Examination of Witnesses (Questions 220-239)
THURSDAY 18 JULY 2002
MR DAVID
POLLOCK, MS
HANNE STINSON,
DR DAVID
NASH AND
MR KEITH
PORTEOUS WOOD
220. You would put some limits on the freedom
of speech in terms of the respect each owes the other, regardless
of religion?
(Mr Wood) Yes. I particularly made points about public
order and physical threat. We presumably are not thinking about
going down the route of saying that it would be a criminal offence
to say something that somebody else found disrespectful because
that would be even worse than blasphemy.
(Ms Stinson) I believe fundamentally that everybody
has the right to believe what they believe. I also believe that
everybody has a right to criticise and challenge other people's
beliefs in ways that do not go beyond those bounds that we have
just been talking about, public order, violence etc. Within those
bounds, attacks on people's beliefs can be robust, humorous, and
I think that is essential for learning and understanding others'
beliefs.
Bishop of Portsmouth: I do not disagree with
that but it is how it is applied in the heat of a religious situation.
I am completely with you on the self-criticism or philosophical
or political or religious themes.
Chairman
221. Could we go on to incitement to religious
hatred? What do you perceive to be the mischief which legislation
should criminalise and what should be the role of the law in addressing
matters of hatred? I ask you please to address this against the
background that we have already on the statute book section 39
of the Anti-Terrorist Act at the end of last year which creates
a substantial number of religiously aggravated offences, including
protection from harassment, which may be quite an important part
of this argument. Would you like to address those two issues?
(Mr Pollock) The British Humanist Association is completely
committed to the idea of an open society, freedom of speech, freedom
to organise and so on, with the government remaining neutral and
above the fray. That sort of society is vulnerable to mindless
dissention and discord. Hatred on religious grounds is very corrosive
of the bonds of such a society. Hatred is never desirable but
one cannot legislate against hatred and religious hatred itself
must be accepted as within the bounds of freedom of belief. We
believe however that in this country religious hatred strictly
interpreted is pretty rare, which was what your witness told you
last week. I was struck by his repeated statement to the effect
that religious believers had broad backs and can put up with many
of the effects of criticism. Nevertheless, religious hatred can
be devastating to the lives of individuals and we think it is
therefore proper that the state should intervene to make a law
against incitement of it, i.e. to make the propagation of hatred
illegal is justified in principle. We come on to outline some
of the difficulties. We think it is particularly important there
should be such a law if one can be properly framed because of
the tendency of people to evade the law against incitement to
racial hatred by artificial use of religious labelling. We think
that some of those people who wish to create trouble for their
own reasons are clever enough to do so without getting personally
involved when public order offences come into question. That is
the gap in the law that we think it is proper to address to catch
those who ferment religious or quasi-religious hatred while avoiding
committing any other offence. We note that the United Nations
Human Rights Committee has urged that the UK should extend its
legislation in this area.
(Ms Stinson) Working with the Red Cross, as I did
for some 16 years, I am particularly aware of the number of situations
around the world where armed conflict or internal violence has
been brought about, partly at least, by individuals and groups,
inciting religious hatred as a means of achieving perhaps other
political aims. There are a number of examples around the world
where in a very short space of time a peaceful society has been
moved into armed conflict by the incitement of religious hatred,
even if that incitement is for a separate purpose of inciting
ethnic hatred. The former Yugoslavia is an obvious example. I
do not think we should be quite as confident in the stability
of our own society to say that could not happen here. In the former
Yugoslavia, they were saying that within a few months of it actually
happening.[1]
222. Both of you see a role for the law in addressing
this matter?
(Ms Stinson) We do if there are sufficient safeguards.
In our initial submission, we said that we felt the safeguards
as outlined in the Bill and in the Attorney General's guidance
on the previous Act from last autumn would probably be sufficient.
Having discussed this further, we no longer believe that. We believe
that there are serious gaps in that draft guidance by the Attorney
General, and I hope that we may have an opportunity to outline
some of these.
(Mr Wood) If I could address question two and a half,
we have taken some human rights academics' advice on this and
the consensus which we have come to is that we would like to see
legislation strongly linked to a clear and present danger stirring
up violence or hatred akin to violence and that it does not need
to be confined to religious groups or non-religious groups. For
example, we think that homosexuals should be given a similar kind
of protection against this form of extreme harassment. I started
with this because I am leading on similarly to the view that the
British Humanist Association is coming towards, if not quite to
the extent that we have, that the combination of Lord Avebury's
Bill, which is very well intentioned and I see what he is trying
to get at, and the non-statutory guidance for the Attorney General,
we feel, is fatally flawed. We will come on to that in some of
the later questions. Some other problems are that we are alarmed
about how people will interpret offensive material as being hateful.
