Religious hatred
Chapter 8
Religious hatred
Background
Criminal offences relating to stirring up religious hatred were created by the Racial and Religious Hatred Act 2006. This Act has a complex and controversial history. The government’s first attempt to create an offence of stirring up religious hatred was in Pt 5 of the Anti-terrorism, Crime and Security Bill 2001, but that proposal was defeated in the House of Lords. Another attempt was made in 2002 in the private member’s Religious Offences Bill and the proposal was reintroduced by the government in the Serious Organised Crime and Police Bill 2004. All of these attempts ran into serious opposition, particularly in the House of Lords, and each time the proposals were withdrawn by the government in order to get the rest of the Bill passed.
In the 2005 general election, the Labour Party included the following in its Manifesto for England and its Manifesto for Wales (though not the Manifesto for Scotland):
It remains our firm and clear intention to give people of all faiths the same protection against incitement to hatred on the basis of their religion. We will legislate to outlaw it and will continue the dialogue we have started with faith groups from all backgrounds about how best to balance protection, tolerance and free speech.
On 9 June 2005 the government introduced the Racial and Religious Hatred Bill into Parliament and made it clear that it was willing to use the Parliament Act to force the Bill through, even if the House of Lords voted against it. However, once again, the proposals aroused strong opposition from an unusual coalition of comedians, Evangelical Christians and atheists. The comedian Rowan Atkinson was a particularly high-profile opponent, who feared that the proposals would make it impossible safely to satirise religion; the National Secular Society feared that the proposals would make it impossible to criticise any religion; whilst many Christians feared that it would restrict their ability to preach the uniqueness of Christianity in comparison to other religions. Opposition was also stimulated by the way in which ‘religious vilification’ legislation in Victoria, Australia, had been used by one religious group in order to mount a legal case against another Islamic Council of Victoria v Catch the Fire Ministries Inc [2004] VCAT 2510. In effect, all the organisations agreed that they wanted to retain their right to disagree with each other and the freedom to criticise other religions or all religions.
The proposals for a religious hatred law were, however, very strongly supported by the Muslim Council of Britain, which considered that it was unfair that the existing race hatred legislation protected Jews and Sikhs but not Muslims. The government agreed that this was indeed an anomaly and for that reason its attempts to create an offence of religious hatred were based on the idea of modifying the existing offences of stirring up racial hatred found in Pt 3 of the Public Order Act 1986. Jews and Sikhs are protected by this legislation, since they are defined by the courts as races, albeit they also have their own religion. The idea of simply adding religious hatred to the existing race hatred legislation had already been adopted in Northern Ireland in the Public Order (Northern Ireland) Order 1987, which made it an offence to stir up either racial or religious hatred. It is, however, important to bear in mind that this legislation was introduced because of the unique political situation in Northern Ireland, in which religious identity (Catholic/ Protestant) is also regarded as an indicator of national identity (Irish/British) and political leanings (Republican/Unionist).
The opponents of the government’s proposals argued strongly that race and religion were fundamentally different concepts and therefore the government’s basic approach was flawed. On 25 October 2005 the House of Lords defeated the government and modified the Bill so as to make the new offence significantly different from what was originally proposed in the Bill. In particular, the House of Lords’ wording separated the offence of religious hatred from racial hatred and made the offence apply only to ‘threatening’ words or behaviour rather than ‘threatening, abusive or insulting’ words or behaviour. In addition, the government’s original proposals would have applied to a situation where it was ‘likely’ that religious hatred would be stirred up, but the House of Lords amendments meant that the offence would apply only where the defendant ‘intended’ to stir up religious hatred. Finally, a comprehensive clause was added to ensure protection for freedom of speech. Rather than trying to negotiate a compromise on these changes, the government, in effect, tried to get the Bill back to its original extent but, on 31 January 2006, the government proposals lost by one vote in the House of Commons when Prime Minister Tony Blair left early rather than staying to cast his vote. The almost unprecedented nature of this close vote led one prominent atheist to admit that it was the closest he had ever come to believing in divine intervention!
One particular consequence of the chequered history of this legislation is that if a court considers that the wording is ambiguous it will be unable to refer to Hansard for clarification. In the case of Pepper v Hart [1993] AC 593 the House of Lords decided that in certain circumstances courts could refer to Hansard to find out the purpose and meaning of a Bill by reference to the speeches of the minister who introduced a Bill. When, as in this case, the Bill passed is not the Bill that was introduced and is not the Bill the government wanted, Pepper v Hart does not apply and courts will have to rely entirely on the wording of the Act without reference to Hansard.
The Racial and Religious Hatred Act 2006
Schedule 1 to the Racial and Religious Hatred Act 2006 adds a new Pt 3A to the Public Order Act 1986, following Pt 3, which deals with racial hatred. There are a number of offences created by ss 29B–29G of Pt 3A but all of them share certain common characteristics. They deal with words, behaviour or material which are ‘threatening’; the offender has to ‘intend’ to stir up religious hatred and all words and behaviour have to be considered in the light of s 29J, which deals with ‘Protection of Freedom of Expression’.
Religious hatred
‘Religious hatred’ is defined in s 29A as ‘hatred against a group of persons defined by reference to religious belief or lack of religious belief’. Hatred itself is not defined in the Act but is defined in the Oxford English Dictionary as: ‘the emotion or feeling of hate, active dislike, detestation, enmity, ill will, malevolence’. Hate is defined as: ‘to hold in very strong dislike, to detest, to bear malice to, the opposite of “to love”’.
The reference in s 29A to lack of religious belief is often described as referring to atheists, i.e. those who have no religious belief, but its meaning is in fact more subtle. Lack of religious belief can cover any person other than believers in a particular religion so that, for example, an exhortation to ‘slay the unbelievers wherever you find them’ would be an exhortation to hatred and violence directed at absolutely everyone who could be considered to be an ‘unbeliever’. Furthermore, the words ‘lack of religious belief’ can mean those who do not share the specific interpretation of religious belief held by a particular person or group. This means that there could be situations where a group of believers in a particular religion were inciting hatred of other members of the same religion whom they regarded as deficient in religious observance, or compromisers with enemies of the religion; for example, a Muslim group inciting hatred against Muslim women who chose not to wear the jilbab could be accused of stirring up religious hatred even though their hatred was directed at fellow Muslims. This makes the offence of religious hatred distinctly different from the offence of racial hatred. It would be very diffcult for a person to incite racial hatred against their own race because they would of course be inciting hatred against themselves, but with religious hatred it is quite possible for someone to be inciting hatred against their co-religionists and this makes the offence of religious hatred relevant to disputes within religions, as well as to disputes between religions.
The wording of s 29A is specific that the group must be defined by ‘religious’ belief or lack of belief, which means that groups defined by non-religious beliefs or philosophies are not protected. It is therefore a much narrower definition than the definition ‘religion or belief’ used in Pt 2 of the Equality Act 2006 (Chapter 3) and Art 9 of the European Convention on Human Rights (Chapter 2). Even though Buddhism is more of a philosophy than a religion, Buddhists would be regarded as a group defined by ‘religious belief’: Barralet v Attorney General [1980] 3 All ER 925, but Secularists and Scientologists would not: Bowman v Secular Society [1917] AC 406 and R v Registrar General ex p Segerdal [1970] 3 All ER 886 (Chapter 1). This means that in a religious hatred case a criminal court may have to make an independent decision as to whether a group’s beliefs constitute religious beliefs; it cannot necessarily rely on decisions under the Equality Act 2006 or Art 9.