The classic example of the nature and impact of far right activities against the Muslim community is provided by the northern city of Oldham. The upsurge in the level of activities by far right organisations in this city, including the BNP and the NF, are at least partly the catalyst for the civil unrest witnessed there in the early summer of 2001. Two reports seek to illustrate the socially divisive and disruptive role played in this city by far right organisations.

  The first report, produced by the Black Racial Attacks Independent Network, entitled The Oldham Riots—Shattering the Myths, states:

". . . the result of years of . . . institutional attitudes combined with media hysteria has given legitimacy and created a climate for the racists and the BNP to gain a foothold to propagate and stir hatred . . . It is important to note the BNP's strategy of blaming Muslim communities for the problems in the northern towns. Articles have appeared on BNP websites and literature, with titles such as "The Situation in Oldham: Ethnic Cleansing Muslim Style", calling for a boycott of Muslim businesses, but not Chinese or Hindu. On the BBC's Newsnight programme, in an interview by Jeremy Paxman with Nick Griffin, Griffin stated that "it's not an Asian or black problem but a Muslim one". The existence of Islamophobia in society endorsed by Government policies on refugees, asylum, terrorism . . . etc., in conjunction with the media's subsequent portrayal [of these people] further adds to Islamophobic attitudes which the BNP turn into political gain by claiming to disillusioned whites that these fundamentalist Muslims live only up the road from them . . .".

  The second report, produced by the Islamic Human Rights Commission, entitled The Oldham Riots—Discrimination, Deprivation and Communal Tension in the United Kingdom, offers similar insights:

"Political leaders in the town have admitted that the riots had been stirred up by right-wing white extremists. Both the Police and the Prime Minster concurred . . . Even Chief Superintendent Hewitt highlighted the particular role of the National Front (NF) and British National Party (BNP) . . .

. . . Statements by right-wing groups reveal that their efforts were primarily directed against Oldham's Muslim Community. An article on the race riots on the BNP's website commented that "this is how extremists within the Muslim community in Oldham are repaying the hospitality of the people who built the town and allowed them to settle there by the tens of thousands." Another BNP article remarked on how the Party has been able to use the riots to further exacerbate racist and Islamophobic sentiment to thereby recruit members: "Media coverage and the personal experience of scores of thousands of white people every year are combining to make gangs of Muslim thugs the best recruiting sergeant the British National Party has ever had . . . it is a perceived distinction . . . and one which indicates the current state of anti-discriminatory legislation in the UK . . .".

  What we see here is a situation where inciting religious hatred becomes a self-fulfilling prophecy. In this instance, as hatred against Muslims rises, so too the hatred within the Muslim community itself against the initial perpetrators. The result is an outburst of tensions into confrontation. This then is identified as another reason for inciting hatred towards the said groups, where the tension and hatred continues to escalate until it is beyond control. Thus, encouraging religious hatred evolves into a situation where the cause becomes the catalyst, and where the catalyst eventually becomes the cause again. In order to cap the proliferation of Muslim against non-Muslim tensions, irrespective of the differentiable racial element that might exist within this equation, the cycle must in some way be broken. The only way to do this is to remove the catalyst, namely the initial opportunity to incite hatred towards a particular group, and to do this, in this instance, new legislation is required against incitement of religious hatred.

Opposition to Legislation against Incitement to Religious Hatred

  Whilst we strongly recommend that legislation against the incitement of religious hatred be introduced, we also recognise that there may be strong opposition to such legislation. We seek to address here some of the concerns expressed by those opposed to such legislation.

  It ought to be pointed out that there was some considerable opposition to such legislation recently from the Muslim community. However, it ought also to be clarified that the opposition was not in relation to the idea of a criminal offence of incitement to religious hatred per se—this has always been welcomed and actively campaigned for by the Muslim community. The opposition was rather centred around the context in which the legislation was proposed and the perceived purpose of such legislation.

  Coming as part of the Anti-Terrorism, Crime and Security Bill 2001, in the immediate aftermath of 11 September, many felt it was an inappropriate vehicle for the kind of legislation—giving the kind of signals Muslims had thus far sought to avoid in their campaigns. The fact that the proposed legislation was placed in the wider context of incitement and conspiracy outside the UK, in the context of the evolving international "war on terrorism" partly led by Britain, also raised concerns that instead of such legislation benefiting ordinary British Muslims suffering from incitement to religious hatred it may be used to the detriment of the Muslim communities because of some extremists amongst them who may not even be rooted British citizens. These concerns were strongly and jointly expressed by nine prominent Muslim organisations that flatly rejected what the Anti-terrorism, Crime and Security Bill 2001 had to offer. In a document submitted to the Select Committee on Home Affairs in November 2001,[39] it was stated:

