§ 3.10 p.m.
§ Viscount Colville of Culross
rose to move, That this House takes note of the report of the Religious Offences Committee on Religious Offences in England and Wales (HL Paper 95).
The noble Viscount said: My Lords, I am extremely pleased to see the noble Baroness, Lady Scotland, back in her place. I remember what it was like being the Home Office Minister in this House, and a sandwich was indeed a luxury. At any rate, I think she must have had one.
When the Select Committee was appointed, nearly two years ago, it was the noble Lord, Lord Peston, who asked whether the then Lord Chairman of Committees thought that the membership would cover all ranges of opinion—including that which regards the concept of religion as nonsense. I am not sure the noble Lord, Lord Tordoff, was answering that particular question, but the membership of the committee and the declared interests were very broad, as on page 6 of our report. One of the results was that there was very little prospect of reaching much in the way of a consensus or recommendations. I am not sorry for that—it was a good idea to explore the matter in a very general way and in some cases in a very particular way—so as to see what everybody thought.
What we had hoped for at the end of it all was that there would be a rousing debate. I am not sure what is going to happen today, but I hope it will be a rousing debate. I am extremely pleased to see that taking part are Members of this House who were not members of the Select Committee. It may be that the debate will go further than this Chamber.
The report has brought up-to-date the Law Commission report on blasphemy and other ancient offences which was published in 1985. It has also had a big opportunity to address the clause that was eventually left out of the Anti-terrorism, Crime and Security Bill at the end of 2001. What has happened is that the noble Lord, Lord Avebury, who introduced the Private Member's Bill which gave rise to the Select Committee, has had a very extended and comprehensive Committee stage of that Bill. He took a great part in the discussions.
Other than mentioning the noble Lord, I am not going to do anything particular by way of paying tributes to my colleagues—it would be invidious. They know who I mean when I say that a number of them took great trouble to ensure that we had witnesses of calibre and of very great knowledge, who came before us on a number of different subjects, and assisted greatly in the deliberations. I think I am, however, allowed to pay a tribute to our Clerk, Mr Mackley. It was the first time other than in his diplomatic service that he had dealt with anything as complicated as this, and it was his introduction to your Lordships' deliberations. He has since gone on from strength to strength. He was supported by some excellent staff. In Professor Bradley we had an expert adviser from Leicester, which of all places is a multi-race and multi-faith community. He brought with him not only his legal knowledge but a great deal of local advantage as well.
444 Apart from the noble Lord, Lord Campbell of Alloway, I am the only lawyer who is going to take part in this debate. I am sorry to say that this is a terribly legal matter, and there is no avoiding it. For the first time, I shall give my own opinion about what ought to be done next—I tried hard not to do this during the sessions of the Select Committee. I would not be in favour of repealing anything, or of enacting anything. I will elaborate on that.
I do not disparage the motives of those who disagree with me on either of those points, but I believe that a great deal of parliamentary time would be spent dealing either with repeals or with enactments of the sort that the Select Committee had to deal with. They would be highly contentious, we would spend a great a deal time, and the noble Baroness would be sitting for even longer on the Front Bench, dealing with it all. I do not wish to see the creation of any more criminal offences than we really must have—we have quite enough as it is. The last thing I want is to see any more being created, particularly if they are going to be of minimal effect.
I shall explain why I take this view. The starting point, which was not available to the Law Commission in 1985, is the passing of the Human Rights Act 1998. The Select Committee was dealing only with England and Wales. Scotland and Northern Ireland have their own arrangements. I do not at all wish to speak about either of those. However, under the 1998 Act, the courts themselves are public authorities and it is unlawful for them to act in a way which is incompatible with a convention right under the European Convention on Human Rights. The relevant rights are 7, 9, 10 and 14. They all have their bearing on the first point, which is blasphemy.
At the beginning of the report—paragraphs 38, 37, 34—and in some of the questions later on in the volumes dealing with the evidence, there is reference to vociferous groups who look on the law of blasphemy as virtually a cornerstone of the constitution. It was interesting to find that some of the Muslim witnesses supported the law of blasphemy because at least if you could protect one of the religions, it was better than nothing. The Jewish witnesses also saw that there was nothing very much that they were worried about, but they did see problems in the extension of blasphemy to any other religions. I totally agree with them.
I would suggest that, whatever people may think about this being the cornerstone of the constitution, there will be no more prosecutions for blasphemy. Any such case, if launched by a private individual, would be taken over by the Director of Public Prosecutions, and he would put paid to it. I do not think that he himself would allow the Crown Prosecution Service to bring such actions of its own accord. If it were to happen, however, there would be problems. Although the Human Rights Act deals with compatibility of legislation with the European Convention, it does not deal with compatibility of common law. Blasphemy is a common law offence. There could therefore be immense arguments about the impact of a number of the articles of the convention.
445 There is one case on which everybody relies, or purports to rely—Wingrove, which went to Strasbourg at the end of the nineties. It was about a video, and was an appeal from the British Board of Film Classification. The prohibition of showing the video was upheld by the Strasbourg court. I do not think that the arguments on either side were fully comprehensive. In any event, the way in which the Strasbourg court moves evolves from time to time, and blasphemy need not necessarily now be upheld by that court.
To be truthful, I believe that the problem of blasphemy is virtually insoluble. If it were to be repealed, it would produce an enormous reaction from those devoted to its existence. If it were sought to be extended, as the Law Commission minority suggested in 1985, it would be impossible to handle in terms of legislative content. The answer is that, if no one does anything about it at all, it will probably simply wither on the vine. That may not be good news to some people, but that is the reality.
I go on to the only other piece of ancient legislation that has been in the mind of the Select Committee, which is the Ecclesiastical Courts Jurisdiction Act. I shall leave that matter to the noble Lord, Lord Avebury, who has made prodigious researches into how it works. It is not a very formidable piece of legislation, but it is still used. It is used for comparatively minor offences, sometimes in combination with other criminal offences. It deals with an issue that is worth pursuing.
It does not matter what religion an occasion relates to, as the Act covers them all—and none, although I am not quite sure how one desecrates a religion that is not a religion. There will be occasions when one cannot charge someone who carries out desecration with criminal damage because they did not actually damage anything, and when one cannot charge them with a public order offence because there was no one there to be harassed or upset. There is an area where such legislation is useful, as a small piece of the criminal law.
The noble Lord, Lord Avebury, discovered that there was another prosecution last year. The major difficulty is that neither the CPS, nor anyone else, knows what it was about, and there are no records at all about any of the offences. It is extremely difficult to find out what has been happening. Nevertheless there was a conviction, and someone went to prison under the legislation. It is worth keeping, because it establishes that Parliament cares about people's religions, their premises, artefacts and things that make up the basis of their beliefs, and that if those are misused or abused there will be a remedy in criminal law. I would therefore not wish to see it repealed. To that extent, I disagree with the part of the Private Members Bill introduced by the noble Lord, Lord Avebury, that tried to do that.
I now come on to the major part of the debate; namely, incitement. Noble Lords will remember that the clause that introduced incitement to religious hatred was left out of the 2001 Bill. Therefore—I hope that Chapter 6 is a useful reminder—we looked at the background of the law on incitement. The proposition 446 in 2001 was to supplement the existing law on incitement to racial hatred in Part III of the Public Order Act 1986 with a new offence of incitement to religious hatred. The analogy between race and religion is not necessarily very sound. Race, which now includes under case law in this context Sikhs and Jews, as well as others, is something that one cannot change. Religion is undoubtedly important to very many people, but it is not immutable and can change from time to time. The more one thinks about it, the less it is clear that the two are interchangeable concepts for the purposes of criminal law.
I have in my mind a nutcracker, one claw of which is the existing criminal law on incitement. I shall talk about the other one in a minute. There is a very substantial amount of criminal law relating to incitement. It is a common-law offence to incite anyone to commit an offence, even if that person does not do it or even try to do it. The offence does not have to be directed towards any particular person; it may be directed towards a group, so it may be general. It must cover a great deal of the territory of those who incite people in terms of religious hatred. It is much more positive and less abstract than some people may think.
Under the racial aspect the Attorney-General must of course consent, and I have no difficulty with that. Prosecutions have been rare but there is the point that, if prosecution occurs and results in an acquittal, it can be seriously counterproductive, as it can give validity to whatever it was that was published and was the source of the prosecution. Section 39 of the 2001 Act created a number of offences that were identified and augmented if motivated by religious hatred. Increased penalties were laid down. There is plenty of room for incitement for any of those, and much of the territory would be covered.
The other jaw of my nutcracker is Article 10.2 of the European convention, which is on freedom of speech. We deal with that in paragraph 83 of the report. There is a constraint on both sides, as was recognised as far back as 1986. However, the full impact may not have been realised until quite recently. The noble and learned Lord the Attorney-General, who gave evidence to the Select Committee and with whom we have had correspondence, was extremely helpful. He thought that incitement to religious hatred could be framed in such a way that it would not be struck down as incompatible with Article 10.2. I agree. Not only is there a margin of appreciation in Strasbourg for what is done in individual countries within the European Union, but there is a developing domestic jurisdiction that gives something like a margin of appreciation—it is called "deference"—in the internal courts of this country. I do not believe that legislation, in the terms of the second proposition in the Bill introduced by the noble Lord, Lord Avebury, would run foul of the European convention as such on compatibility.
There is one other point on the question of incitement. I do not know whether he was right but, in the 1970s, Lord Justice Lawton gave a number of decisions that concerned incitement. He said that the common law of England continued to take the view that it was an offence to stir up hostility against any 447 section of Her Majesty's subjects. That has always been an offence. I have looked at the origins of what he said and am bound to say that I find that very dubious, but I do not think that the matter has been explored and I did not know about it when the Select Committee was sitting.
Other aspects of criminal law deal with incitement. Only quite recently, an imam of extremist views was convicted. He was imprisoned for stirring up hatred and convicted under Section 2 of the Offences Against the Persons Act 1861. That is normally used for contract killers, but on this occasion, it was used for somebody who was trying to stir up religious hatred.
Therefore, a good deal of criminal law is available. I do not believe that it has all yet been tried out before we invent something else. It is, however, a little disturbing to find that no figures are available on incitement. Not only are there no figures on the use of the Ecclesiastical Courts Jurisdiction Act 1860, but a Written Answer in another place last September stated that there were no figures at all for convictions for incitement. That concerns me.
I have said that the law itself, if it were passed, would not run foul of the European Convention on Human Rights, but I am less convinced about what would happen if there were a prosecution and a conviction. I believe, first, that a defence would be raised to bring in by any means the aspects of Article 10.2. A number of issues could be avoided if that were subject to the Attorney-General's consent. He would be able to get rid of disputes between sects; he would be able to get rid of disputes that should certainly never be the subject of criminal prosecution.
