Memorandum from The Muslim Council of
Britain (404)
1. INTRODUCTION
1.1 The Muslim Council of Britain (MCB)
is an umbrella organisation with over 300 Muslim bodies and associations
including mosques as its affiliates. This response is based upon
consultation with affiliates and interested individuals. The response
also relies on previous submissions made by the Muslim community
and others to the extent set out herein. In this context we should
like to make specific reference to The Need for Reform (a document
published by the UK Action Committee on Islamic Affairs in 1992);
The Second Review of the Race Relations Act (published by the
Commission for Racial Equality in 1991); and Electing to Listen
(a document published by the MCB in 1999).
1.2 This response only covers the issues
that the Select Committee is specifically considering and public
notice whereof has been given. As we understand it, the Select
Committee is inquiring into "whether to retain, amend or
abolish long standing offences such as blasphemy; and the merits
or otherwise of the introduction of a new offence of inciting
religious hatred." The Select Committee, we understand, also
wishes to receive submissions on any other issues in relation
to criminal offences arising out of religious discrimination.
1.3 We understand that the Select Committee
is not interested in receiving submissions on the issue of religious
discrimination as a civil wrong. We believe that given its proximity
to the issues that the Select Committee is considering, the exclusion
of the need for a comprehensive law on religious discrimination
is unfortunate and unhelpful. We firmly believe that the absence
of protection from discrimination on religious grounds provides
an important backdrop and context for the debate on and consideration
of the issues that are exercising the Select Committee. We also
believe that there needs to be a comprehensive audit of all laws,
civil as well as criminal, to ensure that the UK laws on religious
freedom are in accord with our obligations under international
law and also reflect our diversity.
1.4 We should like the Select Committee
to take due account of the incontrovertible evidence (some of
which we have annexed to this response) that Muslims in the United
Kingdom feel particularly vulnerable, insecure, alienated, threatened,
intimidated, marginalized, discriminated and vilified since 11
September tragedy. With regard to the position of Muslims in the
United Kingdom prior to 11 September we should like the Select
Committee to consider most carefully and give due weight to the
Runnymede Trust report on Islamophobia.
2. THE LAW
OF BLASPHEMY
2.1 The current law on Blasphemy only protects
the Anglican faith and does not cover any other faith. It is therefore
discriminatory. However our view is that it would be wrong to
abolish it. As Muslims, our faith requires belief in and reverence
for other prophets, including Prophets Abraham (Ibrahim) Isa (Jesus
Christ) and Musa (Moses). We covet no freedom to commit sacrilege
against other faiths. It is not our position that if Islamic sanctities
are not protected against sacrilege, then the existing protection
of the Anglican faith should also be removed. Despite its archaic
character and extremely rare use, we would support representatives
of the Anglican faith if it were their wish to retain the law
on blasphemy in its present form to protect the Anglican faith.
We believe that the abolition of the law on blasphemy would mean
negative equalisation.
2.2 The Muslim community would like to see
the early introduction of a law that makes it a criminal offence
to vilify any religious belief. In seeking criminal sanctions
against vilification, we recognise that it has arguably adverse
consequences on right to the freedom of speech. However it is
our view that this restriction on the freedom of speech has not
been an issue with regard to the law on Blasphemy and therefore
should not be seen as a serious issue or an impediment with regard
to any law that protects doctrines and beliefs of other religions.
2.3 The Muslim community, in the view of
the MCB, would not like to see the blasphemy law repealed. We
do not think that in its present form its amendment to cover other
Christian groups and other faiths is likely to be possible without
major re-drafting. We would prefer a new law that will cover all
faiths from vilification. The minority view of the Law Commission,
which considered the offence of blasphemy in 1985, was that rather
than abolishing the common law offence of blasphemy the preferable
course would be to enact a law, which would be free of the defects
of the present blasphemy law. On the issue of curtailment of the
freedom of expression, the minority view was that it was the duty
on all citizens in society with its multi racial, multi faith
and secular make up not purposely to insult or outrage the religious
feelings of others. They concluded that the drafting of a new
statutory offence, although difficult could be achieved. We are
in full agreement with those views.
