I beg to move amendment No. 23, in page 2, line 23, at end insert—

‘(4)In subsection (3) at end insert “but no power of arrest shall reside with any other person including any person empowered to do so by virtue of section 110 of the Serious and Organised Crime and Police Act 2005.”.’.

May I welcome you to the Chair, Mr. Benton? We seem to be enjoying a series of different faces appearing to chair this Committee. We have achieved diversity during our sittings, and even if our proceedings this afternoon are short, I hope that you may nevertheless find them interesting.

Amendment No. 23 raises the issue that I raised on Second Reading, about powers of arrest. As a result of a Bill that we passed into law in the previous Session—the Serious and Organised Crime and Police Act 2005—we altered the rules relating to powers of arrest. The Minister will be familiar with that. One consequence is that citizens can carry out arrests for all indictable offences. The offence under this Bill will of course be an indictable offence.

The public are likely over time to realise that the law has changed. In any event the maximum penalty for the offence under the Bill was going up from two to seven years. In the days when there was a two-year maximum penalty, the offence was not arrestable. I have serious reservations if the offence is made arrestable by means of citizen’s arrest, and let me explain why.

We know, by virtue of the fact that the Government have mentioned the existence of the Attorney-General’s discretion, that there will be many instances where somebody may technically—or even more than technically—fall foul of the law, but no decision to prosecute will be made. I ask the Minister to consider for a moment what will happen.

The prospect of this law has excited a great deal of public comment. In some religious communities and groups, it is a matter of either great enthusiasm or great anxiety. The evidence from Australia, albeit where there is a slightly different system, is that the advent of such a law led to people attending public meetings as a fifth column—if I may put it that way—in order to see whether the law was being broken. I cannot believe that scenes of individuals approaching platforms on which speeches are being made and   without the presence of the police purporting to arrest—or actually arresting—platform speakers under the provisions of section 110 of the Serious Organised Crime and Police Act 2005 will make a good contribution to community relations in this country.

Furthermore, I apprehend not only that that could be a trigger for violence, but that in most cases where arrests are made, no prosecution will ever take place. People will then try to bring claims for wrongful arrest against those who arrested them, but they will not succeed, because it will be pointed out that, as the reading of the Act is cast so wide, even though the Attorney-General has taken the decision that it is not in the public interest to prosecute, arrest may have been justified in the first place. I urge the Minister and the Government to think carefully about that; it is a recipe for disaster.

The offence under the Bill falls into the category of offences for which, in my judgment, there is little requirement for a citizen to have a power of arrest. I assume that the circumstances in which the Government intend that a prosecution should be brought or initiated would be only after mature reflection on what somebody has said, or by the intervention of a dedicated police taskforce that would be alive to the sensitivities involved. I ask the Government to make an exception from the ordinary powers of arrest and ensure that it can be only a police officer in uniform who can arrest for the offence of religious hatred. I accept, of course, that that would apply to racial hatred as well. There may be other considerations to be had on that, but in reality, if one goes in, the other goes in. It is highly undesirable that individuals should be arresting other people for what they are saying rather than for what they are doing. The power to arrest somebody on the basis that they may be committing, or about to commit, a breach of the peace, exists anyway.

I can think of no requirement for there being a citizen’s arrest in a case of this kind. If he agrees with me, he might consider the amendment satisfactory for achieving that end. Alternatively, he might tell me that somebody would like to draft it differently, in which case I would be only too happy to let that happen.

I join the hon. Member for Beaconsfield (Mr. Grieve) in welcoming you to the Chair, Mr. Benton. You will be our final Chairman, as this is the final sitting in Committee, but you are very welcome.

The hon. Gentleman discussed the powers of arrest, but he showed great powers of recovery in the first few moments of his speech. We know that he is an authority on citizen’s arrest, not least through personal experience, which I thought he might have shared with the Committee—perhaps he will on another occasion. He clearly understands that the powers of citizens to arrest were covered in the Police and Criminal Evidence Act 1984 and clarified further and, indeed, extended in the Serious and Organised Crime and Police Act 2005.

