Select Committee on Religious Offences in England and Wales First Report

CHAPTER 4: Blasphemy: the Options


31.  The law of blasphemy is described in detail in Appendix 3, including an assessment of the impact on it of the European Convention on Human Rights. In this chapter we examine the three main options that are available to Parliament:

(i)  The common laws of blasphemy and blasphemous libel should be left as they stand;

(ii)  They should be repealed without replacement (the view of the majority of the Law Commission in 1985);

(iii)  They should be repealed but replaced with a new Statute, which would cover all religious faiths and beliefs and the rejection of religion. The objects of the protection would be the faiths, beliefs etc., not the people or groups who hold to them.

The "leave blasphemy alone" option

32.  Reform of the law of blasphemy has not been seen as a priority by any Government since the Law Commission reported in 1985. The Home Office has declared that the present Home Secretary is personally in favour of its repeal but that a constructive debate first needs to be held[28]. This report could be seen as the start of that debate.

33.  Our witnesses have reflected the many views of what the law should now express and protect in the kind of society all respondents believe we should be. Some believe with great sincerity that the time has come for this country to abandon its religious heritage and become overtly secular; others with equal sincerity believe that the law should continue to defend the Christian character of our historic and constitutional roots; and a large number, including many among these two groups, wish to see the multi-faith nature of our society reflected clearly in our law. This diversity in the evidence we have received reinforces the view that the nature of our society is indeed a balance between the religious, the agnostic, and those of no religion, and that no consensus seems to exist as to the direction in which the balance should be changed, if indeed change it must.

34.  The problem for parliament, however, stems not from the legal detail, but in the need to respect the deeply held views of a large number of the members of our society. Many think that the law on blasphemy offers much more than legal protection; they believe it to be an expression of the fabric of our society, of the values on which our relationships with one another depend, of our constitutional heritage, and of the nature of our national identity. Church of England opinion however includes those who would argue for the extension of the blasphemy law to embrace other Christian Churches and other faith communities. For the secular reformers, this can all too easily be characterised as nationalism, sentimentality, or even denial of other faiths. To see it only as the expression of such views would however be to misunderstand the underlying sense of identity of the British people, their innate respect for the values of a fair and just society resting on the Christian teachings, and the 'tissue of dynamic relationships'[29] which make up the British constitution.

35.  In the recent census, 72% of the returns declared themselves to be part of the Christian tradition and identity. While not regular churchgoers, many still turn to the Christian churches at key times in the Christian year, and at important moments in their own life cycle, as well as occasions of local or national thanksgiving or tragedy. They are, in overwhelming majority, people who are tolerant of the practice of other religions and would wish to see that tolerance and protection reflected in our law and practice. They believe also in the hard-won heritage of free speech in our society. Many could feel a real sense of loss, which might easily be turned to anger, if the delicate balance of religious and secular, the 'sacred canopy'[30] of our nation, were to be destroyed too roughly by legislation for which there has certainly been no public surge of demand, and for which the only justification would be either a complex legal argument about incompatibility with a European Convention, or a mindless move for the 'modernisation' of our ancient common law. It is worth noting, too, that most Muslim groups, while preferring that the law be extended to cover all faiths, are opposed to the repeal of the law of blasphemy. The Muslim Council of Britain, for example, said that "abolishing the law on blasphemy would mean so far as other faiths are concerned what we call negative equalisation"[31]; one of the proforma letters we received said that "from a Muslim perspective, it is better for the law to protect at least one religious denomination from blasphemy, the Anglican Church, than no religion at all."[32] The Board of Deputies of British Jews believes that to extend the law to other faiths would "raise inherent contradictions" and that it should be retained as it is.[33]

36.  The lesson from these considerations seems to be that Parliament should reflect on the strong arguments for leaving the law as it stands, even though its use might become increasingly uncommon, but also seek urgently for ways of expressing in law the need for protection for all faiths, all objects of religious veneration, and all followers of faith. Such a law would need to recognise the overriding need for tolerance as well as protection; and for freedom of speech, one of our most cherished national freedoms, as well as for freedom of religion.

