WEDNESDAY 24 JULY 2002

REVD DR PETER SEDGWICK AND MR STEPHEN SLACK

  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 It is not entirely clear but I think some of them in fact have been repealed already.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 reform—and we very much understand the amount of work that would involve—then 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.

  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 purpose.

  262. Should that be regulated by the criminal law, though?
  (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.

  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.

  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 are making.

  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 that—again 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 courts—gives 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 not?
  (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.

  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.

  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 reasons—that is one possibility—but 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. Assuming—and please do not think this is definitive—that 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 not—and it comes back to the definitions of belief—you 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.

  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.

  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.

  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 be—and I agree—that 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.

  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.