"We have grave reservations about the introduction of [this] legislation at this particular time . . . the extension of the legislation to cover incitement and conspiracy outside the UK specifically targets extremist Muslim groups. Investigation and detection will require law enforcement agencies (the police in particular) to cast their net wider which may have two significant consequences: heavier policing and investigation of the whole of the Muslim community—particularly visible Muslims—to detect investigate suspected incitement offences and a deterrent and "chilling" effect on the legitimate free speech of all Muslims who react defensively to uncertainty about which speech is legitimate (and unregulated) and which speech falls within the new legislation (and subject to up to a seven year criminal penalty)."

  The opposition then focused more on the appropriateness of the vehicle and timing of the new legislation, the political motives that might have been underlying it and the possible misuse of the legislation by law enforcement agencies, rather than the idea of the legislation itself.

  The primary concern of those opposed to a criminal offence of incitement to religious hatred is that such legislation would constitute an infringement of "free speech". Inasmuch as "free speech" can never be an absolute right, the Government has, however, already provided assurances to allay such concerns, utilising similar logic used to counter other campaigns against the infringement or restriction of the right to free speech. As reported in the press: "Mr Blunkett said none of the new powers was intended to "stifle free speech". He added: "Fair comment is not at risk, only the incitement to hate [and harm others]". A Home Office spokesman said the new powers were not `intended to stop people arguing and debating particular views'."[40] It is imperative that when arguing for free speech we keep the harm principle in mind, particularly harm towards the more vulnerable members of our society.

  Another concern that is often raised by those opposed to legislation against incitement of religious hatred is the difficulty involved in defining religion. According to the Anti-Terrorism, Crime and Security Bill 2001, "religious hatred" means "hatred against a group of persons defined by reference to religious belief or lack of religious belief"[41] This definition was seen to be too vague and open to abuse by extreme groups and fringe cults.[42] In response to this criticism, any attempt to define religion was dropped from the Bill altogether.

  In our view, however, the issue of defining religion need not be seen as being so critical a precondition to introducing legislation for the protection of religious groups. There is already an existing body of legislation in the UK on religion, touching on fields as diverse as education, family matters, human rights and protection against harassment, violence and criminal damage. The body of law, to be extended to protection against religious discrimination in employment by December 2003, currently exists without a statutory or common law definition of religion. Note also that the term "religion" is centrally placed in a number of sections of the Northern Ireland Act 1998, without being supplemented by a definition. To date, on each occasion that religion has had to be covered by law, its definition has been left to the courts—and this is accepted as perfectly legitimate, as it is also in other jurisdictions like Australia, Canada and the US.

  If, however, for whatever reasons, it is felt that some form of definition of religion is an absolute pre-requisite to legislation against the incitement of religious hatred, then a report commissioned and published by the Home Office, entitled Tackling Religious Discrimination—Practical Implications for Policy-Makers and Legislators[43] provides us with some alternatives. Such a definition, to be included in the legislation itself or any accompanying statutory code of practice, could be based on any one or combination of the following sources:

—  academia—for example, Emile Durkheim's definitions of religion;

—  dictionaries—for example, the Oxford English Dictionary;

—  other jurisdictions, for example, the Ontario Human Rights Commission. [44]

  An alternative to the definitional approach, as discussed in the Home Office report, is the list approach, which would involve formulating a list of recognised religions by a defined criteria and process. Such a system is used in Germany where certain religions are given the status of a legal person in public law.[45] However, it should be added that under this system in Germany, neither Muslims nor a number of other faith traditions that would ordinarily be classified as religions have been recognised. On the other hand, there is already some experience of offical listing of religions in the UK. The prison chaplaincy service, for example, currently compiles an Annual Religious Census that differentiates between "permitted" and "non-permitted" religions.

  Where it is argued that any new legislation on religion should also cover belief, so that those who do not subscribe to a recognised religion but nonetheless partake in communities that centre around an articulated set of values and practices are also covered, for example, atheists and humanists, a related concern is the problem of defining "belief". The major problem here is one of distinguishing between philosophical and political belief,[46] the latter possibly falling outside the intended scope of the Bill presently under consideration.

  Our view again is that such definitional matters are best left to the courts, particularly where the courts have already had some experience of dealing with such matters in the past. Under Article 9 of the ECHR, for example, the European Court of Human Rights has already determined that "belief", for the purposes of this Article, be extended to include Druidism, Pacifism, Veganism, the Divine Light Zentrum and the Church of Scientology. The Court has done so, stating that Article 9 is a "precious asset for atheists, agnostics, sceptics and the unconcerned" alike, and not just the religious. [47]Thus, whilst definitions may cause problems, they need not be seen as insurmountable in the introduction of new legislation against the incitement of religious hatred.

