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Lord Parry: My Lords, is the noble Lord happy that the figures which he is quoting are based on sizes within the classroom or is it the simple division of the number of qualified teachers into the number of pupils?

Lord Lucas: My Lords, no, that would be the pupil-teacher ratio. No, this is very much to do with the way that classes actually operate.

Lord Peston: My Lords, the noble Lord refers to the matters with which I felt we did not have time to deal. He is right to say that those figures refer to class sizes. What is impressive about the research is that when the right class size is reached, it is incredibly effective. The point which I wanted to make but did not—and I shall make it now so that the noble Lord can say that he agrees with it—is that those small-sized classes are particularly useful for pupils from ethnic minorities. That is another reason why one would push that very strongly. I am sorry to interrupt the noble Lord because we all want to go home. We must debate that on another occasion.

Lord Lucas: My Lords, the issue of class sizes could form a small debate on its own; I am quite sure about that. There are issues on the fringe, but, by and large, we provide extra funds for those circumstances to allow smaller class sizes among other things.

The principal conclusion of the research is that there are more effective ways of spending money than reducing class sizes. I should be happy to go into that at great length on another occasion, particularly if the noble Lord asked me a question about it.

I can see that I must hurry on through this. I could have done with about an hour to answer all the points that have been made in the debate. Inspection is clearly proving to be an enormous success as a source of information—a growing list of reports from Ofsted, the accumulation of a database which will be the source of much research in the future and all the work that is going on in school improvement and in dealing with failing schools, which for many years have never been tackled properly. The involvement of industry and commerce in education is also enormously important.

The noble Lord, Lord Peston, questioned whether we are maintaining examination standards. Yes, we have put a great deal of effort into maintaining examination standards. We recognise, as I am sure the noble Lord does, that there is a natural pull from the schools which are putting children through those examinations to try to find ways of boosting their results by, if they can, finding examinations which are slightly easier to get through. We have put a great deal of effort into making sure that that does not happen.

We also greatly welcome industry's involvement because industry pulls in the other direction. It looks at what is coming out of education and demands that it

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meets its standards. I hope that there will also be a pull in that direction from the university sector, which complains sometimes about the quality of people leaving schools with A-levels. The universities are the customers of those people. It is up to them to exert their influence to make sure that people are coming to them with the skills that they require.

I was delighted to note that the noble Lord, Lord Parry, is going in for work shadowing. I do, too. It is an excellent example I hope to set to many noble Lords. I do not see nearly enough students around here.

I turn now to the national curriculum. Many noble Lords made reference to the importance of personal, social and moral development and to religious education and worship within the curriculum. We have restated the law in our Circular 194 and we shall continue to put pressure on schools to improve in that respect, as in others. In our latest reforms of the national curriculum we have also put great emphasis on basics. A basic education in mathematics and English should be a right for a child. If a child is equipped with such knowledge it empowers him to do well in the world afterwards. The noble Lord, Lord Quirk, and my noble friends Lady Cox and Lord Beloff put particular emphasis on that. We believe that it is an enormously important step to have taken with the national curriculum. We look forward to these results coming through within the next 10 or so years.

My noble friend Lady Brigstocke asked about the role of museums in support of education. I can confirm that SCAA will be producing a guide for museums to help them to plan their work in support of the national curriculum. A very important element in improving achievement is expanding our definition of what achievement is beyond the academic and offering children with particular skills the chance to pursue them further than the chance they currently have. All that we have done in vocational education is a prime example.

However, I should also list the specialist schools initiatives; the introduction of CTCs, as my noble friend Lady Brigstocke mentioned; the introduction of choice for parents which, with all its limitations, is nonetheless a great force for improvement; and the assisted places scheme. The noble Baroness, Lady Thomas of Walliswood, said that it cost her county £3,400 to send a student through secondary education each year. As the cost of the average assisted place is £3,000, perhaps the noble Baroness should consider saving some money. I see that she wishes to intervene. I give way.