Many religious people say with absolute conviction that what they
perceive as an attack on any one of them they consider to be an
attack on all of them and any attack on their religion to be an
attack on them. These are very sincerely held views but one can
see under those circumstances that what other people might regard
as being a criticism of their religion is interpreted by them
as being hateful towards them and their religion and them as a
religious group when that is not the intention. Because of those
sorts of situations, we need to emphasise the public order issue
rather like we were saying earlier and in the terms I have just
said about what we think the law ought to do. There are these
fundamental differences too between race and religion. One is
born with one and not necessarily the other. There are so many
different variations of religion and belief. Nearly all of them
claim superiority over another. They will be terrible problems
that these combinations are going to get us into and the casualty
in every case is going to be freedom of expression. I think for
us the incitement to religious hatred law is too high a price
to pay.
223. I think we are all very clear about the
necessity to retain freedom of expression but it is not an unqualified
right. I want to ask Dr Nash to address these points but what
are you suggesting we should do about it? To what extent, for
instance, does the existing change in the law put in in December
meet any of the points? What about the harassment on religious
grounds?
(Mr Wood) I am very worried about the effect of freedom
of speech in that particular provision but there is not very much
evidence around at the moment about the section being used. I
think we have to wait to see how it turns out in practice but
I am deeply disturbed about that and I would have wished that
section 39 had joined the other sections which were effectively
referred back to this Committee. I would have been very much happier
had that been the case. It most certainly was not the kind of
legislation that should have been done in haste which, with respect,
I think it was.
224. Dr Nash, if it is going to be turning on
public order, we need to try and define the area which the law
should cover, if it does not already do so.
(Dr Nash) I would try to draw attention to what are
potentially one or two problems about the issue of religious hatred.
First of all, we have already approached the idea of religion
being very difficult to define but we need to think about how
religious hatred as a concept itself may work. Thinking about
how prosecutions would satisfactorily prove the religious component
of hatred is very problematic. I am conscious of having spoken
to some lawyers who have misgivings about the incitement to race
hatred and proving the racial component of hatred in this instance.
For example, will such a law have to prove premeditation in the
religious component of this hatred? How will this be established
to the satisfaction of the court?
Chairman: Would you like to look at one of the
examples the police have given us and, while you are doing that,
perhaps some other people could ask some questions.
Baroness Perry of Southwark
225. As a Committee, we are wholly with the
reservations you have expressed about preserving freedom of speech
and people's right to hate a particular religion or to hate all
religion. What you said about your experience in the Red Cross
rings true with many people. There are so many serious arguments
to say that religion has been responsible for a great many wars
and unpleasantness in the world. That can be said in reasoned,
measured tones but could very well be heard as an incitement to
hatred of religion. Is it possible in law to distinguish between
incitement to hatred of a religion as opposed to incitement to
hatred of people who are followers of that religion in such a
way that you either disturb public order—in other words,
you incite people to take violent action against them—or
you incite in a way which destroys their freedom of speech and
freedom of belief which are also cherished freedoms. That is our
dilemma.
(Ms Stinson) I do not think I was trying to imply
that religion is the cause of war. It may be sometimes. Because
people are extremely emotionally attached to their religion, if
somebody wants to whip up hatred, it is easier to do that through
religion than through politics or anything else.
(Mr Pollock) The duty the community owes in this area
is to its members, not to beliefs. For that reason, we feel that
any legislation should be cast quite explicitly in terms of people,
not beliefs. This is one of our worries about the Bill. In this
instance it is in terms of religious hatred which is then defined
later in terms of people. We think the title of the Bill and the
way it is primarily expressed ought to be in terms of inciting
hatred of persons defined by their religion or belief, not in
the convenient shorthand of religious hatred. That is one of a
number of detailed points that we would like to make if we have
time about the detail in the drafting. For example, the Bill is
in terms of religious belief or lack of it, but it does not seem
to give any protection to expressions of non-religious beliefs.
It fails to recognise humanism as a lifestyle that is defined
not merely by a rejection of religion but by positive content.
