings of all sorts. I do not doubt that soundings were taken here and there, but soundings are not consultation.

Another problem is that we are dealing with matters that impinge enormously on the boundaries between freedom of speech and the possibility of it becoming something else. Looking at history, it is thoroughly deplorable that religion of all sorts over the millennia has all too often been hijacked by man for entirely human, and often thoroughly disreputable and dishonourable, purposes. It gives me no satisfaction or pleasure to acknowledge that. As an historian, the noble Earl, Lord Russell, knows about that subject in far greater depth than I do. We are in danger of going down the same road to a degree if we are not careful.

The right reverend Prelate the Bishop of Blackburn, speaking in favour of the Bill, made the perhaps inevitable Freudian slip—he was probably not aware of making it—of referring to racial instead of religious hatred. Most of the motivation of those who in recent times have dealt in a wholly deplorable way with some Muslim communities has been not religious but racial. We need to recognise that.

If we are to deal with the subject, we should all be certain that whatever law we end up with must deal equally with each and every religion and, if necessary, those who have no religion. When we go down that road, we begin to impact strongly on the fiercely evangelical branches that exist in almost every religion. Once we start going into that area, we begin to get into great difficulty.

The right reverend Prelate the Bishop of Blackburn said that we should go ahead with the proposals because they are here and we have the time, but he acknowledged that what we have before us may not be ideal. We have a week in which to draft what is in effect a new Bill, if that is what we are to attempt to do. I am a modest man. I would not attempt to cover such a subject properly in that timescale. I think that it was the noble Earl, Lord Russell, who said that we cannot read over from religion into the Public Order Act 1986. It is not as simple as that. Really major effort would be required.

I conclude, sadly, that if we are to go down this road, we no longer have an option. We cannot discuss the detail without great difficulty, and if we come back at Report stage when debate is more constrained, and then at Third Reading when it is even more constrained, we shall not have the time physically to do the work and still less to carry out external consultations that are properly required before dealing with this part of the Bill.

I accept that it is desirable to legislate to try to contain those unfortunate aspects that occasionally reveal themselves in our society as a result of religious prejudice. I make a clear distinction between religious and racial prejudice. We have to be far more careful, study and consult and take far more time than we can possibly give to this subject in the seven days that are left to us before the Government hope to enact the Bill.

When we reach those further stages, there will be only one real option: to strike these clauses from the Bill.

Lord Campbell of Alloway

Before my noble friend sits down, may I ask whether he accepts that racial hatred is adequately covered by our present law?

Lord Dixon-Smith

I am happy to answer in the affirmative. Of course it is. Indeed, many of the other incitement problems are also covered in other areas of the law.

Lord Hylton

May 1 ask whether the noble Lord, Lord Dixon-Smith, has spoken to his Amendment No. 97? If he has done so, it may be for the convenience of the Committee if I say something about Amendment No. 101.

Lord Dixon-Smith

The noble Lord, Lord Hylton, illustrates precisely the difficulty that we face. Before I can speak to that amendment, I have to speak to the Motions on clause stand part. If we were to start on that process, we would have to begin with a Motion from my noble friend Lord Campbell of Alloway which would mean that the amendment would become redundant.

Lord Goldsmith

The sense that I have taken from the debate this evening is that all Members of the Committee who have spoken agree that what we ate trying to outlaw in Part 5 is objectionable. The hatred and incitement of hatred of particular groups is to be deplored, should not be condoned and must be outlawed. The disagreement is on how to achieve that and whether to do it in this Bill.

I had understood from the amendments that have been tabled that there were specific points on the drafting of the proposed clauses. We have listened, as we always do, with care and attention to proposals from Members of the Committee to improve the aim that we wish to achieve, on which there seems to be agreement. I am happy to deal with specific problems in the proposals. As the noble Lord, Lord Dixon-Smith, did not feel it appropriate this evening to explain those amendments, I shall do that in the briefest possible form, simply to indicate what the concerns are.

Lord Avebury

Will the noble and learned Lord make clear that in speaking at this moment he is by no means pre-empting further debate on the remainder of the amendments which have not yet been moved?

