CHAPTER 2: The Context
8. Although the Committee's remit concerns only
criminal offences, this report must begin by focusing on the
context in which it was set up. The Anti-Terrorism, Crime and
Security Bill 2001 was a piece of emergency legislation, responding
to the events in the United States of America on 11 September
2001. The part of this with which we have to deal directly is
the incitement Clause which was eventually omitted and now reappears
in the RO Bill. However, s.39 of the Anti-terrorism and Security
Act 2001, as passed, is also relevant. This allows the courts
to impose harsher penalties if it can be shown that an offence
was aggravated by religious hatred, and builds on a system in
the Crime and Disorder Act 1998 providing for increased sentences
for some offences aggravated by racial hatred. Section 39 is beginning
to be used in prosecutions.
9. The law is seen as only part of the remedy
for prejudice and bigotry. From a selection of formulations, three
may be of interest:
· "I
would simply make the point that it is very difficult to encourage
open and free dialogue, involving people of faith communities
who may feel insecure and may actually have a sense of fear in
relation to their own religious identity. Dialogue, and mutual
understanding can be developed much more successfully in a society
where it is absolutely clear that people of different faiths have
a legitimate place, that their place is respected, and that they
will not be subject to ill treatment and abuse (Inter Faith Network[8]).
· "Yet,
for so many people in this world, the idea of sharing and celebrating
other people's faiths and beliefs is something to fear. In recent
months that fear has increased dramatically. Truly, we are at
a crossroads: the choices that we make at this crucial time, as
parliamentarians and as a nation, will determine the kind of world
we leave our children" (Lord Alli)[9].
· "The
Commission for Racial Equality recognises that for many minority
ethnic communities there is a close relationship between race
and religion and that identity through faith is as important as
identity through racial origin"[10].
10. It was suggested to us at the Cambridge seminar
that the essence of an eventual solution is tolerance; if this
is to achieve harmony, it must be promoted as a pro-active attitude
rather than a passive or complacent frame of mind. There are already
working models and powerful advocates of peaceful resolution of
age-old disputes. What is needed is an appropriate recognition
of religion both in the law and in many other ways, for example
education and community relations.
11. Any legislation on these complex social and
religious issues would have to be flexible enough to endure.
Today, it is the Muslim community which feels itself the least
protected from hatred and most exposed to hostile attack, both
verbal and physical, although there is no reason to think that
they are the only likely victims. Tomorrow, the spotlight may
be on another religious community. While there is no longer any
formal discrimination against or general hostility towards Roman
Catholics, Nonconformists or Jews, religious prejudice still exists.
The Church of England is not exempt. The religiously aggravated
offences in the Anti-terrorism etc Act were a step in the right
direction, but the issues pre-date the passing of that Act. The
hostility towards some religious communities will not easily be
reduced while the international situation remains as it is, particularly
if the media continue to talk up terrorist threats and directly
or indirectly relate them to these communities.
12. The situation in other parts of the United
Kingdom is summarised in Appendix 5. In Scotland, new law on religious
hatred as an aggravating factor is awaiting Royal Assent. In Northern
Ireland no change in existing law is anticipated. Meanwhile in
the European Union negotiations are continuing on the text of
a Council Framework Decision on combating Racism and Xenophobia,
which is expected to require member states to create an offence
of incitement to religious hatred.
13. We are a society in which no major religious
group, including atheists, objects to the presence of others,
and there is little friction between the leaders of various faiths.
It is, however, important to recognise that continued tranquillity
depends not only upon continued mutual tolerance but, equally,
on equality of protection from intolerance on the basis of religion
or belief or no belief. So long as the major religious communities
can pursue their ideas, their beliefs and their practices, and
so long as none of these cause any undue impact upon the secular
segment of society, or on each other, a form of stability can
be achieved. But this cannot be taken for granted.
14. The more disturbing sources of animosity
which may be encountered do not relate to a religious/secular
divide. They are more likely to be created as a by-product of
the communal, social and ethnic conditions in particular geographical
areas of the country (referred to by one witness as "dynamics"[11]).
There is also sometimes an inability or unwillingness at the individual
level to come to terms with those who are different from oneself,
whether by reason of colour or other aspects of divergence, such
as forms of dress.
