Memorandum from The British Humanist Association
1. SUMMARY
1.1 The British Humanist Association (BHA)
strongly supports the abolition of the offences of blasphemy and
blasphemous libel, and related religious offences that distinguish
between church premises and/or consecrated areas and other places.
The blasphemy law is anachronistic, uncertain, lacks credibility
and, even in the absence of recent prosecutions, places unacceptable
restrictions on free speech. Since it protects only one religion,
it is also discriminatory, but the BHA would strongly oppose any
extension of the law to protect other religions and beliefs, believing
that this would constitute the severest restriction on discussion
of matters of fundamental importance.
1.2 With appropriate safeguards and a strict
definition of racial hatred which clearly differentiates between
hatred of individuals and groups defined by their religious belief
or lack of religious belief, and hatred of a religion or belief
(as given in the Attorney General's draft guidance which was prepared
in the context of the proposed Anti-terrorism, Crime and Security
Act 2001) the BHA supports the introduction of an offence of incitement
to religious hatred. The law must be drafted in such a way that
it does not inhibit legitimate and robust criticism of religious
and non-religious beliefs.
2. INTRODUCTION
2.1 The BHA is the principal organisation
representing the interests of the large and growing population
of ethically concerned but non-religious people living in the
UK. It exists to support and represent people who seek to live
good and responsible lives without religious or superstitious
beliefs. It is committed to human rights and democracy, and has
a long history of active engagement in work for an open and inclusive
society. The BHA welcomes the opportunity to submit evidence to
the Select Committee on Religious Offences on behalf of its members
and supporters.
2.2 The BHA's policies are informed by its
members, who include eminent authorities in many fields, and by
other specialists and experts who share humanist values and concerns.
These include a Humanist Philosophers' Group, a body composed
of academic philosophers whose purpose is to promote a critical,
rational and humanist approach to public and ethical issues.
2.3 The British Humanist Association is
deeply committed to support for an open society, with individual
freedom of belief and speech, and with the government and official
bodies maintaining a disinterested impartiality towards the many
groups within society so long as they conform to the minimum conventions
of the society. While we seek to promote the Humanist life-stance
as an alternative to (among others) religious beliefs, we do not
seek any privilege in doing so but rely on the persuasiveness
of our arguments and the attractiveness of our position.
2.4 Correspondingly, while we recognise
and respect the deep commitment of other people to religious and
other non-Humanist views, we reject any claims they may make to
privileged positions by virtue of their beliefs.
2.5 We oppose the present privileged position
of the Church of England and of Christianity in general. Despite
the valued liberties and democratic rights enjoyed by people in
the United Kingdom, and the rapid increase in the numbers of people
with no Christian or other religious beliefs, our unwritten constitution
remains a residual theocracy, with the establishment of the Church
of England, the reserved places for bishops in the House of Lords,
the privileged position of religion—and Christianity in
particular—in the school system and curriculum, the law
on blasphemy, and a long list of minor privileges.
2.6 We deny that this privileged position
of the Christian religion and of the Church of England in particular
can be defended by extending similar privileges to a limited list
of other religions.
2.7 It is against this background of our
beliefs about society that we approach Lord Avebury's Bill "To
abolish the common law offence of blasphemy and certain other
offences; and to create an offence of religious hatred",
and the questions posed by the Select Committee on Religious Offences.
3. SHOULD EXISTING
RELIGIOUS OFFENCES
(NOTABLY BLASPHEMY)
BE AMENDED
OR ABOLISHED?
3.1 As long ago as 1985, the Law Commission
recommended abolishing the law on blasphemy and rejected its replacement
by any new measure. The failure over so many years to implement
this recommendation is deplorable.
3.2 The BHA strongly supports abolition
of the offences of blasphemy and blasphemous libel, for the following
reasons:
3.2.1 The blasphemy law is contrary to the
principle of free speech. The law, although now restricted by
various safeguards, fundamentally protects certain beliefs and
makes it illegal to question them or deny them. While it may be
offensive to some Christian believers to hear their beliefs mocked
or denied, that is equally true of people of other faiths, and
of unbelievers, who repeatedly hear atheism equated with a lack
of values or immorality. In an open and pluralist society there
should be no inhibition to free speech without the very strongest
justification, and robust debate should be expected and accepted
in religious as in political and other spheres.
3.2.2 The blasphemy law is uncertain. As
common law, with a very limited number of cases, it is impossible
to predict how the courts might interpret the law in any putative
case. This is contrary to the principles of good law, and unacceptable
in practice.
3.2.3 The blasphemy law lacks credibility,
having not been used by the public prosecutor since 1922 in England,
and 1843 in Scotland, although it was resurrected in the private
prosecution of Gay News and its editor, Denis Lemon, in
1976. Although no-one has been imprisoned for blasphemy since
1921 (Denis Lemon's nine month prison sentence was suspended and
later lifted on appeal), and private prosecutions are no longer
possible, the possibility of a prison sentence remains, and a
law that is only enforced at intervals of many years is an indefensible
lottery.
3.2.4 The blasphemy law allows no defence
of merit of lack of intent, which is contrary to the principles
adopted in other areas, for example, obscenity.
3.2.5 There is considerable evidence that
the blasphemy law restricts free speech even in the absence of
recent prosecutions. It undoubtedly influences the behaviour not
only of individuals and the media, but also of bodies exercising
official functions. A notable example of this is the British Board
of Film Classification whose ban on Nigel Wingrove's video "Visions
of Ecstasy" was based on the blasphemy law and was upheld
on that basis by the European Court of Human Rights.