However, there really are aspects of religion that are bound to be the subject of criticism in public. What about those so-called religions which separate children from their families and which separate converts from their worldly goods? Are we really not allowed to criticise them? Yes, of course we are. It is one of our freedoms under Article 10 of the European Convention on Human Rights that we should be able to do so. Then there are inflammatory websites. Those are very damaging. We have seen examples of them and of what they say.
The difficulty we face with those is that, as the people who wish to propagate that kind of inflammatory material are well aware, the law allows them all kinds of loopholes. If it is a website, it does not have to originate in this country. If it is received in this country, it will be prosecutable here, but who would be the defendant? If the defendant is overseas, there is nobody that one could get hold of. The culprits, well advised as they are, may well stay in some other land.
Therefore, it will not be the criticisms of religions that we all find distasteful or of the ultra-violent website, which probably cannot be pursued anyway, but the intermediate grade of incitement that will be made an offence under the kind of legislation that the noble Lord, Lord Avebury, sought to persuade your Lordships to adopt. The defence would look at Article 10.2 of the convention, which concerns freedom of expression. It is interesting that in Section 12(4) of the 448 Human Rights Act 1998 Parliament has told the courts to pay particular attention to any aspect of freedom of expression that comes before them. I am far from sure that a jury, if it were asked to decide on which side of the line a particular statement, article or website falls, would find it all easy to be satisfied that there was a criminal intent to stir up hatred. That would true even if hatred were described by the judge in extreme terms, which is what the Attorney-General told us would happen.
Therefore, there is a very narrow gap in the criminal law. On the one side is existing incitement legislation and common law; on the other, the constraints of Article 10.2. I seriously wonder whether we have reached the stage where we could identify something that would bridge that gap.
I am sure that other noble Lords will disagree with me and I rather think that the Home Office does too. because it persists with its clause in the 2001 Bill. However, I am sad to say that we cannot rely on the draft framework decision on racism and xenophobia. The Select Committee paid particular attention to that. When we discussed it, we thought that it would provide the basis for the kind of legislation that the noble Lord, Lord Avebury, would have introduced. It seems to have died a death and it is unfortunate that we can no longer rely on it.
I appreciate that I have spoken for a long time. I shall deal quickly with the final two chapters of the report, which address hate crime and aggravation. Is the noble Baroness, Lady Scotland, really happy with the present situation? There are at least three regimes. First, there are ordinary crimes, which can be aggravated, including those which carry a life sentence. In them, the judge can simply take account of aggravating factors. Secondly, there is a new set of offences, which were introduced by the Criminal Justice Act of last year. Under those, factors such as hostility towards sexual orientation or disability were made aggravating factors, but not part of the offence. They therefore overlap the general jurisdiction of a judge to deal with aggravating factors. Thirdly, there are other offences, not including those which carry a life sentence, which have had their maximum penalties increased. They include offences relating to racial hatred and now to religious hatred under Section 39 of the 2001 Act. The difficulty with the latter offences is that a racial or religious motivation must be proved to the jury. That is not easy and it is not the best way to introduce the subject of telling the jury about previous convictions.
Now that we have a serious and comprehensive set of sentencing guidelines, I suggest to the Minister that we should rather go back to square one and abandon those haphazard and rather individual approaches to aggravated sentences. We should allow courts to get on with what the Court of Appeal has been doing for some time and set up a comprehensive system whereby aggravating factors of that kind are taken into account in all sentencing, including the tariff for lifers.
The Home Secretary said that he did not want to see "gestureism". I should like to see a lot of the clutter cleared away from this subject. The courts should be left to pass sentence on the basis of what is before 449 them; namely, the offence, previous convictions and everything they know about, without trying to make the jury convict on a specific racial issue. I feel that the sentencing guidelines will be able adequately to deal with that. The machinery is now in place to allow it.
However, at the end of the debate, I anticipate that the noble Baroness will say that the Home Office will not be doing anything at all. She will say that it will not repeal the blasphemy legislation or reintroduce the clause dropped from the 2001 Act and that we will not be allowed to enjoy the process of seeing whether the law works in practice. I beg to move.
Moved, That this House takes note of the report of the Report of the Religious Offences Committee on Religious Offences in England and Wales (HL Paper 95)—(Viscount Colville of Culross.)
§ 3.40 p.m.
§ Baroness Massey of Darwen
My Lords, like other noble Lords, I am delighted that this report is finally being discussed in your Lordships' House. I agree with the noble Viscount, Lord Colville, that it is good to see so many noble Lords taking part in the debate who are not members of the Select Committee. I am particularly glad to sec my noble friend Lady Uddin once more hack in action.
I declare an interest as a member of the Select Committee on Religious Offences, so ably chaired by the noble Viscount, Lord Colville. I thank him not only for his chairing of the committee, but also for his comprehensive introduction today. He has instructed me to be brief and, as an obedient committee member, I shall take heed. In doing so, I will attempt to draw out a couple of fundamental dilemmas from the many dilemmas with which the committee grappled. These relate to the protection of people rather than beliefs and the issue of free speech.
I must say that this committee was one of the most informed, enlightened and dedicated I have ever worked on. The exchange of views was stimulating, respectful and lively. As we say in our conclusions to the report, our deliberations went further than discussing laws such as blasphemy and other common statute laws. We ranged over the,nature of religion in today's society and the changes in that society over the last half century, both in the numbers who follow other than the Christian faith, those who reject religious belief, and those whose religious faith is usually expressed privately".We were agreed that any further legislation should cover all faiths or those of no faith.
Today, I want to reflect on some of the points raised by the British Humanist Association and the National Secular Society, in which I declare an interest as a patron. It was heartening to see a briefing for the debate prepared jointly by the British Humanist Association, the British Muslim Research Centre and Justice. Collaborative working across many organisations was evident also in our deliberations as a committee.
450 I should first state why I am a humanist. I believe in ethical stances. I believe that people should be encouraged to lead good and responsible lives. I believe that we should treat others with fairness and dignity. I believe in human rights and democracy. I respect the rights of others to faith or religion even though I have none myself. I respect many of the tenets of various religions—those which exhort fairness, forgiveness, mercy and respect for others; what philosophers call "the considerate way of life's. In this context, that covers race, religion and human rights, both inside and outside the law, and they are featured in our discussions.
In its submission to the Select Committee, the British Humanist Association stated that:The blasphemy law protects beliefs, not people. It is right, subject to safeguards, for society through its laws to protect individuals and groups within it from hatred and attack, it is quite wrong to extend the protection of the law to propositions, creeds and truth-claims".It goes on to express opposition to legal constraints on vigorous debates, including satire, mockery and derision, about beliefs and doctrines, religious or otherwise. It sees a clear distinction between this and incitement to religious hatred; that is, hatred of individual persons on grounds of their religious or other beliefs. The distinction between beliefs and persons is fundamental.
The National Secular Society, in considering offence to feelings, states:The use of the criminal law to prohibit offending the sensibilities or feelings of particular groups in society is inherently problematic, creating as it does insurmountable issues of legal uncertainty and imposing a major 'chilling effect' on free speech, in other words, self censorship".I have briefly touched on what seems to me as a humanist fundamental problems with which we as a committee struggled. What are laws for? Can law justifiably protect certain individuals but not others because of belief? What constitutes free speech? I have to say that the Select Committee, all along, was supportive of the rights of those who do not hold religious belief as well as those who do.
It will not surprise your Lordships to learn that we found gaps and inconsistencies in laws. The noble Viscount, Lord Colville, mentioned those. Perhaps we simply have to learn to live with this. I would prefer a more vigorous approach, more clarity and more emphasis on people rather than beliefs. What was clear in our interviews and in the written submissions to the committee was that people of all persuasions could hold a debate with mutual regard, recognising that differences need to be resolved.
The briefing from the British Humanist Association, the Muslim Research Centre and Justice points out that in eliminating gaps in the law on religious hatred, this would not,infringe disproportionately on the right to freedom of expression; and potential abuse of relevant legislation can be countered by effective safeguards".Can the Minister say how the Government's response to the Select Committee's report will result in action? I look forward to her response, and I admire her immense stamina.
§ 3.46 p.m.
§ Baroness Perry of Southwark
My Lords, I speak as a member of the Select Committee. The topic it had to address was unusually difficult but unusually interesting. I pay a warm tribute to my colleagues on the committee—to their wisdom, their warmth and their tolerance in our debate. I also pay tribute to the endless patience, good humour, charm and vast and awe-inspiring expertise of the noble Viscount, our chairman.
Like the noble Viscount, I do not believe there is any need for the abolition of existing law. However, unlike him, I believe that there is a case for new legislation. In considering any legislation in the area of religious belief, I was aware that over the centuries our society has evolved, slowly and organically, a balance between the religious and the secular. Despite the terrifying current events which may in the long term threaten that balance, bringing religion back to the centre of geopolitical events, most of our fellow citizens seem happy to have the balance left to develop in peace at its own pace. Certainly, there is no public demand for intervention from Government or Whitehall.
Echoes of the more religious society of earlier days still remain in our times and in our laws and can sometimes surprise us by their power. For 21st century England and Wales, it may seem odd to couple together religion and criminal law in any way, as freedom of religion and speech have been such integral parts of the value on which our society is based. But although they may not be widely known or used, there are still many facets of extant criminal law which relate to religion. You could, for example, find yourself in danger of criminal conviction because of things written, said or even drawn in pictures which offend against the common law of blasphemy, even though, as our chairman said, it is unlikely ever to be used again. In theory, you could find yourself committing a criminal offence under the 19th century Ecclesiastical Courts Jurisdiction Act if you exhibit "riotous, violent or indecent behaviour" in any Church of England cathedral, church or chapel, or in any certified place of religious worship.
Laws relating to religion must strike the difficult balance between the rights of one citizen over the rights of another and the balance of one freedom against another. The Human Rights Act 1998 incorporated into our domestic law the European Convention and gave us some absolute rights such as the right to protection of life, but most are qualified or limited because of that necessary balance between the rights and freedoms of one citizen against the rights and freedoms of another, or indeed the rights of individual citizens balanced against the need of the state to limit those rights in order to govern.
This comes into sharp focus in the question of the law relating to incitement to religious hatred and making that a criminal offence, where we must balance the freedom of conscience and religion in Article 9 against Article 10, which enshrines the right to freedom of expression.