Baroness Thomas of Walliswood: My Lords, I am much obliged. I should point out that I made a mistake. The £3,400 that I mentioned was for the older children in our secondary schools. It does not refer to the average of children all the way through their secondary school career. Therefore, I dare say that the relevant figure is a good deal less.

Lord Lucas: My Lords, of course, we do not think that private education is necessarily better than state education; indeed, it is now some 30 years since we felt

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the need for a privately-educated party leader—something to which both parties opposite are still attached.

We shall also be making progress in other areas. As my noble friend Lady Young and the noble Lord, Lord Addington, said, NVQs are enormously important in improving the lifetime education of our populace. We may not be able to change the minds of their parents, but we can certainly catch them as they come out of formal education and persuade them to continue with it.

There has been an enormous release of innovation as a result of the independence of the further education sector. The introduction of national targets for education and training have raised the sights of everyone involved in the area to achieving, for example, 80 per cent. of young people obtaining five good GCSEs, or the equivalent, by the year 2000. We are up to 64 per cent. and we expect to reach the target. I can give the noble Baroness, Lady Thomas, some comfort about the education of boys. When we reach that stage of education, the boys are up there with the girls: they just seem to be a little late in developing. As regards nursery education, I believe that noble Lords should wait until the summer to ascertain the nature of our proposals.

Achievement means achievement on a child's own terms, making the best of each child's particular talents. We believe that no one has nothing to offer. We have come a long way, greatly to the credit of teachers, parents, students and even ourselves. We know that we have a great deal more to do and we are set on finding out how to do the rest and complete the task. We believe in what we are doing—as do most parents—and we are delighted that the Labour Party is joining us in that at last. Gospel Oak grant maintained and private schools, all of which have been in the news recently, demonstrate that they want for their children what we have provided. As the noble Lord, Lord Peston, quoted Tawney, perhaps I may just echo that back to him—why not for the rest of us?

9.30 p.m.

Baroness Perry of Southwark: My Lords, it remains for me to thank most warmly all noble Lords who have spoken in this debate. As always the House has shown its tremendous interest and expertise and deep concern about the subject of education and I think we have had a long but rich debate. I am delighted to know that the noble Lord, Lord Peston, wants another debate. He feels there is need for two. I am particularly glad that so many noble Lords joined me in celebrating the very real achievements of all who work in the education system; most of all, of course, the young people themselves.

To those few noble Lords who expressed deep concern—of whom I think the noble Lord, Lord Quirk, was the most impassioned—I would simply say one thing. Of course we have a long way to go. We have decades of underachievement behind us and reforms in education take a long time to begin to produce dramatic changes in children's performance. But please, please, when we get improved performance may we not say, "It shows that standards have dropped"? I weep when I hear people say, as the exam results got better, "Clearly the standards have gone down". Unless we really believe

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that children in this country are less able to achieve even than children in Scotland, then can we please believe that year by year we are getting more and more of them up to the standards that we all wish? I thank everyone very much for the long and interesting debate. I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.

Blasphemy (Abolition) Bill [H.L.]

9.31 p.m.

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

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

As Lord Diplock said,

    "to cast doubt on the doctrines of the established church or to deny the truth of the Christian faith upon which it was founded was to attack the fabric of society itself".

In the early 19th century it became lawful to deny the claims of established religion, though it still took a lot of courage to do that, as the case of Darwin showed. It was not until 1884 that avowed atheists were allowed to sit in Parliament, and by then the rule had been established that —as Lord Coleridge said in Ramsay v. Foote,

    "if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy".

From that point onwards, in order to incur penalties blasphemy had to include an element of scurrility, of vilification, ridicule or extreme irreverence, as well as or instead of the denial of some doctrine.

But in the 20th century, after the case of Gott in 1922 when the defendant was sentenced to nine months' hard labour for comparing Jesus with a circus clown, most people thought that the blasphemy law had fallen into disuse. That was the view of the noble and learned Lord, Lord Denning, who said in 1949, in a lecture on freedom under the law which is so often quoted,

    "the offence of blasphemy is now a dead letter".

