Memorandum from Dr David Nash, Senior
Lecturer in History, Oxford Brookes University
The law against blasphemous libel should be
abolished and not extended. Similarly the construction of a law
against incitement to religious hatred should be resisted.
Society and principles of government have moved
on from the law's original intention to protect the state and
to regulate public morals.
Home Office and wider belief in the law's function
as a measure only used in last resort against the genuinely offensive
has been fatally undermined by recent developments.
British society's continuing secularisation
is now being profoundly threatened and the maintenance of a legal
instrument with the power to proscribe opinion in such a climate
is a danger to society and culture.
Blasphemous libel is in a legally anomalous
situation. It is a species of libel with no real rules of evidence
or proof. Likewise it is an offence for which the Mens Rea
assumptions of English Law are notoriously difficult to prove.
The law of blasphemous libel is incompatible
with the standards of law and jurisprudence operated in most other
comparable western countries.
Extending the law of blasphemous libel to equalise
all religions within the law would produce problems of definition,
adjudication between competing religious groups and would paradoxically
offer legal protection to the status of the blasphemer.
No other western democracy is prepared to contemplate
privileging one belief system over another within its constitutional
framework.
Abolition of the law would persuade the Home
Office and other government agencies to revisit public order provision
and to offer protection to vulnerable groups with laws that do
not contravene the rights of others or infringe upon essential
liberties that all should enjoy in a theologically neutral society.
1. As a historian who has studied the history
and cultural consequences of the law of blasphemous libel in England
and Britain's other legal jurisdiction I would like to submit
evidence to the Select Committee. This argues that the law against
blasphemous liable should be abolished and that the Committee
should also resist the pressures to construct a new offence of
incitement to religious hatred.
2. The historical context of the law of
blasphemous libel is crucial to our understanding of its status
within the modern legal system since its evolution speaks eloquently
about society's perception of religion and its relationship with
the state over time. The Blasphemy Statutes have never been used
but significantly were constructed in response to external and
internal threats to the political stability of England (particularly
in the reign of William III). Sir Matthew Hale laid down the law
in this area in the Kings Bench case against John Taylor in 1675.
Hale had forged a classically seventeenth century link between
the Church and State and declared that each protected the ideological
credibility of the other. Hale argued that "to say religion
is a cheat is to dissolve all those obligations whereby civil
societies are preserved; and Christianity being parcel of the
laws of England, therefore to reproach the Christian religion
is to speak in subversion of the law." [11]Statute
Law here argued that protecting religion from assault was intrinsically
a matter of national security. The Common Law crime of blasphemous
libel has, in contrast, been seen since this time as a method
of regulating public morals.
3. Attitudes to the blasphemy laws over
time have only grudgingly responded to modernising societies and
their demands for religious tolerance. Whilst Statute Law in this
area has been held in disrepute from the dawn of the twentieth
century there have regularly been individuals prepared to uphold
and defend the status and purpose of such a law. Many have seen
the law as a necessary protection for the Church Established by
Law and indeed it has been seen as a crucial instrument of last
resort to impose doctrinal conformity upon the clergy of that
church. Perhaps of greater long term significance has been the
attitude over time of the Home Office to this law. When confronted
by lobbyists arguing for its removal the Home Office has often
offered stern rebuttals to calls for the repeal of this law. Writing
at the end of 1911 a Home Office commentator argued the position
"first it is said that that law under which defendants are
tried is old and obsolete this is untrue: the law of blasphemy
is on the contrary a striking instance of the Common Law adapting
itself to the times and changing in accordance with the general
change of view in regard to religious matters." [12]It
was thus, in the official mind, the feelings and attitudes of
public opinion that regulated the application of the law. As the
commentator further argued "If the religious views of the
majority of the nation changed so much that blasphemy ceased to
be offensive to them, juries which represent the average man would
cease to convict this is the safeguard against a harsh application
of the law." [13]
4. The central assumptions behind these
pronouncements and views have been that the law can whither away
as Britain and western culture can be seen to become progressively
and inexorably more secular—in essence a form of controlled
liberalisation. If matter (whether speech, print or moving image)
were offensive it would be proceeded against and the comfort of
British society was assured by the relative absence of such proceedings.