452 Here is my favourite example, which illustrates the difficulty: let us suppose that I am sitting at Cambridge High Table, enjoying a lively conversation with a learned historian about the place of religion in history. He makes the point, certainly tenable, that religion has been responsible throughout European history for much of the conflict, torture, abuse of civil liberties and curtailment of freedom of thought and speech. Is he inciting those around him to religious hatred? Could his remarks then constitute a criminal offence? Leaving aside whether anyone would wish to report him, on some interpretations it could be possible that his words would be found to constitute a criminal offence. Surely we need to pause before taking even the smallest step towards such a damaging curtailment of freedom of speech.
Parliament. therefore, was right in asking the Government in 2001 to think again before creating this potentially dangerous criminal offence. Instead, our committee was asked to consider whether an offence could be created that did not breach the Article 10 right to freedom of expression, and also to consider whether some existing criminal laws, such as the blasphemy law or the Ecclesiastical Courts Jurisdiction Act 1860, needed abolishing. At least, I believe, there may be some need to amend or extend them in the case of blasphemy to include other religions, perhaps most particularly the Muslim religion.
I said earlier that there was no great public demand for alteration of the existing law. Among the witnesses from whom our committee received evidence, however, there is a great disparity of views as to what should be changed, and whether any change is necessary. Some witnesses represent those who feel that the time has come for our country to abandon its religious heritage and become overtly secular. At the other end there are those who wish to preserve the law exactly as it is, with protection for the Christian religion and none for other faiths. Either of these extremes runs the risk of tilting the delicately evolved secular and religious balance of our society.
Religion is more than faith. The third group, perhaps representing the majority opinion now in this country, is happy to see the multi-faith nature of our society reflected in our law, with protection for the faith of all citizens, but wishes also to see respect for the Christian character of our national identity and the cultural, historical and constitutional roots of England and Wales. Many of that majority are not regular churchgoers—some might even hesitate to call themselves Christian—but they feel nevertheless a deep sense that their national and cultural identity is bound up with what has been for centuries the national religion. It is not only Christians who have this underlying sense of national identity with their religion. In evidence to the Select Committee, the Commission for Racial Equality said:For many ethnic minority communities there is a close relation between race and religion, and identity through faith is as important as identity through racial origin.453 The law on blasphemy provides perhaps the quintessential example of the difficulty of tampering with existing law. It is common law, so not enshrined in statute, and lawyers themselves disagree about what it says. It is clear that it protects the essence of the faith and not its adherents, but for thousands of people—and it may well be millions—that law forms part of what has been described as the "sacred canopy" of our nation, offering protection to all Christians, certainly, and to those who sympathise with the Christian religion, but also believed by many of other faiths to be an expression of our abhorrence of those who would vilify what others hold sacred. It is therefore seen, perhaps wrongly but nevertheless importantly, as offering protection to all people of faith against abuse.
There is a temptation to suppose that it would be simple to extend the law against incitement to racial hatred and include incitement to religious hatred. There is, though, a danger in assuming a clear parallel between the two. Being offensive to or about people on the basis of their race is patently wrong, because none of us can change the race to which we belong. Religion, however, is a personal choice. Persuasion by those who thought a choice ill-advised might change my mind and allegiance. Evangelism, of whatever creed, rests on that assumption. We may find some evangelising intrusive and tedious, but should we make that criminal?
Although it is apparent that I am no lawyer, I find myself in agreement with the correspondent who wrote to me from a multi-racial and peaceful county in England, saying that a new law on religious hatred would be likely to stir people up, emphasises conflicts where none existed, and encourage litigation, so making matters worse, not better. Nevertheless, some protection for followers of all religions and no religion, and for the sacred objects and places of all religions, should be enshrined in law. I say it is up to the lawyers, working with, but not beyond, the pace of social opinion, to find words that will offer protection against wilful and malicious offence against people because of their faith or against their sacred beliefs and objects. Legislation on these lines must stop short of criminalising what Lord Scarman called "decent and temperate language", the language of academic debate, leaving my imaginary High Table historian to be spared.
I would like to end with the words of an international student, on a Master of Theology course at London University. He wrote in his dissertation:The doctrine of human rights is man's attempt at exercising his responsibility as God's steward on Earth, in that it seeks to challenge all the injustices that distort the image of God in man. It is an attempt to establish a social condition where there are harmonious and peaceful relations among the people of the world, and where people are able to realise their full potential as God created I hem.I can find no better words to describe the exercise in which legislators need to be engaged, as we seek to balance the freedom of faith and expression and, while so doing. to preserve, as we daily pray here,the peace and tranquillity of the realm".
§ 3.58 p.m.
The Lord Bishop of St Edmundsbury and Ipswich
M y Lords, I am grateful to the Select Committee and to the noble Viscount, Lord Colville, for this comprehensive and helpful report that laid out the issues so clearly. I was interested in his introductory speech. which seemed to throw another light on the report. Finding our way around that in this debate will be interesting. I regret that my friend the right reverend Prelate the Bishop of Portsmouth, who was a member of the committee, is unable to take part in the debate today. I know that he would have made some vigorous contributions, and we shall miss his robust presence.
I sympathise with the committee for not being able to bring forward an agreed set of proposals in relation to religious offences legislation. From my own experience of the last years on the debate on sexuality and the Anglican communion, it is difficult enough to find a consensus in one religious system. never mind finding an inter-faith consensus, as my postbag reminds me more or less daily. Having said, that, the work of the committee, and the publication of the evidence submitted to it, has helped to focus people's minds. It has encouraged, subsequent to the report, more inter-faith discussion. Most of the original evidence and oral evidence was from representatives of particular faith groups, but more is now emerging from inter-faith conversation, and this obviously is essential to any sense of consensus.
What common ground is there? First and foremost, discussion has highlighted the considerable and widespread concern about acts if religious hatred, in terms of attacks, threats of attack and various forms of incitement, including publications. It has been said in a number of quarters that things have gone quieter since the first responses to 11 September, but it depends on what your definition of "quieter" is. The message coming clearly from many faith communities, and expressed strongly by inter-faith groups, is that attack and the threat of attack on religious groups and individuals is a daily concern. It is dangerous to base a definition of "quieter" on the low number of prosecutions or on fewer newspaper reports. Experience is that a high proportion of incidents go unreported. But it is not difficult to see why that should be so: either because the chances of catching, let alone convicting, the perpetrators is seen as low. or simply because of the fear that involvement by the authorities may escalate a local situation and more obviously identify a target. The point is that at present all religious groups are reflecting a common concern about the level of incidence and the continuing fear associated with the threat. Things might well seem quieter but that does not mean that nothing is happening.
In the Select Committee report, the widespread concern expressed by religious groups is the basis for urging a law that specifically addresses religious hatred and incitement to religious hatred. The report argues that existing civil and criminal law addresses most situations cited in the evidence given to it. But the 455 Select Committee recognises that there is a gap in the law, particularly if current laws on religious offences are repealed, but de facto a very small gap.
Having read the responses to the Select Committee report, particularly some of the inter-faith statements, I suggest that it is not the size of the gap but its significance that is the issue for those who feel vulnerable. That is probably most clearly demonstrated by the fact that the Jewish and Muslim communities argue for the retention of the law of blasphemy. Although they recognise that in practice it applies only to the Christian religion, and possibly only to the tenets of the Church of England, the apparent umbrella effect of that legislation is significant to them. They do not want it removed unless something tailor-made, covering all religions, is put in its place.
Turning full-circle, the common ground seems to be the desire that legislation should apply equally to all faiths and religious groups. The issue of incitement to religious hatred needs to be specifically addressed in law. If that happened, concerns about the retention of the law on blasphemy would diminish and it would be allowed to go in the direction indicated by the noble Viscount, Lord Colville.
There is a second concern about another potential gap in legislation that would emerge if most of the existing law on religious offences were repealed as the report suggests. Again, I am interested in the comments made by the noble Viscount, Lord Colville, in introducing the debate. I shall also be very interested to hear what the noble Lord, Lord Avebury, says. I tread hesitantly into this area, but if I make my point, noble Lords can tell me later where I have got it wrong.
The particular concern, which has already been touched on, relates to desecration and the disturbance of religious services. If it is assumed that those will be covered by Section 5 of the Public Order Act 1986, a gap seems to emerge in relation to offences currently covered by Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860. I understand that the Public Order Act does not criminalise desecration as such. Even if the conduct in question could be said to be "threatening, abusive or insulting", it would have to be committed,within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".In other words, it would not cover certain kinds of desecration—that which took place when no one was present, and when the desecration caused offence but not criminal damage. In terms of religious sensibilities, in a fairly highly charged general atmosphere I do not think that that is a marginal question. Perhaps, therefore, the 1860 Act could be left as it is. However, I am sure that we shall hear more from the noble Lord, Lord Avebury.
I thank the noble Viscount, Lord Colville, for this helpful report. I hope that the debate that he has stimulated through the Select Committee and its report will provide a constructive basis for taking 456 matters forward. I should add that the communities likely to be most affected also feel a sense of urgency, triggered by their daily experience.
§ 4.5 p.m.
§ Lord Judd
My Lords, I, too, thank warmly the noble Viscount, Lord Colville, and his committee for a very distinguished and thoughtful report. Some might ask where are the recommendations. Sometimes in politics there is too much rush to make recommendations. It is important first to do the reconnaissance. This is a superb piece of intellectual reconnaissance, for which the whole House should be grateful.
I declare an interest: I was the son of a Nonconformist father and a Church of Scotland mother, and have been led with great satisfaction into the Church of England by my wife. There I find myself very much at home when it is being what I believe the Church of England should be about: inclusive and tolerant.
The report refers to the undoubted fact that we live in a multi-faith society. I have been troubled in recent weeks by the debate about whether we are a multicultural society. I do not understand what point is being made. Given my background, even within the broader context of Christianity, there is no doubt that we live in a multicultural society. The cultural implications of being a committed member of the Church of Scotland, or a Baptist, or a Church of England adherent, are different and far-reaching. Of course we live in a multicultural society. We should rejoice in that, because that is part of living, and the fullness of living is recognising the richness of diversity and creativity.
If we live in a multi-faith and multicultural society, it does raise problems. I hope that the right reverend Prelate will forgive me for saying that it raises problems and challenges about the future place of the Church of England in that multi-faith culture. If we have respect for all religions, humanism and the rest equally, it is, to say the least, a little questionable whether special attributes in our society should rest with one particular denomination of one religion.