Repeal without replacement

37.  The Law Commission's starting point in its 1985 report[34] was that "if there is no argument which may properly be regarded as sufficiently powerful to justify the derogation from freedom of expression which any offence of blasphemy must occasion, that offence, whether it be the present common law or some statutory replacement of it, should have no place in the criminal law" (paragraph 2.20). They proceeded to examine the arguments as they related to protection of religion and religious beliefs; protection of public order; protection of society; and protection of religious feelings. To these they added the "opening of the floodgates" issue and the suggestion that, by abolishing blasphemy without replacement, Parliament would be seen as, in some sense, bestowing approval of the conduct currently penalised by the common law.

38.  Although much has changed since 1985, we note that the Law Commission's report on these matters is largely mirrored in the written and oral evidence which was presented to us in 2002. On the Law Commission's last two points, there are certainly vociferous groups who take their stand on the Ten Commandments (especially the third), the Queen's Title as Defender of the Faith, the Coronation Oath and the statement that the UK is a country whose national religion is Christianity. As for the floodgates, some think that "artists, comedians, the media and almost anyone"[35] are only held in check by the current blasphemy law and, on its repeal, would immediately take the opportunity to issue blasphemous material. It is hard to judge how representative these views are, but they are probably a small minority of the population at large. Those who favour this option would contend that it is manifestly untrue that exhibitionists and attention seekers are just waiting for the common law offence of blasphemy to be repealed before they launch offensive attacks on religion. If that was their objective, they could already have targeted any other religion than Christianity with impunity, and if they attacked the Church of England they would have gained the extra publicity of a court case, with the possibility of a small fine.

39.  Perhaps the most important deficiency in the existing common law is that it imposes a strict liability on a person who intends to publish a document, or make a verbal statement on a Christian topic, but who cannot know at that stage whether or not he will be found to have blasphemed. In so far as it is a strict liability, it offends current perceptions of fairness and runs contrary to what Lord Edmund-Davies said (in Whitehouse v. Lemon[36] p 920) is the increasing tendency to move away from strict liability. He gave examples of instances where the courts have managed to evade such a situation both under statute and under common law.

40.  The European Court of Human Rights[37] recognises that a legitimate ground for restricting freedom of expression under Article 10.2 may, in certain circumstances, be the need to protect people against insult to religious feelings[38]. That does not however exempt them from the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. At the same time, any restriction of freedom of speech has to be 'prescribed by law' and 'necessary in a democratic society' for a legitimate purpose. It is not so much a question of whether or not the criminal offence of blasphemy is 'prescribed by law', but the fact that its discriminatory features (in only protecting Christians) could (and probably would) lead to a conclusion that it is not proportionate to a pressing social need (an essential element if it is to be seen as necessary in a democratic society). Thus, insofar as the Wingrove case[39] accepts that the law does not breach the European Convention, it was based on (i) a misunderstanding of the law, and (ii) the margin of appreciation which, as noted in paragraph 47 below, would not operate in the same way in the UK courts.

41.  The law of blasphemy is discriminatory. It prevents (say) a Muslim from speaking about the sacred entities of Christianity in ways that would not be criminal if a Christian were to speak in similar terms about Islam. This violates Article 14 (prohibition of discrimination) taken together with Article 10, unless an objective and rational justification for the difference in treatment can be shown. Furthermore, failure to protect a Muslim against abuse of his religion might also violate Article 14 taken together with Article 9. Although the European Commission rejected an application based on Article 14 taken together with 9 in the "Satanic Verses" case[40], that predated the heightened respect for protection against abuse shown by the Court in Otto-Preminger Institut (para 48 below), and might not be decided in the same way today.

42.  Of the non-Christian faiths, the Muslims, as already noted (paragraph 35) prefer to retain the law of blasphemy. Buddhists[41], Hindus[42] and Sikhs[43], on the other hand, as well as some Christians, advocate its repeal, as do the secularists. The present Home Secretary has told Parliament: "I want to make it clear that there is no question of extending the blasphemy law to all other denominations and faiths. We do not want to do that; we want to find an accommodation and a sensitive way forward when few people believe that the current position can continue"[44].

