Select Committee on Religious Offences in England and Wales Minutes of Evidence

Examination of Witnesses (Questions 220-239)



  220. You would put some limits on the freedom of speech in terms of the respect each owes the other, regardless of religion?
  (Mr Wood) Yes. I particularly made points about public order and physical threat. We presumably are not thinking about going down the route of saying that it would be a criminal offence to say something that somebody else found disrespectful because that would be even worse than blasphemy.
  (Ms Stinson) I believe fundamentally that everybody has the right to believe what they believe. I also believe that everybody has a right to criticise and challenge other people's beliefs in ways that do not go beyond those bounds that we have just been talking about, public order, violence etc. Within those bounds, attacks on people's beliefs can be robust, humorous, and I think that is essential for learning and understanding others' beliefs.

  Bishop of Portsmouth: I do not disagree with that but it is how it is applied in the heat of a religious situation. I am completely with you on the self-criticism or philosophical or political or religious themes.


  221. Could we go on to incitement to religious hatred? What do you perceive to be the mischief which legislation should criminalise and what should be the role of the law in addressing matters of hatred? I ask you please to address this against the background that we have already on the statute book section 39 of the Anti-Terrorist Act at the end of last year which creates a substantial number of religiously aggravated offences, including protection from harassment, which may be quite an important part of this argument. Would you like to address those two issues?
  (Mr Pollock) The British Humanist Association is completely committed to the idea of an open society, freedom of speech, freedom to organise and so on, with the government remaining neutral and above the fray. That sort of society is vulnerable to mindless dissention and discord. Hatred on religious grounds is very corrosive of the bonds of such a society. Hatred is never desirable but one cannot legislate against hatred and religious hatred itself must be accepted as within the bounds of freedom of belief. We believe however that in this country religious hatred strictly interpreted is pretty rare, which was what your witness told you last week. I was struck by his repeated statement to the effect that religious believers had broad backs and can put up with many of the effects of criticism. Nevertheless, religious hatred can be devastating to the lives of individuals and we think it is therefore proper that the state should intervene to make a law against incitement of it, i.e. to make the propagation of hatred illegal is justified in principle. We come on to outline some of the difficulties. We think it is particularly important there should be such a law if one can be properly framed because of the tendency of people to evade the law against incitement to racial hatred by artificial use of religious labelling. We think that some of those people who wish to create trouble for their own reasons are clever enough to do so without getting personally involved when public order offences come into question. That is the gap in the law that we think it is proper to address to catch those who ferment religious or quasi-religious hatred while avoiding committing any other offence. We note that the United Nations Human Rights Committee has urged that the UK should extend its legislation in this area.
  (Ms Stinson) Working with the Red Cross, as I did for some 16 years, I am particularly aware of the number of situations around the world where armed conflict or internal violence has been brought about, partly at least, by individuals and groups, inciting religious hatred as a means of achieving perhaps other political aims. There are a number of examples around the world where in a very short space of time a peaceful society has been moved into armed conflict by the incitement of religious hatred, even if that incitement is for a separate purpose of inciting ethnic hatred. The former Yugoslavia is an obvious example. I do not think we should be quite as confident in the stability of our own society to say that could not happen here. In the former Yugoslavia, they were saying that within a few months of it actually happening.[1]

  222. Both of you see a role for the law in addressing this matter?
  (Ms Stinson) We do if there are sufficient safeguards. In our initial submission, we said that we felt the safeguards as outlined in the Bill and in the Attorney General's guidance on the previous Act from last autumn would probably be sufficient. Having discussed this further, we no longer believe that. We believe that there are serious gaps in that draft guidance by the Attorney General, and I hope that we may have an opportunity to outline some of these.
  (Mr Wood) If I could address question two and a half, we have taken some human rights academics' advice on this and the consensus which we have come to is that we would like to see legislation strongly linked to a clear and present danger stirring up violence or hatred akin to violence and that it does not need to be confined to religious groups or non-religious groups. For example, we think that homosexuals should be given a similar kind of protection against this form of extreme harassment. I started with this because I am leading on similarly to the view that the British Humanist Association is coming towards, if not quite to the extent that we have, that the combination of Lord Avebury's Bill, which is very well intentioned and I see what he is trying to get at, and the non-statutory guidance for the Attorney General, we feel, is fatally flawed. We will come on to that in some of the later questions. Some other problems are that we are alarmed about how people will interpret offensive material as being hateful. Many religious people say with absolute conviction that what they perceive as an attack on any one of them they consider to be an attack on all of them and any attack on their religion to be an attack on them. These are very sincerely held views but one can see under those circumstances that what other people might regard as being a criticism of their religion is interpreted by them as being hateful towards them and their religion and them as a religious group when that is not the intention. Because of those sorts of situations, we need to emphasise the public order issue rather like we were saying earlier and in the terms I have just said about what we think the law ought to do. There are these fundamental differences too between race and religion. One is born with one and not necessarily the other. There are so many different variations of religion and belief. Nearly all of them claim superiority over another. They will be terrible problems that these combinations are going to get us into and the casualty in every case is going to be freedom of expression. I think for us the incitement to religious hatred law is too high a price to pay.

