Examination of Witnesses (Questions 260-279)|
WEDNESDAY 24 JULY 2002
260. Unless there is anybody else who wants
to put a question on that, could I go on to the other mainly statutory
offences that were looked at by the Law Commission in 1985. It
is not entirely clear but I think some of them in fact have been
repealed already. Is there anything amongst those that you would
like to tell us about, for instance Section 2 of the Ecclesiastical
Court Jurisdiction Act 1860 and the use that is made of it? Is
there anything there that we need to preserve?
(Mr Slack) If I may deal with that question, my Lord
Chairman. We would suggest that notwithstanding its thoroughly
archaic language, part of that particular provision, Section 2
of the 1860 Act, is worth preserving, at least in the absence
of any satisfactory substitute. I would suggest that the starting
point here is the freedom to practise religion. Acts of worship
are sometimes interrupted very much to the offence of worshippers
in ways which would not necessarily involve, as I understand it,
the commission of any other offence. I cannot see that there is
any real room for argument that there is any counterveiling right
to exercise freedom of expression in the context of public worship.
There are, after all, many other opportunities for the expression
of views contrary to those held by a particular worshipping community
in question outside the context of religious worship. Against
that background, I think we felt discomfort with the approach
taken in the Religious Offences Bill in terms of its proposed
repeal of all of the existing offences, including that created
by Section 2, without replacement. As we understand it, the Bill
may have been drafted on the basis there is no need to retain
Section 2 because Section 5 of the Public Order Act 1986 presents
a satisfactory alternative. I am a charity lawyer in the course
of becoming an ecclesiastical lawyer and I venture all my opinions
on the current state of the criminal law with a suitable degree
of deference to those present. As I understand it, Section 5 requires
that the conduct in question be threatening, abusive or insulting
and that there is legal authority to the effect that behaviour
which is merely, as it were, offensive but against which worshippers
could properly claim to be protected, would not necessarily meet
that requirement. I think that consideration is taken into account
by the Law Commission and influenced its own later position when
it produced its report in 1995. So I think we would wish to see
an approach which was more reflective of the Law Commission's
proposals. In 1985, of course, in its final report they were broadly
in favour of the penalisation of two different sorts of behaviour:
first of all, the disruption of church services and other acts
of communal worship and, secondly, conduct in the nature of desecration
occurring in places of worship regardless of whether or not they
are in use at that time. The Leonard Report prepared by the Church
in the late 1980s of course favoured that more considered view
of the Law Commission and proposed that the new offence as regards
the disruption of worship should be wider than Section 2 of the
1860 Act, penalising behaviour which evidenced any significant
disrespect or contempt for the rights of others, and also the
new offence relating to desecration should involve behaviour in
a place of worship likely to cause harm or serious offence to
anyone who ordinarily uses it for the purpose of worship and that
it should be wider than the existing offences under the Criminal
Damage Act and the Public Order Act. In conclusion, I think we
would suggest that the issues raised by the question of whether
the existing offences should be repealed or replaced are complex
and difficult and that a more considered approach to the reform
of the law in that area along the lines proposed by the Law Commission
is accordingly needed. If it is not possible to embark on a careful
process of reformand we very much understand the amount
of work that would involvethen we would prefer matters
to be left as they are because although rarely used the existing
provisions do seem to provide a form of protection which, in our
view, is desirable.
Chairman: There is a division and I am sure
that a number of my colleagues will want to go and vote, which
is very boring for you because it means you have to sit here for
at least six minutes until we come back again. While you are doing
that could I invite you to consider this: first of all, could
you give us any examples of things that would be caught by Section
2 that are not caught by either the Criminal Damage Act or the
Public Order Act 1986. Could you say why it is that we should
have offences which relate to religious premises or religious
occasions which do not apply, as it were, to secular or non-religious
events in the same way? We will leave you with those questions
and, if you do not mind, could we adjourn for a moment while everybody
has the opportunity to vote.
The Committee suspended from 16.40 to
16.50 for a division in the House.
261. I now welcome your postponed thoughts.
(Mr Slack) Thank you, Chairman. Despite the congee
that I have had I have not really been able to come up with a
particular example. It seems to me that there must be the possibility
of certain sources falling into the that gap. Obviously something
could only be prosecuted on the basis of criminal damage if there
was some sort of element of damage. One is left with cases of
conduct, therefore, which do not cause damage. In that area one
comes back to the point that I made earlier on, which is, as I
understand it, all of the public order offences require this ingredient
of conduct or writing which is threatening, abusive or insulting.