43.  Several witnesses believed that recent unwillingness to invoke this criminal law may, at least in part, derive from the tolerance of Christian communities towards those who strongly question, criticise or insult their faith. Muslim witnesses, too, have said that their community would follow the course of tolerance so far as possible. It is however probably unwise to rely on a policy of inactivity on the part of the authorities or a commitment by the Attorney-General to take over any private prosecution (so as to offer no evidence) and to ensure that the CPS brought no prosecutions either. In the case of the former, the police were unwilling to intervene in the absence of a breach of public order when the poem "The Love That Dare Not Speak Its Name" (the cause of the "Gay News" case) was read recently outside St Martin's in the Fields[45]. But a prosecution might follow later. Thus, sooner or later a prosecution will be attempted. It does not much matter whether this arises from a perceived affront to Christian tenets or an attempt to pursue a "Satanic Verses" type case. Even if a prosecution were successful, it is likely that it would eventually be overturned on appeal, either by the higher courts in the United Kingdom or by the European Court of Human Rights on one or more of the grounds that it is discriminatory, uncertain and a law of strict liability. If this analysis is correct, the repeal might as well occur now: that would at least save the expense of proceedings which led to Strasbourg.

Repeal and replacement by a broader-based Blasphemy Act

44.  It is difficult to justify a law which protects the sacred entities of Christianity but does not offer similar protection to other faiths[46]. This was the Law Commission's minority opinion. The Church of England would support the proposition of replacing the blasphemy law if there were to be a consensus among all faiths, but considers that to be unlikely[47]. Some Muslims would like an extension of the blasphemy law to other faiths[48]. The minority of the Law Commission team saw the drafting of such a measure, while avoiding unacceptable limitations upon freedom of expression, as a task of particular difficulty, but nonetheless achievable. They envisaged a filter, that is, the Director of Public Prosecution's (DPP) consent, so as to prevent private prosecutions and, particularly, litigation resulting from disputation within or between religious sects. They did not, it seems, see the DPP as the arbiter of freedom of expression. They envisaged the need for expert evidence in some cases. The new offence would penalise the publication (not verbal expression) of material proved to have been published with the "purpose" of causing outrage ("purpose" being designed to protect unintentional insult or outrage, which the blasphemy law does not). They envisaged a list of religions, variable by Ministerial order. This may be easier said than done.

45.  In this area at least, there is a significant change since the Law Commission reported in 1985. Such a legal drafting exercise would now have to take full account of the Human Rights Act. For instance, the formulation of a proposed Bill submitted to the Committee by the Association of Muslim Lawyers ran into the problem that it defined the beliefs to be protected by reference to a deity but omitted to deal with non-theistic beliefs or those who reject religious belief[49]. Separate legislation for them cannot be the answer, since the first Bill could not carry a Statement of Compatibility under s.19 of the Human Rights Act (if a Government Bill), whilst a Private Member's Bill would run into major difficulties at the Committee stage for the same reasons. However true it may be that the Humanists and Atheists are not under attack[50], they cannot be ignored. There will also be parallels in the future with doctrines such as Scientology, which has succeeded in some countries in establishing that it is a religion, whereas in others it has failed.

46.  One advantage of any reformulation, however, may be that rights enshrined in Article 10 of the European Convention could be protected by borrowing the wording in section 12(4) of the Human Rights Act: "The Court must have particular regard to the importance of the Convention right to freedom of expression". Nevertheless, Parliament's task in selecting the religions, or beliefs rejecting religion, must be fraught with difficulty, as would be any amending Statutory Instrument.

47.  One factor which may be seen as affecting a British court is the difference in jurisprudence between the Strasbourg court and tribunals within the UK. In a seminal case concerning the Scotland Act 1998, which came into force before the Human Rights Acts 1998, the Privy Council had to consider the constitutionality of a law which required a person to answer a question whether she had been the driver of the car on the particular occasion. The point concerned an interpretation of Article 6 of the European Convention about fair trial. This Convention does not prohibit a requirement to answer questions which would amount to self-incrimination, but the notion of fair trial may make this an implied right. Lord Steyn, in his judgement[51], dealt with "what deference may be accorded to the legislature?" He said: "Under the [ECHR] system the primary duty is placed on domestic courts to secure and protect Convention rights. The Function of the European Court of Human Rights is essential but supervisory. In that capacity it accords to domestic courts a margin of appreciation, which recognises that national institutions are in principle better placed than an international court to evaluate local needs and conditions. That principle is logically not applicable to domestic courts. On the other hand, national courts may accord to the decisions of national legislatures some deference where the context allows it". He then referred to R v. DPP ex parte Kebilene [2000] AC 326, and two articles in legal publications, where the quotation from the second said: "Just as there are circumstances in which an international court will recognise that national institutions are better placed to assess the needs of society, and to make difficult choices between competing considerations, so national courts will accept that there are some circumstances in which the legislature and the executive are better able to perform these functions"[52]. This is one of the problems which must be faced in any future prosecution for blasphemy. The impact of Article 10.2 will be similar to its effect in an offence of hate crime, as to which see Chapter 8.