  Another ground often used to argue the case against legislation on incitement to religious hatred is the notion that whilst one cannot choose one's race, it is possible to choose one's religion or belief. The implicit suggestion is that where such a choice can be made, it should be open to criticism, whether that criticism is well intentioned or hostile. Our response to this is no different to our response to concerns raised in relation to free speech and addressed above—in the words of the Home Secretary, such legislation does not mean that "fair comment is . . . at risk, [but] only the incitement to hate [and harm others]". However, perhaps a few words may be said here about the fallibility of the notion around which this argument is constructed.

  Whilst it could indeed be argued that religion is a matter of choice, research indicates that few in Britain actually exercise that choice[48]—most will live out their lives in the religion of their birth, even if affiliation to that religion is only nominal.[49] This may be because, for most of us at least, religion is not simply about matters of faith, but also about ethnic and cultural identity which to a large extent is defined by birth and upbringing, and therefore, not really open to unfettered choice. It is perhaps in this vein that Brierley so categorically states: "your religious community is normally considered [to be] the one into which you were born or baptised; in other words, you had no choice in the matter" (italics added).[50]

  The notion in question ought perhaps to make a distinction between religion and "religiosity", which is, of course, to a far greater degree a matter of choice. However, in making such a distinction, two points ought to be noted. Firstly, those that incite religious hatred rarely make this distinction. The BNP's campaigns, for example, are not only targeted at "religious" Muslims, but Muslims across the board. To take the notion seriously would be to suggest that nominal/cultural Muslims should perhaps change their religion to escape such incitement of hatred—this is not only a preposterous suggestion but runs diametrically opposite to the spirit of Article 9 of the Human Rights Act 1998 which guarantees a right to religion. Even if they were to change their religion, however, there is no guarantee that they would thereby escape the impact of incitement to hatred against Muslims—indeed, the impact extends to those that have never been a part of the Muslim faith community but are perceived to be so by virtue of their appearance—for example, Sikhs.[51] Secondly, to suggest that such incitement of hatred should be lawful towards the "religious" amounts to the suggestion that those making lifestyle choices in other areas of life, for example, homosexuals, should also be open to such incitement of hatred. This again is not only unhelpful, but runs completely counter to Britain's urgent need for and the Government's new drive towards greater community and social cohesion.

Australia

  Article 20 of the Federal Racial Hatred Act 1995 states that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".

Canada

  Canadian Law Section 319 comprises of two significant elements. The first states that under this law, "everyone who, by communicating statements in a public place, incites hatred against any identifiable group, where such incitement is likely to lead to a breach of the peace, is guilty of:

(a)  an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b)  an offence punishable on summary conviction."

  The second states that "everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against an identifiable group is guilty of:

(a)  an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b)  an offence punishable on summary conviction."

South Africa

  Section 16(2)(c) of the Constitution provides that the right to freedom of expression does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

  Section 29 of the Forms and Publications Act of 1996 creates an offence of publishing, distributing, broadcasting or presenting material which, judged within the context, amounts to propaganda for war, incites to imminent violence or advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm. Bona fide discussion, argument or opinion on such issues is excluded from the scope of these offences, where legitimate discussion and free speech is maintained.

  Section 56 of the Independent Broadcasting Authority Act (No 153 of 1993) requires all broadcasting licencees to adhere to a Code of Conduct. Paragraph 2(1) of the Code provide that "broadcasting licensees shall not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious conviction or feelings of any section of the population or likely to prejudice the safety of the State or the public order or relations between sections of the population".

Safeguards against Abuse of Legislation

  Whilst we welcome new legislation against incitement of religious hatred we urge that sufficient safeguards be put in place to avoid the misuse of such legislation. We also recommend that the operation of these safeguards is transparent and accountable to public scrutiny to avoid abuse of the safeguards themselves. Our concerns arise primarily from the discretion that will need to be vested in the law enforcment agencies, namely the Police and the Crime Prosecution Service, and the Attorney General in order to make the legislation work.

  Both the Police and the Crime Prosecution Service have been found to be institutionally racist and could well be institutionally Islamophobic. Where significant discretion is available to those agencies, this could, of course, result in heavier policing and prosecution of some minority ethnic and/or faith communities, particularly Muslim communities. Where the net is cast wide, perhaps after some international or national event, such communities would then suffer disproportionately and some of its members completely unjustly.

