Select Committee on Religious Offences in England and Wales First Report

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.

  1. 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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