But we should bear in mind that progress of secular society has
increasingly come to be challenged by a small and exceptionally
sensitive vocal minority. In France and to a lesser extent Britain
many of these issues have been highlighted by the claims of non-Christian
faiths to equality before the law. In some cases these have been
around issues concerning protection from secular and secularising
"state interference" and in extreme cases issues around
the conception of blasphemy. However, this should not draw attention
away from the fact that many laws, especially in Britain, significantly
favour one section of the Christian faith and through this partiality
lack legislative moral authority in the modern world. Legislation
of this kind can seem increasingly anachronistic. This was particularly
highlighted recently when the religiously partial nature of the
Act of Settlement was discussed in the Scottish parliament in
December 1999. This drew attention to the fact that the Act of
Settlement explicitly prevented the monarch from marrying a Roman
Catholic whilst it did not prevent them from marrying, in the
words of Lord James Douglas-Hamilton, "a Muslim, a Buddhist,
a Scientologist, a Moonie, an atheist or a sun worshipper."
[14]
5. The recent history of blasphemy has significantly
veered away from the ideals of secular tolerance outlined above.
The law as laid down by Justice Coleridge in R. v Foote (1883-84)
made the law more obviously liberal and permitted criticism of
the Christian religion. Justice Coleridge argued that an important
test of blasphemy was not the matter of what was said by an individual
speaker or writer but the issue was fundamentally about the intention
of that speaker or writer. [15]With
the Gay News case of 1977-78 (R v Lemon) the law
has become more draconian with an emphasis upon the fact of publication
and encounter within a public order setting once again becoming
paramount. This has now made the blasphemy law substantially harsher
than it has been since 1883. A contemporary prosecution would
arguably merely have to prove the fact of publication to mount
a successful case. Moreover there is enough evidence to suggest
that quasi-State organisations have acted in prior restraint against
published works in the surprisingly recent past. In early 1990s
the British Board of Film Classification effectively prevented
the release of Nigel Wingrove's film "Visions of Ecstasy"
because it "might be blasphemous" when all previous
Home Office advice had indicated that society at large had to
decide such issues for itself in the courts. The recent re-ignition
of the Gay News case (in the guise of Joan Bakewell's Taboo
BBC programme) left the PPS with the profoundly dangerous dilemma
of deciding whether a blasphemy prosecution was "in the public
interest".
6. These phenomena place blasphemous libel
surely in a legally anomalous situation. It has evolved into a
species of libel which requires no concrete test of proof of sustained
injury to the injured party. Moreover the contemporary law no
longer requires the prosecution to prove intention to wound and
offend as a necessary proof of guilt in a blasphemy prosecution.
This means that the centrally important concept of Mens Rea
(namely that an individual intends the consequences of their action
and thus commits a crime with a "guilty" mind) is wholly
absent from blasphemous libel. This, in itself was a major source
of disagreement amongst the judges who presided over the Gay
News appeal to the House of Lords. Similar ambivalence around
the function of the Mens Rea component of laws against
race (and potentially a proposed law against religious) hatred
has also been noted by legal commentators as a notorious stumbling
block to its effectiveness. Whilst the Mens Rea behind
an act of violence or abuse can be proved the courts have had
problems proving the Mens Rea behind the racially motivated
component of this. This is precisely why the law of blasphemous
libel has retreated to an unjust and anachronistic desire to establish
merely the fact of publication. It may be possible to establish
that individuals have published material that has proved offensive
yet it is nearly impossible, in a society that supposedly allows
free discussion, to prove the Mens Rea behind an intention
to hurt or wound religious feelings.
7. In the context of the Wingrove
case Article 19 surveyed the state of blasphemy laws in eleven
countries and concluded that they were either dormant or on the
verge of extinction and concluded that Britain's current practices
in this area were "incompatible with Article 10 of the European
Convention of Human Rights".[16]
Britain in this instance held on to the law by arguing that it
should be permitted to retain it through the "margin of appreciation"
which grants individual nation states the right to exercise unique
jurisdictions central to their cultural identity. Such a view
is incompatible with Human Rights philosophies broadly defined.
