The Commission for Racial Equality makes the following observations and comments:

—  The law of blasphemy needs to be abolished or extended to protect other religions. However, it cannot be for the Commission to recommend how the tensions between freedom of speech and protection and respect for religion should be resolved.

—  We recommend that there be a full review of the current incitement laws and that there be ethnic monitoring of defendants who are prosecuted for incitement offences.

—  We support the creation of a new offence of incitement to religious hatred and we propose that the wording be hatred "against a group of persons defined by reference to their religious belief." This is necessary to maintain the balance between freedom of expression and protection for members of religious groups.

INTRODUCTION

  1.  The Commission for Racial Equality (CRE) was established by the Race Relations Act 1976 with duties to work towards the elimination of racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups. The Commission recognises that for many minority ethnic communities there is a close relationship between race and religion and that identity through faith is as important as identity through racial origin. Thus, although new laws on religious discrimination would not form part of the Commission's statutory remit under the Race Relations Act 1976, there are general matters of religion which have implications for good race relations.

  2.  Two strands of our inquiry are clear: whether to retain, amend or abolish long-standing offences such as blasphemy: and the merits or otherwise of the introduction of a new offence of inciting religious hatred. Are there any other issues under the heading of "religious offences" which the Committee could or should examine? In particular, are there any issues in relation to criminal offences arising out of religious discrimination?

  3.  Proposals to extend the existing law to protect groups defined not only by race, colour, nationality or ethnic or national origins but also by religious belief or lack of belief are welcome.

  4.  However, the CRE acknowledges that the law on incitement of racial hatred that was first enacted, as part of the 1965 Race Relations Act has not significantly affected the production and circulation of racist material. The Public Order Act 1986 created a range of offences involving incitement of racial hatred, including using words, displays, publishing or distributing written material, broadcasts, possession of written material, recordings or photographs/films yet there are rarely more than a handful of prosecutions each year: since 1988 there have been only 61 prosecutions. The major obstacle, which the CRE and others have raised with successive governments, is that the evidential test under the Public Order Act is extremely difficult to satisfy: words or other material must be shown to be threatening, abusive or insulting and it must be shown that the perpetrator intended by such material to stir up racial hatred or that in all the circumstances racial hatred is likely to be stirred up.

  5.  The CRE recommends therefore that there be a review of incitement offences with a view to reform of the evidential test.

  6.  It should also be noted, that creating new offences will never on their own protect members of racial or religious groups from violence and abuse. The critical element is whether the police, in investigating an offence of incitement of hatred or one that may be racially or religiously aggravated, look for and produce relevant evidence, and then whether the Crown Prosecution Service effectively presents that evidence. In many parts of the country there remains distrust of the police and a view that they are more willing to prosecute members of ethnic minorities than to prosecute members of the white majority who commit racist crimes.

  7.  There is currently no ethnic monitoring of defendants prosecuted for incitement offences. The Commission therefore recommends that there be ethnic monitoring of defendants.

BLASPHEMY

8.   Should the current law be amended so as to provide protection to other Christian groups and other faiths?

  9.  The Commission's current position on the law of blasphemy is set out in the Second Review of the Race Relations Act 1976 (1992). A copy extract from the Second Review is attached.

  10.  We attach this extract only because we consider it sets out the more general issues of concern. Should there be a new offence of incitement to religious hatred then the Commission would wish to reconsider its position on blasphemy.

INCITEMENT TO RELIGIOUS HATRED

11.   What do you perceive the mischief of which legislation should criminalise?

  12.  The complaints received by the Commission indicate that offensive behaviour against members of minority religious groups falls into three categories:

—  Religious discrimination in employment, access to goods facilities and other services such as education. Religious discrimination is outside the scope of the remit of the Select Committee.

—  Offences against the person, harassment and criminal damage (eg attacks on mosques etc)

—  Incitement to hatred (eg the circulation of offensive leaflets, the publication of offensive articles)

  13.  However, the real "mischief" may lie in the anomalies within the law and in the inconsistent application of the law.

Anomaly within the law

  14.  Well before 11 September this year, the CRE was aware of the growth of Islamophobia in Britain, and its manifestation in leaflets, graffiti and other criminal damage and physical attacks. Given the strict test in the racial hatred offences and the caution of the police and the CPS to propose prosecutions for incitement of racial hatred, it was clear that without amendment the Public Order Act would not provide protection for Muslims or for any other group defined by its connection to a religion (or absence of religion) and not by "race".

  15.  The widespread vilification and attacks on Muslims since 11 September has focused on Muslims (and non-Muslims) from the Indian sub-continent and, to a lesser degree, from Africa; however in many instances the law providing protection on racial grounds could not be applied, since the words used to exhort or to justify hostility or hatred refer to Muslims and Islam.