  223. I think we are all very clear about the necessity to retain freedom of expression but it is not an unqualified right. I want to ask Dr Nash to address these points but what are you suggesting we should do about it? To what extent, for instance, does the existing change in the law put in in December meet any of the points? What about the harassment on religious grounds?
  (Mr Wood) I am very worried about the effect of freedom of speech in that particular provision but there is not very much evidence around at the moment about the section being used. I think we have to wait to see how it turns out in practice but I am deeply disturbed about that and I would have wished that section 39 had joined the other sections which were effectively referred back to this Committee. I would have been very much happier had that been the case. It most certainly was not the kind of legislation that should have been done in haste which, with respect, I think it was.

  224. Dr Nash, if it is going to be turning on public order, we need to try and define the area which the law should cover, if it does not already do so.
  (Dr Nash) I would try to draw attention to what are potentially one or two problems about the issue of religious hatred. First of all, we have already approached the idea of religion being very difficult to define but we need to think about how religious hatred as a concept itself may work. Thinking about how prosecutions would satisfactorily prove the religious component of hatred is very problematic. I am conscious of having spoken to some lawyers who have misgivings about the incitement to race hatred and proving the racial component of hatred in this instance. For example, will such a law have to prove premeditation in the religious component of this hatred? How will this be established to the satisfaction of the court?

  Chairman: Would you like to look at one of the examples the police have given us and, while you are doing that, perhaps some other people could ask some questions.

