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

Memorandum from Dr David Nash, Senior Lecturer in History, Oxford Brookes University

  The law against blasphemous libel should be abolished and not extended. Similarly the construction of a law against incitement to religious hatred should be resisted.

  Society and principles of government have moved on from the law's original intention to protect the state and to regulate public morals.

  Home Office and wider belief in the law's function as a measure only used in last resort against the genuinely offensive has been fatally undermined by recent developments.

  British society's continuing secularisation is now being profoundly threatened and the maintenance of a legal instrument with the power to proscribe opinion in such a climate is a danger to society and culture.

  Blasphemous libel is in a legally anomalous situation. It is a species of libel with no real rules of evidence or proof. Likewise it is an offence for which the Mens Rea assumptions of English Law are notoriously difficult to prove.

  The law of blasphemous libel is incompatible with the standards of law and jurisprudence operated in most other comparable western countries.

  Extending the law of blasphemous libel to equalise all religions within the law would produce problems of definition, adjudication between competing religious groups and would paradoxically offer legal protection to the status of the blasphemer.

  No other western democracy is prepared to contemplate privileging one belief system over another within its constitutional framework.

  Abolition of the law would persuade the Home Office and other government agencies to revisit public order provision and to offer protection to vulnerable groups with laws that do not contravene the rights of others or infringe upon essential liberties that all should enjoy in a theologically neutral society.

  1.  As a historian who has studied the history and cultural consequences of the law of blasphemous libel in England and Britain's other legal jurisdiction I would like to submit evidence to the Select Committee. This argues that the law against blasphemous liable should be abolished and that the Committee should also resist the pressures to construct a new offence of incitement to religious hatred.

  2.  The historical context of the law of blasphemous libel is crucial to our understanding of its status within the modern legal system since its evolution speaks eloquently about society's perception of religion and its relationship with the state over time. The Blasphemy Statutes have never been used but significantly were constructed in response to external and internal threats to the political stability of England (particularly in the reign of William III). Sir Matthew Hale laid down the law in this area in the Kings Bench case against John Taylor in 1675. Hale had forged a classically seventeenth century link between the Church and State and declared that each protected the ideological credibility of the other. Hale argued that "to say religion is a cheat is to dissolve all those obligations whereby civil societies are preserved; and Christianity being parcel of the laws of England, therefore to reproach the Christian religion is to speak in subversion of the law." [11]Statute Law here argued that protecting religion from assault was intrinsically a matter of national security. The Common Law crime of blasphemous libel has, in contrast, been seen since this time as a method of regulating public morals.

  3.  Attitudes to the blasphemy laws over time have only grudgingly responded to modernising societies and their demands for religious tolerance. Whilst Statute Law in this area has been held in disrepute from the dawn of the twentieth century there have regularly been individuals prepared to uphold and defend the status and purpose of such a law. Many have seen the law as a necessary protection for the Church Established by Law and indeed it has been seen as a crucial instrument of last resort to impose doctrinal conformity upon the clergy of that church. Perhaps of greater long term significance has been the attitude over time of the Home Office to this law. When confronted by lobbyists arguing for its removal the Home Office has often offered stern rebuttals to calls for the repeal of this law. Writing at the end of 1911 a Home Office commentator argued the position "first it is said that that law under which defendants are tried is old and obsolete this is untrue: the law of blasphemy is on the contrary a striking instance of the Common Law adapting itself to the times and changing in accordance with the general change of view in regard to religious matters." [12]It was thus, in the official mind, the feelings and attitudes of public opinion that regulated the application of the law. As the commentator further argued "If the religious views of the majority of the nation changed so much that blasphemy ceased to be offensive to them, juries which represent the average man would cease to convict this is the safeguard against a harsh application of the law." [13]