Citizen’s arrests take place in unusual circumstances, and there are a number of safeguards, of which the hon. Gentleman will be aware. First, they are available only for indictable offences, although, as he rightly pointed out, all indictable offences are covered. Secondly, there have to be reasonable grounds to believe that it is necessary to carry out a citizen’s arrest. Thirdly, it must appear to the person making the citizen’s arrest that it is not reasonably practical for a police officer to attend and carry out an arrest.

I am aware from the comments that the hon. Gentleman and others have made that there is a fear that coupling the new offence with the power of citizen’s arrest may lead to people acting inappropriately or over-zealously, which might raise rather than reduce tensions as we intend. I do not think that that will happen, and I hope that I can reassure the hon. Gentleman. First, that has not happened in nearly 20 years of operating the race-hate legislation. I understand that he may consider that there are differences; he has explained to the Committee that he thinks that there is a difference between race and faith and that some adherents to religious beliefs may act differently.

The Minister will correct me if I am wrong, but when the Public Order Act 1986 containing the race-hate provisions was enacted, the maximum penalty was not more than five years’ imprisonment, so race hatred was not an arrestable offence. There was no provision in that Act for a citizen to arrest, although provision had to be made especially for a police constable in uniform to carry out an arrest. It is only since the extension to seven years’ imprisonment that the race-hatred offence became an arrestable offence.

The hon. Gentleman makes a fair point in response to the weakest of the three points that I am making. Over time the rules have changed, not least because of the Serious and Organised Crime and Police Act. None the less, whatever the circumstances, there has not been a problem thus far.

Secondly, I comment again on the need for us to get the guidance right once the new legislation is in place, so that people may understand precisely how the offence will operate, and that it operates to a very high test of hatred. Thirdly—I genuinely hope that this reassures the hon. Gentleman and members of the Committee—where people act in a way that might be regarded as frivolous or inappropriate, there are other protections in the law, and there would be consequences. For example, if someone grabbed hold of a person thinking that they were carrying out a citizen’s arrest but they were actually acting entirely inappropriately, they could be charged with assault. Civil action could be possible for false imprisonment, for example. If an individual repeatedly tried to execute a citizen’s arrests, rang 999 and called the police, they could be charged with wasting police time. There are several safeguards in the proposal that would protect society from such frivolous actions.

I would be grateful for some guidance from the Minister. Is it right that under the law as it stands it is possible to make a citizen’s arrest for a potential breach of the peace? If that is so, as I believe was suggested earlier, there is an essential contradiction in the amendment. The hon. Gentleman is saying on one hand that there should not be a power to carry out a citizen’s arrest because of all the trouble it will cause, but on the other hand that it is already covered by the right to arrest for breach of the peace. He seems to be arguing both ways at the same time.

I shall have to reflect carefully on my hon. Friend’s intervention. My understanding is that the power of citizen’s arrest is only for indictable offences, but for all indictable offences. There may be contradictions in some of the comments made by the hon. Member for Beaconsfield and I will consider them further.

I have tried to make it clear to the Committee that we understand the anxiety that some might see the measure as a trigger for inappropriate and frivolous action on behalf of people who may be acting over-zealously. We do not believe that that will happen; we think we can create the right climate, with guidance. There will be consequences for people who overstep the mark by trying to carry out a citizen’s arrest in an inappropriate way.

Might not such action be inappropriate? It could be a genuine citizen’s arrest which could be upheld under the law should there be an indictable offence. However, if it were to become fashionable as a means to make a point or to gather views, would there not be a danger of a multitude of citizen’s arrests being made?

I am trying to explain that I do not think that there will a frivolous interpretation of the power of citizen’s arrest in practice, but if someone might have broken the law by inciting hatred on the grounds of religious belief, a citizen’s arrest is a possibility, and rightly so. If the constable cannot get near, a citizen’s arrest is appropriate when someone is acting in a way that is against the law. That is why we have the power of citizen’s arrest. As the hon. Member for Beaconsfield said, not every case will be prosecuted because the Crown Prosecution Service will need to be satisfied about the evidential test and the public interest test. There is the power of citizen’s arrest if a serious incident takes place.