Lord Goldsmith

I am entirely in the hands of the Committee. A number of clauses are grouped together. If in fact all that is being put at the moment is whether Clause 37 shall stand part of the Bill, I shall simply say that that does not concern religious hatred. Clause 37 is about racial hatred and an amendment to the definition in that regard.

Lord Campbell of Alloway

The noble and learned Lord is out of order. If no amendments have been moved, it is not in order for the Government Front Bench to speak to them.

Lord Goldsmith

I understood from what the noble Lord, Lord Dixon-Smith, said, that he was speaking to the whole of these matters. I entirely accept that groupings are not mandatory. But I understood that we were speaking to the whole of this group. I give way to the noble Lord, Lord Dixon-Smith.

Lord Dixon-Smith

I entirely support the Minister in that we have to be debating something; that it has to be a Motion. If there is no Motion before us, we are all seriously out of order and have been for some time.

Perhaps I should say this in relation to Amendment No. 100, which is the main one in this group. What we seek to deal with in that amendment is the point of mens rea, which was raised by the noble Earl. Lord Russell. How far we succeeded in that remains to be seen. If I give it that introduction, at least the Minister will have a hook on which to hang the hat.

Lord Avebury

Perhaps I can ask for further clarification. The Chief Whip said that we were debating all these amendments together, including all the clauses. I thought that after the noble Lord, Lord Dixon-Smith spoke—presumably he was addressing himself to his Amendments Nos. 97, 98, 99 and 100, although it was not clear to me from what sounded more like a Second Reading speech on Part 5—that the noble Lord, Lord Hylton, would speak to his Amendments Nos. 101 and 102 and following that the noble Baroness, Lady Whitaker, would speak to her Amendment No. 103. I was therefore surprised when the noble and learned Lord stood up and appeared to be pre-empting further debate.

Lord Goldsmith

I was not pre-empting. This is Committee. I stood because no one else was standing. The grouping is set out and no one indicated that they objected to it. The noble Lord, Lord Dixon-Smith, agrees. If the Committee wishes to deal with this in a different way, so be it. The last thing I want to do is to stifle any debate on any point. I want to deal with points raised by the Committee and I am happy and ready to do that. Perhaps the noble Earl, Lord Russell, will come to my rescue.

Earl Russell

I can assure the noble and learned Lord that as far as I can see he behaved with impeccable propriety and entirely in accordance with the customs of the Chamber. Nevertheless, it may be for the convenience of the Committee if at some stage Amendment No. 103 in the name of the noble Baroness, Lady Whitaker, was debated. If he could indicate when it may be convenient for us to do that, it may help us.

Lord Goldsmith

If my noble friend Lady Whitaker would like to deal with that now and that is convenient to the Committee, I am happy with that course. The matter has then been put and I can respond to the whole group.

11.45 p.m.

Baroness Whitaker

I shall be brief. This is a very discrete aspect of the general debate and this is not an original amendment. It follows the Bill moved by the noble Lord, Lord Avebury, in 1995 and it implements a recommendation made by the Law Commission in 1985. They said, we take the view that where members of a society have a multiplicity of faiths or none at all it is invidious to single out that religion [i.e. that of the Church of England] for protection … the common law cannot remain as it is … our consultation confirmed this view". Their consultation was of over 1,800 organisations, groups and individuals.

The Law Commission implied one semi-reservation, saying that the only persuasive argument against the amendment was, the criminal law should provide some protection to religious believers from suffering offences". It is because in this Bill the criminal law does provide such a safeguard that it is right to attach repeal of the blasphemy law after Clause 42 and I support the inclusion of Part 5 for the reasons that the right reverend Prelate set out so tellingly.

The Law Commission's assumption that it is inequitable to protect one part of the Christian faith without signalling equal respect for other faiths, or non-religious beliefs, is the main reason for this amendment.

But there are others. "Blasphemy" is quite undefined in law. Since one of the main attributes of law is certainty, this is hardly satisfactory. Blasphemy, nevertheless, is an absolute offence, one of strict liability, which means intention plays no part and any defendant is unable to give evidence about their own belief or purpose. In theory, one could commit accidental blasphemy and be just as guilty. It is hardly surprising that the Home Office undertook in 1989 to take no more state prosecutions for blasphemy.