There seems to be clear law that not everything which causes offence
will fall within that requirement. I think there must be an area,
therefore, of behaviour which is offensive to a worshipping community,
but which may not be perceived by the court or by the jury as
amounting to threatening, abusive or insulting behaviour for that
262. Should that be regulated by the criminal
(Mr Slack) I think this raises the second of the Chairman's
questions in terms of whether the giving of an offence to those
engaging in worship should be protected. That does turn on whether
you think people who hold religious beliefs have a right to be
free from those beliefs being subject to scurrilous or offensive
attacks. I accept that there is more than one view on that. Many
would feel that that is not the case, but the view of the minority
of members of the Law Commission and, of course, of those who
contributed to the Leonard Report, to which we referred earlier,
take the view that in a civil society respect should be shown
to the views of all of its members. I think there is, perhaps,
a further distinction to be drawn between giving protection to
religious beliefs generally and giving protection to people's
religious beliefs when they are engaged in the context of worship.
In that particular context there is a further element of sensitivity
which I think will heighten people's sense of offence, partly,
perhaps, because they will see it as an affront not just to them
but to the deity as well.
(Revd Dr Sedgwick) I think, my Lord, we argue in paragraph
10 of our submission that it might well be that no breach of public
order is committed, reading the last few lines of this paragraph,
"because the religious community will exercise restraint".
You can then come back and say that if no offence has been committed
and there are no breaches it should be left at that. I think the
issue that we are pressing is that that entirely turns on the
restraint exercised by the religious community in question and
how far do you want to go on pushing at that restraint and say,
it should not be protected because they should be able to restrain
themselves. It may be that no offence is being committed because
the community has restrained itself, well and good, but it may
be that if there is a deliberate intent to provoke some sort of
come back, public discord, whatever, or breach of the peace then
we are coming close to something that could be caught under legislation
and yet would not in itself be threatening or insulting. It is
a fine point. What we are arguing both for ourselves and for other
religious communities is how far you turn on the question of the
restraint exercised by the religious body.
Baroness Richardson of Calow
263. I was just trying to envisage the kind
of evidence that is given by those who were present when such
an offence was committed, and half of the congregation saying,
"I was deeply offended", and the other half saying,
"it did not matter to me one bit, I quite enjoyed the spectacle".
Many people are offended that we are even considering these matters.
In a court of law how are these things judged? You expressed some
of this, I can see how it would happen.
(Revd Dr Sedgwick) I think our feeling would be that
if somebody deliberately decided to outrage religious sensibility,
say by doing a parody of the religion, or whatever it may be,
but it was not aimed at being threatening but was designed to
be offensive then that is the sort of example we would look at,
it could be some sort of parody of the act of worship.
Baroness Massey of Darwen
264. How do you feel about the boundary between
protecting people and allowing freedom of speech?
(Revd Dr Sedgwick) I think the whole drift of our
submission is that we want to preserve freedom of speech wherever
possible, this is not a covert attempt to bring back censorship,
nor is this an attempt to try and restrict people's rights to
self-expression. I think the balance of it should be to freedom
of speech wherever possible. All that we are pointing out is that
the situation has changed really quite dramatically since the
Law Commission's Report in the mid 1980s. There is a fair degree
of religious tension and religious sensibility and that is what
needs to be protected. As far as possible what we wish to say
is that the Human Rights Act and the general culture of our society
is one in which one wants to give as much freedom of speech as
possible. In general we would be very sensitive to the point you
265. Bearing in mind the archaic language you
refer to in Section 2 of the 1860 Act do you honestly think the
test of the 1860 Act of riotous, indecent or violent behaviour
is an easier one to surmount than the words in the Public Order
Act, which you have already quoted? Do you have examples of cases
which could not be dealt with under the Public Order Act or is
it that the police have preferred to use the Public Order Act?
I think you accept the Ecclesiastical Courts Jurisdiction Act
because it is a magistrates only offence and not an each way offence.
(Mr Slack) I think in terms of the division between
the two offences I want to come back to the answer that I gave
earlier, as regards the coherence of the wording of Section 2.
