Serious Organised Crime and Police Bill
26st January 2005
The most extraordinary aspect of the religious incitement measures contained in the Serious Organised Crime and Police Bill 2005 is not so much the strength of opposition but the wide range of opponents it has attracted, as is evident to an extent from the line up of speakers here today. When David Blunkett last attempted this change, as part of the Anti-Terrorism Crime and Security Act 2001, there was a similar breadth of opponents. Crucially, this also applied to the House of Lords and you will remember that peers-to their immense credit-defeated very similar provisions to those that are before Parliament now.
I believe that these measures were as unnecessary today as they were then-incitement to violence is already illegal.
The NSS has worked to maintain or improve freedom of expression throughout its 130 year history, and has enjoyed worldwide publicity for doing so even in the last month. Freedom of expression, as members of this learned house know, is much more than just an ideal. It is a pre-requisite to the maintenance of other freedoms, as well as of democracy and of justice. Obnoxious views are not eliminated by closing freedom of expression down; if that happens, the views are simply left to fester.
Especially with the seven year maximum jail term, the provisions bring with them a significant price - worrying limitations on freedom of expression. There will be an increase in the already unacceptable level of self censorship, quite apart from the chilling effect of prosecutions, of which I predict there will be many more than is generally expected. Some indication of the current litigiousness is that two religious groups are already threatening different legal actions over the BBC’s broadcast this month of Jerry Springer - the Opera. One of the prospective litigants is even hoping to coax the blasphemy law out of retirement.
As worrying is that the freedom to be critical of religion or of religious policies, or to speak out in ways that some religious people consider offensive is coming increasingly under threat, sometimes even when the speaker is religious. Politicians, journalists, and even public servants will be able testify to this regrettable state of affairs from personal experience. Journalists on the left and right will admit, but generally only privately, that references to religious terrorism have become all-but unmentionable in the British media. Clearly, such references should not be made in a way to inflame hatred, but the self-censorship is much more restrictive than that.
I think that these measures will result in a further closing down of freedom of expression, whether directly or through self censorship. The victors will be extremists and their quarry will include writers and journalists questioning their activities, and even moderate practitioners of their faith. The practical consequences of giving the extremists a further tool are very serious indeed and will strike at the root, the very fabric, of society. Let those who say things which some find offensive be chastened by public outrage. The State should intervene only to preserve public order. And of course it should do so fairly.
I am yet to be convinced that the State acts in an even-handed manner when faced with a choice between chastising someone religious or protecting freedom of expression. No prosecution was made of those in this country of those who threatened Salman Rushdie into a life in hiding, nor of those arrested when the Birmingham theatre showing the Sikh play Bejhti was trashed, nor of those threatening (or inciting threats against) BBC executives and their families in connection with the broadcast of Jerry Springer - the Opera. Although Estelle Morris recently spoke out in favour of freedom of speech, it was significant that no minister condemned any of these acts, as far as I can establish.
One of the principal Government justifications for this Bill is that it is intended to stop white supremacist groups evading the law by dressing up their poisonous rhetoric in religious abuse, rather than in racial abuse. Arguably, this could be prosecuted under existing racial hatred law, but - for the avoidance of doubt - an amendment making this clearer has been proposed by the Conservatives with the support of the LibDems. Sadly, this has been dismissed out of hand by the Government. Of course, had they not done so, it would have rendered these measures largely, if not entirely, unnecessary. This and similar amendments, like the one proposed by Lord Lester, overcome the objection of unfair discrimination, whatever it merits, that the incitement to racial hatred provisions afford protection to Jews and Sikhs (as the courts have decided that theirs are mono-ethnic religions) but not those of other religions.
The - I hope, exaggerated - expectation that has built up in the minds of minority religious groups over this legislation is deeply disturbing. How could even leading Muslim groups or Ken Livingstone have apparently been so wrong in their public claims that these measures were to be effectively a new blasphemy law, or something even more oppressive? I leave that question hanging, for none of the plausible answers seems palatable.
And the Government is placing much more faith in the Attorney General’s fiat (Prosecutions of this type can only proceed with the AG’s consent, but the exercise of this power could be subject to Judicial Review) than its opponents. Shadow Attorney General Dominic Greave told the Bill Committee in another place [the House of Commons] "Furthermore, the Attorney-General will be constantly under pressure to bring prosecutions, which he will refuse to do. Thus, the law will be brought into disrepute, because many groups are clearly pinning hopes on the Bill, which, given the statement that the Minister has just made and others that we have heard, will never be fulfilled (Commons Standing Committee D, 20 January 2005, Col 396)" What Mr Greave has predicted will probably happen, but there is also a danger that on other occasions the Attorney General will cave in, perhaps for electoral or political reasons, to religious pressure-which can be very intense. So, the Attorney General fiat is not the cure-all the Government makes it out to be.
Mr Blunkett’s last ditch concession in 2001 was to offer Attorney General Guidelines. They include the following passage: "Legitimate expressions of religious belief which, taken within their context, time and the wider national and international arena, could not be construed as anything other than the expression of a religious tenet are, similarly, not likely to amount to an offence of incitement to religious hatred." To me, this seemed to be saying the religious could be treated more leniently than others, which seems to me rather discriminatory, and perhaps another example of questionable even-handedness.
The bald truth is that some passages in some books regarded as sacred contain passages that promote hatred of others defined by their religion. Do we really want our courts pouring over such texts, once they have established which is the authentic one, to decide whether the offending passage constitutes "the expression of a religious tenet" or "legitimate expressions of religious belief", and, if so, treating it in a privileged way?
The Government keeps telling us that its intentions in respect of these provisions constitute no threat to freedom of speech, but this does not seem to me to be borne out in the wording of the provisions contained in the Bill. Why, for example, are the prosecution thresholds to be so low, and deliberately weaker than the existing provisions for race? Is there not a need for legitimate debate over religious matters in a way that there is and was not for race? And is the need for that debate not becoming increasingly necessary? I give just one example of many of worryingly lowered thresholds. Section 18 of the Public Order Act 1986 would now read "the words, behaviour or material are likely to be heard or seen by any person in whom they are likely to stir up racial and religious hatred. Why is this not any reasonable person, or whatever the appropriate equivalent legal adjective is when applied to hatred?
The Government maintains that its objective in this area is to maintain Public Order, not to police "thought crimes", and that is an approach we would commend. But it then refuses absolutely to use this opportunity to abolish the blasphemy law, although this has been recommended by the Law Commission. And let us not forget that the Religious Offences Committee and even the former Home Secretary David Blunkett have portrayed blasphemy as a dead duck. So, why has the Government refused even to consider abolishing blasphemy, and rejected every single amendment in Committee? Why is it intent on pushing through this legislation, seemingly regardless? It suggests that there is some other motive to which we are not privy.
It should be legal, and must remain so, to fiercely criticise a religion or those acting in religion’s name; indeed to do so could sometimes be a public duty. But the line between inciting hatred against a religion, and inciting hatred against its followers is a fine one, especially among those who consider their religion to be just as fundamental to their identity as their race. I fear therefore that, over time, the crucial distinction between religion and its followers will become blurred in the courts. Freedom of speech will be the victim, and it is too high a price to pay.
To the parliamentarians here today, I say by all means vote for the clarifying amendments to the race hatred law to which I referred, but I ask you to demand the abolition of the blasphemy law, and I urge you to vote against Schedule 10 (The detailed incitement provisions in the Serious organised Crime and Police Bill, 2005).