Baroness Perry of Southwark

  225. As a Committee, we are wholly with the reservations you have expressed about preserving freedom of speech and people's right to hate a particular religion or to hate all religion. What you said about your experience in the Red Cross rings true with many people. There are so many serious arguments to say that religion has been responsible for a great many wars and unpleasantness in the world. That can be said in reasoned, measured tones but could very well be heard as an incitement to hatred of religion. Is it possible in law to distinguish between incitement to hatred of a religion as opposed to incitement to hatred of people who are followers of that religion in such a way that you either disturb public order—in other words, you incite people to take violent action against them—or you incite in a way which destroys their freedom of speech and freedom of belief which are also cherished freedoms. That is our dilemma.
  (Ms Stinson) I do not think I was trying to imply that religion is the cause of war. It may be sometimes. Because people are extremely emotionally attached to their religion, if somebody wants to whip up hatred, it is easier to do that through religion than through politics or anything else.
  (Mr Pollock) The duty the community owes in this area is to its members, not to beliefs. For that reason, we feel that any legislation should be cast quite explicitly in terms of people, not beliefs. This is one of our worries about the Bill. In this instance it is in terms of religious hatred which is then defined later in terms of people. We think the title of the Bill and the way it is primarily expressed ought to be in terms of inciting hatred of persons defined by their religion or belief, not in the convenient shorthand of religious hatred. That is one of a number of detailed points that we would like to make if we have time about the detail in the drafting. For example, the Bill is in terms of religious belief or lack of it, but it does not seem to give any protection to expressions of non-religious beliefs. It fails to recognise humanism as a lifestyle that is defined not merely by a rejection of religion but by positive content. European law in the shape of Article 9 of the Convention and the European Union Directive on employment and occupation are moving in the direction of recognising a category of religion or belief as a single concept and case law has shown beyond doubt in several countries that Article 9 embraces not only religious beliefs but also non-religious beliefs such as atheism and humanism. The first such case in the UK has recently been reported. On the other hand, there is a lot of English law which is based on a narrow definition of religion involving worship of a deity and we are very concerned that if the Bill is passed in that form, with this guidance, that the idea of "religion or belief" in the European sense will be cast aside in future. We understand that the Home Office when they were preparing their own clauses for the Anti-Terrorism Bill considered this formally and rejected it as being not exact enough. If it is finding its place in the civil law, as it undoubtedly is, we see no good reason why it should not be used in the criminal law as well. I referred just now to the guidance. The guidance is throughout in terms of expression of legitimate religious beliefs. The idea of the legitimacy of a belief is not to be found in the Bill but the Attorney General seems to have envisaged that there are some illegitimate religious beliefs and our concern is that rejection of religion may be a front runner forillegitimate expression of belief in the eyes of some people, perhaps even a future Attorney General. The guidance refers to private prosecutions. We would be entirely against any private prosecutions in this area. The guidance says that the police may arrest and even charge people before consulting the Attorney General. We are opposed to the police having any such powers. Arrest without or before consultation should only be necessary in the most extreme case and would be covered by the Public Order Act. Charges should in every case await consultation and a ruling from the Attorney General. The guidance says similarly that the police may take advice from the Crown Prosecution Service. We think that they should in every case take advice from the CPS. The guidance also says that if there is sufficient evidence to mount a prosecution the Attorney General will then consider if one is needed in the public interest. We think the law should require that the Attorney General has regard to the importance of Article 10 of the European Convention on freedom of expression in making any such judgment as to the public good. We think the Attorney General should be under some duty to report to a committee of one of the Houses of Parliament or perhaps the Joint Committee on Human Rights on the exercise of discretion in this way. We are also extremely worried about the formulation "threatening or abusive or insulting words", because that could cover a huge range of speech which should never come near a prima facie case of breach of the law. The Law Commission in their report endorsed the use of abuse and insults. "Ridicule has for long been an acceptable means of focusing attention upon a particular aspect of religious practice or dogma which its opponents regard as offending against the wider interests of society and in that context the use of abuse or insult may well be regarded as a legitimate means of expressing a point of view upon the matter at issue." Quoting from the Law Commission 1981 working paper, it had already rejected a blasphemy law based on what was scurrilous, abusive or insulting on the grounds that it could "only be judged ex post facto. Delimitation of a criminal offence by reference to jury application of one or more of several adjectives, (all of which set about objective interpretation and none of which is absolute), is hardly satisfactory." Some religious groups are highly sensitive to disagreement with, let alone criticism of, their beliefs and militantly litigious in pursuing what they perceive as their rights, many of them having not just a fanatical commitment by their adherents but also considerable financial resources. If words are politically abusive or insulting the only defence left for any prospective defendant is lack of intent which is a very weak shield in circumstances, leaving the defendant entirely at the mercy of the judge's summing up and the jury's interpretation of his motives. We oppose any offence based simply on insulting or abusive language and perceived intent.


  226. This is a very carefully prepared answer to what was an ex improviso question. Is this something which you prepared in answer to our question six? Freedom of speech also involves other people having a chance to say things and I just hope you are not going to be too long.
  (Mr Pollock) We are worried about the extension of the law to what I would call semi-private occasions, meetings of the Secular Society, for example, or a meeting of animal rights activists about ritual slaughter. Anyone who attends those meetings from an opposite point of view is going to go along fully expecting to be insulted and outraged. We do not think they should be able to claim the protection of the law when they are putting themselves in the way of being offended. There is also the question of the lack of a defence in cases where the defendant is deemed not to have intended anything, but the law says that there was a likelihood that the words used might create religious hatred. He is not offered a defence that he did not believe it likely to incite hatred. We think such a defence is essential. A speaker might find a quite unexpected audience who react in a way he did not expect. We are also worried about possessing religiously inflammatory material which might be routinely in the possession of people such as ourselves and the question would then come down purely to intent and juries' interpretation of intent could be worrying. Lastly, we do not think it is totally far fetched to imagine that, in cases where people such as ourselves or others in different circumstances spoke out about their views, a self-invited audience coming along expecting and hoping to be abused and outraged, might even allege that the speakers were inciting hatred against themselves, a reflexive hatred. Given the way that the racial hatred law has been used in some cases against racial minorities, we do not think that is totally unlikely.