I suggest that now we have a proper provision which protects believers of every kind from incitement to hatred on the grounds of their belief, this arcane and inequitable law should become history. So should its equally vague accompaniment, "blasphemous libel".

Finally, the Law Commission also held that the offences of disturbing a religious service or devotions, and striking a person in a church or churchyard should not be criminal by virtue of being crimes against the Church of England, but to the extent that they constitute criminal behaviour, be caught by the criminal law in general. Thus I propose that this part of the Law Commission's amendment should also be adopted.

Lord Avebury

I am delighted that the noble Baroness, Lady Whitaker, has managed to get her oar in at last. I am sure that it will be greatly to the convenience of the Committee if the noble and learned Lord replies to this amendment when he deals with all the others which are grouped with it, as was suggested by the Chief Whip.

I believe that many people will object that blasphemy is even more remote from the purposes of the Bill than Part 5 itself. But there we are. It was discussed in another place and we have it before us here. It is a very useful opportunity for clarifying what is the present attitude of the Church. The right reverend Prelate will correct me if I am wrong, but I understand that the official position at the moment is to wait and see what happens to this Bill and only then to express an opinion on the blasphemy law.

In 1995, after my blasphemy abolition Bill was defeated at Second Reading, the most reverend Primate set up a small staff group to consider what was the best way forward from the Church's point of view. I do not know whether that group ever reached any conclusions but I understand that its present view is not that the blasphemy law should be extended to cover other faiths, as Mr Dobson suggested might be the case in another place.

That is certainly reassuring as it would open up a Pandora's box if that were done. I think that not many people realise that the blasphemy law now has a very limited meaning in law—much less extensive than it has in ordinary English usage—being confined to the use of scurrilous or grossly offensive or abusive words tending to vilify the Christian religion. Blasphemy and blasphemous libel—the difference between the two concerns whether the matter is spoken or written—are, of course, offences at common law, as the noble Baroness explained, and their scope has been progressively narrowed over the three centuries of their history. The working definition is that which is contained in Stephen's Digest of Criminal Law, which was used almost verbatim by the trial judge in the Gay News case in 1979. For the benefit of those who think that there will be a great restriction on people's ability to criticise other religions, the 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. Some people belonging to other faiths might well be disappointed, if the blasphemy law were extended to cover other religions, to discover that its application is so restricted, and I am afraid that there would be constant pressure for the offence to be widened.

The Home Secretary said, There is a good case for … removing existing blasphemy law".—[Official Report, Commons, 26/11/01; col. 707.] But then he suggests, also at col. 707, that the Church of England's Board for Social Responsibility should hold a debate about helping the Government to, achieve a measure that is less anachronistic and more appropriate to the 21st century". The right honourable gentleman was being very modest as the provisions of this part of the Bill already deal with speech, behaviour or writing that is threatening, abusive or insulting and likely to stir up hatred against a religion, and would allow prosecution in any conceivable circumstances where blasphemy might now be used.

I do not intend to enter into an argument about the general merits of Part 5 and I assume, for the purposes of the amendment I am discussing, that we shall pass the amendments dealing with incitement to religious hatred as they stand, whether or not the Committee thinks that there should be further consideration and further consultation with outside forces. But in this particular case of blasphemy why should this long delayed reform wait on the Board for Social Responsibility? With great respect to the Church of England, it has had more than six years to consider it since the previous occasion when it came before this Chamber and it is time we came to a decision. If it has to be done by separate legislation, the arguments put earlier by the right reverend Prelate the Bishop of Southwark apply with even greater force. It is very unlikely that time would be found for that in the parliamentary timetable. It would take up scarce parliamentary time. With all the pressures that exist I cannot see it happening. There will always be something more urgent in the queue. As Mr Dobson suggested when he moved the amendment in another place, let us do it now.

