The BBC today rejected a call from Cabinet minister Peter Hain to drop British National Party leader Nick Griffin from the panel on BBC1's Question Time this Thursday.

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Mr Hain, a long-standing campaigner against apartheid, has written to BBC director general Mark Thompson warning he could face legal action if he allows Mr Griffin to take part in the flagship political show.

The Welsh Secretary argued that the BNP was currently "an unlawful body" after the party told a court last week it would amend its whites-only membership rules to meet discrimination legislation.

The Equality and Human Rights Commission had issued county court proceedings over concerns the membership criteria were restrictive to those within certain ethnic groups.

In a letter to Mr Hain today, Mr Thompson responded: "According to the advice we have received, the British National Party is not prevented from continuing to operate on a day-to-day basis and its elected representatives continue to sit on councils and in the European Parliament.

"It remains the BBC's obligation to scrutinise and hold to account all elected representatives and to do so with due impartiality.

"We are also advised that if there were to be any election - local or national - tomorrow, the BNP would still be able to field candidates.

"We therefore do not agree that the developments in the Central London County Court proceedings legally inhibit the BBC from allowing Nick Griffin to participate on the Question Time programme and our position remains as set out."

Mr Griffin is due to appear on Thursday's edition of Question Time alongside Justice Secretary Jack Straw, representatives of the other main parties and black writer Bonnie Greer.

But in his letter last night, Mr Hain said that the invitation to the BNP leader should be suspended until he is able to agree a new constitution with his party that meets the requirements of anti-discrimination laws.

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"If you do not review the decision you may run the very serious risk of legal challenge in addition to the moral objections that I make," he warned.

Mr Hain today told BBC Radio 5 Live: "The difference between the BNP and other organisations is that the BNP consistently abuses its own freedom of speech to deny it to others by attacking black people, Muslims, or Jewish citizens," he told BBC Radio 5 Live.

"What they do not deserve, in my view - and the BBC has taken an extraordinary decision here - is to put them alongside the other parties as equally legitimate, equally respectable, when we know they are a racist party with fascist roots.

"I think that puts them in an entirely separate box."

The BBC says Mr Griffin's inclusion is based on obligations resulting from the party's success in winning two seats in European Parliament elections this year.

Anti-fascist campaigners plan to stage a protest against Mr Griffin's presence on the show at the BBC's Television Centre in west London when it is filmed on Thursday.

But an opinion poll at the weekend found voters backed the BBC by 63 per cent to 23 per cent.

Downing Street said it was up to the BBC whether Mr Griffin appeared on the programme.

"Editorial decisions about who appears on Question Time are a matter for the BBC," the Prime Minister's spokesman told reporters.

The spokesman said Mr Brown had made clear in the past that he was "not afraid to debate with anybody". It was "not a problem" that Mr Straw would be appearing on the programme with Mr Griffin.