8. In contemporary Britain a secular and
secularising society can no longer be assumed or taken for granted.
Religion and religious forms of expression are colonising public
space in a manner that makes the offence of blasphemy and the
desire to encourage feelings of offence incompatible with the
status of the state and its desire to be theologically neutral.
9. Thus with the current law of blasphemous
libel outflanked by evangelising religion of various forms and
the growth of religious "feelings" to replace the doctrine
this promises to be an area in which the law must confront the
proclivities of increasingly litigious interest groups.
10. Faced with the bankruptcy of the law
there are two possible routes. The law against blasphemous libel
could be extended to other religious groups or could be abolished.
My submission argues that the law should be abolished. Whilst
extending the law appears to be a course of action offering religious
tolerance it, in reality is a recipe for strife. The history of
such considerations is a spectacularly unhappy one. Indeed the
Home Office itself considered this course of action between the
two World Wars only to shelve such reforms as unwise, unworkable
and counterproductive. Significantly it identified the same problems
that would afflict both a wider blasphemy law and an incitement
to religious hatred law in the contemporary world. Religion itself
has in practice been impossible to define and attempts to borrow
precedents from the former Empire have not had a happy history.
In January 1930 Sir Frederick Pollock wrote to The Times
once again advocating borrowing sections of the Indian Criminal
Code as a blueprint for an extended law. He quoted the section
which appeared as follows:
"Whoever, with deliberate intention of wounding
the religious feelings of any person, utters any word or makes
any sound in hearing of that person, or makes any gesture in the
sight of that person or places any object in the sight of that
person, shall be punished with imprisonment of either description
for a term of which may extend to one year, or with fine, or with
both." [17]
11. What was significant here about the
offering of the Indian Code solution was that the Home Office
felt it clearly inapplicable to British circumstances. It was
argued that a main stumbling block was the definition of religion.
With considerable understatement one civil servant suggested that
"The draftsman by a stroke of the pen, would have to solve
a question which has been the subject of theological controversy
for centuries.." [18]It
was similarly considered almost impossible to go down the route
of naming specific religions in law since there would be endless
debate about which religions (and sects) to include and which
to exclude. There was also a fundamental issue here about who
was to be consulted about what constituted a religion and precisely
how this was to be determined. The problem of who to ask, what
questions to ask and precisely how often to do so remains a divisive
issue even today. Indeed contemporary advice in the interwar period
displays vividly the power of such advice to become anachronistic.
It was suggested that "Hinduism is hardly worthy of the name
of religion. But the effect on His Majesty's subjects in India
of protecting Mohammedanism and excluding Hinduism would be disastrous."
[19]A
third course of action considered by the Home Office was to leave
the idea of "religion" entirely undefined, again I note
an option pursued in recent discussions. This would have made
it a matter for juries to decide in each individual case. In this
the use of expert evidence would be crucial and would also invite
many of the problems associated with the nature of expert evidence
centring around its longevity and credibility. Once again consideration
of the difference between fair and temperate criticism and outrageous
attack also constituted a considerable problem. There were also
problems around the Indian Code solution's use of the words "Intention
to wound". This went beyond the normal Mens Rea consideration
of individuals intending the natural consequences of their actions.
The Home Office was thus alarmed that this was requiring juries
to look beyond such acts and "into the mind of the prisoner"
and this constituted a considerable departure from the principles
of English law. Indeed this last issue opens the way for a discussion
of who the law itself is intended to catch. The nineteenth century
did witness prosecutions of individual social and political radicals
who sought to attack religion from whatever intention. The twentieth
century has witnessed proceedings against writers and artists
whose opinions have been attacked rather than the danger they
apparently constitute.
12. All these problems with the law, rehearsed
in 1930, remain valid in the contemporary world and some have
been arguably exacerbated. We might also add still more problems
to the consideration of its extension. Quite how an inclusive
blasphemy law would protect religions in conflict with one another,
or apostates from more established forms of religion is a very
moot point. Moreover the criterion for recognition as a religious
group is itself even more problematic. It has been suggested that
an established religious tradition stretching back through a respectable
historical interval might constitute a recognisable criterion.