European law in the shape of Article 9 of the Convention and the
European Union Directive on employment and occupation are moving
in the direction of recognising a category of religion or belief
as a single concept and case law has shown beyond doubt in several
countries that Article 9 embraces not only religious beliefs but
also non-religious beliefs such as atheism and humanism. The first
such case in the UK has recently been reported. On the other hand,
there is a lot of English law which is based on a narrow definition
of religion involving worship of a deity and we are very concerned
that if the Bill is passed in that form, with this guidance, that
the idea of "religion or belief" in the European sense
will be cast aside in future. We understand that the Home Office
when they were preparing their own clauses for the Anti-Terrorism
Bill considered this formally and rejected it as being not exact
enough. If it is finding its place in the civil law, as it undoubtedly
is, we see no good reason why it should not be used in the criminal
law as well. I referred just now to the guidance. The guidance
is throughout in terms of expression of legitimate religious beliefs.
The idea of the legitimacy of a belief is not to be found in the
Bill but the Attorney General seems to have envisaged that there
are some illegitimate religious beliefs and our concern is that
rejection of religion may be a front runner forillegitimate expression
of belief in the eyes of some people, perhaps even a future Attorney
General. The guidance refers to private prosecutions. We would
be entirely against any private prosecutions in this area. The
guidance says that the police may arrest and even charge people
before consulting the Attorney General. We are opposed to the
police having any such powers. Arrest without or before consultation
should only be necessary in the most extreme case and would be
covered by the Public Order Act. Charges should in every case
await consultation and a ruling from the Attorney General. The
guidance says similarly that the police may take advice from the
Crown Prosecution Service. We think that they should in every
case take advice from the CPS. The guidance also says that if
there is sufficient evidence to mount a prosecution the Attorney
General will then consider if one is needed in the public interest.
We think the law should require that the Attorney General has
regard to the importance of Article 10 of the European Convention
on freedom of expression in making any such judgment as to the
public good. We think the Attorney General should be under some
duty to report to a committee of one of the Houses of Parliament
or perhaps the Joint Committee on Human Rights on the exercise
of discretion in this way. We are also extremely worried about
the formulation "threatening or abusive or insulting words",
because that could cover a huge range of speech which should never
come near a prima facie case of breach of the law. The
Law Commission in their report endorsed the use of abuse and insults.
"Ridicule has for long been an acceptable means of focusing
attention upon a particular aspect of religious practice or dogma
which its opponents regard as offending against the wider interests
of society and in that context the use of abuse or insult may
well be regarded as a legitimate means of expressing a point of
view upon the matter at issue." Quoting from the Law Commission
1981 working paper, it had already rejected a blasphemy law based
on what was scurrilous, abusive or insulting on the grounds that
it could "only be judged ex post facto. Delimitation
of a criminal offence by reference to jury application of one
or more of several adjectives, (all of which set about objective
interpretation and none of which is absolute), is hardly satisfactory."
Some religious groups are highly sensitive to disagreement with,
let alone criticism of, their beliefs and militantly litigious
in pursuing what they perceive as their rights, many of them having
not just a fanatical commitment by their adherents but also considerable
financial resources. If words are politically abusive or insulting
the only defence left for any prospective defendant is lack of
intent which is a very weak shield in circumstances, leaving the
defendant entirely at the mercy of the judge's summing up and
the jury's interpretation of his motives. We oppose any offence
based simply on insulting or abusive language and perceived intent.
Chairman
226. This is a very carefully prepared answer
to what was an ex improviso question. Is this something
which you prepared in answer to our question six? Freedom of speech
also involves other people having a chance to say things and I
just hope you are not going to be too long.
(Mr Pollock) We are worried about the extension of
the law to what I would call semi-private occasions, meetings
of the Secular Society, for example, or a meeting of animal rights
activists about ritual slaughter. Anyone who attends those meetings
from an opposite point of view is going to go along fully expecting
to be insulted and outraged. We do not think they should be able
to claim the protection of the law when they are putting themselves
in the way of being offended. There is also the question of the
lack of a defence in cases where the defendant is deemed not to
have intended anything, but the law says that there was a likelihood
that the words used might create religious hatred. He is not offered
a defence that he did not believe it likely to incite hatred.
We think such a defence is essential. A speaker might find a quite
unexpected audience who react in a way he did not expect. We are
also worried about possessing religiously inflammatory material
which might be routinely in the possession of people such as ourselves
and the question would then come down purely to intent and juries'
interpretation of intent could be worrying. Lastly, we do not
think it is totally far fetched to imagine that, in cases where
people such as ourselves or others in different circumstances
spoke out about their views, a self-invited audience coming along
expecting and hoping to be abused and outraged, might even allege
that the speakers were inciting hatred against themselves, a reflexive
hatred. Given the way that the racial hatred law has been used
in some cases against racial minorities, we do not think that
is totally unlikely.