I come down firmly in favour of a society based on human rights and mutual respect. That should be our starting point. The right to beliefs and convictions, not least faith, humanism, atheism, agnosticism, should be taken as seriously as the right to property and its protection under law. My concern is that in our tradition in Britain we give a great deal of attention in the law to protection of property, but the protection of people's sensitivities, convictions, and intellectual positions is at least equally important. The noble Viscount drew our attention to the existence of—I think his words were—the good deal of law about, and said that before we rushed off to make new law it was just as well to look at it. I wonder whether he would agree that the existing law in these areas has grown like Topsy and is a bit confusing, particularly for the layman.
In the adjacent area of race relations, this is of course true. As the report emphasises, there are special provisions—I am glad that they, at least, are there— 457 for Jews and Sikhs, but not for Christians or Muslims, because they are held not to have a common ethnic origin. I am not sure that it is as simple as that. I am never sure where the issue of conversion fits into this approach. Some are now arguing that a special provision should be made for Islam because of the de facto situation with which we are confronted.
I am a member of the Joint Committee on Human Rights, and we are considering this issue at the moment in our deliberations. I have some anxiety about that proposition. If people of the Islamic faith are not enjoying their human rights as they should be enjoying them in our society, that issue needs to be addressed as that. However, to try to reclassify Islam as a means of overcoming it, when we all know that there are people of different ethnic origins in the Islamic faith. seems to be unsound. I am open to persuasion, but as of now, I am not convinced.
It is high time for a comprehensive review of the law in these areas. We often say that one of the great things about the operation of the law is that justice should always be seen to be done and not just done. If justice is to be seen to be done, the law must be clear and the layman must be able to understand it. If there is confusion or obscurity in the law, that makes it difficult to carry maximum public conviction in all circumstances about justice being done.
I repeat that the objective that I hold is that, ideally, legal enforcement of human rights as a whole should be the basis, and we ought to be wary of sectoral legislation for special rights, because this could too easily lead to a perceived hierarchy of rights, which would be unfortunate. The Select Committee has sensitively touched on this issue with its reference to hatred. The issue is hatred; and hatred matters, whether it is against someone of a particular religious conviction, or against a homosexual, or against an asylum seeker. I thought that that was a good point made by the Select Committee. We must examine more closely the fundamental issue of the human rights that people should be able to enjoy and the safeguards that protect them as the individuals that they are, in making up our total society. If we took that kind of approach, the rather archaic preoccupation with blasphemy would quickly find its own level, as the right reverend Prelate and others have indicated.
I finish with the observation that, whether one is talking about race relations or about religious tolerance, the law of itself is not the answer. The answer is to work and provide political leadership inspired by the principles of inclusiveness, tolerance and respect. It is when we start using the language of exclusiveness that we start dashing to the law to protect ourselves from the ugly consequences of the culture that we are generating. We need the law, but the law should be there to put the seal on and underwrite the culture of our society. If we really care about such issues, we must look to the quality of the leadership in all our political parties with regard to the kind of society that we believe in and the fact that all people in our society should be able to enjoy their rights to the full and not suffer in any way.
§ 4.15 p.m.
§ Lord Campbell of Alloway
My Lords, it is always a privilege to follow the noble Lord, Lord Judd. I share most of his views, though not all of them. On the last view that he expressed so well—the law is not itself, of itself, the answer—I could not agree with him more. I agree with the balance of the assessment made by the noble Viscount, Lord Colville of Culross. We do not have to bridge that gap. The Bill proposed by the noble Lord, Lord Avebury, should be allowed to die a painless death.
As the offence of incitement to religious hatred was removed from the Anti-Terrorism, Crime and Security Bill by an amendment moved by me, I have an obvious interest to declare. My opposition to that offence was and remains based on three simple reasons, reflected in the noble Lord's speech. First, there is, to put it very straight, absolutely no need for a specific offence, as any relevant conduct could be dealt with under extant law, under Clause 39 of the Bill as it was. which enabled the passing of harsher sentences if the offence was aggravated by religious hatred, building on a system set out in the Crime and Disorder Act 1998 for increased sentences for certain offences aggravated by religious hatred. As has been said, there is also the common law on incitement.
The second reason is that it is not so easy to define religion for such purposes. In that context, I was rather foxed by the speech made by my noble friend Lady Perry of Southwark, although I am sure t hat she was right. I could not understand the distinction between faith, religion and doctrine. I was totally out of my depth. Religion, whatever it is, is not so easy to define for these purposes; nor is it so easy to determine what is an expression of hatred and what is a justifiable expression and exercise of the freedom of speech, as set out in Article 10.2 of the European Convention on Human Rights.
The third reason why I opposed the offence was that the proposals in a document produced by the noble and learned Lord the Attorney-General were not to the point. However, in a spirit of amity, I now withdraw the assertion that I made that they were meretricious, as that caused unintended offence. That is the basis on which that amendment was introduced and on which, before the report was published, the House accepted the removal by a substantial majority.
My somewhat simplistic approach appears to have commended itself, by and large, to certain members of the Select Committee, but I am not pretending that this was a unanimous report. However, the report was a monumental exercise of academic importance and an exposition which clarified an extremely complex subject in the light of a mountain of evidence. It is a tribute to the chairman and to all members who served on that committee.
On reading that report, I changed my mind in respect of blasphemy. I thought that it was otiose and therefore should not be retained. But on reading the report, there appears to be a strongly arguable case as it also affords protection for the other faiths. On that basis, I have changed my mind. But there is reason to 459 think that Christian Voice may have misunderstood the constitutional position. I thought that my noble friend Lady Perry of Southwark put it so elegantly; that is, the balance between the religious and the secular. That is precisely what Christian Voice seemed to ignore, albeit, one accepts, that by an exchange of oaths on the coronation of King Edgar in 973, the Church in England, under the aegis of the Church of Rome, became an estate of the realm. But things have changed since 973.
In conclusion, the Government's response to the report seems to be incredibly wishy-washy. They are equivocal as they stand by retention of the offence. All Governments stand by whatever they have done, whether they are right or wrong. It is perfectly understandable, but there is no reasoned support for the retention of that position. They then concede that further debate is requisite. For the reasons that I have given, it was inevitable that I should take note of the report with an expression of profound gratitude, as indeed I do.
§ 4.23 p.m.
§ Lord Bhatia
My Lords, first, I declare an interest as a Muslim and as chairman of the British Muslim Research Centre. I was also a member of the Select Committee that produced the report for your Lordship's debate today. The report highlights an important issue on which I should like to elaborate, not as a Muslim and not as person from the ethnic minority communities, but as a citizen of this country and as a parliamentarian.
Being a member of the Select Committee, and having seen the final report being debated today, I became increasingly aware that Parliament creates new laws to ensure that democratic principles are upheld and that all citizens and institutions are required to fall within the important parameters of fairness, equality and human rights. Indeed, in order to ensure that that is translated so that it affects the real daily lives of our citizens, the Government have created institutions such as the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission to be the watchdogs with powers to prosecute those people, institutions and corporations that breach the law. Finally, all new legislation has to be certified as compliant with EU human rights legislation, to which we are a signatory.
Despite all these safeguards, I have come to realise that there is no protection for citizens of this country when the state itself passes legislation which does not treat all its citizens equally, which does not protect all citizens equally and fairly, thereby leaving some in a dangerous and vulnerable position, even to the extent that their lives are threatened.
Let me give some examples of how different laws and statutes have created the most undesirable position highlighted in the report. We have the law on blasphemy which goes back over a few hundred years. It protects only one sect of one faith. I should like to put on the record that even if a law protects only one 460 faith I would not want to replace or repeal it. It is my view that at least one faith is protected against vilification or attacks by profane and ignorant people who are at times incited by extremists. I believe that in repealing the law on blasphemy, we would hurt the feelings of millions of our citizens who genuinely believe that the law provides them with a canopy of protection against the vilification of their deeply held beliefs.
But in keeping the law in place, we are creating inequalities in law by not being able to protect other faiths. It is obvious from the report that it would be difficult, if not impossible, to reframe the existing blasphemy legislation to protect the sanctity of all faiths. If that is the case, I feel that it is incumbent on all of us to ensure that new legislation is passed by Parliament to provide the same canopy of protection for all faiths.
Under the race relations legislation there exists yet another anomaly and inequality. Only two faith communities are protected against incitement to religious hatred and discrimination. I hasten to add that this legislation protects the people and not the sacred elements of the faith or the deity, as under the law on blasphemy. I should also like to put on the record the fact that I do not in any way seek the removal of the protections afforded to the two faith groups. It is better to have the people of at least two faith groups protected than none. But any law that chooses to protect two visible faith groups against discrimination, but fails to offer such protections to other visible and demonstrably discriminated against faith groups, is in contempt of the principle of equality.
Paragraph 41 of the Select Committee states:The law of blasphemy is discriminatory. It prevents (say) a Muslim from speaking about the sacred entities of Christianity in ways that would not be criminal if a Christian were to speak in similar terms about Islam".Paragraph 44 goes on to observe:It is difficult to justify a law which protects the sacred entities of Christianity but does not offer similar protection to other faiths".Parliament and the Government cannot be found to be discriminating against some of their own citizens. As matters stand, we are possibly in breach of the European Convention on Human Rights and, indeed, of our own democratic principles of justice, fairness and equality.
I turn now to the issues of human rights and freedom of speech and expression. Like most Members of this House and those of another place, I want to be sure that, in creating a new law, we do not stifle freedom of expression. It is a cherished part of our democracy and is indeed the bulwark against any attempt by the people or Government to stop anyone from expressing their right of free speech.
However, as has been shown in the report, freedom of expression under human rights law is a qualified freedom. It carries with it duties and responsibilities and, therefore, in framing any new legislation on religious incitement, we will be able to protect the people of all faiths against hatred and incitement and yet preserve the balance and not breach the provisions 461 on freedom of expression in human rights law. I remind noble Lords that the issue of human rights and freedom of expression were not raised or even considered a hindrance when two faith groups were protected under the race relations legislation.
I turn briefly to the evidence given by various people to the Select Committee. I was most struck by the evidence given by the law enforcement agencies such as the Attorney-General, the director of the Crown Prosecution Service, the police and the Home Office, all of whom clearly stated that there is a gap in the law. They would like to have a law in their armoury to enable them to protect all faith groups in the United Kingdom.