3.2.6 The blasphemy law defends only Christianity
(and principally the doctrines of the Church of England), which
is unacceptable in a multi-faith community. Such unequal treatment
naturally arouses resentment and demands for the privilege to
be extended to other groups. The BHA would strongly oppose any
extension of the blasphemy law to other religious beliefs, as
has been demanded by some religions, or indeed to atheism or humanism.
If such a law applied equally to the beliefs of all, it would
constitute the severest restriction on discussion of fundamental
matters of profound significance and interest. It is surely also
relevant that some religions would almost certainly demand a far
more rigorous application of the law than the Church of England
has in recent years, as witnessed by demands for the prosecution
of Salman Rushdie, and any extension to the law would inevitably
lead to a number of test cases designed to test the boundaries.
3.2.7 The blasphemy law protects beliefs,
not people. It is right, subject to safeguards, for society through
its laws to protect individuals and groups within it from hatred
and attack. It is quite wrong to extend the protection of the
law to propositions, creeds and truth-claims.
3.3 The BHA believes that various other
associated religious offences, notably those that distinguish
between church premises and/or consecrated areas and other places,
should be abolished at the same time. There is no justifiable
reason, for example, for separate offences of disturbing religious
service or religious devotions, or striking a person within a
church or churchyard, which are adequately covered in other laws.
4. SHOULD A
NEW OFFENCE
OF INCITEMENT
TO RELIGIOUS
HATRED BE
CREATED, AND
IF SO,
HOW SHOULD
THE OFFENCE
BE DEFINED?
4.1 The BHA would oppose any legal constraints
on vigorous debate, including satire, mockery and derision, about
beliefs and doctrines, religious or otherwise. We see a clear
distinction between this and incitement to religious hatred, ie,
hatred of individual persons on grounds of their religious or
other beliefs. The distinction between beliefs and persons is
fundamental.
4.2 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 cooperation, and can
be devastating to the lives of individuals and communities.
4.3 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.
4.4 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.
4.5 It is vital, however, that the new law
is not drafted in such a way that it inhibits legitimate discussion
and robust criticism of religious beliefs and practices. A badly
drawn law about incitement to religious hatred could operate as
a new and much wider blasphemy law, extending the same protection
to all religions, including dangerous cults. On the other hand,
if the law were confined to "the six major world religions"
(in line with developing and objectionable official practice)
it would offer the more established religions an unfair and unjustified
privilege that would contravene the spirit and letter of the Human
Rights Act, which outlaws official discrimination based on religion
or belief.
4.6 Not only are religious beliefs and practices
highly controversial, they can be seriously damaging to the wider
community as well as to their own adherents. Examples are the
widespread subordination of women in the name of Islam, the worldwide
frustration of birth control policies by the Roman Catholic church
and other religions, and the condemnation of homosexuals by several
religions. A poorly drafted law intended to protect individuals
and groups from violent and abusive attack could extend to protecting
from criticism the extremes of fundamentalist Islam, Judaism and
Christianity and the irrationality of millennial sects.
4.7 Religion is indeed often the vehicle
for preaching hatred of other people—not least of unbelievers
and gays, and not only by such extremists as Jerry Falwell in
the wake of the tragedy of 11 September. Such preaching, and related
religious doctrines, must remain open to fierce criticism.
4.8 An analogy is often drawn between incitement
to racial hatred and incitement to religious hatred, but there
are vital differences between race and religion. A person's race
is irrelevant to what sort of person they are, whereas religion
can determine behaviour and attitudes. People can and do examine
and repudiate or change their religious and other beliefs. In
a free society, contentious beliefs and practices must be open
to debate and criticism, and in the nature of free speech that
must extend to what may be seen as unfair, ill-informed and extreme
statements. Much that was seen as extreme criticism in the past
is now widely accepted as true, and freedom of speech that extends
only to that which no-one finds offensive is no freedom at all.
4.9 The BHA emphasises these points because
we wish to underline the importance of the safeguards suggested
by the Government in their original attempt to legislate on incitement
to religious hatred, and now by Lord Avebury in his present Bill.
As we see them, these safeguards (as outlined in the Attorney
General's draft guidance on the offence of incitement to religious
hatred and its application to conduct comprising or involving
the expression of legitimate religious beliefs, published under
the proposed Anti-terrorism, Crime and Security Act 2001) are:
— the requirement that the offending
speech be threatening or abusive or insulting;
— the requirement that the person used
the words with intent to stir up religious hatred;
— the requirement that "having
regard to all the circumstances, hatred is likely to be stirred
up against…a group of persons defined by reference to religious
belief or lack of religious belief";
— the exclusion of putative offences
committed in private dwellings; and
— the requirement for the Attorney
General personally to consent to any prosecution as being in the
public interest.
4.10 We are disturbed at one detail of the
Bill, namely that possession of "religiously inflammatory
material" (to quote the Attorney General's draft guidance
at Annex 1) will be an offence without any safeguard (see Annex
2) for possession for legitimate purposes of study, for example,
the British Library holding a copy of the Protocols of the Elders
of Zion.
4.11 Subject to these safeguards being included
in the Bill, the BHA supports the creation of an offence of incitement
to religious hatred.
18 June 2002
|
