Racial and Religious Hatred Bill

moved Amendment No. 4:"Page 3, line 6, at end insert—" ““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 Court—or, I suppose, the magistrate’s court, although more likely the Crown Court. I raised this matter when we 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 know—for 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 decision—which will be either that they convict or that they acquit—there 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.