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].
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