  Chairman: Lady Perry, to what extent has your question been answered?

Baroness Perry of Southwark

  227. Very adequately.
  (Mr Wood) I would like to answer a question about the difficulty of defining hate of an action and whether it is directed against people. There was an extraordinarily useful article in The Observer, which I will leave with the clerk, by Stuart White on 7 October. "It is not at all clear cut. Imagine someone who says you have to be a moron to be a Catholic because it is so misogynistic or then somebody who had earlier said that Catholicism is misogynistic and then adds in the heat of the argument that misogynists are morons. You then put the two comments together and you might reasonably infer the thought that in the view of the speaker you have to be a moron to be a Catholic." I think that shows how difficult these kinds of issues can be and would in practice be for the courts. I find that very worrying but I raise that in relation to the specific question that was asked. We have been handed some, I accept, offensive material here and I have also in mind a tiny quote from this very same article, saying that as Brandeis put it, "the remedy to be applied is more speech, not enforced silence." That has to be the recipe for this kind of offensive material. To try to put the lid on the can is, in the end, going to be self-defeating. There were questions raised earlier about whether there had been care to look after the questions of freedom of speech. I imagine I must have it wrong because from what I have seen there are some very serious shortfalls. I am quite sure that, even just from the strength of the penalties, the element of self-censorship will be enormous from the legislation that is proposed. I am open to correction but my understanding was that the possession side did not have an intent element to it. Can somebody tell me whether I am correct?
  (Mr Pollock) It does.
  (Mr Wood) Even then, it is going to make people feel very uncomfortable. In conclusion, I would like to say that the Home Affairs Committee said, when the offence was originally proposed, "We have not yet seen sufficient evidence to justify the proposition that extending the law of incitement to include religious as well as racial hatred will work in practice. The proposals in the Bill will be difficult to enforce. Moslems also have difficult with this." One only has to read the acres of print that were written about this whole issue at the time. There is an absolute wealth of evidence of opinion of people who hold very similar views to that. My own conclusion and that of the Society and Dr Nash is that this is not a suitable piece of legislation. The Race Relations aspect of the Public Order Act just is not the right vehicle to make small changes to achieve these ends.

Lord Avebury

  228. Let us pick up at the end of those remarks your comment that the legislation could lead to self-censorship. Have you any reason to suppose that the legislation in Northern Ireland has led to a reticence on the part of people to attack each other for religious reasons?
  (Mr Wood) I do not think the situation is the same in Northern Ireland as it is here and because of the desperately sad situation in Northern Ireland there may have to be some exceptions to the more overbearing legislation that there is here. That has even sadly been recognised by the European Union in the Employment Directive. There is only one part of the whole of Europe that has been excepted from the Employment Directive and that is Northern Ireland. Because of the extraordinarily difficult situation there, sometimes we have to grit our teeth and accept that what would in other circumstances be unacceptable legislation is necessary there.

  229. You do think legislation of this kind is necessary in Northern Ireland, do you?
  (Mr Wood) I do not know enough about the Northern Ireland case and I did not come here primed to answer that question, so I cannot express a detailed view about it.

  230. You say that putting a lid on this kind of material is self-defeating. Would you say the same was true in the law on incitement to racial hatred? Would you say that the similar provisions in regard to racial hatred have led to self-censorship on the part of people likely to indulge in robust criticism of other ethnic groups?
  (Mr Pollock) There is a very major difference between race and religion here.

  231. I did not ask that question. I asked a specific question about the opinion you hold of the existing law on incitement to racial hatred.
  (Mr Pollock) The Humanist Association is in the position of accepting in principle the idea of a law against religious hatred and we are not convinced that one cannot be properly framed. Our colleagues are convinced. We accept without doubt the law on incitement to racial hatred.
  (Mr Wood) So do we.
  (Mr Pollock) The reason why we take different attitudes to the two is that race is something which no one chooses, which does not determine behaviour and attitudes. It is, in a sense, without content. It is not deterministic in any way of what type of person one is. That is not true of religion. Religion can be chosen or put aside and it does determine some attitude and some behaviour. It is brim full of content which is open to legitimate appraisal, argument and rejection. A straight substitution of "racial and religious" for "racial" origins in the 1986 Act fails, in our view, because there need to be many more safeguards on the religious side than exist on the racial side. I have already outlined what some of those would be.