  4.  The central assumptions behind these pronouncements and views have been that the law can whither away as Britain and western culture can be seen to become progressively and inexorably more secular—in essence a form of controlled liberalisation. If matter (whether speech, print or moving image) were offensive it would be proceeded against and the comfort of British society was assured by the relative absence of such proceedings. But we should bear in mind that progress of secular society has increasingly come to be challenged by a small and exceptionally sensitive vocal minority. In France and to a lesser extent Britain many of these issues have been highlighted by the claims of non-Christian faiths to equality before the law. In some cases these have been around issues concerning protection from secular and secularising "state interference" and in extreme cases issues around the conception of blasphemy. However, this should not draw attention away from the fact that many laws, especially in Britain, significantly favour one section of the Christian faith and through this partiality lack legislative moral authority in the modern world. Legislation of this kind can seem increasingly anachronistic. This was particularly highlighted recently when the religiously partial nature of the Act of Settlement was discussed in the Scottish parliament in December 1999. This drew attention to the fact that the Act of Settlement explicitly prevented the monarch from marrying a Roman Catholic whilst it did not prevent them from marrying, in the words of Lord James Douglas-Hamilton, "a Muslim, a Buddhist, a Scientologist, a Moonie, an atheist or a sun worshipper." [14]

  5.  The recent history of blasphemy has significantly veered away from the ideals of secular tolerance outlined above. The law as laid down by Justice Coleridge in R. v Foote (1883-84) made the law more obviously liberal and permitted criticism of the Christian religion. Justice Coleridge argued that an important test of blasphemy was not the matter of what was said by an individual speaker or writer but the issue was fundamentally about the intention of that speaker or writer. [15]With the Gay News case of 1977-78 (R v Lemon) the law has become more draconian with an emphasis upon the fact of publication and encounter within a public order setting once again becoming paramount. This has now made the blasphemy law substantially harsher than it has been since 1883. A contemporary prosecution would arguably merely have to prove the fact of publication to mount a successful case. Moreover there is enough evidence to suggest that quasi-State organisations have acted in prior restraint against published works in the surprisingly recent past. In early 1990s the British Board of Film Classification effectively prevented the release of Nigel Wingrove's film "Visions of Ecstasy" because it "might be blasphemous" when all previous Home Office advice had indicated that society at large had to decide such issues for itself in the courts. The recent re-ignition of the Gay News case (in the guise of Joan Bakewell's Taboo BBC programme) left the PPS with the profoundly dangerous dilemma of deciding whether a blasphemy prosecution was "in the public interest".

  6.  These phenomena place blasphemous libel surely in a legally anomalous situation. It has evolved into a species of libel which requires no concrete test of proof of sustained injury to the injured party. Moreover the contemporary law no longer requires the prosecution to prove intention to wound and offend as a necessary proof of guilt in a blasphemy prosecution. This means that the centrally important concept of Mens Rea (namely that an individual intends the consequences of their action and thus commits a crime with a "guilty" mind) is wholly absent from blasphemous libel. This, in itself was a major source of disagreement amongst the judges who presided over the Gay News appeal to the House of Lords. Similar ambivalence around the function of the Mens Rea component of laws against race (and potentially a proposed law against religious) hatred has also been noted by legal commentators as a notorious stumbling block to its effectiveness. Whilst the Mens Rea behind an act of violence or abuse can be proved the courts have had problems proving the Mens Rea behind the racially motivated component of this. This is precisely why the law of blasphemous libel has retreated to an unjust and anachronistic desire to establish merely the fact of publication. It may be possible to establish that individuals have published material that has proved offensive yet it is nearly impossible, in a society that supposedly allows free discussion, to prove the Mens Rea behind an intention to hurt or wound religious feelings.

  7.  In the context of the Wingrove case Article 19 surveyed the state of blasphemy laws in eleven countries and concluded that they were either dormant or on the verge of extinction and concluded that Britain's current practices in this area were "incompatible with Article 10 of the European Convention of Human Rights".[16] Britain in this instance held on to the law by arguing that it should be permitted to retain it through the "margin of appreciation" which grants individual nation states the right to exercise unique jurisdictions central to their cultural identity. Such a view is incompatible with Human Rights philosophies broadly defined.

