Submission by the Archbishops' Council
of the Church of England to The House of Lords Select Committee
on Religious Offences and the Law of Blasphemy
1. The Church of England favours the introduction
of a new offence of Incitement to Religious Hatred, for reasons
set out in this paper. If such an offence were enacted and proved
effective, that would provide the context in which the current
offence of blasphemy could be repealed. Therefore we welcome the
proposal by the Government, repeated in the Bill introduced by
Lord Avebury to establish an offence of incitement to religious
hatred. However we dissent from the proposals in Lord Avebury's
Bill on the issue of public order and the disturbance of religious
services. We prefer the recommendations made by the Law Commission
in its 1985 report.
2. The Law Commission published an initial
working paper on the law of blasphemy in 1981 and a final report
in 1985. The 1985 report was entitled Offences Against Religion
and Public Worship.
At this time, there was a considerable degree of harmony between
the main religious faiths in England, although the situation was
very different in Northern Ireland, and also to some extent in
Scotland. There was also little reason to suppose that religion
would be a cause for civil disorder, although there had been persistent
intolerance of the Jewish community by right wing groups throughout
the last century. The Law Commission therefore argued that there
was no need for a law on religious hatred to replace the Blasphemy
Law if this law were to be abolished.
3. However shortly after the time of the
publication of the Law Commission report the situation worsened.
There have been both signs of intolerance between religious traditions,
and a continuous level of attacks of religious buildings and individuals.
At times this has been quite muted, while at other times there
have been high levels or disorder, which have fuelled a real fear
4. Many of these attacks, although not all,
have focussed on the Muslim community. This claim can be substantiated
both by the evidence of the police themselves, and by reports
from the Muslim community. One example, among many that could
be cited, is the report published in the autumn of 2001, by the
Commission on British Muslims and Islamophobia, entitled Addressing
the Challenge of Islamophobia. This Commission was established
by the Runnymede Trust in 1995. The previous report IslamophobiaA
Challenge for Us All was launched in the House of Commons
by the Home Secretary, Jack Straw, in 1997. It is also worth noting
that Jews and Sikhs have some protection under provisions against
incitement to religious hatred, whereas members of other faiths
(especially Muslims) do not. This is an anomaly which is strongly
felt in the Muslim community.
5. Another example of worsening relations
is provided by the Cantle report on the disorder in Northern cities
in the summer of 2001. This described a high degree of polarisation
in these cities and towns between different ethnic communities,
which often drew on religious hatred and intolerance. Both the
report on Islamophobia and the events described in the Cantle
report took place before the events of 11 September 2001. The
situation undoubtedly worsened in the weeks after the terrorist
attacks in America, and while there is less overt expression of
religious hatred at the moment, we believe that beneath the surface
there is still a high degree of offensive representation of religious
practice, and attacks on religious buildings and communities.
In brief, we believe that the situation is no longer the comparatively
peaceful one which prevailed in the mid 1980s when the Law Commission
issued their report. Bishops who spoke in the House of Lords on
the Anti Terrorism Bill in November and December 2001 referred
to the evidence of parish clergy and of conversations with Islamic
leaders. They were clear that the issue of religious hatred is
a real one in England at this time.
6. If this is the case, the issues raised
in the Anti Terrorism Debate in November-December 2001 remain
pressing, despite the fact that some of the provisions in the
original Government Bill were removed before it was enacted. The
original Bill contained clauses, which would have both provided
for additional penalties if an offence was aggravated by religious
hatred, and also made it an offence to incite religious hatred.
The former clause supplemented the existing legislation, whereby
an offence can be aggravated by racial hatred, and this passed
into law with the completion of the debate on the Anti Terrorism
Bill in December 2001. However the proposed legislation on incitement
to religious hatred was defeated in the Lords, although it successfully
passed through the Commons. The Government withdrew the clauses
on incitement to religious hatred in order that the rest of the
Bill could become law, which it did in December 2001.
