Racial and Religious Hatred Bill

My Lords, after the excitement of the previous two speakers it is time that my stupor-inducing talents were engaged. Like my noble friend Lord Haskel in his outstanding speech, I had considerable reservations about the Bill, but I differ from him where he said that he thought in the end he might not be able to support it. We have to remember that it was a manifesto commitment of the Labour Party and it was passed by a substantial majority in the other place. That does not mean that there are not amendments that we could sensibly propose that would drastically improve the Bill, but we have to be careful about its status. The standard liberal line on freedom of speech goes something like this: I should be free to do or say anything unless in doing so I harm the interests of others. Those interests must be subject to some objective tests. They cannot just be matters of subjective sensibility. There is a difference between harm and offended sensibility. Usually harm has been construed to mean two things: harm to someone’s physical security—putting that security at risk—and harm to someone’s autonomy; that is to say, their capacity to live their own life in their own way. On a liberal account, free speech can be abridged when it can be shown to cause one or both of such harms and those harms must be capable of objective determination. Given that, it might be thought that those liberal principles are wholly consistent with the Bill, because inciting religious hatred could in principle cause one or both of those harms to physical security and personal autonomy. The liberal is typically, though, concerned about a blanket provision protecting religious belief, because in the view of the liberal, religious belief, unlike racial identity, is a matter of choice and not of an unchosen constitutive identity. So, although in particular circumstances harm of the appropriate sort may be caused by free speech, such circumstances can, and should, be dealt with in terms of other laws rather than ones that give religion a privileged status and protection against the unlimited exercise of free speech. I think that that is pretty much the liberal position. Those outside government who have advocated something like this Bill have usually rejected that liberal view of the nature of religion. They have argued that religious belief is as much constitutive of someone’s identity as is their ethnic identity—that is, belief and believer are constitutive of one another, or it is a case of two sides of the same thing. Oddly enough, given that that has been the thrust of the argument for the Bill outside government, the whole argument of the Government—certainly as put by Mr Goggins on the Radio 4 programme this morning—turns upon the falsity of that claim. The Government state that the Bill draws a clear distinction between beliefs, which they claim are not protected under the Bill, and believers, who are. That was precisely the thrust of Paul Goggins’s claim—that the noble and learned Lord, Lord Mackay of Clashfern, had misunderstood the nature of the Bill because he did not attend to the distinction between belief and believers. So we are in the odd position that those who asked for the Bill did so on the basis of a philosophical view of the nature of religious belief, which the Bill explicitly rejects. Indeed, more than that, it might be said that the coherence of the Bill depends on the rejection of precisely that account of religious belief. In his interview, Mr Goggins used the following example to illustrate his point. Islamic beliefs will not be protected from being lampooned, criticised and made fun of, but under the Bill the Muslim is protected, for example, against a poster which shows a woman wearing a burka with a caption saying, ““What has she got underneath it? A gun or a bomb?”” and so on, as such a poster could incite hatred against the believer. But is a clear enough distinction to be drawn here between belief and believer to give legal certainty about when an offence has been, or is in the process of being, committed, particularly when the issue of intention is not a necessary condition of the offence? I give an example concerning Rowan Atkinson, who has been rather active in criticising the Bill. I remember a rather funny sketch in the programme that made his name—““Not The Nine O’clock News””. It involved a clip of film of hundreds of thousands of Muslims praying outside a mosque in Tehran and listening to Ayatollah Khomeini. As they prayed, their heads were close to the ground, and the commentator said, ““In Tehran today, the hunt goes on for Ayatollah Khomeini’s contact lenses””. That was a Rowan Atkinson-type skit on Muslim prayer. Would that be caught within the Bill or are the words of the Bill sufficiently robust to ensure that that is not the case? I believe that in the Bill we need to strengthen the defence of artistic freedom in respect of lampooning and making jokes about religion. Given that the role of intention is not set out, there may well be almost an incentive for those whose religion is lampooned to claim not only to be hurt by it but also to be harmed—that is, that such an act is not only hurtful but hateful—and there could be an incentive to over-egg the degree of offence that has been caused. We need to strengthen the provision for artistic freedom, and I agree with those who have argued that there should be a reference to intention. To take another example—since it might be thought that comedians can look after themselves—I was at Temple tube station yesterday, coming down to the House. The train stayed for a minute or two in the station, with the doors open. When a woman wearing a burka got into my carriage, several people immediately left the train. It was not, in my view, at all a blameworthy thing to do: they were scared, and one can understand why. Imagine that one man who left the train went to his local pub last night, and started holding court at the bar. Telling his friends what he had done, his line in the discussion would be ““Well, who knows what she has got under the burka?””—exactly the same point, in conversation, as Mr Goggins was saying the Bill would catch in the poster. The man had no intention of stirring up religious or racial hatred; but could it be construed as that if someone reported him, because the intention was not a necessary condition? Otherwise, the situation is precisely the same as Mr Goggins’s poster. If one is caught, I cannot see why the other is not. I thought the Government’s aim was to liberalise fundamentalist Islamic groups, as part of the liberalisation which other faith groups in our society have gone through. We have a right to insist on the maintenance of liberal values, yet the effect of the Bill might well be to protect faith from challenge and make it even more inward-looking. Faith communities should not look for special legal protection. They should, as John Stuart Mill argued, be willing to meet and argue in the public realm about challenges to beliefs, not retreat into some protected bastion. Finally, in the light of this, I am concerned that faith communities will still not be dealt with equally as a result of the Bill. I am sure many Muslims are suffering under what the Government consider a false belief—that they will receive the same protection as is given to the Anglican form of Christianity under the blasphemy laws. If the Government are so convinced that we should protect believers and not belief, in respect of other religions, they should have the courage of their convictions and repeal the blasphemy laws—which do the precise opposite.