2.3 We rely on and commend to you the statement
of Lord Scarman made in R v Lemmon (1979) 617. Lord
Scarman said, "I do not subscribe to the view that the common
law offence of blasphemous libel serves no useful purpose in the
modern law. On the contrary, I think that there is a case for
legislation extending it to protect the religious beliefs of non-
Christians. The offence belongs to a group of criminal offences
designed to safeguard the internal tranquillity of the Kingdom.
In an increasingly plural society such as that of modern Britain
it is necessary not only to respect the differing religious beliefs,
feelings and practices of all but also to protect them from scurrility,
vilification, ridicule and contempt ... my criticism of the common
law offence of blasphemy is not that it exists but it is not sufficiently
comprehensive. It is shackled by the chains of history."
3. INCITEMENT
TO RELIGIOUS
HATRED
3.1 Atricle 20 (2) of the International
Covenant on Civil and Political Rights says, "Any advocacy
of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by
law." The United Kingdom is a signatory to this international
treaty. We do not have a law that prohibits discrimination on
grounds of religion. We do not, on the mainland of Great Britain
have a law that makes incitement to religious hatred an offence.
It has been our view and the view of the Commission for Racial
Equality (see Second Review of the Race Relations Act 1976) that
our government is in breach of its obligations under international
law for not protecting religious minorities from being victims
of violence, harassment and intimidation for their belief. The
CRE said, "Both incitement to hatred against a religious
group and discrimination against a person because of membership
of that group (unless it is recognised as an ethnic group as in
the case of the Jews and Sikhs) are lawful in Great Britain, but
not in Northern Ireland. Yet in international treatment of human
rights religious and racial discrimination are treated similarly."
It went on to say, "In principle there is a strong case for
saying that there should be uniform law on incitement to religious
hatred across the whole of the UK. In practice, there will be
an increasing need for such a law, if people identify themselves,
and are identified by others, with their religious as much as
national origin. It cannot be any more acceptable to stir up hatred
against people because they are seen as Muslim than to do so because
they are seen as Pakistanis, if it is accepted that people have
the right to practice the religion of their choice. The UK has
accepted that right: it is enshrined in Article 9 of the European
Convention on Human Rights (based on the Universal Declaration
of Human Rights)." The Human Rights Act 1998 has made the
European Convention on Human Rights part of the United Kingdom
law and hence it is strongly arguable that the governments' failure
to protect people from violence, harassment, intimidation because
of their faith or belief is contrary to its obligations under
international as well as the domestic law.
3.2 On 15 October 2001 the Home Secretary
announced his intention to introduce a law on incitement to religious
hatred. This was part of a package dealing with anti-terror laws
(Anti-Terrorism, Crime and Security Bill). Because of its timing
and its perceived link to terrorism of which Muslims stand most
unjustly accused, we, together with a number of other Muslim organisations
expressed reservations. We did not oppose the Home Secretary's
proposal to enact law on incitement to religious hatred. After
all Muslims have been asking for and are in dire need of a law
that criminalizes incitement to religious hatred. In the event
unfortunately the Home Secretary abandoned his proposal on incitement
to religious hatred. However the fact that the government presented
a proposal to have a law on incitement to religious hatred is
evidence of their recognition of its pressing need and withdrawal
from the position taken by previous governments that drafting
difficulties in formulating the law would be too difficult to
overcome. We support and commend the government for its commitment
to a multi faith and multicultural society in Britain, which is
inclusive and cohesive. If the government fails to make incitement
to religious hatred a criminal offence it will validly be exposed
to the allegation of paying lip service to diversity agenda. It
will show a serious discrepancy between rhetoric and practice.
3.3 The incitement to religious hatred proposals
in the Anti-Terror, Crime and Security Bill suggested the amendment
of the Public Order Act 1986 to extend it to cover "religious"
as well as "racial" hatred. Whilst expressing reservations
related to the timing of the proposal, we, in partnership with
a number of other Muslim organisations had asked, that the proposals
should incorporate certain safeguards to ensure that the application
of the proposed new law would be effective and equal. We were
concerned that the proposed new law had the potential to be used
as an instrument of targeting and oppressing Muslims rather than
affording protection from others who stir hatred against them
for being Muslims.