15. The general complaint at present, and particularly
from the Muslim community, is hostility which, while racist in
origin, is often expressed in religious terms that are not at
present illegal. This concern is increased by the perception of
the fact that other faith groups are protected from hostility
(by the blasphemy laws, race relations and public order legislation),
while theirs is not. The 2001 census figures indicate that Muslims
constitute over 3% of the population; other estimates suggest
that about 700,000 are of Pakistani origin, 300,000 of Bangladeshi;
there are groups of 240,000 from India and 375,000 from
the Middle East and Africa; 200,000 from diverse countries such
as Malaysia, Turkey, Iran and the Balkans; and about 10,000 who
are Afro-Caribbean or white converts. Claims of discrimination
and hatred towards them, in its legion of forms, have filled much
of the evidence to the Committee. A key element of the Muslim
perception of their marginalisation under the law[12]
is that they do not enjoy the widening of the definition of "racial
group" by case law, which some religions clearly, and in
their view rightly, do. One result of this is that, when the Public
Order Act 1986, Part III, created new criminal offences of incitement
to racial hatred, it automatically applied to these groups, but
not to Muslims and other faiths which draw support from more than
one national or ethnic group. The same was true of the aggravated
version of the offences introduced in 1998. The subsequent introduction
of religiously aggravated offences in the Anti-terrorism etc Act
did not resolve the incitement aspect of the issue. This is seen
as a most damaging state into which the law has progressed. The
Muslims certainly think so, and the Attorney-General[13],
the Home Office[14],
the Police[15]
and the DPP[16]
agreed that it is undesirable. If Sikhs and Jews are to be protected
from incitement to religious hatred and if this is considered
to be a legitimate restriction of free speech, the same standard
should be applied to Muslims, Christians and other faith communities,
otherwise there is clearly a breach of Article 9 combined with
Article 14 of the European Convention on Human Rights.
16. The criminal law does apply in cases of violence
or threats directed at members of the Muslim community, and there
have been cases before the courts[17].
Many Muslims, nevertheless, believe that the law treats them as
second-class citizens of British society due to the combination
of a lack of remedy for religious discrimination in civil settings;
the absence of powers to prosecute when the group (rather than
its individual members) is the target for incitement to hatred,
because of its multi-ethnic composition; and the absence of any
proscription of incitement to religious hatred.
- In this context, the draft Council Framework
Decision would help to counteract the "pretext" device
whereby extremist organisations are evading the racial offences
under the Public Order Act 1986. They use religion as a
surrogate for their real target of race, as the Police and the
Home Office confirm (and we have seen a plethora of objectionable
material in support of that view). There seem to have been problems,
not least evidential, in bringing prosecutions under Part III
of the 1986 Act, whether or not aggravated (according to
the Commission for Racial Equality, there have only been 61 prosecutions
since 1988[18]).
If the Framework Decision were to be implemented in England and
Wales, careful thought would have to be given to see how this
new offence should be formulated in English law. The government
continues to favour legislation to deal with religious hatred.
The Attorney-General said as much in his evidence to the Committee[19].
In an interview with the Muslim News (28 March 2003) the
Home Secretary said "I can't be anything else but sympathetic
to [an offence of incitement to religious hatred] because it was
my idea". In its fifth report, the Select Committee on European
Scrutiny quoted Lord Filkin's reference to a declaration inserted
into the proposed Council Framework Decision on Racism and Xenophobia
which "explains how, although not treated as an offence in
its own right, our courts must consider "religious"
hostility as an aggravating factor when determining sentences
for all offences."
8 Volume II, Q186 on page 51 Back
9
HL Hansard 13 November 2002, col 10, seconding the Motion for
an humble Address Back
10
Volume III, page 31 Back
11
Volume II, Q191 on page 53 Back
12
The law was defined in 1983, when the House of Lords (in Mandla
v. Dowell Lee [1983] 2 AC 548) held that the Sikh community
could be described as having an "ethnic origin" under
s. 3(1) of the Race Relations Act 1976 and that, therefore, in
seeking to prevent a pupil from wearing his turban a school was
acting contrary to the race relations legislation. The Jewish
community have since been treated as having the same protection
because the House of Lords, in seeking a meaning for "ethnic
origin", relied on a New Zealand decision on the same point
under similar legislation, concerning a pamphlet published with
the intent to incite ill-will against the Jews (King-Ansell
v. Police [1979] 2 NZLR 531). Since then gypsies/travellers/Romanies
(the Court of Appeal used these words inter-changeably) have obtained
a similar status (Commission for Racial Equality v. Dutton
[1989] 1 All ER 306) Back
13
Volume II, Q686 on pages 231 and 232 Back
14
Volume II, Q50 on page 19 Back
15
Volume II, QQ106, 138, and 159 on pages 32/33, 36, 40 Back
16
Volume II, Q596 on page 216 Back
17
Volume II, pages 28 and 29 Back
18
Volume III, page35 Back
19
Volume II, Q686 on pages 231/2 Back
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