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The noble Earl said: I welcome Leonidas back to the Front Bench opposite. The amendment attempts to tease out from the Government why it should be all right not to hate somebody who advocates hateful policies. Amendment No. 30 to the Schedule, which is grouped with the amendment, states:
I suggest that most of those are actually illegal under British law. I also suggest that, in the well-established case of a Shia cleric who ensured the conviction of a young girl, aged 18, for pre-marital sexual intercourse, he not only advocated her conviction but he also went and put the noose around her neck. I do not know about noble Lords, but I personally find that detestable. It is meet to be detested, and should be by every single person in this Chamber. What this Bill could doalthough I am obviously open to correctionis to say that I could be prosecuted for saying that it was a detestable habit and that the man who did it was an odious human being. I would say that with intent, and mean every single word. I give that as one example.
At Second Reading, the noble and learned Lord the Lord Chancellor said that religion had actually been defined. Now there is, as we know through evidence of it, a religion involving witchcraft and the mutilation of small boys. Their torsos were thrown into the Thames. I know that these things are illegal, but it seems odd to me that I cannot hate them. I may have misinterpreted the Bill; I may have it all wrong. But I am advised that I have not. Can the Minister clear my mind, and either accept the amendment or something like it in whatever form the Bill takes? Or can she explain to me that there is no such provision in the Bill and that I am quite entitled to go on hating Shia clerics who pull the legs of young girls dangling in a noose outside Tehran? I beg to move.
Baroness Scotland of Asthal: I assure the noble Earl, Lord Onslow, that disagreeing with and robustly criticising practices which one finds abhorrent are not prohibited by this Bill. That is a point we have tried to make in the past, but it has not been entirely accepted. The noble Earl will know that, as a result of the passing today of Amendments Nos. 1 and 2, we now have a
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very different structure. It is of course not for me to speak to those amendments and the effect of them. However, from the speeches we have already had, both the noble Lord, Lord Hunt, and the noble Lord, Lord Lester, would say that their amended Schedule would deal with the issue and that it would not arise.
I find myself in an interesting position. I am no longer able to answer in the way I would have hitherto, because I have to pay due and proper regard to the expression of opinion given in this House. That means that those parts of the Bill to which the amendment now refers are no longer going to be in it.
The Earl of Onslow: In that case, I seek some assistance. Either the amendment is out of order completely, or if it is not, then the Minister must be able to reply to it. Or do I have it wrong? I quite accept that I am confused.
Baroness Scotland of Asthal: I can reply to it, and could do so at some length. My worry is that I may incur the wrath of other noble Lords who will know that we shall come back to this issue at Report. I am happy to try to give the reassurance that the noble Earl seeks in terms of how the Bill was initially constructed.
It is right that individuals should be free robustly to criticise those practices which they find abhorrent, whether or not they are justified by others on the basis of their faith. However, I have argued in the past that amendments to this effect are wholly unnecessary. The thresholds in the Bill are sufficiently high to ensure that the condemnation of gender inequality, human rights and other abuseswhen justified on religious groundswill not be captured by the offences.
Under existing legislation, it is an offence to incite hatred of groups, whether at home or abroad, defined by reference to race or nationality. It is therefore an offence to incite hatred against Israelis, Palestinians, Japanese or any other nationality. If the concerns of the Bill's opponents were correctand it is impossible to distinguish between robust criticisms of belief, practices and policies on the one hand and inciting hatred of people or communities on the other handthen we would, by now, have seen a suppression or chilling of free and robust debate about the Middle East, or condemnation of the actions of Japan during the Second World War, and many other circumstances I could mention. Obviously, this simply has not occurred.
In relation to racial hatred, in order to ensure that the benchmark is appropriately high, there is the need to have the Attorney-General's approval before making any such reference. It is right that that was so before the passing of the Human Rights Act , with its strengthened expression of what had, before then, been common law issues. There is no reason whatever to believe that the extension of protection to groups of people defined by their religious beliefor lack of such beliefwill work any differently.
