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Racial And Religious Hatred Bill


 

These notes refer to the Racial and Religious Hatred Bill as brought from the House of Commons on 12th July 2005 [HL Bill 15]

RACIAL AND RELIGIOUS HATRED BILL


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Racial and Religious Hatred Bill as brought from the House of Commons on 12th July 2005. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The Bill extends the racial hatred offences in Part III of the Public Order Act 1986 ("the 1986 Act") to cover stirring up hatred against persons on religious grounds and amends provisions relating to offences involving stirring up hatred against persons on racial grounds.

4.     The offences apply to the use of words or behaviour or display of written material (section 18), publishing or distributing written material (section 19), the public performance of a play (section 20), distributing, showing or playing a recording (section 21), broadcasting or including a programme in a programme service (section 22) and the possession of written materials or recordings with a view to display, publication, distribution or inclusion in a programme service (section 23). For each offence the words, behaviour, written material, recordings or programmes must be both threatening, abusive or insulting and intended or likely to stir up racial hatred. These offences are amended so that each will apply to the stirring up of either racial or religious hatred, religious hatred being defined as hatred against a group of persons defined by reference to religious belief or lack of religious belief. The Bill also clarifies that for material to be likely to stir up racial or religious hatred it need only be shown that it was likely to be seen or heard by a person in whom it is likely to stir up racial or religious hatred.

BACKGROUND

5.     There are existing offences in Part III of the 1986 Act against stirring up racial hatred. As a result of developments in case law these offences have been applied to the incitement of hatred against mono-ethnic religious groups, such as Jews and Sikhs. But this protection does not apply to all faith communities. The Bill creates new offences of stirring up hatred against persons on religious grounds, by extending the existing offences relating to racial hatred contained in the 1986 Act. Similar provisions were included in the Anti-Terrorism, Crime and Security Bill in 2001 and again in the Serious Organised Crime and Police Bill in the 2004-05 session but were not proceeded with to enactment in either case.

6.     The matter was considered by the House of Lords Select Committee on Religious Offences in England and Wales under the chairmanship of the Viscount Colville of Culross, which reported in April 2003 (HL 95). The Committee made no formal recommendations.

7.     The Committee's Report and the Government's response (Cm 6091, December 2003) were debated in the House of Lords on 22nd April 2004 (Hansard col. 443- 480).

TERRITORIAL EXTENT

8.     The Bill extends only to England and Wales.

THE BILL: COMMENTARY ON CLAUSES

Clause 1: Hatred against persons on racial or religious grounds

9.     This clause gives effect to the Schedule, which amends Part 3 of the 1986 Act to create offences involving stirring up hatred against a group of persons on religious grounds and amends provisions relating to offences involving stirring up hatred against a group of persons on racial grounds. Some religious groups, such as Sikhs and Jews, as distinct ethnic groups, already benefit from the protection of the existing Part 3 offences while other groups who may be, and have been, targeted for their religious beliefs or lack of religious beliefs are ethnically diverse and so are excluded from the scope of these offences. The amendments are designed to ensure that the criminal law protects all groups from having religious hatred stirred up against them, regardless of whether members of that group share a common ethnic background.

Clause 2: Consequential amendment: powers of arrest

10.     Clause 2 amends section 24A of the Police and Criminal Evidence Act 1984 so as to exempt the offences of stirring up racial or religious hatred from the power of citizens' arrest. Section 24A was inserted into the Police and Criminal Evidence Act 1984 by section 110 of the Serious Organised Crime and Police Act 2005. The purpose of Clause 2 is to ensure that only constables will have the power to arrest persons for these offences.

Schedule: Hatred against persons on racial or religious grounds

11.     Paragraph 2 of the Schedule amends the heading of Part III of the Public Order Act to "Hatred against persons on racial or religious grounds".

12.     Paragraph 3 of Schedule 10 inserts a new section 17A into the 1986 Act which defines "religious hatred". The definition is designed to cover hatred against a group of persons defined by their religious belief or lack of religious beliefs but does not seek to define what amounts to a religion or a religious belief. It will be for the courts to determine whether a religion or belief falls within this definition.

13.     The reference to "religious belief or lack of religious belief" is a broad one, and is in line with the freedom of religion guaranteed by Article 9 of the ECHR. It includes, though this list is not definitive, those religions widely recognised in this country such as Christianity, Islam, Hinduism, Judaism, Buddhism, Sikhism, Rastafarianism, Baha'ism, Zoroastrianism and Jainism. Equally, branches or sects within a religion can be considered as religions or religious beliefs in their own right. The offences also cover hatred directed against a group of persons defined by reference to a lack of religious belief, such as Atheism and Humanism. The offences are designed to include hatred against a group where the hatred is not based on the religious beliefs of the group or even on a lack of any religious belief, but based on the fact that the group do not share the particular religious beliefs of the perpetrator.