Perhaps I should say a few words about the other offences mentioned in subsection (1(b) and (c) of the amendment which were dealt with in the Law Commission's Offences Against Religion and Public Worship document of 1985. Those are largely concerned with obstruction of religious ceremonies. As an example, Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 penalises any person guilty of, riotous, violent or indecent behaviour in a place of Christian worship or in any churchyard or burial ground. The Law Commission cites a case where a person was convicted under that provision as recently as 1968 when he disrupted a church service attended by members of the government, his purpose being to draw attention to the then government's alleged support for US policies in Vietnam.

At the time, the Law Commission did not believe that Section 5 of the Public Order Act 1986 would work in this context because, in the special circumstances of a church service, it was unlikely that a breach of the peace would have been provoked. Now, under Part III of the Public Order Act 1986 as amended by this Bill, the use of threatening, abusive or insulting words or behaviour with the intention of stirring up religious hatred, or whereby religious hatred is likely to be stirred up, is an offence whether the action occurs in a place of worship or elsewhere. I hope that it can be agreed that all the rarely used provisions in those ancient statutes should be repealed.

In 1995, I argued that the Public Order Act 1986 would deal with utterances or the display of writing that fell within the definition of blasphemy as it had been developed by the courts and, specifically, in the Gay News case. There was still a gap at that time in that, if such material were published but never displayed, it would not be caught. The new offence of incitement to religious hatred closes that loophole as it extends to the publication and distribution of written material. I hope that it may be agreed that any material offensive enough to be prosecuted as blasphemous under the law as it now stands would be equally capable of being dealt with under the 1986 Act as the Government now propose to amend it.

Therefore, the right reverend Prelates can afford to relinquish the special protection which the blasphemy law has afforded their particular religion. In doing so now, when the Home Secretary—as he said in another place—has not yet made up his mind on the matter, they would earn the respect and esteem of other faiths. Priests and bishops of the Church of England are always affirming their commitment to a genuine multi-faith society. Here is an opportunity for them to demonstrate that in a practical and public manner that will cost them nothing.

The Lord Bishop of Blackburn

The noble Lord, Lord Avebury, challenges these Benches to make some response to what he has just said. Perhaps I may say, first, that I do not believe that it is appropriate to piggy-back this very serious matter on to this emergency Bill. If it were done in that way, I believe that it would send out quite the wrong signals as to what we intend, and not simply to members of the Church of England. It is not always understood in the wider community that, as the noble Lord, Lord Avebury, rightly says, this measure applies only to the Church of England. I believe that the behaviour of many other people rides, if I may express it in this way, on the back of that understanding.

The matter was made quite clear in the Second Reading debate yesterday evening by the right reverend Prelate, my brother the Bishop of Southwark. The position is that, as of today—I shall return to that "as of today" in a moment—the Church of England is not opposed to a review and a revision of the blasphemy law if something better can be put in its place. That would affect other religions and, indeed, other Churches. However, the reason that I say "as of today" is that tomorrow the subject of blasphemy legislation will be on the agenda of the Archbishops' Council, which is the leading consultative body in the Church of England.

Therefore, we remain ready as a Church to enter into discussion with the Government. But I believe that it is a matter for the Government to instigate this type of discussion with the Board of Social Responsibility, or whichever body is appropriate in the Anglican Church and in other faith and religious groups. But I believe that it would be strange to remove legislation which at present at least protects some at a time when others are seeking a similar provision. It appears rather paradoxical to go about it in that way.

I now turn to the amendment in the name of the noble Baroness, Lady Whitaker. Leaving aside the whole question of blasphemy, unlike the noble Lord, Lord Avebury, I am seriously concerned about the implications of removing paragraphs (b) and (c), as set out in her amendment. Such offences may seem archaic, but there is growing evidence in this country of disrespect for people engaged in worship and devotion and, indeed, of the desecration of sacred places. That is a sad fact, but it is a fact.