48.  In relation to blasphemy, however, the question how this evolving domestic doctrine may affect the constraints imposed by Article 10.2 of the European Convention upon the limits, one way or another, of freedom of expression has still to be tested. In 1994[53] the Strasbourg court had to rule upon a prosecution under s.188 of the Austrian Penal Code, where the prosecutor argued that the film in question aroused justified indignation and disparaged an object of veneration of a church or religious community. The conviction was upheld on appeal. It then went to the European Court of Human Rights, which held that restricting freedom of expression was a legitimate aim for the protection of the rights of others under Article 10.2. As Professor Feldman says in his book "Civil Liberties and Human Rights" (Chapter 16): "this prevents the Court from exercising much control over the solutions adopted by a public authority faced by [these] kinds of arguments. Indeed, the Court's approach is potentially dangerous as it could sometimes serve simply to legitimate, rather than test rigorously, a regime of stringent censorship". But a British court would have to come to its own decision within stricter boundaries. The question would not, of course, arise if the common law offences were abolished. A replacement Act would have to be drafted so as to give effect to the principle set out in Otto-Preminger Institut, which is worth quoting at length:

"Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the state, notably in its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them. In the Kokkinakis judgement[54] the Court held, in the context of Article 9, that a state may legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas, judged incompatible with the respect for the freedom of thought, conscience and religion of others … The respect for the religious feelings of believers as guaranteed by Article 9 can legitimately be thought to have been violated by the provocative portrayal of objects of religious veneration; and such portrayals can be regarded as malicious violation of the spirit of tolerance, which must also be a feature of democratic society. The Convention is to be read as a whole and therefore the interpretation and application of Article 10 in the present case must be in harmony with the logic of the Convention...".

49.  The British Humanist Association has outlined[55] an alternative route. This would focus on the use of language or behaviour that, in the judgement of a reasonable person, was in all the circumstances likely to stir up hatred of a group of persons characterised by their religion or belief, or to inhibit the exercise of their rights under Article 9 of the European Convention. There ought then to be a defence of justification. This seems to be a hybrid between blasphemy (at least in the Indian context—see para 51 below) and incitement. So far as the incitement element is concerned, the formulation does not appear to present technical problems any more complex than those they would face under, for example, the Obscene Publications Act 1959. Juries deal with these successfully, and benefit from a statutory formula (which a judge is not allowed to embellish by interpretative directions) capable of being used flexibly as society's attitude to moral issues of this sort changes or develops.

50.  In their evidence to the Committee, the Home Office said that it does not advocate a definition of "religion"[56]; it would leave it to the Courts. We feel that this evades the issue: laws that have religious implications should either define or at least describe what "religion" is. While the higher courts could be expected to deal with the issue, appeals occur on a haphazard basis and it could take years before the major faiths, let alone the minor or non-religious, received this sort of consideration. What appears to have been overlooked is the trial at first instance, before Magistrates or a jury. Formidable difficulties would be faced by the Clerk or the Crown Court judge in directing a correct approach to the decision on status of the religion, as well as the extent, beyond freedom of expression, of the alleged insult or vilification. What is more, the verdict would be based on an undisclosable (because by a jury) finding of fact so that, unless some error of law could be discerned in the summing up, the higher courts would have difficulty in giving the guidance which would evidently be desired of them.

51.  At one stage in the Committee's deliberations, it seemed promising to examine the Indian Criminal Code[57] (which has parallels in Sri Lanka). Both, of course, date from the Imperial past but are still in use. The attraction of the Indian Code lies, at least in part, in Lord Macaulay's sponsorship. There are three areas which merit attention: (i) Part XV, which sets out a catalogue of offences to do with maliciously outraging the religious feelings of any "class" of Indian citizens, through a variety of means; (ii) the use of this as one of the methods of suppressing publications which are held to have that effect (under ss.99A-D of the Criminal Procedure Code); and (iii) in connection with electoral campaigns which are founded on such religious divisiveness, on which there are numerous very recent judicial decisions.