If it were not for the serious negative effect of the current amendment, we would probably be content to accept it. However, we can be in no doubt that
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extremists in this country are adept at dodging the law. By creating an exemption for specified activities, we would simply be inviting the extremists to dress up their words and behaviour as legitimate criticisms. We have had evidence of the way in which they have done that in relation to our current legislation. They receive acute advice, and tend to fly as close to the wind as they possibly can without involving the wrath of the criminal justice system.
We also believe that the potential harm of this amendment outweighs its potential benefits. The thresholds contained in the Bill are, despite the arguments on the other side, very high. The Bill, and the wider criminal justice system, already includes safeguards which ensure that unmeritorious prosecutions are not to take place. We have the evidential tests applied by the CPS and the Attorney-General's consent, to which I have already referred. For those reasons, we resist the amendments. However, as I said earlier, the Government are very sensitive to the concerns being expressed around the Committee. I had expressed a willingness to look at these issues before we came back on Report. The Committee decided that I would not be given that advantage and I, of course, accept that.
Lord Hunt of Wirral: I will not respond in detail, but I do not agree with what the Minister just said. In fact, under the Bill as now amended, my noble friend's point, which is well taken, would clearly be covered by new Section 29J in the newly amended form, which would enable him to continue to condemn those outrageous practices
The Earl of Onslow: Provided that stays in the Bill, I am happy, but it is extraordinarily odd that those odious practices should be allowed in any way to be defended. I find that deeply repellent. Having said that, if that is now covered in the Bill as amended, I am delighted to withdraw the amendment.
"2A Where a person is accused of an offence under section 18, 19, 20, 21 or 22 of the Public Order Act 1986, it shall be a defence, in addition to the defences set out in section 18(4), 19(2), 20(2), 21(3) or 22(3) of that Act, to prove that the words or conduct were, or, as the case may be, the material published, distributed, presented, shown, played or broadcast was, reasonable."
The noble Viscount said: I shall move the amendment briefly, because it will not be pre-empted until later this evening. I have now been trying to deal with this point for the best part of a year and the noble Baroness, Lady Scotland, knows perfectly well what the point is. I am concerned about how the Human Rights Act will be dealt with in the Crown Courtor, I suppose, the magistrate's court, although more likely the Crown Court. I raised this matter when we
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discussed the Serious Organised Crime and Police Bill and the noble Baroness, who had many things to deal with that evening, did not closely address my question. I raised it last Tuesday, when the noble Lord, Lord Bassam, said that he would write to me, which he did not; but I accept the apology that he gave me yesterday.
However, today there come two documents, one of which is the guidance, which tells me nothing that I did not knowfor instance, that the courts must apply the law and not Home Office guidance. There is also the generalised letter which I think several Members of the Committee have received, which says that there are thresholds for these offences which, if you look at the footnote, in fact turn out merely to be the elements that the prosecution must prove. I am not concerned with the prosecution; I am concerned with the defence; what will be said to the jury; and the decisions that the jury must take.
It is inevitable, with an offence that carries as large a penalty as does this, that defence counsel will address the Human Rights Act points. I am not entirely sure, even now, that new Section 29J covers all the human rights points that may arise. It deals with Article 10, but I have a feeling that Articles 9, 7 and 14 may also be involved. What I have never been told is what the Government see as being the process whereby, if the defence raises that issue, the judge in the Crown Court will direct the jury when it comes to his summing up.
He will have to explain to them a number of articles that may have been raised by the defence, especially Article 10(2). He will leave the jury to decide the balance between what might have been proved to have been a fairly unpleasant collection of words or material otherwise displayed and, on the other hand, the protection that is given in Article 10(2) on the grounds of protecting the rights and freedoms of others. That will not be easy for juries to grasp. What is more, when they have come to their decisionwhich will be either that they convict or that they acquitthere will be no way of knowing why they reached that decision.
Therefore, unless something goes seriously wrong and the matter is taken to the Court of Appeal, we will never have any case law built up that enables judges in future correctly to direct the jury. That is the point that I have been trying to get the Home Office to answer. So far, it has completely failed to do so. I hope that the noble Baroness may be able to help me this evening. I beg to move.
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