As I understand it its meaning does seem to be understood and
that the archaic nature of the language has not prevented the
provision being used in circumstances where it has been thought
appropriate to use it. To my knowledge the prosecutions under
this provision are extremely few and far between. Notwithstanding
this language it does seem to provide protection in relation to
certain sorts of conduct which, as I say, I think are regarded
as not otherwise falling within Public Order Act offences.
266. Are you aware of any particular cases,
for example, in the year 2001? Can you point to any cases where
conduct had to be dealt under the 1860 Act because the Prosecution
Service believed that the Public Order Act did not apply?
(Mr Slack) I am not.
267. I did not think you would. Can I then ask
you about the Crime Disorder Act 1988 and whether you do not think
thatagain bearing in mind, as you say, it is a bit early
to measure the effect of this legislation by looking at what is
happening in the courtsgives you exactly what you wanted?
You were saying that special respect had to be paid to the activities
of a religious nature and the religiously aggravated public order
offences which deal with fear or provocation of violence, intentional
harassment, alarm or distress and harassment, alarm or distress
respectively give you exactly what you were asking for, do they
(Mr Slack) Again, my understanding is that they do
not, for exactly the reasons that I have explained. It is certainly
the case of one of those provisions for another reason, Section
4 requires that if an offence is to be committed under that provision
immediate violence should have been provoked or threatened. It
is quite easy to imagine the circumstances in which that requirement
would not be met.
268. What about 4(a)?
(Mr Slack) All of the other provisions, as I understand
it, involve the same requirement of threatening, abusive or insulting
words or behaviour. If that were the case then I think the
Brutus v Cousins (?) problem would arise. I am open
to correction on that.
Baroness Perry of Southwark
269. I wanted to return to Lady Massey's question
about balancing the freedom of speech on one side and the freedom
to practice religion. I think you refer to the Human Rights Act
which, of course, only defends us against government action to
infringe our freedoms, not against other citizens' actions. Is
it not the case that what we are looking for is some kind of framework
of law which requires us all to respect each other's religion
and their practices. It seems to me what we have at the moment
is a law which protects the Church of England, and I do not suppose
there would be any disagreement from any of us that we believe
that that ought to be extended to other religions as well, it
is much more than just going in an bashing people round because
you disagree with them, it is respect for the tenets of their
belief, respect for the way in which they conduct their worship
and the places which they use for worship. Can you help us with
ways in which the protection currently afforded to the Church
of England could be extended safely and logically to more than
the one church?
(Revd Dr Sedgwick) That takes us, Lady Perry, on to
question three, and I think if we could build a consensus whereby
the blasphemy offences could be extended to other groups and other
faiths then we would go down that road. I think that realistically
we are unlikely to get that consensus and that is why we would
prefer if there was going to be an abolition of the offence that
the legislation on incitement to religious hatred would have to
be brought in. I am not disagreeing with you at all on the possibilities
or the desirability of extending the common law of blasphemy to
other faiths, we have no problem with that. I think our problem
is that it is unlikely to get that sort of consensus in our society.
What we want to do, as Lord Avebury suggested, is to move with
as great a degree of consensus as possible.
Bishop of Portsmouth
270. Having moved on to blasphemy, could I just
begin by declaring a lack of knowledge, and that is that I did
actually seek information on a draft copy of the Church Submission
but I had nothing to do with its production nor have I commented
on it. This is really a question for Stephen Slack, we are in
the conundrum of being lumbered with a blasphemy law which is
about belief and the possibility of drafting legislation for religious
hatred, which, if you like, is about people. This is quite a difficult
place to be for some of us. On the blasphemy law there is a strong
signal that this is out-of-date and over-protective of one bit
of the religious community, but there has been, if I can use it
in Anglican shorthand, a strong folk religion element represented
by many people within the Christian communities and in the other
faith communities that so misperceive the blasphemy law that they
would regard its retention as something comforting and reassuring,
in the best possible sense. Have you some advice to us, because
it seems to me that if we retain the blasphemy law we will be
criticised strongly by the broad sheet press but applauded by
"folk religion", and if we get rid of it the broad sheet
press would say "terrific" and the folk religion constituencies
would say "terrible".