7. Bishops defended the clauses on incitement
to religious hatred in the debates in the House of Lords, and
the Archbishops' Council also supported the legislation in a statement
on 29 November 2001. The debate in the House turned on the difficulty
of defining incitement to religious hatred, and the danger to
free speech, which the new provisions were seen by some to represent.
Not all Anglicans supported this change, but on balance the Church
of England believes that an opportunity was missed when these
clauses were dropped from the Bill. Muslim organisations continue
to press for legislation on incitement to religious hatred. Indeed,
the need for a law on religious hatred is not contingent on the
question of legislation about blasphemy, although in practice
the two issues are closely related.
8. The primary question therefore is whether
it is now appropriate for a law to be enacted which would help
protect the religious tranquillity of the nation and give protection
from the effects of incitement to religious hatred to all the
religious communities in England. The Bill presented by Lord Avebury
goes part of the way to remedying the situation, but for the reasons
given below, we do not feel that it is completely satisfactory.
9. Before we move to our criticism of Lord
Avebury's Bill, it is worth addressing the issues of public order,
freedom of speech and the Human Rights Act which were raised in
the Lords debate last year. It is important that the doubts expressed
by peers are addressed. There are two issues here. First, are
not the existing Public Order Act provisions sufficient to deal
with the problem? Secondly, are the concerns about freedom of
speech and the suppression of human rights justified?
10. The existence of public order legislation
is not sufficient to address the question of religious hatred.
The existing public order offences are inadequate to protect religious
groups against calculated offence, even if this is intended to
stir up hatred. This is because the public order offences are
drafted in a particular way. As we discuss in Section 5 of this
submission, the offences take as their starting point the need
for "threatening, abusive or insulting behaviour", and
that test is not met by behaviour which is merely offensive. The
impact on religious communities of a scurrilous or deliberately
offensive depiction (whether in speech or artistic representation)
of their religion goes very deep. It may be also that no breach
of public order is committed, because of the restraint exercised
by a religious community, but nevertheless there will be a great
deal of injury to feelings and to harmonious relations in society.
11. This is not an argument for the re introduction
of a law of censorship, because we believe that religious communities
should be able to accept humour at their expense as well as criticism
of their beliefs and practices. The beliefs of religious communities
should not be immune from reasoned, even if impassioned, criticism.
It is the deliberate attempt to incite hatred which we deplore.
It is in the interest of society as a whole that religious groups
should be protected from criticism which is intended to stir up
hatred against them.
12. We are aware that concerns have been
expressed that provisions in the form included in the Bill could
penalise activity which is regarded, by those who undertake it,
as proclaiming the Gospel. We do not share these concerns because
we believe that reasonable evangelistic activity would not be
caught by the proposed law and, conversely, that any evangelistic
activity which relies on inciting hatred between religious groups
is not worthy of any religion and particularly not of the Christian
13. Turning to the issues of freedom of
speech and the Human Rights Act, it is important to recognise
that the freedom of speech, which is enshrined in the Act and
in the Convention, has to value a responsible use of this freedom.
Freedom to incite hatred would not be seen as responsible. Freedom
of expression is protected under Article 10 of the European Convention
of Human Rights. Nevertheless it is expressly stated that it carries
with it duties and responsibilities, and can be made subject to
restrictions necessary in a democratic society for the protection
of the rights of others. There have been examples where the European
Court of Human Rights has shown itself sympathetic to national
laws which seek to protect peoples' religious sensibilities against
exercises of the right to freedom of expression which are offensive
or scurrilous. Examples would include Otto-Preminger Institut
v Austria (1994) or Wingrove v UK (1996).
14. Strong expression of disagreement, or
of dislike, is not the same as seeking a breach of public order.
The Church of England is not seeking to stifle public debate,
which may be intense and use strong language, as religious disagreements
often have in the past. Nevertheless we believe that the Human
Rights Act is not a licence for promoting incitement to hatred.
