Racial and Religious Hatred Bill

My Lords, I am at one with the noble and right reverend Lord, Lord Carey, in hoping that those who congratulate maiden speakers do not have their freedom of expression further curbed by the Clock. It is a pleasure to welcome the noble Baroness, Lady Corston. She has a long and distinguished career in both the trade union movement and the Parliamentary Labour Party. She is also a lawyer and has practised as such. She referred to her extremely distinguished career as the chair of the Joint Committee on Human Rights, in which she already will have met some of the Members of this House. We welcome her here and we welcome her intervention on this Bill. Those who ask for further speeches from maiden speakers will have an opportunity to tempt her in Committee and on later stages of this very piece of legislation, quite apart from other measures that come forward. I have no doubt that the Government are determined to see the Bill on to the statute book. If that is to be the case, I wish to see legislation that works. At the moment I have a doubt about its workability. I have asked this question before to the noble Baroness, Lady Scotland—I am as sorry as everyone else that she is not in her place—and I did not receive an answer. For all his other claims to fame the noble Lord, Lord Bassam, does not have experience of being a judge in the Crown Court. I hope that at some stage in the Bill’s passage we will receive an answer to my question. When the previous piece of legislation was being discussed in Standing Committee in another place it was dealt with by the then Minister of State Ms Blears, who said that the two relevant articles in the European convention were article 9 and article 10, on freedom of religion and freedom of expression. Of course she was right when she pointed out that the courts are extremely good at balancing such rights one against the other. However, that is not what the courts are going to have to do in this case, because the Court of Appeal or the Divisional Court will have to consider both of them as against the facts. I remember that the last time we discussed the issue the noble and learned Lord, Lord Mackay of Clashfern, quoted a case called Norwood. In Norwood, which was a prosecution under the summary provisions earlier in the Public Order Act, it was decided by the Divisional Court that the defence in Section 5 of being reasonable was a defence of being objectively reasonable and that it was one that would have to be balanced against the European convention. Another case, called Hammond, was heard before lay magistrates. The Divisional Court said that,"““it was accepted that [Articles] 9 and 10 . . . did not, as such, provide a defence . . . under s.5 of the 1986 Act, but human rights considerations had to be brought into play in an appropriate way when the offence created by the section was looked at and when the facts as found by the justices were applied to it. It was vital to ensure that if, in so far as a person’s freedom of expression was to be restricted, it was only to be restricted in a way which was compatible with the Convention. Thus the justices had to have Art. 10 and its terms very much in mind””." That must be absolutely right. But the difficulty with the superior courts balancing these matters one against the other is that the district judge in Norwood and the lay magistrates in Hammond gave reasoned decisions, and therefore it was possible for the Divisional Court to apply its mind to the way in which they had treated the facts of the case as against the provisions of the European convention. That will not happen in a jury trial. Juries do not give reasons. They either convict or they acquit, and neither way does one know why they do so. Therefore, one can only look at the way in which the matter was summed up by the judge to see whether he directed the members of the jury correctly, unless, of course, they come to a perverse decision, which, in a case such as this, I should have thought was very improbable. Therefore, I want the Government to apply their minds to the following. If in Section 5 there is specifically a defence which has now been held to bring in the concepts in the European convention, why is there not an equivalent defence in these far more serious cases which are now in the schedule to this Bill? Why cannot we have a peg upon which the superior courts can hang their consideration of the European convention on the one hand and the facts on the other—in so far as they are able to discover what those facts have been held to be by the jury? As a footnote, will the Government please consider what they are going to do to help those who have to sum up to juries to know what to say about the tasks that the jury is to fulfil, because it, too, will have to balance the facts against these rights? It will not be an easy summing up to deliver. It is very easy to get it wrong, and it is a matter to which I very much hope the Judicial Studies Board will also apply its mind very soon. Therefore, I have a very technical criticism of the Bill. I do not think that it gives the superior courts a proper leverage on which to apply the two precepts in the European convention. Those precepts are absolutely essential and were held to be essential in weighing up these matters in previous cases that came before them.