  8.  In contemporary Britain a secular and secularising society can no longer be assumed or taken for granted. Religion and religious forms of expression are colonising public space in a manner that makes the offence of blasphemy and the desire to encourage feelings of offence incompatible with the status of the state and its desire to be theologically neutral.

  9.  Thus with the current law of blasphemous libel outflanked by evangelising religion of various forms and the growth of religious "feelings" to replace the doctrine this promises to be an area in which the law must confront the proclivities of increasingly litigious interest groups.

  10.  Faced with the bankruptcy of the law there are two possible routes. The law against blasphemous libel could be extended to other religious groups or could be abolished. My submission argues that the law should be abolished. Whilst extending the law appears to be a course of action offering religious tolerance it, in reality is a recipe for strife. The history of such considerations is a spectacularly unhappy one. Indeed the Home Office itself considered this course of action between the two World Wars only to shelve such reforms as unwise, unworkable and counterproductive. Significantly it identified the same problems that would afflict both a wider blasphemy law and an incitement to religious hatred law in the contemporary world. Religion itself has in practice been impossible to define and attempts to borrow precedents from the former Empire have not had a happy history. In January 1930 Sir Frederick Pollock wrote to The Times once again advocating borrowing sections of the Indian Criminal Code as a blueprint for an extended law. He quoted the section which appeared as follows:

    "Whoever, with deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in hearing of that person, or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term of which may extend to one year, or with fine, or with both." [17]

  11.  What was significant here about the offering of the Indian Code solution was that the Home Office felt it clearly inapplicable to British circumstances. It was argued that a main stumbling block was the definition of religion. With considerable understatement one civil servant suggested that "The draftsman by a stroke of the pen, would have to solve a question which has been the subject of theological controversy for centuries.." [18]It was similarly considered almost impossible to go down the route of naming specific religions in law since there would be endless debate about which religions (and sects) to include and which to exclude. There was also a fundamental issue here about who was to be consulted about what constituted a religion and precisely how this was to be determined. The problem of who to ask, what questions to ask and precisely how often to do so remains a divisive issue even today. Indeed contemporary advice in the interwar period displays vividly the power of such advice to become anachronistic. It was suggested that "Hinduism is hardly worthy of the name of religion. But the effect on His Majesty's subjects in India of protecting Mohammedanism and excluding Hinduism would be disastrous." [19]A third course of action considered by the Home Office was to leave the idea of "religion" entirely undefined, again I note an option pursued in recent discussions. This would have made it a matter for juries to decide in each individual case. In this the use of expert evidence would be crucial and would also invite many of the problems associated with the nature of expert evidence centring around its longevity and credibility. Once again consideration of the difference between fair and temperate criticism and outrageous attack also constituted a considerable problem. There were also problems around the Indian Code solution's use of the words "Intention to wound". This went beyond the normal Mens Rea consideration of individuals intending the natural consequences of their actions. The Home Office was thus alarmed that this was requiring juries to look beyond such acts and "into the mind of the prisoner" and this constituted a considerable departure from the principles of English law. Indeed this last issue opens the way for a discussion of who the law itself is intended to catch. The nineteenth century did witness prosecutions of individual social and political radicals who sought to attack religion from whatever intention. The twentieth century has witnessed proceedings against writers and artists whose opinions have been attacked rather than the danger they apparently constitute.