52.  It should not be forgotten that between the end of the First World War and the early 1930s a number of attempts were made in this country to replace the common law of blasphemy by some adaptation of the Indian Code. These received no support from the Home Office and came to nothing. The rationale underlying the Indian laws was neither antipathy to freedom of speech as such nor the protection of religious freedom, but the maintenance of public peace and tranquillity in a country where religious passions were considered to be easily aroused and inflamed. A distinguished Indian commentator (Soli Sorabjee, the Attorney-General) has recently written[58] that the British did not want a religious riot on their hands and were not really concerned about the religious tenets of those who professed them. However, setting aside the culture gap, there seems little reason why the text should not form a starting point for a restatement of principles. After s.295A[59] was added to the Indian Code in 1927, with its component of deliberate intent and malice, its provisions were tested against the constitutional guarantees of freedom of religious belief and of expression and were found to be compatible[60]. Thus it might be hoped that a formulation could be found which would also comply with the European Convention. If there is nothing technically wrong with the law, the problem may be the manner of its enforcement. In India, the offences have been used to found actions to suppress writings on political grounds, which are always brought by the Executive. In the UK every safeguard is in place to prevent politically based prosecutions. Mr Sorabjee concludes: "experience shows that criminal laws prohibiting hate speech and expression will encourage intolerance, divisiveness and unreasonable interference with freedom of expression. Fundamentalist Christians, religious Muslims and devout Hindus would then seek to invoke the criminal machinery against each other's religion, tenets or practices. That is what is increasingly happening today in India. We need not more repressive laws but more free speech to combat bigotry and to promote tolerance".

53.  The National Secular Society, in a detailed commentary on the Indian Laws, points out that there is a major difficulty in attempting to protect people's feelings as opposed to their beliefs. Beliefs are matters of fact, and were at one time reviewed by the courts under the Test Acts, which then required that undergraduates at Oxford and Cambridge had to be communicant members of the Church of England. Feelings, on the other hand, are subjective. "Given that religion itself is so difficult to define, then defining hurt to religious feelings is still more demanding"[61].

28   Volume II, Q23 at page 16 Back

29   In "The British Constitution" (Cambridge University Press, 1941) Sir (William) Ivor Jennings describes the British Constitution as "not a framework of law, but a tissue of dynamic relationships" Back

30   Attributed to Peter L Berger: "The sacred canopy: elements of a sociological theory of religion" (1967) Doubleday and Co Back

31   Volume II, Q332 at page 136 Back

32   Volume III page 36 Back

33   Volume III, page 3 Back

34   "Offences against Religion and Public Worship", Law Commission No. 145 Back

35   Volume II, Q 449 on page 190, see also Q 459 on page 191 Back

36   The "Gay news case": see Appendix 3, para 5 Back

37   Appendix 4 summarises International and European Conventions on Human Rights Back

38   "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such … restrictions or penalties as are prescribed by law … in the interests of … the protection of the reputation or rights of others …" Back

39   See Appendix 3, paras 12-14 Back

40   See Appendix 3, para 3 Back

41   Volume III, pages 15-17,41,53 Back

42   Volume II, page 203 and Q539 at page 205 Back

43   Volume II, Q504 at page 198 Back

44   HC Hansard 26 Nov. 2001, col. 708 Back

45   Volume II, Q 464 at page 192 Back

46   Volume II, Q176 at page 48 Back

47   Volume II, Q269 at page 103 Back

48   Volume II, Q359 at page 155; see also Q396 at page 176 Back

49   Volume II, QQ362 & 364 at pages 155 and 156 Back

50   Volume II, Q357 at page 154 Back

51   Brown v. Stott [2001] 2 WLR 817 at 842 Back

52   Lester and Pannick, Human Rights Law and Practice 1999. In Kebilene (see para 47), Lord Hope of Craighead considered that domestic courts may have to apply these principles when there are involved questions of balance between competing interests and issues of proportionality. This may be exemplified by issues occurring under Article 10.2 Back

53   Otto-Preminger Institut v. Austria (1995) 19 EHRR 34 at paras 47-48 Back

54   Kokkinakis v. Greece (1994) 17 EHRR 397 Back

55   Volume II, page 73 Back

56   Volume II, Q6 at page 14  Back

57   See Appendix 5, paras 18-23 Back

58   "Freedom of Expression in India" pp 129-142 of Developing Human Rights Jurisprudence, Volume 7, Commonwealth Secretariat 1999 Back

59   "Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or religious beliefs of that class, shall be punished with imprisonment…" Back

60   Ramji Lal Mody v. U.P. State AIR (1957) SC 620 Back

61   Volume II, page 89, para 29 Back

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