Racial and Religious Hatred Bill

That is precisely the point that I was about to make. As far as I am aware, there has been no instance of the Public Order Act being used against the performance or production of a play. The definition of ““play”” specifically includes improvised performances, which is why the Act includes an explicit defence for a director who might not realise that particular words might be spoken or used. The Government want to change part of the original Act, and it is that change that I want to question. I am worried that the hurdle set in that measure will be lowered by the Government’s change. Is the hurdle high or low, as constructed at present? To prove that there has been an offence, there must have been threatening, abusive or insulting language or behaviour as part of the play. That is moderated in the original Act by the defence that the producer or director did not know and had no reason to suspect, that the offending words were threatening, abusive or insulting. The second point that must be proved is intent. It is of course much easier to prove intent in some forms of the criminal law than in others. It is much more difficult in the cases covered by the Bill. If someone thrusts a knife into another person’s chest, one can assume that he intended to kill the other person. In a case where certain words are said or used, it is not so easy to prove intent. Consequently, as the hon. Member for Beaconsfield pointed out, there is a second likely limb under the 1986 Act, which is that"““having regard to all the circumstances (and, in particular, taking the performance as a whole) racial hatred is likely to be stirred up thereby””." That is what the Government want to change. I believe that the Government’s change will lower the hurdle in the second proposed subsection. The hurdle for the offence would be extremely low if it was that any person who might come into the theatre might be incited to religious hatred. Indeed, the person might already have religious hatred in their heart, which would be highly problematic. However, I assume that that is not what the Government intend; they intend the provision to apply to a person who is reasonable, yet if the test was whether a reasonable person might be incited to religious hatred the difficulty is clear, as most of us in the Chamber would say that no reasonable person could be incited to religious hatred. It is unclear what the Government are hoping to catch by the change. I understand that they want to keep the likely limb as nearly identical as possible for each section of the 1986 Act. I understand their argument, but I do not accept that, with reference to material that might be published or posted outside someone’s house, or words that might be said, the provision does not need a definition of the audience. At the public performance of a play, the audience is predetermined; people have paid for their tickets to go to the theatre to see the play. I worry that the Government are lowering the hurdle by creating an unnecessary offence in relation to the production of plays. The situation could be better clarified by the change that I suggested—going back to the provisions of the original 1986 Act in relation to plays.