It is indeed one of the main arguments for this Bill that it eliminates the uncertainty of a law which can be cranked into life again after being dormant for more than 50 years, and amended from time to time by judicial decisions rather than by Parliament, as the blasphemy law was in the Gay News case of 1978.

We cannot tolerate a criminal law which, in the words of the noble Earl, Lord Halsbury, on the last occasion we debated the matter,

    "can hang over the wrongdoer as a vague, numinous threat, inducing caution".—[Official Report, 23/2/78; col. 291.]

I hope that most of your Lordships will agree with the Law Commission's proposition that,

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    "offences, the elements of which are defined by reference to judicial decision rather than legislation, can have no place in a modern codification of the law".

In other countries there are still drastic blasphemy laws. As chairman of the Parliamentary Human Rights Group I have been critical, for example, of Bangladesh and Pakistan. In the former country Miss Taslima Nasreen, the famous writer, was charged under that country's penal code with uttering malicious public statements outraging the religious feelings of the people. Her offence was to say that the Koran should be interpreted in the light of changes in the social background which have occurred since the 7th century AD. That is a good illustration of the fact that what is found to be grossly offensive or scurrilous is culturally determined, because most Christians would think it innocuous to suggest that biblical stories need to be read in the context of the social mores of their time.

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

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

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

Many people are surprised to learn that blasphemy has a much narrower meaning in the law than in ordinary English usage:

    "profane speaking of God or sacred things; impious irreverence"

as the dictionary has it. In law, blasphemy is what it is declared to be from time to time by the judges. In the Gay News case the trial judge said that blasphemous libel is committed if any writing is published concerning the question of God, Christ, the Christian religion as a whole, the Bible or any subject sacred to Christians, using words which are scurrilous, abusive or offensive, which tend to vilify the Christian religion, and which therefore have a tendency to lead to a breach of the peace.

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

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

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

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

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

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possible effects it may have, is enough for an offence to be committed—and your Lordships may think that this is one of the most important points to be considered this evening.

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

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

Material which is broadcast is subject to far more restrictive rules. The Independent Broadcasting Authority Act 1973 prohibits the use in programmes of material,

    "which offends against good taste and decency or is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling".

The BBC has undertaken to be bound by the same standards. Whether or not those conditions are properly observed is constantly monitored and, I think your Lordships will agree, there is no risk that broadcasters would transmit grossly offensive material about any religion, not just Christianity.

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

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

Some of the respondents to the working paper argued that special reverence for what is deemed sacred requires protection. Certainly, people may be grossly offended by crude attacks on their religion. The noble Lord, Lord Elton, repeated that point in the debate on the amendment of my noble friend Lord Lester to the Criminal Justice Bill on 16th June 1994. The noble Lord said that blasphemy differs from other kinds of libel because for Christians who love God it is deeply upsetting for Him to be insulted. But if the words are so

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extreme, they will be caught under Section 5 of the Public Order Act. I hope that the noble Lord, Lord Elton, will have that in mind when he speaks. If he can imagine circumstances which are not covered by Section 5, that would be a material argument for the extension of the blasphemy law to all other religions, as the two minority signatories to the Law Commission report argued.

In the Framework Convention for the Protection of National Minorities, the parties undertook to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their religious identity. Presumably a blasphemous libel is always a manifestation of hostility to the Christian religion. We thus have a situation where the majority is protected against that hostility in a specific way and all the minorities other than Christians are left unprotected. The Copenhagen Declaration of the Organisation for Security and Co-operation in Europe of June 1990 also provides that,

    "persons belonging to national minorities have the right to exercise fully their human rights and fundamental freedoms without any discrimination and in full equality before the law".

It cannot be denied that members of the religious minorities in England and Wales do not enjoy full equality before the law because the law of blasphemy does not apply to their religions. I hope that the Government will agree that this is a matter which needs to be put right.