  It is to check and balance this discretion vested in law enforcement agencies that power would need to be vested in the Attorney General to approve each prosecution under the new legislation separately. However, the office of the Attorney General is part of the executive branch of Government, and decisions taken by him could in part be "politically" influenced rather than purely legal and objective. The concern is that, following major international and/or national events, eg 11 September or northern cities disturbances, due to certain biases in political and media discourses, where this influences and shapes a particular perception against a particularly religious community, this could place specific pressure on the office of the Attorney General and thereby politicise his decisions. Indeed, the office of the Attorney General may face similar pressures even in the absence of such high-profiled events, where it is targeted by a particularly powerful group or lobby.

  To ensure that the necessary exercise of discretion by the law enforcement agencies and the Attorney General does not disproportionately impact particular groups without legitimate and evident justifications, we would recomend the following safeguards:

—  Legislation should include a Note of Guidance setting out the criteria for the exercise of the Attorney General's discretion.

—  The exercise of the discretion by the Attorney General be subject to scrutiny via Parliament via the presentation of an annual report to the Home Affairs Select Committe and the Joint Committee on Human Rights. The annual report should include such information as, the facts of those cases that he has considered; a break down of relevant factors by gender, ethnicity and religion; and his reasons for proceeeding/not proceeding with any prosecution.

—  The Joint Committee on Human Rights be asked to give an opinion and publish an annual report on the practical enforcement of incitement legislation and its compliance with the European Convention on Human Rights, especially Art 10.

—  Law enforcment agencies are trained, supervised, monitored and held accountable for the way in which they enforce incitement legislation.

—  An independent "Ombudsman" be appointed to monitor the implementation of this legislation. He or she should be asked to publish an annual report that is submitted to the Home Affairs Select Committee and the Joint Committee on Human Rights.

  Following these recommendations would allow legitimate free speech and the dissemination of ideas to be kept unregulated and unhindered, whilst perpetrators of speech and ideas that fall within the new legislation are appropriately prosecuted. We ought never to allow a situation to arise where the criminal offence of incitement to religious hatred stifles legitimate political, religious and philosophical debates.

  Support for legislation against incitement to religious hatred has come from many diverse quarters. This includes the individuals and organisations below, who have broadly supported the proposed legislation.

  The Commissioner of the Metropolitan Police, Sir John Stevens, has recognised the need for new legislation to cover the incitement of religious hatred. Speaking shortly after 11 September 2001, he noted that a significant number of Muslims had received inciting and hate-filled e-mails following the attacks in the US. Despite intensive liaison with the Crown Prosecution service, no prosecutions were made due to a distinct lack of legislation covering such acts. Commissioner Stevens said that he accepted that there was a need for new legislation to outlaw incitement to religious hatred. (Muslim News, 29 September 2001).

  The Commission for Racial Equality (CRE) has also added its weight by approving the extension of current legislation to outlaw incitement to religious hatred. In a statement released by the former Chair of the CRE, Gurbux Singh, it stated:

"This is an important step forward that will be welcomed by all those of faiths and none. The recent attacks on Muslims, and also those who are perceived to be Muslims, is a serious reminder of the vulnerability and fear that many members of religious and ethnic minority communities face on a day-to-day basis. This was brought home to me vividly during a meeting I had with Muslim leaders this week. We hope the Government will use the introduction of this legislation to make the existing law more effective. Our experience with the law on incitement to racial hatred over 25 years, is that it has not been effective in dealing with the problems as it only catches the most extreme of the extremists." (Press Release, 3 October 2001).

  The Church of England Gazette has also offered support to extending current legislation to incude incitement to religious hatred. It noted that "the Archbishop's Council supports the Government's decision to amend the law by introducing new offences of incitement to religious hatred and aggravated religious offence. The effects that religious hatred can have are all too clear". It went on to add that "what is important to us is that any legislation in this area should protect the legitimate sensibilities of people of all religions and strike an appropriate balance between freedom of religion and freedom of speech. If legislation is to achieve its objectives it has to be just, clear, understandable, enforceable, and enforced". (Church of England Gazette, Volume 2, Issue 1, 2002).

  The Board of Deputies of British Jews has also repeatedly recognised the need for new legislation against incitement to religious hatred. On Sunday 16 December 2001, Deputies voted overwhelmingly in favour of legislation to combat incitement to religious and racial hatred (Press Release, 18 December 2001). This was in addition to an earlier statement by the Board's Executive Director, Neville Nagler: "The Board has made clear its support for . . . the proposed new powers to outlaw incitement to religious hatred. The Jewish commmunity has been covered by the existing laws against incitement to racial hatred and it seems only right that other faith communities should receive comparable protection from the law." (Press Release, 29 November 2001).