I listened carefully to the hon. Gentleman, but at the moment I am not persuaded to accept the amendment. However, as with all these things, I shall reflect on them. Given the hon. Gentleman’s strength of feeling, no doubt we will debate them again in due course.

The issue has a long history. As anyone who served on the Serious Organised Crime and Police Bill Committee will remember, when the Government first introduced the changes to powers of arrest they intended that citizens should have the power of arrest   for all offences. I think that I succeeded in talking the Government out of that during the passage of the Bill and they reduced it to indictable offences only.

The hon. Member for Islington, South and Finsbury (Ms Thornberry) made a point about breach of the peace. It is possible that she is right, and that we also got rid of the citizen’s power to arrest for breach of the peace, but I am not sure that we did. In any event, that is a separate issue. If I may be forgiven for saying it, this highlights the muddled thinking that creeps into our deliberations from time to time. Breach of the peace, classically, or other parts of the Public Order Act, mean doing things such as going on to a street corner and hurling abuse at a group of Muslims coming out of a mosque. I can understand very well that, in that setting, a power of citizen’s arrest might be desirable to cure the mischief—but it might still lead to problems. However, in the context of this offence we are talking about somebody standing on a platform and delivering a speech that is not insulting to the audience but is likely, through its insulting terms about a third party, to encourage that audience to feel hatred towards other people.

I accept that it is possible that, having been roused in their hatred, the audience will walk out of the building and immediately start torching neighbouring houses, synagogues, mosques or churches—although using overt words to encourage them to do so is already a serious criminal and arrestable offence. But that is not what this law is about. This law is about, in a general way, making people feel ill disposed, angry and hostile and enmity towards others. I cannot conceive of a circumstance in which, with that going on, there would be a call for individuals to intervene and carry out a citizen’s arrest. Indeed, I cannot conceive of anything more massively counter-productive; it would probably be the best way to spark a riot.

Even the police, I suspect, will not be crashing with a battering ram through church and mosque doors to arrest imams and clergymen as they deliver their sermons on Fridays and Sundays. They are likely to make a careful assessment, to arrest the person and interview them, and to pass a file to the Attorney-General. In one or two limited cases, a prosecution will result.

Given the controversy surrounding this legislation, I cannot conceive of anything worse in the context of community relations in this country than to give an open invitation to people to interfere with the freedom of speech of others to say something that they disagree with. I think that it was the Minister who said that there was likely to be one prosecution a year, so in all probability, they will be taken into custody and detained until the police arrive merely because the power exists under the Act. This is a form of thought crime or expression crime, and we would do well to leave it to the police to decide when and where an arrest should take place.

My hon. Friend is making a powerful case and I hope that the Minister will reflect on it. Did my hon. Friend spot the flaw in the Minister’s second point about guidance? Guidance to the Crown Prosecution Service and the police is one thing—that is helpful for the CPS and the police. However, it is not guidance for every individual in the country, and it is the actions of individuals in crashing meetings that we are concerned about. The Minister described his first point as his weakest; I think that his second was. That leaves him hanging by a single thread.

I agree with my hon. Friend; the guidance is clearly not going to be for the layman. I have no idea what the Attorney-General’s guidance will be in such circumstances. What I am certain about is that there will be many acts, statements, speeches and publications put out in this country—dozens in any 12-month period, I suspect—which, when compared with the wording of the Bill, which I have not yet persuaded the Minister to do anything to alter, will prima facie amount to a breach of the legislation.

The legislation will give to individuals an unfettered power to say, “Right, you’re under arrest and I’m going to insist that a police officer attends and takes you down to the nearest police station, but you might get away if I don’t now come and hold you lightly by the arm,” when the person is surrounded by 250 adherents who have come to listen to his every word. That is barmy.

I take on board the hon. Gentleman’s suggestion, but is that the most barmy scenario that has been put forward this afternoon, or is it possibly even more barmy to suggest that someone would go into a mosque or a church armed with the Racial and Religious Hatred Act, which he has gone through with a fine-toothed comb to find out in what circumstances he has the power of arrest?