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

If there is a case to be made out for a new statutory offence, then surely the protagonists have an obligation to point out speech or writings that they believe should have been punished. Moslems consider that Salman Rushdie ought to have been dealt with by the courts and, as your Lordships may recall, there was a case in 1990 in which the litigants attempted to show that The Satanic Verses constituted a blasphemous libel. Is that what your Lordships wish to see? The enormous risks of creating a general offence of blasphemy which would apply to

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all religions must be obvious to all. It would encourage litigation and fan religious antagonisms, and it could lead to interference with freedom of expression. The best way forward is simple repeal, in the light of those dangers, and in the absence of any clearly demonstrated need for a new offence. St. Matthew tells us,

    "Sufficient unto the day is the evil thereof".

I shall say a few words on the rest of the Bill. There have been no reported cases under the common law offences that are mentioned in Sections 1(b) and 1(c), and it is doubtful whether they still exist. The minority of the Law Commission had nothing to say on that matter. Section 2 deletes references to the common law offences which appear in two Acts, and is consequential on the acceptance of the principle of the Bill. The statutory provisions regarding disturbance of religious services, which seem to apply to all Christian denominations and particularly Section 2 of the Ecclesiastical Courts Jurisdiction Act, which was successfully applied as recently as 1988, are left undisturbed. The Law Commission did recommend some repeals of obsolete statutory provisions and these could be considered if the Bill goes into Committee.

I know that some noble Lords believe that the law has a hortatory effect on the public, and that seems to be the view of some Church leaders. In the paper by the committee under the right reverend Prelate the Bishop of London, commenting on the Law Commission report, it is observed that changes in the law concerned with social behaviour since 1945,

    "have led to the acceptance of patterns of social behaviour which exonerate individuals from moral responsibility for conduct which had previously been endorsed by the criminal law as immoral".

On this view, the behaviour patterns of people are determined, or at least influenced, by legislation; and the only restraint on what has been called,

    "licentious and contumelious abuse against sacred subjects",

is the threat of Parliament's displeasure or punishment by the courts. Would that joyriders, football hooligans, child abusers, burglars and muggers would conform with that model. Those are all growth crimes, whatever is the view of noble Lords in this place, and they can only be stemmed by long-term changes in the family, the education system and the general values of society. The disrespect for things that are sacred and important to people, also, cannot be curbed by stricter laws; nor will it be stimulated by the repeals in this Bill. If we would be,

    "saying something quite inviting to many of those people who are looking for opportunities"—[Official Report, 16/6/94; col. 1895.]

as the most reverend Primate the Archbishop of York put it, the signal has to cross the light years of intellectual space which separate this Chamber from the lives and habits of ordinary people. Unhappily, as your Lordships may think it, the readers of the Sun, or even of the Independent, are not hanging on your every word.

Let us also be realistic about the fate of this Bill. If it surmounts the first hurdle of the delaying amendment which is about to be moved by the noble Earl, Lord Halsbury, it will not be given time in another place anyway. The most that can be expected is that it goes into Committee here—and this I hope that your Lordships will allow—so that alternatives can be more

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thoroughly examined. Nearly 10 years after the Law Commission reported, the view of the Church and of every other person who considers this matter seriously is that the common law offence should be repealed. So let us get on with that. Those who believe that an alternative statutory offence can be drafted to cover blasphemy against all religions can then have their say, and we can see whether any of their views command widespread support. The one thing that we cannot and must not do is to leave this fossil offence alone.

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

9.53 p.m.

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

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

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

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

In order to emphasise the outrage that blasphemy performs upon the individual, I should like to recite a traveller's tale. It is the tale of a travelling magician who goes from village to village promising to do great magic. That is always accompanied by the warning that the magic will not work if anybody in the village who is

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watching it dares to think of a red monkey with a green face. The trick does not work, at which point the magician has a well feigned epileptic fit and accuses the village collectively of having thought of a red monkey with a green face, which of course every single one of them has done. So the villagers round on the least popular member of the village and say that it is all his fault. That allows the magician to depart with the gate money, plus a resolution not to play that trick on the same village for the next 10 years or so.