(Revd Dr Sedgwick) I think you put the conundrum to
both of us very well. I think the problem is that we are ultimately
talking about not only what will command consensus in folk religion
and in the press but also what is likely to command consensus
in the debates in both Houses of Parliament. Of course, you took
part in the Anti-Terrorism Bill, Bishop, and the issue is whether
or not it is possible to carry with conviction through the Houses
of Parliament a measure which would be about defending the feelings
of those who are engaged in worship. Our guess is that the climate
has changed sufficiently that it is possible to carry a measure
which would be about incitement to hatred so long as the intention
can be proved and the correct mens rea and all that goes
with that, but I think the straightforward measure of extending
the direction to other faiths is not going to carry that. In the
end of the day it is a judgment that we are making as to what
is actually going to be part of the consensus. Part of the folk
religion that you referred to, of course, has always traded on
the fact there is that sort of consensus for its existence.
Bishop of Portsmouth: I do not mean to use the
shorthand "folk religion" in a pejorative way. I was
beginning to suggest one possibility which would be to leave the
blasphemy law alone as not worth the fight to get rid of it for
all sorts of reasonsthat is one possibilitybut to
spend some time and energy on defining religious hatred in as
neutral and powerful a way that respects other people's religious
space. Can you help us?
271. Does that not lead into the third question.
Assumingand please do not think this is definitivethat
is a broad definition of where the common law of blasphemy and
blasphemous libel is now (I am not arguing about that but it is
a version of it) what the Bishop of Portsmouth has just said invites
you to think whether we should rest on that and think of something
for everybody else or what ought we to do, and it is so hard.
(Revd Dr Sedgwick) I said in reply to Lord Avebury
a while ago that the Church of England's position was the Leonard
Report and the Leonard Report certainly argued that that would
be their preferred solution and they argued for a note of dissent
to the final report of the Law Commission, which again argues
for penalising anybody who publishes grossly abusive or insulting
material relating to a religion with the purpose of raising religious
feeling and that should extend to any religion and that prosecution
should require the consent of the Director of Public Prosecutions.
I think that that has been a position that the Church of England
has held. We have no objection to extending it to other faiths.
I think the issue would be whether or notand it comes back
to the definitions of beliefyou could get such consensus
with other faiths and with the members of both Houses. That is
the issue precisely but it is going to be very difficult as to
how you are going to define that.
272. Have you looked at what Lord Justice Watkins
said in the Choudhury case about the difficulties of presenting
a prosecution on anything other than the traditional basis? If
the answer is no, there is no problem in saying so. If you have
not looked at what he said, you have not looked at it.
(Mr Slack) I think that once one does extend it to
other religions a raft of issues arise in consequence. There is,
first of all, the definitions issue, which was one that the Law
Commission and the Leonard Report addressed, and I think that
is a matter of some real concern in framing any alternative approach.
Various options have, of course, been considered and I think one
of them would be having some kind of list of religions which the
new offence would cover, which would immediately raise problems
in terms of inclusion and exclusion, particularly following the
implementation and enactment of the Human Rights Act. Another
one to which reference was made was that of having regard to denominations
and religious groups which had places of worship certified under
the Place of Worship Registration Act 1883, a piece of legislation
which existed of course for an entirely different purpose. There
are various groups which, for whatever reason, do not have such
certified places of worship so you have instantly got some bodies
which will be left out of account there. I think the Leonard Report's
conclusion, to which we still adhere, was in favour of leaving
the matter to be expressed in very general terms and that this
issue to be considered when it arose by the court and matters
to be decided by the jury, I suppose, as to whether a particular
belief system amounted to a religion for that purpose. I would
have thought that that kind of issue would not actually arise
very frequently in practice because I would imagine the majority
of these cases will crop up in a context of major mainstream religions.
If the issue did arise, I think regard could be had to general
principles. There are, of course, developing principles in the
context of the law of charity, for example, as to what amounts
to a religion. I think that one is likely to see further development
if the Government, as it appears to do, implements the EC Directive
on Equal Treatment in Employment by referring to religions generally,
again without defining them. It would follow that one could be
talking about an extremely diverse range of religious beliefs
some of which could be very controversial. I would have thought
it is that sort of area that, in addition to giving rise to difficulties
in terms of prosecution to which you referred Chairman, would
also lead to difficulties of the kind to which Dr Sedgwick referred
in terms of commanding public support for the extension of protection
to such a diverse and amorphous range of belief systems.