  232. In short, you believe that people who belong to a religious group which is coterminous with an ethnic group are entitled to the protection of the law but if they belong to a religious group that spans several groups they are not entitled to protection?
  (Mr Pollock) We think it is very unfortunate that the law has not been extended to Jews and Sikhs as religious groups rather than as racial groups.
  (Mr Wood) I agree with that.
  (Ms Stinson) Going back to your original question, I believe very strongly that the Racial Hatred Act is absolutely essential. I also believe that it has had the effect of self-censorship and I think it is right that it has. When you come to religious hatred, the situation is very different. It could, if there were not proper safeguards, lead to the same sort of self-censorship, which would be negative because I think it is essential that we feel able to criticise somebody's beliefs. For example, if somebody says that it is not rational to believe in a god, that is totally acceptable. The obvious implication is that somebody who does believe in a god is irrational, in that respect anyway, and I feel that that too is acceptable to say.

  233. Of course.

  So in that sense it is acceptable to say, for example, that Christians are irrational in that sort of argument. But if you were to say black people are irrational that would be totally different, and should be—and is—unacceptable and unlawful, or in some circumstances unlawful. I think that is the major difference and the reason why an approach that would be identical to that for race, for religion, would be unacceptable.


  234. I want, if I may, to see whether we can bring this together. We asked a question primarily directed at the Britain Humanist Association which arose out of the paper that you sent us. The conclusion that you drew was subject to safeguards which you set out, and I am not going to go into them but you may if you wish. Broadly you support the creation of an offence of incitement to religious hatred, and I think the National Secular Society does not.
  (Ms Stinson) Indeed, we do, and it does not. That is correct.

  235. Could you say why, subject to the protection that you seek and in the light of everything that you said this afternoon, you still support this, despite the fact that you have already said earlier in the paragraph in the paper that there is a failure to produce a proper analogy between race, which is inherent, and religious belief or that of religious belief which is something that you choose to adopt. I think there may be a very substantial point here but I am not clear what it is.
  (Ms Stinson) The point is that we see racial hatred and religious hatred as different because it is legitimate to challenge people's religious or other beliefs. We see them as different, and I think I have emphasised that in my answer to Lord Avebury. The additional point, though, is that we do believe that it is necessary to give groups and individuals protection against incitement of hatred against them as people on religious grounds. We do believe that the safeguards need to be very carefully drafted and, as pointed out earlier, we believe that the current draft that the Attorney General did for the Anti Terrorism Act is not adequate.

  236. Do you say you start by adopting the pattern that started off with racially aggravated offences and has now been extended to religiously aggravated offences, and you extend that to incitement?
  (Ms Stinson) No. We believe some of it should be extended to religious offences. We do not feel that revising the racial hatred legislation would be the right way to do it because of the differences, and particularly perhaps because, if the Race Act were amended by simply adding in "race or religion", that would be perceived by people who do not go into the detail of the Act as saying that it is now unlawful to criticise religious belief, and that of course is not acceptable.

  237. You are beginning to move outside the remit that this Select Committee has, and we have to be a bit careful what it is that we are being asked to recommend. Since the National Secular Society takes a totally different view, how would you build an offence—or perhaps you would not bother? Perhaps you would think it was unnecessary or impracticable.
  (Mr Wood) No. As I said earlier, I believe that where there is a clear and present danger of stirring up violence, or hatred akin to violence, there should be an offence to deal with that not confined to religious or non religious groups but to everyone, including homosexuals. That is what we think would be satisfactory.

  238. Is that not covered by the public order legislation already?
  (Mr Wood) I am not sure that it entirely is. I think there is perhaps some finessing—I am not a lawyer by profession but I suspect—

  239. You are sitting beside one, so he can help us.
  (Mr Wood) More of a historian than a lawyer, I think.
  (Dr Nash) I am a historian, Lord Chairman.

1   Mrs Stinson wishes to emphasise that the views she expressed here are her personal views, and not the views of the Red Cross, which, as a neutral organisation, does not make statements of this kind. Back

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