I disagree with the hon. Lady. The evidence is pretty clear that when the Bill is enacted—leaving to one side any question of whether it is needed and the other discussions that we have had—there will be numerous calls for the prosecution of individuals for words that they have spoken. Although I accept that the wording of the Australian legislation—it relates to the state of Victoria, to be more precise—is slightly different, it is an example that shows that exactly that happened.

Were there citizen’s arrests?

I am not sure that there is a power of citizen’s arrest in Australia, but it is quite clear that people sat at the back of meetings where preachers were expounding doctrine to a group of people who were broadly of a similar persuasion, noted that comments were being made that were hostile to another faith and might incite hatred—or one of the other terms—and then complained. I think that that is extremely likely. As I understand it, in some cases they brought the prosecutions themselves.

I hope that this is not too lengthy an intervention. I wanted to intervene in relation to the comments made by the hon. Member for South-West Devon (Mr. Streeter). I intend to draw up the guidance in a way that is open and involves consultation with outside groups, so that there is a better public understanding of what we are doing. I accept that on its own, this is not sufficient. Now that I have said that, I hope that people might leave my third line of argument alone.

We have managed to get through the Committee without trying to draw parallels between what we are proposing here and what is the case in the state of Victoria, and thank goodness for that. It is an entirely different system. In Victoria, somebody can make a complaint to the equal opportunities commission in that state and that is where the action begins.

I accept that there are differences, which is why I have not raised the matter, but I have to say that human nature is similar. The fact of the matter is that individuals in Australia went out to find instances of activities by other groups that they believed breached the law. My own experience—after all, I am the diversity spokesman for my party and am involved in community cohesion—and everything that I have seen relating to the state of affairs in some parts of the country suggests to me that exactly that will happen here as well. People will go out looking for occasions when they might be able to criminalise others—possibly justifiably—for what has happened. That does not seem to me to require a power of arrest.

Does the hon. Gentleman accept that the arguments that he makes are equally true of the current legislation on incitement to racial hatred? There are people who go to far-right meetings, and to other meetings, but, to my knowledge, the situations that he talks of have never arisen. Does he not agree that it is unhelpful to compare apples and pears? The legislation in Victoria covers ridicule, which the Bill will not cover, and, in Victoria, it is the individual who initiates proceedings, whereas in this country it will be the Attorney-General. I would suggest that that is a much higher threshold.

The hon. Gentleman makes some perfectly valid points, certainly in relation to the Attorney-General. That highlights the fact that, unlike I dare say in Victoria, very few cases will end in prosecution. We have all the more reason, therefore, to ensure that citizens—looking at the framework of the law, which will be applied only selectively by the Attorney-General in the prosecutions that he brings—do not decide that they are empowered to arrest other people in circumstances that might cause public disorder, when that is not only unnecessary to prevent the mischief that is taking place but likely to lead to far greater community discord. That is what I am concerned about.

I also disagree with the hon. Gentleman’s point about ridicule—if it can amount to incitement to hatred. It all depends on the form that the ridicule takes. As I said in a previous sitting, ridicule can easily   amount to incitement to hatred; indeed, it was a tool used in Nazi Germany for that purpose. I am not confident that ridicule on its own can be excluded. I shall not repeat my arguments; this is a simple issue. I need to be persuaded that it is necessary to have a power of arrest.

On the hon. Gentleman’s final point, I accept that the race relations law has not led to this sort of problem. There are two reasons for that. First, for a long time the race relations law was not arrestable; it became arrestable only recently. Secondly, as I think I acknowledged, it depends on the form of words required to constitute racial hatred. I distinguished previously between racial and religious hatred and I believe that that distinction holds good. Religion is going to be a much more controversial area, therefore it is far more likely that there will be meetings that are controversial and likely to stir up hostility, and at which people will be inclined to test out the way in which law works.

I am grateful to the Minister for saying that he will go back and consider this, but for once I shall try to encourage him a little, and I feel sufficiently strongly about the matter to put it to the vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

NOES

Question accordingly negatived.

Schedule agreed to.

Clause 2 ordered to stand part of the Bill.