I want to bring to your Lordships' attention some key parts of the report to remind ourselves of what has been given to us during our investigations and consultation. Paragraph 13 of the report states:It is, however, important to recognise that continued tranquillity depends not only upon continued mutual tolerance but, equally, on equality of protection from intolerance oh the basis of religion or belief or no belief".In paragraph 15 the report states:The general complaint at present, and particularly from the Muslim community, is hostility which, while racist in origin, is often expressed in religious terms that are not at present illegal. This concern is increased by the perception of the fact that other faith groups are protected from hostility (by the blasphemy laws, race relations and public order legislation), while theirs is not".Paragraph 15 goes on to state:A key element of the Muslim perception of their marginalisation under the law is that they do not enjoy the widening of the definition of 'racial group' by case law, which some religions clearly, and in their view rightly, do. One result of this is that, when the Public Order Act 1986, Part III, created new criminal offences of incitement to racial hatred, it automatically applied to these groups. but not to Muslims and other faiths which draw support from more than one national or ethnic group".Still continuing on paragraph 15, the report states:This is seen as a most damaging state into which the law has progressed. The Muslims certainly think so, and the Attorney-General, the Home Office, the Police and the DPP agreed that it is undesirable. If Sikhs and Jews are to be protected from incitement to religious hatred and if this is considered to be a legitimate restriction of free speech, the same standard should be applied to Muslims, Christians and other faith communities, otherwise there is clearly a breach of Article 9 combined with Article 14 of the European Convention on Human Rights".Paragraph 137 of the Select Committee report concludes:We support the protection of everyone's right to freedom of thought, conscience and religion, and the freedom to manifest one's religion or beliefs, under Article 9 of the European Convention … and we consider that the ordinary law gives that protection. We agree however that there is a gap in the law as it stands. We have examined whether there needs to be any additional protection either for believers as a class, or for the objects connected with their beliefs. There is no consensus as to whether such protection should exist and, if so, the precise forms they should take, but we do agree that the civil and criminal law should afford the same protection to people of all faiths, and of none".The Select Committee Report has thrown up a number of interesting models that we could adopt and I would suggest that the Humanist Association's proposed draft on page 33, paragraph 112, is one that we should consider.
462 In enacting new legislation, we will not only be protecting faith groups, but also in no uncertain terms signalling to those bigots and prejudiced extremists that Parliament has drawn clear lines as to what is permissible and acceptable and what is not.
Delay in legislating on this issue is causing a great deal of concern, anxiety, fear and loss of trust in the Government of this country and indeed in its democratic processes. When sections of the population feel that there are different laws for different people, we have the making of an unstable society. Sooner or later, unrest, instability and violence will manifest themselves. That is the lesson history has taught us.
We have seen what happened in Europe in the past century when racial prejudice, unchecked, unchallenged, cost millions of lives. The recent events in Yugoslavia are a stark reminder that religious bigotry and prejudice have to be dealt with at the right time.
Despite all these demands, I find it difficult to accept the response to this report of the Secretary of State for the Home Office, at paragraph 14 on page 2, when he says:The Government has no immediate plans to reintroduce a proposal for such an offence following its withdrawal from the 2001 Bill, but will consider doing so if an opportunity arises in the future".I would like to put before your Lordships this plea: is the Home Office waiting for dozens of people to be killed, to die, before you move to legislate for this? What is this prevarication, waiting for the right time to legislate? I suggest—I beg the House—that the moment is now for us to move forward to legislate in this very clearly defined gap that has been very clearly shown up by the Select Committee.
§ 4.35 p.m.
§ Lord Desai
My Lords, I disagree with the noble Lord, Lord Bhatia, which distresses me very much because I have great respect for him.
I welcome the report and the way in which the noble Viscount, Lord Colville of Culross, introduced it. I played a small part, alongside the noble Lord, Lord Campbell of Alloway, in strongly opposing the introduction of the religious hatred clause when the Anti-terrorism, Crime and Security Bill was being debated. I am still not happy that the additional punishment part of it has survived. In hoping that the main clause would be deleted, we did not pay attention to it and the extra part survived. I hope that will be removed as well.
Some of the grounds on which I opposed it have been covered already in the debate today. I think that while people need protection—and all people need equal protection—their beliefs do not. All beliefs are equally valid and I do not see why some beliefs should be privileged over others just because they involve some concept of God.
I was born a Hindu but I am no longer a believer; I am an atheist. I very much regret the recent raising of religion to a higher level in our political discourse, especially since 9/11, when it seems that religion is seen to be the cause of all problems as well as their solution.
463 We should disassociate some of the hatred that has been expressed towards Muslims and other communities and make it clear that the issue is not religion. The people who insult Muslims, Hindus, Jews or Sikhs are not making a theological or religious point; they are making a political point which is very akin to a racial point. But, because we have defined "racist" in a particular way, we cannot extend the legislation to all communities, faith or non-faith. I am very much puzzled that two communities—Jews and Sikhs—enjoy this particular protection under current race law. I have never been able to understand why and I have argued in debates that it is an anomaly.
But I do not think that anomaly should be used to extend that protection to other particular communities. By doing that we would place those communities in greater danger than they are in now. The brunt of my comment at the time was that if Muslims were singled out and afforded special protection along with Sikhs and Jews, it would do nothing but harm the Muslim community. I strongly believe that.
The whole point is that we should not treat communities as faith communities; we should treat people as people. If we do that and there are sufficient safeguards in the present legislation for their lives and liberty and their right to profess their faith in circumstances that they would like, we do not need to protect beliefs. I do not think that any beliefs—including my own—are of a sufficiently unchallengeable nature to enjoy the protection of the law. Everyone should be able to express their opinions; after that, having expressed one's beliefs, the common law and the criminal law can take over in relation to what one can and cannot do. I do not believe that we should privilege beliefs as such.
That is why I welcome the report of the committee. It clearly puts forward issues which are legally technical in nature. The committee has pointed out the various aspects of inciting violence and hatred and blasphemy and so on but, quite rightly, it has not been able to come to any strong conclusions because this is a subject on which a strong conclusion either way could do nothing but harm.
I also agree with the general tenor of what the noble Viscount who chaired the committee said. We should be careful before we start adding new laws to the existing vast body of law. We should really be looking at what we can eliminate from it. I will not take any more of your Lordships' time: I greatly welcome the report. My race is not a matter of my choice, but my religion is. Many people change religions.
The paradox is that if there are exclusive religions that do not proselytise much and therefore their coverage is restricted, it is easier to identify those religions with races, as happened with Sikhs and Jews. If a religion is universalist and recruits people across different races, that religion would be disadvantaged, because we could never say that Christians or Muslims are a race. The Muslim religion is so universal that a variety of so-called races have been converted to Islam.
464 I know that this is not going to happen, but I am famous for saying things that are not going to happen; I urge them all the time. I would very much like some clever lawyer to find a way in which the current protection that exists—the anomaly over Jews and Sikhs—could be removed so that we returned to a universal principle whereby people are protected but faiths are not.
§ 4.42 p.m.
§ Lord Joffe
My Lords, the excellent Select Committee report on religious offences has analysed in depth and with clarity the issues in our law relating to religious offences. That analysis will greatly facilitate the preparation of any future legislation. The noble Lords who have already spoken have covered all the relevant issues. I wish briefly to touch on the issue of the timing of future legislation relating to incitement to religious hatred.
As my noble friend Lord Bhatia pointed out, all our main enforcement agencies, the Select Committee itself and the Home Office agree that there is a gap in our law that protects Sikhs and Jews but no other faiths or beliefs. When a gap is identified it must surely be closed, particularly when citizens and communities are placed at risk by it.
As a Jew, and by training a human rights lawyer, I postulated to myself what my reaction would have been if there was a law in the United Kingdoms that protected Muslims but excluded Jews from its protection at a time when Jews needed protection. I would have been outraged and felt excluded, angry, nervous—I suspect—and disappointed in British justice. I would have felt unjustly deprived of protection to which I was entitled as a British citizen. It would not have begun to satisfy me to be told that it was difficult to draft such legislation and that the Government would consider getting around to it sometime.
If it is complex and difficult to draft such legislation, the sooner the Government start work on the drafting the better. Such legislation is particularly urgent at the present time when Al'Qaeda terrorism could lead to a backlash against the British Muslim community. That community should feel and see that Government are doing whatever possible to protect them against such a backlash, including starting work urgently to put in place appropriate legislation.
§ 4.44 p.m.
§ Baroness Uddin
My Lords, it is a great privilege to follow the noble Lord, Lord Joffe. I hesitated to venture into this debate about religion, and I tread with trepidation, but having listened to the debate so far, I have convinced myself of my place here. I would love to have been a lawyer and been part of the group who discussed these matters. I can imagine the prolonged debates that I would have had with my colleagues, always trying to ensure that a woman's point of view was put forward. I am pleased that that point of view has not been taken up today and that I am left having to say something that has not been said before. It is a great privilege be able to contribute to the debate.
465 I went through the report a little hit yesterday. I apologise for not having done it justice, but to maintain the convention of the House and to please noble Lords I shall at least mention a line. The concluding chapter refers to the fact that the United Kingdom is not a secular state. In light of that comment, I feel comfortable raising the matters that I am about to raise.
What does it mean to have the protection of law? I have been in the House of Lords for six years, and I ought to know better—but I obviously did not, in relation to the concept of religious offences. At its simplest, it is about being assured of receiving equal rights and treatment before law and in the institutional fabric of the society in which we live. I almost wanted to remain seated after I heard the noble Lord, Lord Joffe, speak, because I thought that he had covered everything in a few words, while I will labour to say what I have to say for a number of minutes.
Such protection may impact on not only recourse to law, when attacked or sacked by someone, but also the services. Noble Lords should never forget that I am a social worker at heart. We are referring not only to terrorism, criminality or recourse to law for complex reasons on which lawyers like to prevaricate. We are referring also to people's rights to services, and particularly women's rights to services—and their right not to have their scarves taken oft', to have pigs' trotters thrown at them or their children pulled from their buggies, after which they may say, "This was done to me because I am a Muslim". We are referring to those sorts of measures.
We are talking about something more fundamental and basic; about having the protection of law in cases of religious discrimination. I hesitate to use the word "fanatic", but those of us on the fringes, who are suffering the debates on multiculturalism, have now become fanatics. We would argue that race relations as they have been discussed previously have failed to impact on the lives of the largest minority in the UK—the Muslim community.
It is my contention that British citizens of the Muslim faith are excluded from such equality as they aspire to. Britain is regarded as a country of Christian faiths, where secularity sits very comfortably. I believe that 75 per cent of the electorate describe themselves as of Christian faiths. I find that very comforting. Therefore, debating whether to have protection from religious discrimination is surely an affront to the notion of free speech that we have all talked about today. Rights and protection from religious discrimination should be embedded in our psyche and our law.