Chairman: Lady Perry, to what extent has your
question been answered?
Baroness Perry of Southwark
227. Very adequately.
(Mr Wood) I would like to answer a question about
the difficulty of defining hate of an action and whether it is
directed against people. There was an extraordinarily useful article
in The Observer, which I will leave with the clerk, by
Stuart White on 7 October. "It is not at all clear cut. Imagine
someone who says you have to be a moron to be a Catholic because
it is so misogynistic or then somebody who had earlier said that
Catholicism is misogynistic and then adds in the heat of the argument
that misogynists are morons. You then put the two comments together
and you might reasonably infer the thought that in the view of
the speaker you have to be a moron to be a Catholic." I think
that shows how difficult these kinds of issues can be and would
in practice be for the courts. I find that very worrying but I
raise that in relation to the specific question that was asked.
We have been handed some, I accept, offensive material here and
I have also in mind a tiny quote from this very same article,
saying that as Brandeis put it, "the remedy to be applied
is more speech, not enforced silence." That has to be the
recipe for this kind of offensive material. To try to put the
lid on the can is, in the end, going to be self-defeating. There
were questions raised earlier about whether there had been care
to look after the questions of freedom of speech. I imagine I
must have it wrong because from what I have seen there are some
very serious shortfalls. I am quite sure that, even just from
the strength of the penalties, the element of self-censorship
will be enormous from the legislation that is proposed. I am open
to correction but my understanding was that the possession side
did not have an intent element to it. Can somebody tell me whether
I am correct?
(Mr Pollock) It does.
(Mr Wood) Even then, it is going to make people feel
very uncomfortable. In conclusion, I would like to say that the
Home Affairs Committee said, when the offence was originally proposed,
"We have not yet seen sufficient evidence to justify the
proposition that extending the law of incitement to include religious
as well as racial hatred will work in practice. The proposals
in the Bill will be difficult to enforce. Moslems also have difficult
with this." One only has to read the acres of print that
were written about this whole issue at the time. There is an absolute
wealth of evidence of opinion of people who hold very similar
views to that. My own conclusion and that of the Society and Dr
Nash is that this is not a suitable piece of legislation. The
Race Relations aspect of the Public Order Act just is not the
right vehicle to make small changes to achieve these ends.
Lord Avebury
228. Let us pick up at the end of those remarks
your comment that the legislation could lead to self-censorship.
Have you any reason to suppose that the legislation in Northern
Ireland has led to a reticence on the part of people to attack
each other for religious reasons?
(Mr Wood) I do not think the situation is the same
in Northern Ireland as it is here and because of the desperately
sad situation in Northern Ireland there may have to be some exceptions
to the more overbearing legislation that there is here. That has
even sadly been recognised by the European Union in the Employment
Directive. There is only one part of the whole of Europe that
has been excepted from the Employment Directive and that is Northern
Ireland. Because of the extraordinarily difficult situation there,
sometimes we have to grit our teeth and accept that what would
in other circumstances be unacceptable legislation is necessary
there.
229. You do think legislation of this kind is
necessary in Northern Ireland, do you?
(Mr Wood) I do not know enough about the Northern
Ireland case and I did not come here primed to answer that question,
so I cannot express a detailed view about it.
230. You say that putting a lid on this kind
of material is self-defeating. Would you say the same was true
in the law on incitement to racial hatred? Would you say that
the similar provisions in regard to racial hatred have led to
self-censorship on the part of people likely to indulge in robust
criticism of other ethnic groups?
(Mr Pollock) There is a very major difference between
race and religion here.
231. I did not ask that question. I asked a
specific question about the opinion you hold of the existing law
on incitement to racial hatred.
(Mr Pollock) The Humanist Association is in the position
of accepting in principle the idea of a law against religious
hatred and we are not convinced that one cannot be properly framed.
Our colleagues are convinced. We accept without doubt the law
on incitement to racial hatred.
(Mr Wood) So do we.