3.4 Amendment of the relevant provisions
of the Public Order Act 1986 (Part 3, Sections 17, 17A, 18, 19,
20, 21, 22, 23 and 29) and Section 24 (2) of the Police and Criminal
Evidence Act 1984 to make the offence an arrestable offence is
one way of achieving the aim of making incitement to religious
hatred an offence. We note that the Religious Offences Bill under
your consideration has taken this route to making incitement to
religious hatred an offence. In principle we support the proposal.
However we urge that the proposed new law must properly take account
of the unsatisfactory history of the relevant provisions of the
Public Order Act 1986 so as to ensure that the amendments are
free from previous baggage and that the law is actually strengthened
to give meaningful protection to victims of hatred.
3.5 For incitement to racial hatred provisions
under the Public Order Act 1986 prosecutions may only be brought
by or with the consent of the Attorney General. For a variety
of reasons this does not appear to have worked very well in that
there have been very few prosecutions and in many of such prosecutions
it is the people of black colour or race who have been prosecuted.
Hitherto the Attorney General's office has been extremely reluctant
to prosecute people for racial hatred. If the Attorney General
were to maintain such a disinclination to prosecute, there would
be genuine cause for concern, given the current hostility against
the Muslims in the media.
3.6 We note that in the amendments proposed
in the Religious Offences Bill, there is no amendment in relation
to the initiation of prosecution by or with the consent of the
Attorney General.
3.7 The office of the Attorney General is
a political office and in the new climate of supremacy of human
rights and the acknowledgement of the need for complete transparency
in the exercise of administrative powers, we invite the Select
Committee to seriously consider whether it is still appropriate
to require prosecutions to be brought by the Attorney General
himself or with his consent. We believe that it is desirable to
de-politicise acts that are potentially criminal. We recognise
the need to regulate prosecutions in this area since such prosecutions
have an element of public interest at stake but we cannot see
why such decisions should not be left to the Director of Public
Prosecutions, the normal prosecuting authority.
3.8 If no change is intended in the requirement
that prosecutions for incitement can only be brought by or with
the consent of the Attorney General, we would ask that:
(a) The Religious Offences Bill should require
the Attorney General to publish the criteria that are used in
his decision to prosecute;
(b) The Religious Offences Bill should also
place upon the Attorney General a duty to give full and reasoned
decision where he is requested to give consent but refuses to;
(c) The Religious Offences Bill should also
require the Attorney General to submit an annual report to Parliament
with full ethnic and religious breakdown of matters that came
or were brought to his attention for prosecution specifying the
action that he took in each case.
(d) The Attorney General's reports on the
incitement legislation should be presented to the House of Commons
Home Affairs Select Committee once every two years for scrutiny
and also to the Joint Committee on Human Rights.
(e) The Select Committee should recommend
the publication of a Code of Practice to ensure a comprehensive
system of reporting and recording all incidents and investigations
under the new incitement legislation.
(f) A Steering Group "to increase trust
and confidence in policing" amongst the faith groups (along
the same lines as the Lawrence Steering Group) should be established
with the purpose and power of monitoring the implementation of
the Code of Practice and assess the effectiveness of the incitement
legislation. The Steering Group should have representatives of
all the major faith groups as its members.
3.9 The other way of making incitement to
religious hatred a crime is to consider extending the relevant
law on incitement to religious hatred in Northern Ireland to the
rest of the Kingdom. Section 8 of the Public Order (Northern Ireland)
Act 1987 is relevant. It is accepted that the experience in Northern
Ireland of prosecutions for incitement to religious hatred has
perhaps been only marginally better than the experience in successful
prosecutions of incitement to racial hatred on the mainland. Nevertheless
it is an option that needs serious consideration. Same applies
to the New South Wales Act with particular regard to a two stage
process on complaints of incitement—the first stage involving
mediation through a specially set up Commission and the second
stage requiring referral to the Attorney General for prosecution
following failure of mediation.
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