I agree that our diversity is evolving. The noble Baroness, Lady Perry, very eloquently mentioned something about balance. I would put forward the argument that, while there has been an evolution towards embracing religious faiths as part of society, Muslims—particularly Muslim women—have not been allowed to take part in the evolving nature of faith. We have not been allowed to be comfortable in developing our faith. Many of us who have brought 466 faith with us from another country as part of who we are have not been allowed to develop ourselves or modernise our thinking. We have been sat on or oppressed. Any reaction that we have is often defensive. In a fair society that evolution should be allowed and it is not. In a fair society legal protection for an individual is taken as read. Affording protection against religious discrimination should therefore be a matter of natural justice and of rights.
There has been some progress in protection: I am not saying that there has not been. European legislation is a case in point, but I am sad that it was not Britain—which has a proud tradition of fairness, equality and race relations law—which led on that and that we have had to rely on Europeans to dictate that legislation. Perhaps that indicates my position on Europe. Of course, much work has been done. I agree with the noble Lord, Lord Joffe, and with other noble Lords who have mentioned that bodies such as CRE and other enforcement agencies have said that there is a gap. That gap must be filled. When we are debating whether we live in a free and fair society and whether certain people are suffering, we do not need to go further than to those enforcement agencies that we have brought in by legislation.
Let us move beyond this rushed judgment about whether we need it and take it as read that we do. I think that the noble Lord, Lord Judd, who mentioned semantics and throwaway gestures—I am obviously paraphrasing him—was right to say that we do not need to hurry and that we need to look at the matter. But I also agree with the noble Lords, Lord Joffe and Lord Bhatia, that we do not have too much time to waste before legislation is proposed and that legislation should be led by our government.
There has been a lot of discussion about impact. I said earlier that I was going to bring in the position of Muslim women in particular. I talked to women's organisations—An-Nisa Women's Society and the Muslim Women's Organisation in Brent—just before I entered the Chamber. I asked what impact it would have on them. I also talked to some of the women who are trying to get into the political process to represent various political parties. There was a consensus. They said that because they are Muslim women they experience barriers, fundamentally because it is simply assumed, for no apparent reason, that Muslim women are somehow barred by their community or their religion from entering politics.
I can speak from experience and may have mentioned this before. I have been in local government politics for more than 10 years and not too long ago it was suggested that if I, as a Muslim woman, were to represent a well established Labour seat it would put it at risk. This experience was about 10 years ago. I have spoken to a number of Muslim women trying to infiltrate political parties now and they say the same thing. They have no recourse to law or to the political parties against that perception. You have to say that perception is two-thirds of the law. Having chaired the government working party on political representation, I know that that has not changed and, if anything, it has worsened, particularly for Muslim women. So 467 there is every reason for considering, in a whole range of ways, why people feel that they are discriminated against, simply because of their religion. There must be some truth in it.
I have gone on a little on a personal level, but I am deeply proud of the tradition in Britain that we honour a just equality for all. We must be able to say something without having to defend our position as British Muslims. I disagree fundamentally with my noble friend Lord Desai that religion is chosen, that it is a matter of choice. I adore him, but I do disagree with him on this. For me, religion was not chosen, it was simply a fact. I was born who I am, and for many of us that is exactly how it is. That is why we cannot separate ourselves from the unequal treatment that many of us have to receive, saying that we receive it as a woman, or because we are incompetent professionally. We feel that we receive it simply because we are Muslim. That sort of feeling has to be respected if we are talking about free speech.
We cannot get away from those men, women and children being and feeling persecuted because of their faith, in whatever form that takes. There is also a certainty that, collectively, Muslims are having to face extreme acts of prejudice without recourse to the law. That is not acceptable.
As a card-carrying Labour member since I was 16 years old—or in fact just before, illegally—I regret that our 1997 manifesto promise, seeking,an end to unjustifiable discrimination wherever it exists,",has been lost among the countless dossiers of one kind or another, as well as actions arising out of the various anti-terrorist legislation measures. There is definitely a perception that we are at war against Islam worldwide, so legislation cannot be hidden under criminal or anti-terrorist measures. In the new world order of language, if the Government are not with us, they will be perceived by Muslim communities as against us. They can very quickly dispel this misunderstanding by enacting law which affords such protection. I hope my noble friend the Minister will surprise us with some kind of announcement.
§ 4.57 p.m.
§ Lord Avebury
My Lords, the noble Baroness, Lady Uddin, has articulated the feelings which I think are fairly common among the Muslim community, but ones that we do not very often hear and ones that we particularly welcome coming from Muslim women. I think Muslim women have not found their voice. Perhaps one of the shortcomings of the Select Committee was that it did not have enough evidence that came specifically from women's groups, and particularly from Muslim women's groups.
I begin by paying warm tribute to the chairman of our Select Committee, the noble Viscount, Lord Colville—who has already been widely praised, and not just by those who served on the Committee. Without his patience and skill as chairman, we would never have got through the work. We were, as he described in his remarkable speech which opened this debate, made up of many different 468 views. There were eight different religious faiths represented on the committee. The fact that we worked through questions of a more than ordinarily controversial nature without coming to blows—in fact in the spirit of mutual tolerance which we identified as being essential to the continued tranquillity of society—was largely due to his chairmanship. I thank him and pay tribute to his excellent work.
However, I have to express some disappointment. Even though, in accordance with Erskine May, the Government had undertaken to respond to Select Committee reports within six months, it took them eight in this case, and another four have elapsed before time has been found for this debate. Perhaps the Government consider that, as the Committee had made no recommendations, our analysis of the problems could be given a low priority. We think, on the contrary, that there are important questions that need to be addressed by the House, and we have heard a great deal about them this afternoon. On the matters covered by the Religious Offences Bill, there were differences of opinion among the members of the committee, and those are for Parliament to resolve. However, I shall begin with the one matter on which the committee was unanimous, and on which the Government have chosen to move in the wrong direction. It has already been mentioned by the noble Viscount.
In the Criminal Justice Act, the Government added to the list of crimes to which specific kinds of aggravation may be attached, with their own different penalties. While noting the committee's argument that scattering the provisions over several different statutes would lead to complication and inconsistency, the Government believed that the added complexity—although not the inconsistency—could be managed through the sentencing guidelines. The Government argue that, with higher sentences for some aggravated offences, they become triable each way.
However, under our recommendation, those maximums would have been applicable to the basic offences, and the question of whether an offence was aggravated would have been dealt with at the point of sentencing. Therefore, the offences would have become each-way offences, to be dealt with under mode of trial guidelines without having to spell out the aggravating factor in the charge. The Minister has to address that matter. If the Government have gone in the wrong direction, and if our committee was right, we need to begin to think immediately about how to put things back on track.
I welcome the new power that the Attorney-General has had since last September to refer unduly lenient sentences for racially or religiously motivated aggravated assault, criminal damage, public order offences and harassment to the Court of Appeal. However, does that not simply underline the inconsistency of the Government's treatment of aggravation, to which I drew attention when noble Lords discussed the new proposals relating to disability and sexual orientation in Section 146 of the Criminal Justice Act? There was no increase in the penalty for those Section 146 offences, which means 469 that the Attorney-General's new power does not apply to them, as I read it. The Minister will correct me if I am wrong.
The CPS has published the statistics on convictions for religiously aggravated offences between the end of 2001, when the new category came into effect, and 31 March 2003. In those 15 months there were 18 cases, of which seven were discontinued or led to acquittals, one was dropped for insufficient evidence, two led to convictions on the non-aggravated offence, and the remaining eight were convicted on the aggravated charge.
The CPS, recognising perhaps that the public would be surprised by the small numbers, speculated that there might be more cases as publicity led to the issue being taken more seriously. In the 12 months up to the end of March 2003, the number of racially aggravated prosecutions was 3,116, and the conviction rate was 85 per cent. Considering what we know anecdotally of those offences, it may be that some offences identified as racially aggravated were actually religiously motivated, but that the CPS found it easier to use a charge with which it was more familiar.
Under the scheme recommended by the Select Committee, it would be necessary to pin down the aggravation to one category or another only when it came to sentencing. The CPS says that 86 per cent of the cases were identified as racist by the police, and a further 14 per cent by itself. That two-stage analysis would be redundant, because it would be for the judge to decide whether there had been racial or religious aggravation. Also, it may well be that some cases not identified as aggravated by the police or CPS would be picked up at the point of sentencing and dealt with accordingly. With the law as it stands, the judge cannot treat an offence as aggravated, whatever the evidence may be, if it was not part of the charge.
If the difficulties in proving aggravated offences are serious, there are even more problems with incitement to racial hatred, as the DPP explained to the Select Committee. "Hatred" is a strong word and it does not come into play for remarks that are simply derogatory about a particular group. As the noble Viscount, Lord Colville, lucidly explained, the boundaries of the offence are determined on one side by our freedom of expression obligations under the ECHR and, on the other, by the existing criminal offences of incitement to commit particular offences; for example, incitement to murder under Section 4 of the Offences against the Persons Act 1861. The noble Viscount mentioned the case of the Jamaican imam who was convicted under that provision. As I recall it, he was convicted at the same time of incitement to racial hatred because he called on his flock to kill Hindus and Jews. If he had called on them to kill Christians, he would not have been convicted of that second offence. That underlines the need for examination of the area in between, or "the nutcracker", as the noble Viscount described it.
In a memorandum to your Lordships during proceedings on the anti-terrorism Bill in 2001, the Attorney-General proposed to extend that area in between to religious as well as racial hatred. Logically, we must either implement that proposal or scrap 470 incitement altogether. Otherwise, as several noble Lords have mentioned, it continues to be lawful to incite hatred against Muslims or Christians because they cannot be identified with particular racial groups, while at the same time Jews or Sikhs are protected. The noble Viscount mentioned also the EU Framework Decision on Combating Racism and Xenophobia, which would have obliged us to treat both racial and religious incitement as equally criminal. He said that that had dropped off the agenda. I understand that the Government have said that they would subscribe to the idea only if there were a consensus to that effect in Parliament. I am not sure how Parliament would express an opinion, but if the Government mean that it has to be an opinion without a dissenting voice, they will never act.
The noble Baroness, Lady Perry, mentioned that her correspondent had suggested that a law of that kind would incite frequent litigation. Of course, it would not, because as with the incitement offence that already exists for racial hatred, the Crown Prosecution Service would have to approve the charge and it would have to be submitted to the Attorney-General. Therefore, there would be few cases of that kind in practice, just as there are few cases of incitement to racial hatred. That is not the argument. The gap is one of perception of people being treated differently. Several noble Lords have already mentioned that.
