Memorandum from The Council of Christians
and Jews
1. With respect to the proposed creation
of a new offence of incitement to religious hatred it is important
to consider the present legal context. A new offence will only
be justified if it can be clearly shown that current legislation
is inadequate.
2. The current legal framework is provided by
the Public Order Act of 1986 and the Protection of Harassment
Act 1997. It is also important to consider issues pertaining to
Freedom of Speech, which are usefully addressed in the Education
(no 2) Act of 1986, with regard to universities and colleges in
England and Wales.
3. The Public Order Act of 1986 at S.4 (1)
states that the use of threatening abusive or insulting words
or behaviour constitute an offence if they are intended to provoke
the immediate use of unlawful violence or give the impression
that such violence will be used. At 5.5 (2), the lesser offence
of harassment is defined in terms of similar behaviour intended
to caused harm and distress, even if there is no reason to anticipate
actual physical violence.
4. Part III of the 1986 Act is particularly
relevant to the remit of the Select Committee, as it creates a
number of offences in relation to racial hatred, including at
S.19 an offence in relation to publishing or distributing written
material. At S.18.1 it is made clear that in respect to stirring
up racial hatred, the prosecution does not have to prove intention
on the part of the defendant, only that having regard to all the
circumstances racial hatred is likely to be stirred up by his
actions.
5. Racial Hatred is broadly defined at S.17
as "hatred against a group of persons defined by colour,
race, nationality of ethnic or national origins".
6. The question, therefore, is whether S.17
should be amended to include "religion", as an adequate
defining term for the "group of persons" concerned without
reference to other considerations.
With respect to anti-Semitism, which is a central
concern of The Council of Christians and Jews, in its modern forms
it tends to be ethnic or racial rather than religious. Jews are
targeted as a people, regardless of whether they are religious,
secular, or even members of a different faith community, and promoting
anti-Semitism is treated as an offence within the terms of Part
III of the 1986 Act. It is difficult therefore, to see any further
protection being afforded to Jews by the proposed amendment. Deflamatory
and distorted versions of Jewish religious material do sometimes
figure in anti-Semitism literature, but they are usually cited
in a racist—rather than religious context.
7. With regard to Islamophobia, the situation
is rather different, as Islam is a focal point of animosity and
abusive comment, albeit that Muslims are also targeted under all
of the categories listed in the 1986 definition of racial hatred.
In these circumstances an amendment to the definition cited at
point five above might well be helpful. Following s.18.1, it would
be clear that the offence would be confined to a situation, when,
having regard for all of the circumstances, racial hatred is likely
to be stirred up by the utterances of writings in question. This
would exclude academic debate and the reasonable expression of
critical opinions in the media, so guaranteeing the freedom of
speech that is the defining feature of democratic society. Maintaining
crucial distinction should be no more difficult than in other
racial hatred offences defined in the 1996 legislation.
Questions arising from the above:
1. What are the sources of current anti-Semitism
and how seriously does it affect the Jewish community?
2. Would the creation of a new offence of
incitement to religious hatred be of assistance in combating anti-Semitism
and similar prejudices encountered by other faith communities?
3. What is the role of law in addressing
matters of hatred and prejudice?
4. How would one define incitement to religious
hatred with due regard for the importance of freedom of speech?
5. How would such legislation accommodate
the polemical thrust of the sacred scriptures of different faith
communities?
6. Would reasoned academic criticism of
religious traditions and behaviour be compromised by the proposed
legislation?
June 2002
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