Criminal Justice and Immigration Bill

My Lords, the appearance of another criminal justice Bill at least provides a speaker in your Lordships’ House with plenty of scope. I shall leave the right reverend Prelate the Bishop of Liverpool to touch on those parts of the Bill that affect the working of the criminal justice system. I hope that noble Lords will forgive me if I allude to two issues, neither of which was contained in the Bill when it was introduced in another place, but to which the Minister referred in his opening remarks. The first is what might be described, in the light of some comments already made, as the elephant in the room—I refer to the intention to abolish the common law offences of blasphemy and blasphemous libel, which was announced by the Government in a debate on an amendment at Report stage in the other place. It would not be appropriate to enter into substantive arguments now but it would be strange if no mention of it were made from this Bench. The noble Lord, Lord Henley, referred to statements made by the Church of England’s Archbishops. On his recent visit to Durham, the most reverend Primate the Archbishop of Canterbury said that the Church of England would not resist this measure, given the awkward and not very workable legacy of the law. This will have come as no surprise to those who heard the debate on the Racial and Religious Hatred Bill in November 2005. The former Bishop of Oxford, now happily among us again as the noble and right reverend Lord, Lord Harries of Pentregarth, indicated in answer to the proposal of the noble Lord, Lord Avebury, that the church’s opposition to abolition rested on issues of timing rather than principle. I say today that we welcome the consultation that the Government are undertaking before introducing their amendment, to which the Minister referred in his opening, supportive remarks about the Church of England. The Church of England itself is consulting other churches and religious bodies, and we hope the outcome of those consultations will be revealed shortly. Before moving on, I would like to correct a common misapprehension about the law of blasphemy. It is often said that it protects only the tenets of the Church of England, but that statement is based on a faulty reading of case law. The judgment of the Administrative Court in the Jerry Springer case on 5 December 2007 usefully confirmed that the factual basis of the offence includes, "““contemptuous, reviling, scurrilous and/or ludicrous material relating to God, Christ [or] the bible””." The law therefore protects the basic tenets and scripture of the Christian religion. I mention that because it means that response to the proposal for abolition is not a matter for the Church of England alone but for Christian denominations and groups more generally, although of course, as I have already indicated to your Lordships, we are playing a central part in all those discussions at the moment. Incidentally, I assure the Cross-Benchers—in particular, in this centenary Week of Prayer for Christian Unity—that the Christian churches together hope to speak on this matter with one voice. My second topic also relates, as I said, to an amendment put forward by the Government. I refer to the creation of a new offence of incitement to hatred on the ground of sexual orientation, which is contained in Clause 126 and Schedule 26. I want, first, to enter a caveat about the principle of legislating to protect particular groups, not because I believe that they do not deserve protection—they do—but simply because we already have a battery of public order provisions which apply to everyone. Sections 4A and 5 of the Public Order Act 1986 prohibit words, behaviour or displays of written material intended to cause harassment, alarm or distress, or which are heard or seen by a person likely to be caused harassment, alarm or distress. We must of course hold to the principle that it is wrong to threaten or stir up hatred against anyone on any ground. That said, we on these Benches recognise that members of sexual minority groups may indeed be subject to all kinds of threatening and hate-filled behaviour based on irrational prejudice. The report of the Select Committee on religious offences pointed out that incitement has often been criminalised, "““as a reaction to the perception that a novel social mischief has arisen or that an existing mischief has become particularly damaging to society””." Whether that is now the case may be debated. Paradoxically, the demand for such a law may reflect society’s increasing intolerance of hostility to sexual minorities but, by that token, it may be less necessary than it once was. If there is to be a new offence, it raises some of the dilemmas with which we became familiar in the debates over religious hatred. The churches are concerned that the offence should clearly exclude from its scope the expression of traditional Christian teaching about human sexuality, marriage and the family, and consequent criticism of particular forms of behaviour or lifestyle. Frankly, freedom to advance those convictions is part of life in a free society, and it should be distinguished from freedom to threaten or stir up hatred against people with whose behaviour and lifestyle Christians and others may disagree. The Church of England and the Roman Catholic Church made a joint submission to the Public Bill Committee in the other place, expressing support for the new offence, on the condition that it clearly distinguished between incitement and controversial statements of opinion. They thought that this condition would probably be satisfied by the requirement of intention to stir up hatred, coupled with the restriction of the offence to threatening, rather than abusive or insulting behaviour. They raised the question of whether there should also be a provision to protect freedom of expression, similar to that introduced by the noble Lord, Lord Lester of Herne Hill, into the Racial and Religious Hatred Bill. As noble Lords know, such an amendment was moved and defeated in the other place. I very much hope that the discussion on this proposal will continue as we reflect on the balance—and it is a delicate balance—between protection of the vulnerable and freedom of expression, and ask ourselves whether this measure has got that balance right.