On blasphemy too, there will always be differences of opinion, as there were among members of the committee. We reviewed the three options of leaving the blasphemy law alone; amending it to cover all religions; or abolishing it. It was clear that although all the members acknowledged that nobody could now be convicted of blasphemy since the coming into force of the Human Rights Act 1998, some were influenced by,the need to respect the deeply held views of a large number of the members of our society".That was reinforced by a barrage of similar letters from the evangelical lobby in favour of leaving the common law of blasphemy alone as a kind of heritage symbol that would never be used. Some members of the committee were impressed by the census finding that 72 per cent of the population is part of the Christian tradition or identity. That ignored the evidence of dwindling congregations, vanishing vocations and empty collection boxes. Those members—I count the noble Baroness, Lady Perry, among them—were attracted by the idea of the "sacred canopy", hovering protectively over the nation, but which was said to be so delicate that it was at risk of destruction if an unused or unusable law were abolished. The noble Baroness, Lady Massey, and the noble Lord, Lord Desai, said that they wanted to protect people and not beliefs. That was the general sentiment of our debate this afternoon. The noble Lords, Lord Bhatia and Lord Joffe, pointed out that the law is discriminatory and that it is surely therefore intolerable for Parliament to leave it as it is.
In the Government's response to the Select Committee's report, they say they have not sought to amend the law on blasphemy in the absence of a consensus on how to proceed. They are happy to accept that the committee's report may be seen as a starting 471 point in the debate, but now is the time for some leadership and not for further procrastination. The committee's report was not the starting point, but a continuation of the discussion that has been going on ever since Lord Coleridge laid down in the case of Ramsay and Foote in 1883 that it was lawful to attack the fundamentals of religion.
The developments which have taken place up to the Gay News case in 1979 were thoroughly rehearsed in the Law Commission's Working Paper No 79 of 1981 and its survey of Offences Against Religion and Public Worship of 1985. The Select Committee relied heavily on those papers and our main contribution was perhaps the analysis of the human rights implications, now far more relevant since the incorporation of the European convention into our domestic law.
The Government's response was equally pusillanimous on the question of the statutory offences, of which the Ecclesiastical Courts Jurisdiction Act 1860 is the only one that some members of the committee thought should be retained. They say it is unclear whether the ECJA addresses conduct which is not covered by other criminal offences, but where the ingredients of the case are known, it was clear that some other charge could have been preferred. The famous case of Peter Tatchell interrupting the service in Canterbury Cathedral is an outstanding example. Indeed, in many other cases, the ECJA was used in tandem with some other charge. In the past two years—2002 and 2003—there was only one charge in each year leading to conviction. As the noble Viscount said, it is impossible to discover, either from the CPS or from the Home Office statistics, what the ingredients of the offences were. But if it is so lightly used, surely it could be safely repealed and we could instead use the other offences which we know are useable in the circumstances.
I must confess to great disappointment that although we have had the debates on the Anti-terrorism, Crime and Security Bill and on the Religious Offences Bill and now a whole year's work by the Select Committee, we are still no further forward than at the time of the Law Commission's reports of 20 years ago. The balancing of the principles of freedom of expression, mutual tolerance and the protection of faith communities from extremists who would incite religious hatred is not properly achieved by the law as it stands, and it is deplorable that a government who profess to believe in those principles are ducking the opportunity for promoting them.
§ 5.12 p.m.
§ Viscount Bridgeman
My Lords, like other noble Lords, I thank the noble Viscount, Lord Colville of Culross, and his colleagues on the committee for their report, produced to the standards of excellence that we in this House, without question, have come to take for granted. I also pay tribute to the noble Lord, Lord Avebury, for the work he did in the preparation of the Religious Offences Bill.
I suggest that the clarion call of the report is its unequivocal statement that we are not a secular state—a sentiment which I am pleased to note the 472 Government wholly endorse. But this statement recognises that we are, indeed, a multi-faith society and let it not be overlooked that one of those multi-faiths is no faith. I am sure that that has been an inspiration to the committee in producing this admirable document.
The noble Viscount, Lord Colville, has left us in no doubt that he does not want to see any repeals and that he does not want to see any new legislation. He also states that the problem of blasphemy is almost insoluble. There have been passionate pleas in dissent by, among others, the noble Lords, Lord Bhatia and Lord Joffe, speaking from a lawyer's perspective. The noble Baroness, Lady Uddin, made a most interesting comment on the role of Muslim women in this context.
I want to pay tribute to the Government for a measured and reasoned response to the committee's report. Perhaps I am less critical than my noble friend Lord Campbell of Alloway and I do not believe that I carry the noble Lord, Lord Avebury, with me on that. However, the Home Office made no secret of the fact that it would like to have seen the incitement to racial hatred provisions incorporated into the Antiterrorism, Crime and Security Bill 2001, but it accepts that following the passing of the Act it will have to reconsider its proposal in the future.
Several noble Lords commented on that point and I shall be interested to hear what the Minister has to say. This has not hindered what I regard as a wholly practical approach to the committee's findings. I was going to say "constructive" approach, but I am downgrading that. The message from the committee on blasphemy is clear: there are deficiencies in the present law, but not only in the bias in favour of the Church of England. In passing, may I pay tribute to the evidence from the Muslim Council of Britain, which has been referred to by several noble Lords, including the noble Viscount. Lord Colville. The council said, in effect, that while Islam does not enjoy the protection of the law, it was better that the protection should extend to one faith rather than none. If I may say so, not as a member of this committee, I read that as not only a generous comment but a statesmanlike one, too.
I was interested to hear the comments of the right reverend Prelate the Bishop of St Edmundsbury and Ipswich, who assured your Lordships of the comfort which the Jewish and Muslim communities enjoy from the umbrella of the blasphemy laws. There are clearly deficiencies when legislation which is in place is so rarely used, but—speaking as a non-lawyer—is that necessarily a bad thing?
However, I note in this section that the committee and the Government do not agree on the necessity for the definition of religion, the Home Office taking the view that this should be left to the courts, the committee arguing that this is an issue that cannot be evaded and leaving the decision to the courts would place an unreasonable burden on them and involve long delays. The Minister's comment on that would be interesting. But I am reassured that there is agreement to differ on that point, and both the committee and the Home Office share the view that further debate on 473 the matter of blasphemy is called for. Certainly the committee's report has provided a valuable starting point.
On freedom of speech, there were particularly valuable submissions from the Director of Public Prosecutions and the police in contrasting modes, the former expressing reservations about the criminalisation of hatred, especially if no intention to stir up hatred is required, while the police would welcome an offence of incitement to religious hatred as an additional instrument to support good community relations.
The report in this section and elsewhere emphasises the impact that Article 9 of the ECHR on freedom of thought has on this whole subject. We have been treated by several noble Lords to the easily comprehensible example that the absence of an offence of incitement to religious hatred may be said to deprive the multi-ethnic groups, such as Christians, Muslims, Buddhists, and indeed those with no formal religious allegiance, of the protection afforded to the mono-religious faith groups, such as Jews and Sikhs. Further, it is suggested that these differing impacts could fall foul of Article 14 of the ECHR, dealing with discrimination and the enjoyment of rights and freedoms.
All this serves to remind us of the correlation between religious and racial hatred. The two are in some ways mutually self-feeding, and I was interested to hear the illustrations provided by the noble Lord, Lord Mafia, on this. However, they are two absolutely discrete subjects, and those seeking to address the problems of either or both of them ignore this at their peril. The crossover between the two must be continually monitored, and indeed it is clear that in this report the committee has been aware of this. I also draw attention to the point made by the noble Lord, Lord Desai, that religion has been used as a cloak for political motives. This report does not apply to Northern Ireland, but surely we have an example of just that very close to home.
This House is indeed fortunate to have had the contribution of so distinguished a group of speakers, and in congratulating once again the noble Viscount, Lord Colville, and his colleagues on this excellent contribution, we shall look forward to the Minister's reply with interest.
§ 5.19 p.m.
§ Baroness Scotland of Asthal
My Lords, I add my voice to those of all noble Lords who complimented the noble Viscount, Lord Colville of Culross, on stimulating this interesting debate, on his helpful and comprehensive exposition of the committee's work and particularly his explanation of how it reached its findings—I shall not say "recommendations" because I now understand precisely why there were not any. I am also grateful to the noble Viscount for giving us the benefit of his own views now that he can break free of the constraints of being chairman of the committee.
The report will remain for the foreseeable future the document of reference for anyone interested in exploring the history of existing religious offences and the many difficult issues that the legislator must consider. We must be careful before proposing any legislation on religious 474 offences, because any new legislation must be fit for the purpose and shaped in the context of a modern Britain. Therefore, I understand the hesitation of the noble Viscount, Lord Colville, although I may not entirely agree with him.
We recognise and value the diversity of modern Britain; it is multi-ethnic and multi-faith. Therefore, we must also recognise that, although religion plays a very important part in many people's lives in modern Britain, a significant proportion of the population has no religious belief at all. That was exemplified by the comments of my noble friend Lady Massey.
The noble Lords, Lord Campbell and Lord Judd, tended to indicate that the law does not have a significant part to play in changing culture. I cannot agree with them on that. The law can play a part in changing culture, and it is appropriate that it does so on occasion. I wanted particularly to endorse the remarks of all those who said that all people are created equal.
§ Baroness Scotland of Asthal
My Lords, I can certainly understand my noble friend's point. We need both: law and culture working together in harmony, reinforcing and supporting each other, so that good practice and good behaviour are enhanced and not undermined. I am sure that my noble friend would agree with me on that.
There must be equality, for those who are religious, in the eyes of God and equality also in the eyes of the law. Therefore, we understand the Select Committee's conclusion that civil and criminal law should afford the same protection to people of all faiths and none. In response to the noble Lord, Lord Avebury, the Government have not ducked their responsibility in that regard; nor do we share his assessment of what has happened in the past 20 years. I understand and hear his disappointment, but I do not share it, because the plethora of achievements in this area cannot be dismissed as small or insignificant.
The right reverend Prelate the Bishop of St Edmundsbury and Ipswich spoke very constructively about the basis of taking the issue forward, which is what today's debate is about. I listened with great interest to the comments of the noble Baroness, Lady Perry, and of the right reverend Prelate the Bishop of St Edmundsbury and Ipswich about the umbrella that the blasphemy laws provide. That was very much supported by the noble Lord, Lord Bhatia, who described it as a canopy of protection.
As was made plain by the noble Viscount, Lord Colville, the blasphemy laws are used rarely. The last successful private prosecution was in 1977, and there have been no public prosecutions since 1922. Given that context and the fact that blasphemy affords 475 protection only to the Church of England, we were attracted to repeal of the blasphemy laws. However, full consideration and a wider debate were needed to inform the way forward. Today's debate has provided a good opportunity to listen to, and to explore those views. I should make it clear that what matters to the Government is that we should bring about an integrated society in which no one is left behind and in which we draw strength and enrichment from our diversity. That is part of our fundamental beliefs.
