Racial and Religious Hatred Bill

My Lords, I am never upset by the noble and learned Lord. However, what I have described is most unfortunate and if the Government have closed their minds, it would show a marked lack of respect for the House as a revising Chamber. We all agree that members of ethnic and religious groups need to be effectively protected against the kinds of group hate attacks that have increased since 7 July. As it has been said already, those attacks violate existing criminal laws. It is essential for those laws to be effectively enforced so that perpetrators are tried and severely punished. That is not happening and we do not need new criminal laws to tackle this serious social evil. What we need is the will, the skill and the resources necessary to apply the wide range of offences in our criminal code, including provisions dealing with racially and religiously motivated and aggravated offences. The new speech crimes proposed, like the racial incitement offences, are sweepingly broad. They apply to threatening, abusive or insulting words, behaviour, written material, recordings or programmes intended or likely to stir up religious hatred. Unlike most other serious offences they require no specific criminal intent. They apply not only to words spoken in public but also in private. They cover the electronic and print media, plays, films, works of fiction, political argument, preaching by priests and clerics, comedians and politicians. They are subject to very serious criminal sanctions of up to seven years’ imprisonment. In seeking to criminalise the stirring up of religious hatred the Bill links vulnerable groups to religion or belief. In other words, it covers not only Jews as Jews, or Hindus as Hindus or Sikhs as Sikhs, or Muslims as Muslims, but members of these groups defined by reference to their religion or belief. It is that link, between protecting groups of people and protecting their belief and practices which gives the impression to those seeking to protect their religion against insult that the offences are akin to a blasphemy law writ large. It is that link which creates such difficult problems for free speech, because it covers religious beliefs and practices that should be open even to intemperate criticism. Religion and belief are concepts that defy precise legal definition. They concern matters of faith and philosophy and are strongly influenced by history and politics and by tradition and culture. The line separating religious beliefs from political beliefs is also blurred, not least because religion is often used and misused for political purposes. The distinction between stirring up hatred of someone because of his religious beliefs and expressing hatred of those beliefs in the abstract is a subtle one—far too subtle for many who support the Bill, including some Ministers and Members of the Other Place. It should cause concern to the Government, for example, that Sir Iqbal Sacranie OBE, the leader of the Muslim Council of Britain, still believes, according to his public utterances, that the new offences will enable Salman Rushdie to be prosecuted for publishing his novel The Satanic Verses. Freedom of speech, like equality and freedom of religion, is a fundamental civil and political right. Its protection is at the heart of our liberal democratic society. The right to freedom of speech means the right of everyone to communicate information and opinions without unnecessary state control or interference. That includes evil ideas expressed intemperately or in ways that shock, disturb or offend some sections of society. It includes insulting and offensive criticism of religious beliefs and practices—whether traditional religions or new religions or cults—provided it poses no imminent threat to public order. We should, as a great American judge famously once said, be:"““eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.””" We all have multiple identities based on our families and kinship, our ethinicity, gender, sexuality, citizenship, nationality, language, religion, and political beliefs. If physical or verbal attacks threaten or harm the bodily integrity of the individual or threaten public disorder, they are rightly prohibited by criminal law. There is a wide range of offences dealing with harassment, incitement to violence, threats to the peace, and so on. The law goes further, as the Lord Chancellor has reminded us, in criminalising threatening, abusive or insulting words or behaviour that stirs up racial hatred. That is justifiable on the basis that attacks on people because of ethnicity are attacks on their common humanity—their ethnic inheritance and birthright that is fixed and immutable. In general, there is no threat to the enjoyment of free speech in forbidding the use of threatening and other behaviour calculated to incite hatred against people because they belong to particular ethnic groups. The Bill would have been less objectionable to me if it had protected groups of people, such as gays as gays or Muslims as Muslims, against the stirring up of hatred and violence. It does not do so. The noble and learned Lord, Lord Falconer, argues that the present law on racial incitement discriminates in favour of Jews and Sikhs and denies equal protection to Muslims and other religious groups. With the greatest respect, that is not the case; and indeed the noble Baroness, Lady Scotland, admitted as much during the debate in Committee on the Equality Bill. Jews and Sikhs are protected against incitement to racial hatred because of their ethnicity and not their religion or belief. Stirring up hatred against Muslims because of the Asian ethnicity is equally protected. There is equal protection under existing law except in relation to the obsolete common law offence of blasphemous libel, which protects only Christianity against gross insult and should in my view be repealed as the Law Commission recommended years ago. Because of the frequently repeated statements that the law does not give equal protection I drafted an amendment last time round, flatteringly referred to as the ““Lester amendment””, to make it clear that hate speech, where it is used as a proxy for race—that is, where the defendant pretends that Islam is a target whereas in fact it is the group’s ethnicity that is the real object of incitement to hatred—is covered by race hate legislation. Ministers criticised the amendment as unnecessary and too complicated. I do not believe that it is too complicated for a jury to have to unravel the purpose of a given course of conduct and I believe that it would be helpful to make the law clear, and to remove the other new offences from the Bill having done so. The Home Office says that free speech is safe because it will not be unlawful under the Bill to criticise beliefs, teachings or practices of a religion or its followers by claiming that they are harmful, or to express antipathy or dislike of a particular religion or its adherents. It is unclear to me why such activities would not be unlawful. Such uncertainty is dangerous. Not only would it have a chilling effect on free speech, but it also raises false expectations for those who seek an extension of blasphemy law. The Home Office, like the Lord Chancellor, asks us to put our faith in the Attorney-General since he alone can authorise a prosecution. But I suggest that it is for Parliament and not a member of the Government to decide where the balance should be struck between free speech and unlawful conduct. The effect of enacting these speech crime offences in their present form would be to require the police to log and consider every complaint of an offence. The Attorney-General’s highly political decision would be a source of mischief and resentment among extremists and mischief makers. No doubt a wise Attorney-General would authorise a prosecution only very rarely. Between 1993 and 2005, there were no prosecutions for incitement to religious hatred in Northern Ireland, where it is unlawful. But the Attorney-General’s decision to refuse consent will be used by extremists as evidence of the discriminatory operation of the law and will leave embittered those whose expectations were not fulfilled. The Home Office has identified the perceived gap in the law and it is remarkably narrow. The Home Office gives these two examples. Example one: the leader of a far right group who speaks with followers in the back room of a pub encouraging his supporters to hate Muslims. But that example is the subject of a pending prosecution. The other example given is the radical Islamic preacher who circulates tapes to his followers encouraging hatred of Christians. That could, if necessary, be covered by a modest extension of the existing law. It is ludicrous to suggest that the new offences would have prevented the riots in the northern towns in 2001. There are plenty of criminal offences and police powers in place to enable effective action to be taken against extremist law-breakers. Finally—