Criminal Justice and Immigration Bill

I rise to speak to the amendment in my name and to thank the noble Baroness, Lady Andrews, for her succinct and helpful summary of the law of blasphemy and of the history of the attempts to abolish it during the past few years—to which I made a small contribution in 1995, again in 2001, and, as she said, in a year's work on the report of Select Committee on Religious Offences, which I commend to your Lordships as a useful summary not only of the state of the law as it was then but of the arguments both for and against abolition. I pay tribute to the distinguished chairmanship of the noble Viscount, Lord Colville, whom I am very glad to see in his place. I hope that he may feel inclined to contribute to our discussion before we dispose of the amendment. The Minister said that the last successful prosecution for blasphemy in England was the Gay News case 30 years ago and that the arguments for abolishing the offence were helpfully set out in the Law Commission's working paper, published in 1981, followed by its paper, Offences against Religion and Public Worship, in 1985. It concluded then that there was no argument sufficiently powerful to justify the derogation from freedom of expression that any such offence must occasion. The Select Committee on Religious Offences found that it would be extremely unlikely for any prosecution to get under way today. As the noble Viscount, Lord Colville, suggested when the committee's report was debated in your Lordships' House, "““there will be no more prosecutions for blasphemy. Any such case, if launched by a private individual, would be taken over by the Director of Public Prosecutions, and he would put paid to it. I do not think that he himself would allow the Crown Prosecution Service to bring such actions of its own accord””.—[Official Report, 22/4/04; col. 444.]" As the noble Baroness said, there was a recent attempt to launch a private prosecution by two members of the radical group, Christian Voice, which confirmed the prediction of the noble Viscount. They applied to a district judge for summonses against the producer of ““Jerry Springer: The Opera””, which has been mentioned, against the director-general of the BBC, which had broadcast the work on 8 January 2005. The judge found that there was no prima facie case and that the application bordered on the vexatious. Christian Voice applied for judicial review of the decision. In the High Court, Lord Justice Hughes recited the history of the offence and, following a reference to Lord Scarman's judgment in the Whitehouse v Lennon case, said in paragraph 16 of his judgment that there was common ground on the gist of the offence—that the material had to be, "““so scurrilous and offensive in manner that it undermines society generally, by endangering the peace, depraving public morality, shaking the fabric of society or tending to be a cause of civil strife””." It seemed to Lord Justice Hughes that, "““the necessity for this essential ... element in the crime is also consistent with the requirement ... that any such crime be compatible with Article 10 of the European Convention on Human Rights””." He went on to outline the provisions of Article 10(2), concluding that insulting a person's deeply held religious beliefs did not affect his right to hold or practise his religion. Although, because of the way the application was put to the magistrates in this case—perhaps a tribute to the skill of Christian Voice’s legal advisers—it was not necessary to decide on consistency with Article 10, it was significant that Lord Justice Hughes emphasised the point, which would have been central if the case had been allowed to proceed. If I may say so, it might have been helpful if the Archbishops had acknowledged this in their letter to the Secretary of State for Communities and Local Government last week. If Christian Voice had succeeded in launching this case, or a similar one, as the Select Committee on Religious Offences in England and Wales predicted, and as the most reverend Primates might like to be reminded, it would be likely to fail on grounds either of discrimination or of denial of the right to freedom of expression. Article 10(2) of the European Convention on Human Rights requires that any restrictions placed on this right must be prescribed by law, which means that there must be certainty about what is or is not permitted. The common law of blasphemy fails that test, and although in the Wingrove case the European Court of Human Rights upheld the decision of the BBFC not to grant a certificate to the film ““Visions of Ecstasy”” on the grounds that it was blasphemous, that judgment was based on the false assumption that what Lord Scarman had said in his judgment on the Gay News case defined the actus reus of blasphemy in common law. The Select Committee also examined the suggestion made by some witnesses that the abolition of the offence of blasphemy would open up the floodgates to masses of scurrilous and offensive books, pamphlets, cartoons or films—a bogey now raised again by the most reverend Primates when they tell Hazel Blears in the letter that has already been mentioned that this amendment, "““should not be capable of interpretation as a general licence to attack or insult religious beliefs and believers””." There is nothing in the law to stop publications of this nature against any religion other than Christianity now, and it is this discrimination that is one of the most objectionable features of the present law. It is clear that a great deal of the material that is offensive to Christians is already published without attracting any legal penalty. In their response to the Select Committee report of December 2003, the Government said that the Home Secretary was attracted to repeal but saw the need for full debate to inform the way forward. That ignored the many debates in both Houses over the years, as well as the huge volume of comment in the print media and in broadcasting ever since the Gay News case. Perhaps we should be thankful that now their anxiety to make progress with this legislation has persuaded the Government to table their own amendments 24 years after these were first recommended by the Law Commission and five years since the Select Committee went into the matter so thoroughly, taking evidence from all the major religious organisations and dozens of other people. My regret is that no Government have had the stomach to face up to the vociferous minority since the Law Commission reported, and I doubt whether it would have happened now if it had not been for the sterling efforts of my honourable friend the Member for Oxford West and Abingdon in another place. The statutory religious offences were also examined by the Law Commission and the Select Committee. I thank the Minister for getting rid of blasphemous libel in the Criminal Libel Act 1819, and for eliminating the reference to blasphemy in the Law of Libel Amendment Act 1888. It appears that Section 3 of that Act had already been repealed—a small defect in the amendment, which may be remedied at a later stage. The Government have unfortunately neglected the opportunity to repeal the other ancient statutory religions offences, which were covered by the Select Committee’s report in 2003. Briefly, the main one that is still used occasionally is Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860, which forbids, "““riotous, violent or indecent behaviour in any Cathedral Church, Parish or District Church or Chapel of the Church of England ... or in any Place of Religious Worship””." The Select Committee discussed that at some length, and it was noted that the Law Commission had recommended its repeal. In the last couple of years for which the figures were available to the Select Committee—2001 and 2002—three and six prosecutions had been brought under that Act, leading to no convictions and one conviction respectively. For the three years 2003 to 2005, there were 15 prosecutions and seven convictions, but those figures must be interpreted with caution, as the noble Lord, Lord Hunt, emphasises in a footnote to the figures. Apart from transcription errors in extracting data from the large administrative data systems generated by the courts and police forces, the statistics do not tell you whether there were multiple charges or whether the conviction was obtained under some other statute. No evidence was received by the Select Committee of acts of desecration dealt with under the ECJA which did not constitute offences under some other Act such as the legislation on criminal damage or public order. We received no evidence that the Act had ever been used against riotous behaviour in a non-Christian place of worship. The best-known case which everyone remembers was that of Mr Peter Tatchell, who interrupted a sermon by the then Archbishop of Canterbury in Canterbury Cathedral. After a two-day trial he was fined £18.60 by the magistrate, thereby showing, by the reference to the 1860 Act, what he thought of the charge. In their response to the Select Committee, the Government said that it was—