As we react to the consequences of international terrorism, this is not the moment to remove clauses from the Bill. I hope that the noble Baroness will not move her amendment because I believe that it will rouse fears in many people at present. I also hope that the Government—this may be the assurance which the noble Lord, Lord Avebury, seeks—will give this matter serious consideration and, if appropriate, bring forth legislation on some other occasion in order that we may have a clearer understanding of the blasphemy law and the need for it, or otherwise, within contemporary society. Midnight

Earl Russell

As we are in Committee, I hope that Members will forgive me for stating three sentences on this amendment, which I have not previously discussed. Its purpose, which I support, is to create equality and not to cause offence—I take the point made by the right reverend Prelate the Bishop of Blackburn about paragraphs (b) and (c). If we agree to the amendment, we will, in a redrafted Part 5, have to think about giving protection against hurt that is liable to lead to a breach of the peace, which we would not otherwise need to do in that form; that is another reason why Part 5 is not yet in a fit state to be approved.

Lord Goldsmith

I make it clear that I will speak to the entire group and that I am doing so at least three minutes earlier than the time at which I started speaking yesterday.

I hope that the noble Lord, Lord Avebury, will forgive me for pointing out that I certainly did not stop my noble friend Lady Whitaker from speaking to her amendment; I am happy that that debate has now taken place. I want to deal, first, with the amendments that refer to the details of the proposed incitement. We should be able to do so briefly, given that the noble Lord, Lord Dixon-Smith, has not really developed the argument. Secondly, I want to say something brief about the proposed maximum penalty, which is picked up in the amendment of the noble Lord, Lord Hylton. I shall also deal with the amendment relating to blasphemy, which was spoken to by my noble friend Lady Whitaker, and Amendment No. 185, which proposes a formal consultation exercise. I will then deal with what has really been the substance of this debate; that is, whether the matter should be dealt with now, and in what form that should be done.

Before doing so, I remind the Committee of two points, the first of which involves the structure of Part 5. Although we have been concentrating on the question of incitement to religious hatred, I ask Members of the Committee to consider the fact that Part 5 deals with rather more than that. Clauses 37 and 38 relate to the existing offence of racial hatred and amend the definition. No one has suggested that those are inappropriate amendments to make in this country and Northern Ireland, and I shall say no more about them.

Clause 39 will introduce incitement to religious hatred. Clause 40 is importantly different—it will add the concept of "Religiously aggravated offences"; that is, offences that are criminal offences. That has been done in relation to racially aggravated offences. The consequence—no one has spoken against this idea—is that particular conduct that is criminal would be treated as the worse because of the circumstances in which it took place. That would obviously be for the courts to decide. I had not understood that that part of the Bill was an issue in another place, at least with the main opposition party.

Clauses 41 and 42 deal with the penalties for the existing racial hatred offence and the new religious hatred offence, to which I shall return.

The second point that I want to touch on briefly involves what the incitement to religious hatred offence amounts to in terms of its ingredients. It may help the noble Earl, Lord Russell, who picked up the question of what the mens rea is, and other noble Lords, including the noble Lord, Lord Lucas, who asked about what would and would not be an offence, if they consider what those ingredients are. I recognise that, in order to appreciate what they are, one has to read Clause 39 as it will be inserted into the Public Order Act—Members of the Committee will doubtless have done that.

I shall describe the ingredients. The first is that there has to be the use of threatening, abusive or insulting words or behaviour, or a display of written material of the same sort. That does not involve soberly expressed—or even robustly expressed—opinions.

Secondly, there needs to be either an intention to stir up racial hatred or, having regard to all the circumstances, a likelihood that racial hatred would be stirred up. Why is the second part necessary? It is because if someone uses language in circumstances which the rest of us, a jury or magistrates, would consider likely to stir up racial hatred they cannot pretend that they did not have the intention behind it. But there is an important additional element in Section 18(5) of the Public Order Act, which I hope will come back to the point raised by the noble Earl. That states: A person who is not shown to have intended to stir up racial hatred is not guilty of an offence … if he did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting". There is an additional mental element which is included by way of specific defence. That would apply, as it does to the racial hatred offence, to the religious hatred offence. I invite Members of the Committee to consider that.

Hatred is a strong concept. It is more than contempt, disagreement or robust disagreement; it is hatred of a group and not of the religion. That is an important indicator also. Finally, as I mentioned yesterday, the offence is one which cannot be brought by way of private prosecution; it is an offence which can be brought only by or with the consent of the Attorney-General.