  12.  All these problems with the law, rehearsed in 1930, remain valid in the contemporary world and some have been arguably exacerbated. We might also add still more problems to the consideration of its extension. Quite how an inclusive blasphemy law would protect religions in conflict with one another, or apostates from more established forms of religion is a very moot point. Moreover the criterion for recognition as a religious group is itself even more problematic. It has been suggested that an established religious tradition stretching back through a respectable historical interval might constitute a recognisable criterion. Such a course of action, if liberally applied would offer extensive protection to more fringe groups with a less obvious lineage. However such an extension would also have to give real credence to the beliefs of those in the Church of England who view the church/state link and the fact of establishment as a central tenet of their faith. Any criterion, which took tradition as its watchword, would also have to recognise that those of no faith and even those whose faith leads them to blaspheme have a considerably older religious tradition than many to whom such a law would offer protection. Thus it is not inconceivable that an extended blasphemy law would potentially enshrine religious protection for the act of blasphemy and not protect society from its ramifications. Evidence from the United States suggests that some blasphemous material is consumed by the irreligious to fortify themselves against what they see as a theistic world. It is not intended to shock non-believers and clear warnings are given about the content of this material. This would provide significant evidence that consumers of blasphemy conceivably deserve the protection of this law. Moreover the establishment of protection for a species of opinion will persuade other idealogical standpoints to adopt religious language and idioms as a means of gaining legislative protection and indeed there is worrying evidence that some groups on the far right of politics are adopting this strategy.

  13.  It is also pertinent at this point to remind ourselves that not all attempts to extend the law have had issues of tolerance and wider equality as their central intention. In the strained international atmosphere of 1938 parts of the far right of British politics (notably the Nordic League) through an influential MP Archibald Maule Ramsay introduced a bill to Parliament which had the intention of deporting Jewish communist freethinkers involved in propaganda, meetings and events linked to an International Freethought Congress. [20]In the worsening political situation this Bill commanded considerable cross party support although the Home Office was eventually able to ensure it never reached the statute book. Interestingly, in his clumsiness, Ramsay had created a Bill which would have, had it become law, protected religion in general and would thus have offered protection to Buddhist and Islamic beliefs and most ironically of all Jewish beliefs. In refuting the Bill this objection was raised by the Home Office noting that "there is no reason in a Christian country why these religions should be given such gratuitous protection." [21]

  14.  Arguably the situation is far more complex than the instances cited which themselves led the Home Office to give up in despair many years ago. The desire to be litigious, the requirement for individuals to have a full knowledge of their actions and the beliefs and feelings of others would mean that western culture would become a viscous battleground and not a system of shared values.

  15.  Repealing the law against blasphemous libel would harmonise English law with most other western societies. It would encourage the Home Office to think more clearly about alternative public order solutions to the obvious problems it is currently encountering.

  16.  Abolition would also make a significant move towards a situation where the State becomes theologically neutral. Recent events in the United States have reinforced in the public mind just how imperative this is for the welfare and security of us all.

11   Bradlaugh-Bonner, H. (1934). Penalties Upon Opinion, Watts & Co. pp.30-31. Back

12   Public Record Office. HO 45 24619/216120/86 Memo signed by "HB" May 1913. Back

13   Ibid... Back

14   The full text of Lord James Douglas-Hamilton's speech to the Scottish Parliament 16 December 1999 is available at,3858,4102155,00.htlm. Back

15   See Coleridge, Ernest Hartley (1904), Life and Correspondence of John Duke Coleridge, London. Back

16   Article 19 and Interights (1995) Blasphemy and Film Censorship: Submission to the European Court of Human Rights in Respect of Nigel Wingrove V United KingdomBack

17   Times 29 January 1930. Back

18   HO45 217459/43. Notes on the Blasphemy Amendment Bill, February 1930. Back

19   Ibid. Back

20   For a portrait of Ramsay see Thurlow, Richard (1987) Fascism in Britain: A History 1918-85 (Oxford) pp 78-9. For an extended discussion of this event see Nash, D. (1999). Blasphemy in modern Britain: 1789 to the Present. Aldershot; Brookfield, VT, Ashgate pp 218-238. Back

21   HO45 217459/274 Home Office Commentary on the Aliens Restriction Bill, 15 July 1938. Back

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