Such a course of action, if liberally applied would offer extensive
protection to more fringe groups with a less obvious lineage.
However such an extension would also have to give real credence
to the beliefs of those in the Church of England who view the
church/state link and the fact of establishment as a central tenet
of their faith. Any criterion, which took tradition as its watchword,
would also have to recognise that those of no faith and even those
whose faith leads them to blaspheme have a considerably older
religious tradition than many to whom such a law would offer protection.
Thus it is not inconceivable that an extended blasphemy law would
potentially enshrine religious protection for the act of blasphemy
and not protect society from its ramifications. Evidence from
the United States suggests that some blasphemous material is consumed
by the irreligious to fortify themselves against what they see
as a theistic world. It is not intended to shock non-believers
and clear warnings are given about the content of this material.
This would provide significant evidence that consumers of blasphemy
conceivably deserve the protection of this law. Moreover the establishment
of protection for a species of opinion will persuade other idealogical
standpoints to adopt religious language and idioms as a means
of gaining legislative protection and indeed there is worrying
evidence that some groups on the far right of politics are adopting
this strategy.
13. It is also pertinent at this point to
remind ourselves that not all attempts to extend the law have
had issues of tolerance and wider equality as their central intention.
In the strained international atmosphere of 1938 parts of the
far right of British politics (notably the Nordic League) through
an influential MP Archibald Maule Ramsay introduced a bill to
Parliament which had the intention of deporting Jewish communist
freethinkers involved in propaganda, meetings and events linked
to an International Freethought Congress. [20]In
the worsening political situation this Bill commanded considerable
cross party support although the Home Office was eventually able
to ensure it never reached the statute book. Interestingly, in
his clumsiness, Ramsay had created a Bill which would have, had
it become law, protected religion in general and would thus have
offered protection to Buddhist and Islamic beliefs and most ironically
of all Jewish beliefs. In refuting the Bill this objection was
raised by the Home Office noting that "there is no reason
in a Christian country why these religions should be given such
gratuitous protection." [21]
14. Arguably the situation is far more complex
than the instances cited which themselves led the Home Office
to give up in despair many years ago. The desire to be litigious,
the requirement for individuals to have a full knowledge of their
actions and the beliefs and feelings of others would mean that
western culture would become a viscous battleground and not a
system of shared values.
15. Repealing the law against blasphemous
libel would harmonise English law with most other western societies.
It would encourage the Home Office to think more clearly about
alternative public order solutions to the obvious problems it
is currently encountering.
16. Abolition would also make a significant
move towards a situation where the State becomes theologically
neutral. Recent events in the United States have reinforced in
the public mind just how imperative this is for the welfare and
security of us all.
11 Bradlaugh-Bonner, H. (1934). Penalties Upon Opinion,
Watts & Co. pp.30-31. Back
12
Public Record Office. HO 45 24619/216120/86 Memo signed by "HB"
May 1913. Back
13
Ibid... Back
14
The full text of Lord James Douglas-Hamilton's speech to the Scottish
Parliament 16 December 1999 is available at http://www.guardian.co.uk/Print/0,3858,4102155,00.htlm. Back
15
See Coleridge, Ernest Hartley (1904), Life and Correspondence
of John Duke Coleridge, London. Back
16
Article 19 and Interights (1995) Blasphemy and Film Censorship:
Submission to the European Court of Human Rights in Respect of
Nigel Wingrove V United Kingdom. Back
17
Times 29 January 1930. Back
18
HO45 217459/43. Notes on the Blasphemy Amendment Bill, February
1930. Back
19
Ibid. Back
20
For a portrait of Ramsay see Thurlow, Richard (1987) Fascism
in Britain: A History 1918-85 (Oxford) pp 78-9. For an extended
discussion of this event see Nash, D. (1999). Blasphemy in
modern Britain: 1789 to the Present. Aldershot; Brookfield,
VT, Ashgate pp 218-238. Back
21
HO45 217459/274 Home Office Commentary on the Aliens Restriction
Bill, 15 July 1938. Back
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