I turn to the first set of amendments. Amendments Nos. 97 to 99 seek to change the test to be applied to one of the incitement to religious hatred offences and to remove the provision which allows the person to commit an offence if in the circumstances their words or behaviour were likely to stir up religious hatred. That would be replaced with a test which requires that the person should contribute to criminal conduct against or by a member of a religious group. That is the essence.

There are two reasons for suggesting that that is not a good amendment. First, we suggest that it does not improve on what is proposed. Secondly, the amendment would criminalise something which is already a criminal offence. Therefore, it achieves nothing. It certainly does not achieve the intended end. It is the case that some people will deliberately seek to incite religious hatred but will do so in a calculated way. They will then say, "I didn't think that that would incite hatred". But it should not be possible to say that where it is clear to any judge and jury that any reasonable person must have considered it likely that others would be incited to hatred. That is why the 1986 Act refers also to the likelihood of hatred being stirred up. However, as I have just drawn to the attention of Members of the Committee, the Section 18(5) defence means that there will still be a specific defence in that case if the person did not intend his words or behaviour to be threatening, abusive or insulting. That is the first point.

The second point concerns contributing to criminal conduct. The simple fact is that inciting someone to commit a criminal offence is already an offence. That is what the common law offence of incitement is about. Religious hatred, like racial hatred, is not in itself, at common law or otherwise, a crime. It is not an offence to be a racist. That is why we must have a specific offence of inciting racial hatred. We cannot rely on the common law incitement to an existing criminal offence. That is why, for the same reason, we would need a statutory offence if we are to criminalise the behaviour of inciting religious hatred. But if all we do is to make that subject to being criminal conduct in any event, we do not achieve that end. We are simply criminalising that which is already criminal; it achieves nothing. We welcome any help in improving the Bill. However, I hope that when Members of the Committee think further about that point they will see that that does not achieve their end and will not pursue it.

Amendment No. 100 is another approach to the same theme. It concerns the six aggravating offences. The amendment looks rather long. That is because it picks up the same variation in all cases. What is being put forward is a defence that a person charged with this offence can show that his words were reasonable in all the circumstances or that he acted in the public interest.

The second part of the amendment defines reasonable conduct by reference to the circumstances in which the words or behaviour occurred. The third aspect defines what amounts to a person acting in the public interest by reference to words or behaviour that is fair, academic, political or theological comment.

I remind Members of the Committee that the starting point is that there have to be words which are threatening, abusive or insulting, either intended to or likely to stir up religious hatred. The question is: in what circumstances would the use of threatening, abusive or insulting words intended to or likely to stir up religious hatred be reasonable or in the public interest?

What we are looking at—as my noble friend Lord Ahmed powerfully pointed out yesterday—is the kind of circumstances where, on a website, a far right group is peddling hatred of particular groups. We may have words which are no different in kind from the words which could be used about groups which benefit from the existing protection—Jews or Sikhs. If the same language is being used in relation to another group but defined by its religion, that is the kind of conduct that we are concerned about.

I doubt that Members of the Committee would think that that kind of situation would be reasonable or in the public interest. The very essence of these offences, the people that we are concerned with, are not people who are reasonable. They are not people who are acting in the public interest nor are they discussing the finer points of theology.

It is not a question of robust criticism or one of disagreement with cults or with other religions and their beliefs. I repeat this again because it is so important. It is the use of threatening, abusive or insulting behaviour at its start.

I add that the offence will not in any event be brought unless I or my successor or successors decide that it is in the public interest that it should be brought. That is a safeguard for your Lordships to judge. It will help considerably, I suggest, to prevent unreasonable offences being brought. But the Government are alive to the concerns which have been expressed here and in another place. We do not underestimate that concern. My right honourable friend the Home Secretary said in response to an amendment, somewhat differently phrased but on the same theme proposed by Sir Brian Mawhinney in another place, that we will look again at whether there is a construction which can be used to protect the people we are all agreed we want to protect without creating new loopholes which will be exploited by the people we all agree we should be able to prosecute.