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

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

At this point I should like to pray in aid one of our legal luminaries, my noble and learned friend Lord Scarman, with the judgment that he made on these matters in the case that I described to your Lordships. He said:

    "I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the Kingdom"—

the purpose of law: to safeguard the tranquillity of the kingdom. He continued:

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

Later he added this to his judgment:

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

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

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

10 p.m.

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

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

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

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

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

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see it and recognise it as a great evil, not only theologically but ethically, they should support the noble Earl, Lord Halsbury.

10.5 p.m.

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

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

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

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

This concern is something the Church of England takes very seriously, and I am certainly not here this evening to insist that the Church of England, or indeed the Deity, is in particular need of special privileges in this field. The search for an alternative to the present law has been going on for some time—indeed, I know your Lordships' House considered two possible alternatives in debates on the Criminal Justice and Public Order Bill last year. So it is not as though your Lordships' House has been unwilling to consider the

22 Feb 1995 : Column 1225

matter. But so far it has not produced any new criminal offence which could be generally accepted as satisfactory, and in this respect the Church of England has moved on since the reports in 1981 and 1988 by a working group under the chairmanship of my predecessor as Bishop of London. The more carefully we have examined the various options, the more obvious, it would seem, have the difficulties and drawbacks become. But the Church is still very willing to engage in a constructive debate about the way forward, though there is unfortunately no reason to think that success is just around the corner. In fact, it appears to me that there is really no consensus yet, either for abolishing the law or for any particular proposed alternative.

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

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

We may not all recognise precisely the same things as sacred, but I believe that as a society we should see to it that that sense of "the sacred", as I have described it, is something which is to be recognised and safeguarded by the state

    "as deserving of such protection as the state can give without impairment of the rights of others".

Such protection in law is surely in the interests of our society as a whole.

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

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

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

10.13 p.m.

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

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

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

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

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

22 Feb 1995 : Column 1227

It is the history of the blasphemy law which is decisive, and should be decisive, in our deliberations tonight. It is to that history that I should like to refer. In the Gay News case, the noble and learned Lord, Lord Diplock, described that history as, "long and, at times, inglorious". It is a history of judge-made law, and as Lord Sumner said in a case in 1917:

    "There is nothing in the general rules of blasphemy and irreligion which prevents us"—

that is, the judges—

    "from varying their application to the particular circumstances of the time".

Aye, there's the rub.

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

As we have heard, when the king's courts in the 17th century assumed jurisdiction from the ecclesiastical court, Christianity was held to be,

    "parcel of the laws of England".

Mr. Taylor was set in the stocks because to say that religion was a cheat was,

    "to dissolve the obligations whereby civil society is preserved".

Even then, there were contrary views. For instance, Bishop Jeremy Taylor said:

    "You may as well cure the colic by brushing a man's clothes or fill his belly by a syllogism as prosecute him for blasphemy. Instead of erecting a trophy to God, you but build a monument to the Devil"—

words which perhaps the persecutors of Salman Rushdie might take to heart.

In 1841 Chief Justice Denman shifted the law. The judges are always shifting the law in this common law offence of blasphemy. The irony of invoking the law of blasphemy against free thinkers such as Tom Paine or Darwin was appreciated even by the judiciary. To prosecute a man for propounding a philosophy which asserted the existence of God but based on reason rather than revelation was hardly acceptable. Denman moved the offence from a simple attack on the faith to the mode of the attack, about which we have already heard. However, an attack on the whole Roman Catholic faith was held to fall outside the law. A humble vicar publicly protested, I know not on what evidence, that a local nunnery was no more than a brothel for the priesthood. The judge said:

    "You may attack Judaism, Mohammedism or any sect of the Christian Church. Only the established religion is protected by the law".