Lord Griffiths of Fforestfach
273. Can I just ask a question to clarify the
position. If you take the position of the Church of England and
forget for a minute the argument about political judgments as
to what is possible through this House or the other House or things
like that, is the Church of England in favour of changing the
law of blasphemy?
(Revd Dr Sedgwick) I think the straightforward answer
is that we have always argued since the Leonard Report that it
would be a good thing if protection could be afforded to other
religious groups other than the Church of England. You will know,
of course, Lord Griffiths, that some religions are not covered
by racial legislation and therefore there has been a long issue
about the protection that should be issued to them. So in principle
we are in favour, as the Leonard Report says very clearly, of
extending that protection to other faiths and indeed to others
who are non-Christian denominations as well. The issue then comes
as to how that is to be done. I think there are two points Mr
Slack and I are making. One is a political point and you say leave
that aside, fair enough. The second is how that is to be done,
how that protection is to be given, and I think that is where
the difficulty lies as to how you define religions and even within
that what particular protection you would want to give. If you
ask for a straightforward answer, the answer is yes.
Baroness Massey of Darwen
274. Do you think that extending the law of
blasphemy to other religions would actually enable people to use
it for racial or political ends more than they can now?
(Revd Dr Sedgwick) I understand where you are coming
from and I think, Lady Massey, that is certainly a possibility.
I think we return to the point that, in principle, we are quite
happy to extend, and indeed wish to extend protection to other
faiths. I think the problem is that on the one hand you get into
a political mine field and on the other hand there are problems
of definition, quite apart from the issues of how that legislation
might be used by other faiths, as you are saying. That is why
I think in the end of the day we come back to the point about
incitement to religious hatred being the easiest way through.
Baroness Perry of Southwark
275. Supposing we could find a way forward on
the incitement to religious hatred and we could get it on the
statute books, what would it add at the same time to abolish the
law on blasphemy, given it would give a lot of offence and there
would be a lot of very disturbed and upset people, perhaps for
the wrong reasons but, nevertheless, the symbolic effect of abolishing
the law of blasphemy will give a great deal of offence and cause
a great deal of distress? Your argument seems to beand
I agreethat we need to extend it to give protection wider
than the blasphemy laws give to other religions as well. What
would be lost if on the statute books we could put something that
did give protection under incitement to religious hatred and left
the blasphemy law?
(Revd Dr Sedgwick) I think this raises the question
of whether there should be legislation that distinguishes the
Church of England from other faiths and religions.
276. There is, is there not? Not just this but
plenty of other legislation.
(Revd Dr Sedgwick) The definition that you give says
the Church of England is by law established. You then raised a
whole lot of questions which I do not think we are competent to
answer as to whether or not it helps ecumenical and other faith
relations to have something that distinguishes the Church of England
from other denominations and faiths. I think that is a question
for the House of Bishops. I really have to refer to the Bishop
and others at that point. I can answer it but it really is a question
that the House of Bishops would have to answer as to whether or
not it is unhelpful to have the Church of England singled out
in that particular way or to go to Lady Richardson on that point.
277. Can I tease out what may be the same point
in a slightly different way. If we make the assumption that we
could not find a formula which would encompass other religious
either because the definitional problem was too complicated or
because politically it was unacceptable, on that hypothesis what
is the Church's position do you think it appropriate to repeal
the blasphemy law?
(Revd Dr Sedgwick) Yes, so long as you then put in
place a law about incitement to religious hatred. We would be
very unhappy with a position where the blasphemy law was simply
abolished and nothing was put in its place.
Baroness Richardson of Calow
278. I am still on the same line really. If
it is too difficult to extend it and give the protection to other
religions, how can you possibly justify retaining it for one branch
of the Christian Church?
(Revd Dr Sedgwick) This goes back to Lady Perry's
question, it will, undoubtedly, give offence to some people if
it is abolished. It will be taken in a symbolic way, that England
is no longer a Christian country. You can see the argument developing.
One argument would be that it should simply be left in place.
I think for the sake of ecumenical and interfaith relations it
would be better, if it cannot be extended, to let it go and to
move to a law that is to do with incitement to religious hatred.
That is certainly what we argue in our submission.
279. The justification would be just for peace
of the realm?
(Revd Dr Sedgwick) Yes.