  16.  The Public Order Act 1976 makes it an offence to incite racial hatred. Section 17 of the Act defines racial hatred as meaning "hatred against a group of persons defined by reference to colour, nationality (including citizenship) or ethnic or national origins. The definition of "ethnicity" is that applied under the Race Relations Act 1976.

  17.  Yet, the current law under the Race Relations Act 1976 recognises both Sikhs and Jews as racial groups, (Mandla v Lee (1983), Seide v Gillette Industries Ltd. (1980)), but not Muslims and Rastafarians, (CRE v Precision Manufacturing Services Ltd (1991), Dawkins v Department of the Environment (1993)).

  18.  This anomaly in the law thus sends a message to some religious communities that they are less worthy of protection than other faiths.

  19.  The amendment to the Crime and Disorder Act to include offences that are "religiously aggravated" filled a gap in the law, which the CRE drew to the Government's attention when the "racially aggravated" offences were introduced. The stated object of creating racially aggravated offences was to convey the Government's message that racist crime, particularly crimes of violence, were damaging to society and warranted heavier sentences. Racially aggravated offences apply to crimes against Sikhs and Jews, whom the courts have defined as ethnic groups under the Race Relations Act, but not Muslims. In the current highly-charged atmosphere, where words and actions directed against people perceived to be Muslims have greatly increased, it is welcome that this anomaly in the criminal law has been rectified.

Anomaly in the application of the law

  13.  In Northern Ireland laws exist to prohibit incitement to religious hatred but there is no equivalent law in Great Britain. (The Commission notes that there is a proposed Protection from Sectarianism and Religious Hatred Bill in Scotland).

  14.  The Commission believes that as a matter of principle, the law in incitement to racial and religious hatred should be consistent and uniform across the United Kingdom.

15.  THE GOVERNMENT (IN THE ANTI TERRORISM CRIME AND SECURITY BILL) AND LORD AVEBURY IN HIS BILL HAVE PROPOSED THE SOLUTION OF ADDING "RELIGIOUS" TO THE EXISTING LEGISLATION ON RACIAL HATRED. IS THIS APPROPRIATE?

Proposed wording for an offence of Incitement to Religious Hatred

  16.  The drafting of an offence of incitement to religious hatred requires special attention; care is needed to maintain the balance between freedom of expression as guaranteed by article 10 of the European Convention on Human Rights and protection for members of religious groups.

  17.  The Commission regrets that the incitement to religious hatred clause in the Anti Terrorism Crime and Security Bill was widely misunderstood; opponents of the clause feared that it would restrict freedom of expression. However, the clause as drafted was not concerned with words, displays, publications, broadcasts etc which refer to the ideology or observances of any religion; rather, it prohibited the use or possession of material that was intended or likely to stir up hatred of a group of persons who are defined by reference to religious belief (or lack of belief). The target of the threatening, abusive or insulting words, displays, publications, broadcasts etc was therefore not the content of any system of religious belief but the people who are perceived as sharing a particular religious belief, whether they do so or not.

  18.  It is equally important to recognise that freedom of expression in article 10 of the European Convention on Human Rights is not an absolute right and may be restricted for the protection of the rights of others. In addition, article 17 of the Convention prohibits activities aimed at the destruction of any of the rights and freedoms set out in the Convention. In the case of Glimmerveen and Hagenbroek v Netherlands article 17 was used successfully to justify the prosecution of the applicants for possession of leaflets likely to incite racial hatred and their exclusion from local elections. By comparison in the case of Jersild v Denmark the European Court found a violation of article 10 where a journalist was prosecuted for aiding and abetting race hatred views when he broadcast the views of three self avowed racists.

  19.  What these two cases demonstrate is the careful balancing exercise, which the courts will conduct to provide protection for groups from hatred whilst maintaining the right to criticise the tenets of a faith.

International Human Rights

  20.  International human rights treatise provide for three forms of protection for religious groups:

—  Protection from discrimination (eg International Covenant on Civil and Political Rights (ICCPR) article 2; European Convention on Human Rights (ECHR) Article 14 and Additional Protocol 12; the UN Declaration on the Elimination of all forms of Intolerance and of Discrimination based on religion or belief).

—  Freedom of religious belief (eg article 18 ICCPR; article 9 ECHR and articles 1 and 6 of the Declaration).

—  Protection from hatred (eg article 20(2) ICCPR; article 2 of the Declaration).

  21.  Article 20(2) of the ICCPR provides that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

  22.  It is arguable that in not offering protection from religious hatred, the Government is in breach of its treaty obligation under the ICCPR. Similarly, a failure to protect a person from religious hatred may in certain circumstances amount to inhuman and degrading treatment following the argument in the case of the East African Asians that racism may constitute inhuman and degrading treatment contrary to article 3 of the ECHR.

7 October 2002