The Ecclesiastical Courts Jurisdiction Act 1860—which the noble Lord, Lord Avebury, and the noble Viscount have touched on—gives rise to a number of interesting, and some difficult, issues. We believe that those of religious faith deserve the best protection that the law will allow, including protection for their places of worship. There are only a limited number of prosecutions under the Act, and it has never been used for offences against non-Christian places of worship. We feel that the Ecclesiastical Courts Jurisdiction Act offers additional protection in only a small number of cases, as most offences against, or in places of, religious worship would already be covered by other criminal offences, such as criminal damage and public order offences. Therefore, we do not feel that reformulating the legislation would offer any more meaningful protection than exists under current laws.
Your Lordships know that we attempted to introduce a new offence of incitement to religious hatred in the Anti-terrorism, Crime and Security Act 2001. The proposal was withdrawn, due to objections raised in this House and championed by the noble Lord, Lord Campbell of Alloway, and ably supported by my noble friend Lord Desai, among others. The withdrawal of those provisions was based very much on the opposition of those who argued, as they have done today, that it bore little relation to the Bill's main theme of countering terrorism, and that there should be separate legislation aimed at protecting religious beliefs and their expression, following a proper public debate and a weighing of options.
They were also concerned that such a measure would impact adversely on free speech. I hope that the report's examination of the incitement to religious hatred issue and today's debate will have gone some way to addressing many noble Lords' concerns that the proposal to introduce such a new offence was not receiving proper independent scrutiny in Parliament. Today's debate has provided an excellent opportunity for a fuller consideration of the issue in the context of a wider debate on religious offences, as has the time that has elapsed between that Bill and this debate. I must take this opportunity to thank the noble Viscount, Lord Bridgeman, for his kindness and understanding in relation to the efforts that the Government have made. I will, of course, respectfully agree with his assessment.
In terms of balance between protecting religious groups and protecting freedom of expression, it is clearly essential to preserve this country's long and cherished tradition of freedom of speech. People must continue to be allowed to criticise beliefs and practices 476 with which they disagree and do so robustly. However, we believe that it is possible to distinguish in legislation between criticism of a religion, or members of a religious group, and a criminal act of inciting hatred. I want to assure the noble Baroness, Lady Perry, that we believe that historians can be safe.
It would be necessary to ensure that the criminal threshold for any proposed offence covers the harm that is being done, without unduly interfering with the rights of free expression as enshrined in human rights legislation. We believe that this can be done. I emphasise that, as has been said by the noble Lord, Lord Avebury, the Government do not believe that it is necessary to define religion. What is important is that we deal with the hatred, because that is what is inherently offensive. That is what my noble friend Lord Rooker said when we were debating the Antiterrorism, Crime and Security Bill in 2001. I do not hesitate to endorse that.
The evidence given to the Select Committee has shown that this is a matter of real concern for many communities, and the balance of opinion was in favour of the creation of the new offence. We heard that powerfully, I respectfully suggest, in the contributions from the noble Lord, Lord Bhatia, and my noble friend Lady Uddin.
There is a level of pain being experienced in many communities that we should recognise. We also note the joint statement by the representatives of important organisations in most of the faith communities in this country, urging the Government to legislate against incitement to religious hatred as soon as possible and asking Members of both Houses to support such a move. Such a statement carries weight and must be taken seriously, not least as confirmation that faith communities perceive there to be a problem that must be addressed.
We are very aware of the concerns of many people, in particular, as I said, the Muslim community. As members of a religious group, they are not offered the same protection against incitement to hatred as exists for mono-ethnic faith groups such as Jews and Sikhs. We also know that Christians do not have that coverage either. The noble Lords, Lord Joffe and Lord Bhatia, and my noble friend Lady Uddin spoke in particular about that gap. We went into the debate from a position of being in principle in favour of introducing a new offence of incitement to religious hatred. If recent statements and representations made to the Home Office are any indication, there would appear to be as much, if not more, support for such a measure in the wider community as existed when the report was published a year ago. We will study the arguments that we have heard in the debate, before formulating measures to address the issues that have been raised, although I cannot at this stage indicate when an opportunity to legislate on the matter might be found. Noble Lords will know the extent of the legislation that is to come to the House in this Session.
477 We have no plans for a general reform of the law on hate crime. We recognise that there are groups other than racial or religious groups who may be seen to be vulnerable to attack or vilification. We sought to deal with the specific areas of race and religion because those areas presented a particular problem that needed to be addressed and posed a threat to social cohesion. However. protection against hate crime has been extended to other groups. The Criminal Justice Act 2003 provided increased sentences for crimes aggravated by hatred of a person on the grounds of sexual orientation or disability. The wealth of evidence given to the committee shows the importance of religiously motivated crime for so many of our people and the direct impact that it has on their communities. To my noble friend Lord Desai, I say that it has been impossible for many people to distinguish between their religion, their racial origin or their faith. However, I acknowledge that, because of the racial element, Asian Muslims will have protection under the Race Relations Act that others may not have.
For that reason, we introduced the new racially and religiously aggravated offences to send a strong message that racist and religious crime would not be tolerated. The Crown Prosecution Service's policy on racist and religious crime was launched in July last year, outlining its commitment to prosecute racist and religious crime fairly, firmly and robustly. By putting policy into practice, the Crown Prosecution Service aims to build more effective cases and bring more offenders to justice. The latest CPS statistics show that there were only 18 fully finished religiously aggravated cases between 14 December 2001 and 31 March 2003. Although the numbers are small, there has been no suggestion that the prosecution authorities have had any problem with the new offences. In addition, the CPS keeps a running total of all religiously aggravated crime, including finished cases, cases still going through the system and cases in which the charge is amended to a different offence. As at 2 April 2004, there were 74 religiously aggravated cases being monitored by the Crown Prosecution Service, so there is an increasing number of cases in the system.
It is still early days for our awareness of religiously aggravated crime, and there is more work to be done building awareness and confidence that it will be tackled. The Home Office has created a faith communities unit, and part of its remit is to examine faith-related crime issues and their impact on communities, including the under-reporting of religiously motivated crime.
Much has been said about sentencing, not least by the noble Lord, Lord Avebury. We note the concern that the introduction of statutory racially-aggravated and religiously-aggravated offences and the powers to increase sentences for racial and religious aggravation could create sentencing inconsistencies and make sentencing more complicated for the courts.
However, we are not aware that the introduction of those offences has, in practice, caused difficulties of that kind. The added complexity can be managed through sentencing guidelines. Any downside in terms of complexity is outweighed by the beneficial impact that specific aggravating factors can have in producing 478 sentences which deal effectively with hate crimes that involve significant social problems, and as a signal to victims and offenders that such crimes are unacceptable. To assist judges and magistrates, sentencing guidelines have been published by the Magistrates' Association. Extensive training is also now given to magistrates and judges on aggravating and mitigating factors that impact on sentencing.
The Criminal Justice Act 2003 created the Sentencing Guidelines Council. I know that the noble Viscount says "Well, isn't that it and don't we get rid of all the laws and complications". Bearing in mind the time, perhaps I may use a short form and say, "No". The Sentencing Guidelines Council will go a long way towards addressing the report's concerns about the new aggravated offences creating sentencing inconsistencies and making sentences complicated for the courts.
We have noted that one of the key conclusions of the Select Committee's report is that civil and criminal law should afford the same protection to people of all faiths and of none. In December 2003, the new Employment Equality (Religion and Belief) Regulations prohibit direct and indirect discrimination on the grounds of religion and belief in employment. The Government are working to disseminate good practice on those new regulations. They have worked with ACAS to produce good practice guidance and support an advice helpline for employers and employees.
Changes in society in recent years have not resulted in the ebbing of religious values and the consequent emergence of the United Kingdom as a secular state. Religious values continue to play a significant part in shaping social values. We recognise the value of the role that religion plays in people's lives in Britain today.
It is for that reason that we are being very careful. We have listened very carefully to all that has been said. We will take the report into account. I can certainly assure the House that the Government will be very careful in the way in which they take the matter forward, but it is a matter of which we are firmly seized.
§ 5.37 p.m.
§ Viscount Colville of Culross
My Lords, briefly at this time on a Thursday, I thank all those who have taken part in the debate. My colleagues on the Select Committee would have been extremely pleased to hear the gratifying comments that were made about the report. It was intended to be a contribution to the debate, and I agree with the noble Baroness, Lady Scotland, that the proceedings today mark a further step forward.
It is only part of the scene. The report concerned religious offences and deals therefore with criminal law. I take the point made by the right reverend Prelate that we need a full panoply by having the civil law as well. Some has recently been introduced, again coming from Europe, and that forms the other, very valuable, half of this exercise. Apart from the protection of places of worship and artefacts, which perhaps 479 deserves a little more attention than it was given today because there are occasions when the other criminal offences do not work, everyone has rightly been talking about people. Of course that is what this is all about. When considering the gaps in the protection for people, we need to remember how careful we must be in this area. The noble Baroness just emphasised that point. When the Public Order Act 1986 was passed, I do not think that there was any idea that Part 3 relating to race would be held to relate to Sikhs and Jews, but not to any other religious entity. This was a surprise which came about as a result of case law. It was certainly not drafted into the Act and came about partly as the result of one particular case relating to a Sikh in a school and then, by development, from case law in New Zealand relating to Jews. Those are developments that one does not expect. My noble friend Lord Bhatia and others have drawn attention to the unfairness of this, and indeed it is unfair. But that is what happens when legislation is introduced which has not been thought through. I still think that there is a very small gap between the existing criminal offences which deal with issues like religious hatred and freedom of speech. What that gap is has not really been explored.
480 An opportunity arose to deal with it in 2001, however careful were the noble Lords, Lord Campbell of Alloway and Lord Desai, in discussing it, but this was not the issue at the root of what they were talking about. I believe that it now is and I was glad to hear the noble Baroness say that the Home Office will be very careful. However, it is being constructive and it is clear that this is a continuing dialogue between all concerned. I hope that perhaps one day we shall revert to this matter, if not quite yet. If the Home Office does bring forward legislation to deal with offences surrounding the incitement to religious hatred, then I shall want to look very carefully at the content and drafting because I do not think that it is at all easy to do.
Meanwhile, I hope that the House will take note of the report, which is all it has to do in accordance with my Motion. I trust that that will be agreed by all noble Lords.
§ On Question, Motion agreed to.