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Racial and Religious Hatred Bill

My hon. Friend is something of a purist in these matters, but as a matter of pragmatism, I think that most of us could live with that. However, the extension to include recklessness, along with that to include abusive and insulting words and behaviour, causes me the greatest difficulty. We questioned initially the need for the Bill, but I accept that the Government will get it. We have asked the Minister throughout the process what is the demonstrable need for the Bill, but he has never properly answered us. The Government must still justify the need to extend the offences in the way that they propose. What conduct will be caught by the Government’s new proposed form of words that is not already caught by the form of words introduced by the Lords? The question of recklessness lies at the heart of our debate today. In our submission, it represents a significant lowering of the threshold of what constitutes an offence under the Bill. Of course, recklessness is a well-known legal concept, but it is normally applied to crimes against property or the person, and it is normally quite easy to establish and apply without difficultly because there is usually an element of physical damage or injury. Expanding that concept to a speech offence, such as the one that we are debating, is dangerous in the extreme. To my mind, that gives rise to a number of questions about the proportionality of the Government’s proposals. Many hon. Members remained unconvinced that such proposals represent an appropriate way to frame terrorism legislation. Allowing recklessness to become the test in relation to encouraging terrorism under the Terrorism Bill, which the other place is currently considering, is still a matter of some controversy. Those Labour Members who engaged in that debate and had that concern should carefully consider whether it is appropriate to extend the application of recklessness to an offence whose importance must come somewhere further down the hierarchy. If the Government have their way, a citizen can fall foul of the law by being reckless about the consequence of using insulting language, and that is going too far for the Liberal Democrats. When I was a law student, I was told by a tutor that a breach of the peace under Scots law was anything that two cops did not quite like the look of, and we are in danger of replicating that attitude in the offence that we are considering today. On other occasions, my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) has used the example of the producer of a play who is warned by the police that if he proceeds in putting on the production, it is likely that he will incite racial hatred because the language or behaviour used will be insulting or abusive. Given that warning, it is difficult to understand how the producer of that play, if he proceeds, will not fall foul of the recklessness element of the Bill. If we go beyond constituting the offence merely by intent, the chilling effect on the producer in that circumstance is absolute and apparent.