14.     Paragraphs 5 to 9 of the Schedule amend the offences in the 1986 Act relating to acts intended or likely to stir up racial hatred. These offences are the use of words or behaviour or display of written material (section 18), publishing or distributing written material (section 19), the public performance of a play (section 20), distributing, showing or playing a recording (section 21) and broadcasting or including a programme in a programme service (section 22).

15.     A person can commit each of these offences if he intends to stir up racial hatred or having regard to all the circumstances racial hatred is likely to be stirred up. Paragraphs 5 to 9 amend these offences so that they apply in addition to the stirring up of religious hatred. Sub-paragraph (3) of each of paragraphs 5 to 9 also amends the second part of each of the existing offences so that the offence is now committed if the words, behaviour, material, play, recording, broadcast or programme service is likely to be seen or heard by a person in whom it is likely that racial or religious hatred would be stirred up.

16.     The words, behaviour, written material or recordings or programme must be both threatening, abusive or insulting and intended or likely to stir up racial or religious hatred. Hatred is a strong term. The offences will not encompass material that just stirs up ridicule or prejudice or causes offence. Further what must be stirred up is hatred of a group of persons defined by their religious beliefs and not hatred of the religion itself. Of themselves, criticism or expressions of antipathy or dislike of particular religions or their adherents will not be caught by the offence.

17.     Paragraph 11 of the Schedule makes similar changes to the offence in section 23 of the 1986 Act (possession of racially inflammatory material. It amends this offence so that it also applies to the stirring up of religious hatred.

18.     Paragraph 12 of the Schedule amends section 29 of the 1986 Act (interpretation) to give religious hatred the meaning set out in the new section 17A.

FINANCIAL EFFECTS OF THE BILL

19.     Total costs incurred as a result of the Bill are likely to be very minor. Minimal police costs will be met from within existing police Authority budgets. Downstream costs are currently estimated at around £0.2M for the financial year 2006-2007 falling to around £0.1M in the financial year 2008-2009 and each year thereafter.

EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER

20.     Nearly all the costs resulting from the provisions are manpower costs. These costs will, however, minimal.

SUMMARY OF REGULATORY IMPACT ASSESSMENT

21.     A Regulatory Impact Assessment has been produced for this Bill .

22.     The RIA is available from the Home Office website at http://www.homeoffice.gsi.gov.uk.

23.     The Bill is designed to ensure that all religious (and non-religious) groups receive the same protection from incitement to hatred.

24.     Estimated costs for the criminal justice system are £225,000 in 2006/7 and £109,000 in subsequent years.

COMMENCEMENT

25.     Clause 3 of the Bill provides for commencement. The provisions of the Bill will be brought into force by means of commencement orders made by the Secretary of State.

EUROPEAN CONVENTION ON HUMAN RIGHTS

26.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Minister of State for the Criminal Justice System and Law Reform (the Rt. Hon. Baroness Scotland of Asthal) has made the following statement:

    "In my view the provisions of the Racial and Religious Hatred Bill are compatible with the Convention rights."

27.     Amending the offences in the 1986 Act and applying them to the stirring up of religious hatred raises issues under Article 10 (freedom of expression) and Article 9 (freedom of thought, conscience and religion).

28.     The Bill contains a range of safeguards to ensure that any interference with Articles 9 and 10 is proportionate. First, the threshold for the offences is high. It only applies to words, behaviour, written material, recordings or programmes that are threatening, abusive or insulting. Second, the material must be intended to, or likely to, stir up racial or religious hatred. Hatred is a strong term and the offences will not encompass material that just stirs up ridicule or prejudice or causes offence. Further, what must be stirred up is hatred of a group of persons defined by their religious beliefs and not hatred of the religion itself. Therefore, legitimate discussion, criticism, or expressions of antipathy or dislike of particular religions or their adherents will not be caught by the offence.

29.     Accordingly, in so far as the provisions interfere with Article 10 rights, the interference is justifiable under Article 10(2) as a necessary and proportionate measure for the prevention of disorder or crime and the protection of the rights of others. In so far as the provisions protect groups in society from hatred directed against them because of religious belief, they also may be seen as safeguarding Article 9 rights.

 
 
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Prepared: 13 July 2005