  Support for legislation against incitement to religious hatred has also come from the British Humanist Association. In its official statement on the issue, it states:

"We accept that in an open and inclusive society the government has a duty to protect groups and individuals that are subject to hatred and violent attack. Incitement to violence is of course already illegal, but hatred stopping just short of violence is inimical to the values of a civilised society and the principles of reciprocal tolerance and co-operation, and can be devastating to the lives of individuals and communities. We see the recent campaigns by racist groups such as the British National Party, which attack Muslims as a surrogate and currently legal method of targeting their racial hatred, as justification for a suitable amendment of the law to protect their victims. Thus, the BHA accepts in principle the proposal for a new criminal offence of "incitement to religious hatred". The case for the law is reinforced by the inequity of the present state of the law, which anomalously protects Sikhs and Jews under the Race Relations Acts but offers no protection to other belief-groups." (Submission to House of Lords Select Committee on Religious Offences, British Humanist Association, June 2002).

5.  OTHER RELIGIOUS OFFENCES

  In addition to blasphemy the Avebury Bill also seeks to abolish a number of other religious offences. Clause (1)(b) of the Bill seeks to abolish "any distinct offence of disturbing a religious service or religious devotions". Existing legislation in this area affords protection only to those places of religious worship that belong to the Church of England. Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 stipulates that it is an offence to conduct "riotous, violent or indecent behaviour" in a church at any time. This piece of legislation was last successfully applied in 1998 against a gay rights activist, Peter Tatchell, for his behaviour at Canterbury Cathedral.

  We do not see any reason as to why this piece of legislation should be abolished. We would recommend instead that the existing offence be extended to cover other religions. The offence covers a potential loophole in the law that is neither covered by the aggravated offences of religiously motivated harassment, violence and criminal damage introduced by the Anti-Terrorism, Crime & Security Act 2001 nor by the proposed legislation on incitement to religious hatred.

  Clause (1)(c) of the Bill set out to abolish "any religious offence of striking a person in a church or churchyard". It could be argued that this offence is now covered under the Anti-Terrorism Crime & Security Act 2001. The difference between the provisions, however, is that the latter requires a religious motive whilst such a motive is perhaps unnecessary for the former. It could be argued that the value of the former is that it is a strict liability offence and that this gives recognition to the special significance of the sacredness of religious premises. Our recommendation again is that if such an offence is to be retained it should be extended to all religions.

  We would also recommend that there be a specific offence of religiously motivated desecretion of cemetries, burial grounds or graves, and that this covers all religions. This is particularly important for minority faith communities who have seen the sanctity of the graves of their loved ones violated in recent years as a direct result of the rise in far right activities.

40   Allison, R, "Comic alarmed by religious joke limit",The Guardian, 17 October 2001. Back

41   Anti-Terrorism, Crime and Security Bill 2001, s.39. Back

42   The Christian Institute, Why a religious hatred law would harm religious liberty and freedom of speech, briefing document viewable at: www.christian.org.uk Back

43   Hepple & Choudhury, Tackling Religious Discrimination: Practical Implications for Policy-Makers and Legislators, London: HMSO, 2001, Section 4.1-48, p. 25-8. Back

44   See the Ontario Human Rights Code, available on their website at: www.ohrc.on.ca Back

45   This becomes possible through procedures in force under Article 140 of the Constitution. Back

46   Hepple & Choudhury, Tackling Religious Discrimination: Practical Implications for Policy-Makers and Legislators, London: HMSO, 2001, p.31. Back

47   Kokkinakis v Greece (1994), 17 EHHR 397, at para. 31. Back

48   Bruce, Religion in Modern Britain, Oxford: Oxford University Press, 1995, p.102: "It is obvious that only a minute proportion of those who are free to do so have taken the opportunity to explore radically different forms of spirituality". Back

49   In the UK, whilst 63 per cent of the adult population identify themselves as being Christian, only 8 per cent of the same population actually attend church, even though 49 per cent of all new born babies are baptised into the Christian faith in a church. See Brierley, Steps to the Future: Issues Facing the Church in the New Millennium, London: Scripture Union, 2000, p. 13-9. Back

50   Brierley, Steps to the Future: Issues Facing the Church in the New Millennium, London: Scripture Union, 2000, p.10. Back

51   An EUMC report on Islamophobia notes that: "behind the vast majority of attacks and infringements upon specific communities and individuals was the fact that they were identified as Muslims, whether in fact they were or not". See Allen & Nielsen, Summary Report on Islamophobia in the EU after 11th September 2001, Vienna: European Monitoring Centre for Racism and Xenophobia, 2002, p.34. Back