It is also worth pointing out that incitement to hatred "on
the grounds of religion or belief" would include the reference
in Lord Avebury's Bill in clause 2(3) to "lack of religious
15. We recognise that discussion, criticism
or controversy, even when decently conducted, may give offence,
or even cause outrage, to those whose religious views are being
challenged. And we also recognise that the claims that may be
advanced in the course of evangelistic activity may be offensive
to those of other religions (or, indeed, of no religion). We continue
to believe, however, that rational discussion and criticism of
religion, even in sharp terms, should continue as at present to
fall outside the scope of the criminal law.
16. We believe that the approach reflected
in clause 2 of the Bill will achieve this result. We note that
the mental element of the new offences will be such as to require
that the words or behaviour used must either have been "intended"
or "likely" to stir up religious hatred; and for this
purpose "religious hatred" means "hatred against
a group of persons (our emphasis) defined by reference to religious
belief or lack of religious belief" (Clause 2(3)). We cannot
imagine that any Christian would wish to assert their freedom
to engage in activities intended to stir up religious hatred in
this sense (ie against a group of persons) even if they wished
to express their religious views themselves in the strongest terms.
And we find it hard to envisage circumstances in which either
genuine religious debate or genuine evangelistic activity, conducted
in language appropriate to those activities, could be said to
be "likely" to stir up religious hatred in this sense.
17. We note that, in any event, by virtue
of s.27(1) Public Order Act 1986 the consent of the Attorney General
would be required for the bringing of any prosecution, a fact
which also reassures us that the new offences would only be invoked
in circumstances in which the nature of the words or conduct in
question was such as to lead in genuine concerns that religious
hatred could be stirred up.
18. The Law Commission published its final
recommendations in July 1985 for abolishing certain common law
offences against religion. It began its examination of this area
of the law in July 1977 after the editor of Gay News was
tried on a charge of blasphemous libel. The five Law Commissioners
recommended the abolition of the offence of blasphemy by a majority
of three to two, and said that there should be no replacement
of the offence. In a note of dissent two Commissioners suggested
that the existing offences should be replaced by a new statutory
19. The majority of the Law Commission proposed
the abolition of the offence without replacement for a number
of reasons. They felt that the law was uncertain to an unacceptable
degree. They also felt that the restriction of the offence to
the protection of the Christian religion, and possibly only to
the tenets of the Church of England, could not be justified, given
the social composition of England and Wales. Thirdly, they felt
that there were difficulties about the requirements of the present
law in relation to intention, or mens rea. This latter
point has been discussed above.
20. However, the two dissenting signatories
felt that there should be a replacement for the existing offence.
They argued in the 1985 report (paragraph 3:1) that the rationale
for a new offence is "the duty on all citizens, in our society
of different races and of people of different faiths and no faith,
not purposely to insult or outrage the religious feeling of others."
They felt that the State should protect such religious adherence
as far as it could do, without impairing the rights of others.
In a Note of Dissent (para 5) they argued for penalising anyone
who published grossly abusive or insulting material relating to
a religion with the purpose of outraging religious feelings. The
offence should extend to any religion, and prosecution should
require the consent of the Director of Public Prosecutions. Publication
would exclude the ordinary private spoken word, but would include
all other public communication, through an intention to outrage
religious feelings would have to be established.
21. The Church of England in effect endorsed
this note of dissent in its 1988 report Offences against Religion
and Public Worship, chaired by the then Bishop of London.
We believe that Lord Avebury's Bill would ensure that the offence
of blasphemy was not simply abolished, and therefore we welcome
the proposal to establish an offence of incitement to religious
hatred. We believe that a step by step approach is the best way
forward, in which the enactment of a new offence of incitement
to religious hatred and the effective working of such a law could
provide the context in which the current law of blasphemy could
22. The Law Commission gave careful consideration
to the offences proposed to be repealed by clause 1(2) of the
Bill in its report Offences Against Religion and Public Worship
published in 1985.