Chief Justice Coleridge, as my noble friend was pointing out, shifted the law again in 1883. The intention of the offence was now to be an essential element, which it had not been up until then. As my noble friend has already said, more than 40 years later the noble and learned Lord, Lord Denning, said that the

22 Feb 1995 : Column 1228

offence was a dead letter. But before that the judiciary went over the top, as it sometimes does, in developing the common law, for a Mr. Gott came before Mr. Justice Avory, who was the most terrifying judge I ever saw—thin lipped and parchment skinned—for describing Jesus Christ as,

    "entering Jerusalem like a clown on the back of two donkeys".

Avory sentenced him to nine months' imprisonment for that observation. After the noble and learned Lord, Lord Denning, had said that the law was a dead letter, so it remained. I suggest to the House that it is of the greatest possible relevance that for 50 years in England and Wales and Northern Ireland the law was never once invoked; and in Scotland, not for 150 years.

It was not the Attorney-General and it was not the DPP but the wicked fairy, Mary Whitehouse, disguised as Princess Charming, who brought blasphemy back to life in the Gay News case. Once again the judges shifted the law; and they shifted it where? Back to where it had been 300 years before. Out of the window went intent; out of the window went breach of the peace; and so on. In that case the defendant, Professor Kirkup, who wrote the offending poem, was forbidden, as indeed he would be today, from explaining the purpose of his poem, which was,

    "to give comfort to homosexuals by making them feel there is room for them within the Christian religion".

No public good defence was, or is today, available in this offence, as it would have been had the prosecution, as it could easily have done, proceeded under the Obscene Publications Act.

In that case, yet again, the judge went over the top and imposed a nine months' suspended sentence. That top was quite a climb because in his autobiography the learned judge tells us that throughout the trial he felt suspended over the trial rather than part of it and was convinced that he was under the guidance of some superhuman power when writing his summing up. Geoffrey Robertson, defence counsel in the case, later reviewed the autobiography and said drily:

    "If there was such heavenly guidance it is surprising to find so marked a bias towards the prosecution!"

Again, that is a danger of that form of common law offence.

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

I quote Geoffrey Robertson again from his book Media Law. Surely he is right when he says:

    "Democracy today demands that the criminal law should originate in the legislature rather than in the antipathies of the judiciary".

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The old ecclesiastical offences of apostasy, adultery and immorality are now gone. The right of the most reverend Primate to cite a person for heresy went only 30 years ago but at least but that has also gone. Is it not time now to complete the process and remove the last remnants of the ecclesiastical laws?

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

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

I end by quoting the words of Lord Macaulay in 1833 on this question. He said:

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

Even if, today, it is more like 500 people out of the 1,000 who would be passing down the Strand, I suggest that he got it just about right.

10.30 p.m.

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

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

22 Feb 1995 : Column 1230

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

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

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

If the law of blasphemy is overthrown, then anyone can vilify the Christian faith. The offence should stand and the Bill should be rejected. Perhaps I may quote from Ezekiel:

    "It is not for your sake oh House of Israel, that I am about to act but for the sake of my holy name which you profane among the nations and I will uphold the holiness of my great name".

10.34 p.m.

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

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

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

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trouble and disunity in our society. Therefore, I strongly support the amendment of the noble Earl, Lord Halsbury.

10.36 p.m.

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

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

I am concerned that we should not simply throw this out for two major reasons. The first is to do with religious persecution. The noble Earl, Lord Longford, was absolutely right in saying that Christian ethics have their basis ultimately in Christian doctrine and Christian belief. This century has a desperate record of one religion persecuting another. I am reminded of the speech of Spurgeon to a great Baptist assembly when he said,

    "We Baptists have never persecuted anyone".

This remark was received with prolonged applause. He then said,

    "We have never had the opportunity".

That remark was treated with total silence.

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

22 Feb 1995 : Column 1232

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

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

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

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

10.42 p.m.

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

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

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