(Mr Pollock) The reason why we take different attitudes
to the two is that race is something which no one chooses, which
does not determine behaviour and attitudes. It is, in a sense,
without content. It is not deterministic in any way of what type
of person one is. That is not true of religion. Religion can be
chosen or put aside and it does determine some attitude and some
behaviour. It is brim full of content which is open to legitimate
appraisal, argument and rejection. A straight substitution of
"racial and religious" for "racial" origins
in the 1986 Act fails, in our view, because there need to be many
more safeguards on the religious side than exist on the racial
side. I have already outlined what some of those would be.
232. In short, you believe that people who belong
to a religious group which is coterminous with an ethnic group
are entitled to the protection of the law but if they belong to
a religious group that spans several groups they are not entitled
to protection?
(Mr Pollock) We think it is very unfortunate that
the law has not been extended to Jews and Sikhs as religious groups
rather than as racial groups.
(Mr Wood) I agree with that.
(Ms Stinson) Going back to your original question,
I believe very strongly that the Racial Hatred Act is absolutely
essential. I also believe that it has had the effect of self-censorship
and I think it is right that it has. When you come to religious
hatred, the situation is very different. It could, if there were
not proper safeguards, lead to the same sort of self-censorship,
which would be negative because I think it is essential that we
feel able to criticise somebody's beliefs. For example, if somebody
says that it is not rational to believe in a god, that is totally
acceptable. The obvious implication is that somebody who does
believe in a god is irrational, in that respect anyway, and I
feel that that too is acceptable to say.
233. Of course.
So in that sense it is acceptable to say, for
example, that Christians are irrational in that sort of argument.
But if you were to say black people are irrational that would
be totally different, and should be—and is—unacceptable
and unlawful, or in some circumstances unlawful. I think that
is the major difference and the reason why an approach that would
be identical to that for race, for religion, would be unacceptable.
Chairman
234. I want, if I may, to see whether we can
bring this together. We asked a question primarily directed at
the Britain Humanist Association which arose out of the paper
that you sent us. The conclusion that you drew was subject to
safeguards which you set out, and I am not going to go into them
but you may if you wish. Broadly you support the creation of an
offence of incitement to religious hatred, and I think the National
Secular Society does not.
(Ms Stinson) Indeed, we do, and it does not. That
is correct.
235. Could you say why, subject to the protection
that you seek and in the light of everything that you said this
afternoon, you still support this, despite the fact that you have
already said earlier in the paragraph in the paper that there
is a failure to produce a proper analogy between race, which is
inherent, and religious belief or that of religious belief which
is something that you choose to adopt. I think there may be a
very substantial point here but I am not clear what it is.
(Ms Stinson) The point is that we see racial hatred
and religious hatred as different because it is legitimate to
challenge people's religious or other beliefs. We see them as
different, and I think I have emphasised that in my answer to
Lord Avebury. The additional point, though, is that we do believe
that it is necessary to give groups and individuals protection
against incitement of hatred against them as people on religious
grounds. We do believe that the safeguards need to be very carefully
drafted and, as pointed out earlier, we believe that the current
draft that the Attorney General did for the Anti Terrorism Act
is not adequate.
236. Do you say you start by adopting the pattern
that started off with racially aggravated offences and has now
been extended to religiously aggravated offences, and you extend
that to incitement?
(Ms Stinson) No. We believe some of it should be extended
to religious offences. We do not feel that revising the racial
hatred legislation would be the right way to do it because of
the differences, and particularly perhaps because, if the Race
Act were amended by simply adding in "race or religion",
that would be perceived by people who do not go into the detail
of the Act as saying that it is now unlawful to criticise religious
belief, and that of course is not acceptable.
237. You are beginning to move outside the remit
that this Select Committee has, and we have to be a bit careful
what it is that we are being asked to recommend. Since the National
Secular Society takes a totally different view, how would you
build an offence—or perhaps you would not bother? Perhaps
you would think it was unnecessary or impracticable.
(Mr Wood) No. As I said earlier, I believe that where
there is a clear and present danger of stirring up violence, or
hatred akin to violence, there should be an offence to deal with
that not confined to religious or non religious groups but to
everyone, including homosexuals. That is what we think would be
satisfactory.
238. Is that not covered by the public order
legislation already?
(Mr Wood) I am not sure that it entirely is. I think
there is perhaps some finessing—I am not a lawyer by profession
but I suspect—
239. You are sitting beside one, so he can help
us.
(Mr Wood) More of a historian than a lawyer, I think.
(Dr Nash) I am a historian, Lord Chairman.
1 Mrs Stinson wishes to emphasise that the views she
expressed here are her personal views, and not the views of the
Red Cross, which, as a neutral organisation, does not make statements
of this kind. Back
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