Amendments Nos. 101 and 102 deal with the penalty. The simple point here is that the Government believe that the increase from two years to seven years reflects the seriousness with which the offence should be treated. It is in line with the existing sentence of seven years for the range of racially aggravated offences in the Crime and Disorder Act. In the Government's view, that properly reflects the impact that these offences have on communities and public order in this country.

I turn to Amendment No. 103, the proposal for an introduction into the Bill of provisions in relation to blasphemy. The Government believe—a point I made yesterday—that the Bill is devoted to matters connected with, and which have arisen since, September 11th—anti-terrorism measures. Blasphemy does not come up in that context. We do not believe that the Bill is an appropriate vehicle for amending or repealing the common law offences.

It is quite right, as has been pointed out, that as long ago as 1985 the Law Commission recommended abolition of the law on blasphemy and blasphemous libel. Even at that stage, it talked about the introduction of an offence of incitement to religious hatred. The matter has not cropped up suddenly; as some Members of the Committee have said, it has been discussed for some time and been the subject of much consultation.

However, the response to the Law Commission's paper—a response that has been reflected in what was said today by my noble friend Lady Whitaker, the noble Lord, Lord Avebury, and the right reverend Prelate the Bishop of Blackburn—demonstrated that there were important differences on the right way to deal with the issue of blasphemy. When the Law Commission issued its recommendation, there was considerable support for retaining the laws on blasphemy—some 1,700 out of 1,800 respondents were in favour, although many of them wanted it to be extended to cover other religions or faiths.

That is obviously a major issue between Members of the Committee: should we abolish the provision altogether or extend it to other faiths? That debate has important implications. While we wholly respect the reasons why the amendment has been proposed and the sincere concerns that surround the important topic that it covers, I must disappoint my noble friend Lady Whitaker. The Government do not consider the Bill to be the right vehicle to deal with the issue of blasphemy.

I shall deal briefly with Amendment No. 185 before returning to the main point. Amendment No. 185 is intended to stop both the incitement to religious hatred and the religiously aggravated offences in Part 5 coming into effect until after a formal consultation process with certain criminal justice organisations. That leads us well into the question of whether it is right for us to deal with the matter now.

The point of the provisions in Part 5 is to strengthen the law where it is weak and where it is necessary to deal with events after September 11th. I shall not repeat what I said last night, but since that date, there have been incidents that have given rise to grave concern in certain parts of the community—attacks and harassment. It is the connection between the events of September 11th and those events that has been in the Government's mind in bringing forward the provisions now.

I pray in aid the recent report of the Joint Committee on Human Rights, and invite Members of the Committee to study it. It deals expressly with the issue of freedom of expression, which certain Members of the Committee have raised. As I understand it, the Committee expresses itself content with what it has been told about the intention of the Bill: that the legitimate, pressing social need to outlaw particular despicable conduct justifies the limitations that the Bill would impose. Freedom of expression is not absolute. It is not absolute in relation to racial hatred. We do not permit people to say things that will incite racial hatred; that is not a legitimate exercise of the freedom of expression.

Our Joint Committee also draws attention to the concluding observations of the United Nations Commission on Human Rights earlier this month. It noted the recent upsurge in religious harassment and attack and urged the United Kingdom to extend its criminal legislation to cover offences motivated by religious hatred.

In addition to that powerful urging to deal with the matter now, we have what I suggest is the important support of the right reverend Prelates present in Committee, both of whom spoke powerfully about the need, in order to provide proper protection in our community, to deal with the matter, and to deal with it now.

Baroness Buscombe

While dealing with that point, will the noble and learned Lord the Attorney General respond to a powerful speech made by the noble Lord, Lord Ahmed, yesterday when he said that he would have preferred a separate Bill dealing with incitement to religious hatred rather than the carrot and stick approach in this Bill?

Lord Goldsmith

Gladly, and I very much understand and respect what underlay that remark made by my noble friend Lord Ahmed. It may have been part of the thinking of the noble Lord, Lord Dholakia, when he spoke yesterday, but if I misinterpret him I apologise.

