EXECUTIVE SUMMARY

  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were enacted and proved effective, that would provide the context in which the current offence of blasphemy could be repealed.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.

THE CASE FOR REFORM

  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[3]. 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 of persecution.

  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 Islamophobia—A 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.

THE QUESTIONS OF PUBLIC ORDER AND FREEDOM OF SPEECH

  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.

THE MENS REA REQUIREMENTS IN RELATION TO INCITEMENT TO RELIGIOUS HATRED

  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 Gospel.

  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 belief."

  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.

BLASPHEMY

  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 offence.

  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 be repealed.

DISTURBING RELIGIOUS SERVICES ETC

  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[4] published in 1985.

  23.  In its earlier working paper[5] 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 to blasphemy):

". . . 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."[6]

  26.  The Church's formal response to this proposal, Offences against Religion and Public Worship[7], ("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 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.

  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 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[8]; 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 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

4   Law Com No 145. Back

5   No 79. Back

6   Paragraph 3.18. Back

7   GS Misc 286 (1988). Back

8   See paragraph 3.20. Back