23. In its earlier working paper
published in 1981, the Law Commission took the view that all of
these offences should be repealed, with the exception of s.2 of
the Ecclesiastical Courts Jurisdiction Act 1860. It suggested
that it should be amended so as to penalise anyone who, with intent
to wound or outrage the feelings of those using the premises concerned,
used threatening, abusive or insulting words or behaviour in any
place of worship of the Church of England, in any other certified
place of religious worship or any burial ground.
24. However, in its final report of 1985
no firm proposal was made: the Commission preferred to await the
response to its proposals as regards blasphemy. In taking that
line it made it clear that it was influenced by the substantial
amount of work which would be involved in implementing its proposal
and the complexity of the drafting that would be involved.
25. But the Commission also indicated that
it now favoured a different approach, involving the penalisation
of two different types of behaviour: "the disruption of church
services and other acts of communal worship . . .; and conduct
in the nature of desecration occurring in places of worship, regardless
of whether it is at the time being used by anyone for worship".
It found a clear justification for the criminal law to intervene
in this area (which the majority did not of course in relation
". . . worshippers engaged in such activities
or using such places for mediation or prayer should be entitled
to do so free of undue disturbance which might cause outrage or
offence. There is an obvious difference between a law of blasphemy
and a law protecting places of worship. In the former case, the
wider interests of society must be given proper weight and in
our view those interests outweigh the justification for an offence;
in the latter, where particular activities are in progress or
where premises are specially set aside for particular purposes,
these justify the special protection which an offence would give."
26. The Church's formal response to this
proposal, Offences against Religion and Public Worship,
("the Leonard Report") favoured the Commission's view
expressed in the 1985 report . . . The Leonard Report proposed
inter alia that:
The new offence as regard the disruption
of worship should be wider than s.2 of the 1860 Actpenalising
behaviour which evidenced a disrespect or contempt for the rights
of others; and
The new offence relating to desecration
should involve "behaviour in a place of worship which is
likely to cause harm or serious offence to anyone who ordinarily
uses it for the purpose of worship" and should be wider than
existing offences under the Criminal Damage Act 1971 and the Public
Order Act 1986.
27. Against this background, the approach
taken by Lord Avebury's Bill is unsatisfactory, in repealing all
the existing offences, including that created by s.2 of the 1860
Act, without replacement. We understand the Bill may have been
drafted on the basis that there is no need to retain s.2 of the
1860 Act because 2.5 of the Public Order Act 1986 presents a satisfactory
s.5 of the 1986 Act requires that
the conduct in question be "threatening, abusive or insulting",
and there is legal authority to the effect that behaviour which
is "merely" offensive (but against which worshippers
could properly claim to be protected) would not meet that requirement
(see Brutus v Cozens (1973) AC 854, 865 per Lord
Dilhorne). This consideration was expressly recognised by the
Law Commission and influenced its own later position;
as the Leonard Report pointed out,
s.5 of the 1986 Act does not criminalise desecration as such;
and even if the conduct in question could be aid to be "threatening,
abusive or insulting", it would have to be committed "within
the hearing or sight of a person likely to be caused harassment
alarm or distress thereby"a requirement which would
very considerably weaken the potential impact of the provision
and mean that it would not meet either the Law Commission's or
the Church's aims.
28. The proposals on these matters in Lord
Avebury's Bill are inconsistent both with the Law Commission's
revised proposals on the disturbance of public worship and the
Church's response to them. The Church would wish to see an approach
much more reflective of the Law Commission's proposals. It also
believes that the issues raised by the question of whether the
existing offences are repealed or replaced are complex and difficult,
and that a more considered approach to the reform of the law in
this sensitive area is accordingly needed.
18 June 2002
3 Law Com No 145. Back
Law Com No 145. Back
No 79. Back
Paragraph 3.18. Back
GS Misc 286 (1988). Back
See paragraph 3.20. Back