1.  The Church of England favours the introduction of a new offence of Incitement to Religious Hatred. 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were enacted and proved effective, that would provide the context in which the current offence of blasphemy could be repealed.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.

  2.  Our starting point is the Law Commission 1985 report, Offences Against Religion and Public Worship.[1] In particular we affirm the note of dissent in that report by two of the Commissioners. Our affirmation repeats the view expressed in the 1988 Church of England report on this subject, chaired by the then Bishop of London, Dr Graham Leonard (the Leonard report). Both the note of dissent and the Leonard report suggested that the existing offences should be replaced by a new statutory offence of publishing 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, though an intention to outrage religious feelings would have to be established.

  3.  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hatred and the effective working of such a law could provide the context in which the current law of blasphemy could be repealed.

  4.  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)).

  5.  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 to genuine concerns that religious hatred could be stirred up.

  6.  However we have concerns about Lord Avebury's Bill on the disturbance of religious services. The 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 s.5 of the Public Order Act 1986 presents a satisfactory alternative. But:

—  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[2]; and

—  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 said 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.

—  Instead we propose the suggestions of the Leonard report on disruption and desecration: the new offence as regards the disruption of worship should be wider than s.2 of the 1860 Act—penalising 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.

2   See paragraph 3.20. Back