As the right reverend Prelate the Bishop of Southwark said, the choice we have is to deal with an urgent problem now in this Bill—it is the vehicle which exists—or to put it off. I understood my noble friend Lord Ahmed to be saying that, while he would have preferred to have dealt with the matter separately, he took the view that it was right to deal with it now because this is an opportunity to do so.

I noted the words spoken tonight by the right reverend Prelate the Bishop of Blackburn, who said, "The time is now", and the right reverend Prelate the Bishop of Southwark, who said, "Now is the time. It is a pressing issue". I invite the Committee to consider what the consequences would be for failing to deal now with an urgent problem and an anomaly. I return to a point I made earlier: is it not an anomaly that offensive threatening behaviour towards Jews and Sikhs is criminal but towards Muslims it is not?

That does not mean that the Bill, if passed, would protect only the Muslims. I deal here specifically with the point raised by my noble friend Lord Desai. It may he that 11th September is the catalyst for bringing the provision forward now and it may be that the attacks on the Muslim community are the catalyst for bringing it forward now. We believe that the Muslim community must be protected against false accusations. As my right honourable friends the Prime Minister and the Home Secretary made so clear, terrorism and belonging to the Muslim religion are very far from being part of the same thing. They are absolutely not the same thing at all. Muslims must be protected. That is the catalyst for the provision but the protection provided if the Bill were passed would be for every religious group; for Hindus and everyone else. I suggest that that is the right answer to my noble friend Lord Desai.

That is the key issue. I have indicated that the Government will look carefully at the point raised here and by Sir Brian Mawhinney on the precise definition. However, perhaps I may remind Members of the Committee that the overall structure is a tried and tested one for the racial hatred cases. It has not been dreamt up in a day for this Bill. Much thought has been given to it in the past and I suggest that we ought to consider seizing the opportunity to give the protection now rather than putting it off.

Lord Thomas of Gresford

Perhaps I may make a plea to the noble and learned Lord to clarify these clauses. It is extremely difficult to shuffle one part of the Bill into pre-existing legislation. Is it beyond possibility that before we return to the matter the Home Office officials in charge of the Bill could produce the clauses as they would appear? A practitioner would have the gravest difficulty in following the Bill; the CPS must make decisions upon it; and those who are liable to commit such offences would have no idea what the legislation was. Could we have something clearer?

Lord Goldsmith

Yes. There are two ways to deal with it. When the noble Lord, Lord Thomas, began I was not quite sure whether he meant for the purposes of this debate. I smiled because I was sure that he of all people would have no difficulty in putting the Bill and the Act together. It is possible to consider the inclusion of a Keeling schedule so that the Bill contains a version of the Public Order Act which would be amended to include this matter. Perhaps we may take it away. I accept the importance of understanding what the provisions do, and I shall ask for that to be considered urgently.

Lord Lucas

As I understand the noble and learned Lord, as long as moderate language is used a person can argue factually as hard as he likes. If one considers in particular some cults, which doubtless call themselves religions, one can argue for their prosecution, abolition and avoidance by all sane members of society as long as one does it in reasonable words. Is the noble and learned Lord saying that the fact that one expresses strong opinions does not make one liable to prosecution?

Lord Goldsmith

Yes, absolutely. The use of moderate language is not abusive, threatening and offensive, and it is not intended or likely to stir up hatred of a group.

Clause 37 agreed to.

Clause 38 agreed to.

The Deputy Chairman of Committees (Lord Geddes)

I must advise the Committee that because of pre-emption, if Amendment No. 97 is agreed to I cannot call Amendments Nos. 98 and 99.

Clause 39 [Religious hatred offences]:

[Amendments Nos. 97 to 100 not moved.]

Clause 39 agreed to.

Clause 40 agreed to.

Clause 41 [Racial or religious hatred offences: penalties]:

[Amendment No. 101 not moved.]

Clause 41 agreed to.

Clause 42 [Hatred and fear offences: penalties]:

[Amendment No. 102 not moved.]

Clause 42 agreed to.

[Amendment No. 103 not moved.] Clause 43 agreed to.

Lord Carter

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-nine minutes past midnight.