Submission from the Commission for Racial
The Commission for Racial Equality makes the
following observations and comments:
The law of blasphemy needs to be
abolished or extended to protect other religions. However, it
cannot be for the Commission to recommend how the tensions between
freedom of speech and protection and respect for religion should
We recommend that there be a full
review of the current incitement laws and that there be ethnic
monitoring of defendants who are prosecuted for incitement offences.
We support the creation of a new
offence of incitement to religious hatred and we propose that
the wording be hatred "against a group of persons defined
by reference to their religious belief." This is necessary
to maintain the balance between freedom of expression and protection
for members of religious groups.
1. The Commission for Racial Equality (CRE)
was established by the Race Relations Act 1976 with duties to
work towards the elimination of racial discrimination and to promote
equality of opportunity and good relations between persons of
different racial groups. The Commission 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. Thus, although new laws on
religious discrimination would not form part of the Commission's
statutory remit under the Race Relations Act 1976, there are general
matters of religion which have implications for good race relations.
2. Two strands of our inquiry are clear:
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. Are there any other
issues under the heading of "religious offences" which
the Committee could or should examine? In particular, are there
any issues in relation to criminal offences arising out of religious
3. Proposals to extend the existing law
to protect groups defined not only by race, colour, nationality
or ethnic or national origins but also by religious belief or
lack of belief are welcome.
4. However, the CRE acknowledges that the
law on incitement of racial hatred that was first enacted, as
part of the 1965 Race Relations Act has not significantly affected
the production and circulation of racist material. The Public
Order Act 1986 created a range of offences involving incitement
of racial hatred, including using words, displays, publishing
or distributing written material, broadcasts, possession of written
material, recordings or photographs/films yet there are rarely
more than a handful of prosecutions each year: since 1988 there
have been only 61 prosecutions. The major obstacle, which the
CRE and others have raised with successive governments, is that
the evidential test under the Public Order Act is extremely difficult
to satisfy: words or other material must be shown to be threatening,
abusive or insulting and it must be shown that the perpetrator
intended by such material to stir up racial hatred or that in
all the circumstances racial hatred is likely to be stirred up.
5. The CRE recommends therefore that there
be a review of incitement offences with a view to reform of the
6. It should also be noted, that creating
new offences will never on their own protect members of racial
or religious groups from violence and abuse. The critical element
is whether the police, in investigating an offence of incitement
of hatred or one that may be racially or religiously aggravated,
look for and produce relevant evidence, and then whether the Crown
Prosecution Service effectively presents that evidence. In many
parts of the country there remains distrust of the police and
a view that they are more willing to prosecute members of ethnic
minorities than to prosecute members of the white majority who
commit racist crimes.
7. There is currently no ethnic monitoring
of defendants prosecuted for incitement offences. The Commission
therefore recommends that there be ethnic monitoring of defendants.
8. Should the current law be amended so as
to provide protection to other Christian groups and other faiths?
9. The Commission's current position on
the law of blasphemy is set out in the Second Review of the Race
Relations Act 1976 (1992). A copy extract from the Second Review
10. We attach this extract only because
we consider it sets out the more general issues of concern. Should
there be a new offence of incitement to religious hatred then
the Commission would wish to reconsider its position on blasphemy.
11. What do you perceive the mischief of
which legislation should criminalise?
12. The complaints received by the Commission
indicate that offensive behaviour against members of minority
religious groups falls into three categories:
Religious discrimination in employment,
access to goods facilities and other services such as education.
Religious discrimination is outside the scope of the remit of
the Select Committee.
Offences against the person, harassment
and criminal damage (eg attacks on mosques etc)
Incitement to hatred (eg the circulation
of offensive leaflets, the publication of offensive articles)
13. However, the real "mischief"
may lie in the anomalies within the law and in the inconsistent
application of the law.
Anomaly within the law
14. Well before 11 September this year,
the CRE was aware of the growth of Islamophobia in Britain, and
its manifestation in leaflets, graffiti and other criminal damage
and physical attacks. Given the strict test in the racial hatred
offences and the caution of the police and the CPS to propose
prosecutions for incitement of racial hatred, it was clear that
without amendment the Public Order Act would not provide protection
for Muslims or for any other group defined by its connection to
a religion (or absence of religion) and not by "race".
15. The widespread vilification and attacks
on Muslims since 11 September has focused on Muslims (and non-Muslims)
from the Indian sub-continent and, to a lesser degree, from Africa;
however in many instances the law providing protection on racial
grounds could not be applied, since the words used to exhort or
to justify hostility or hatred refer to Muslims and Islam.
16. The Public Order Act 1976 makes it an
offence to incite racial hatred. Section 17 of the Act defines
racial hatred as meaning "hatred against a group of persons
defined by reference to colour, nationality (including citizenship)
or ethnic or national origins. The definition of "ethnicity"
is that applied under the Race Relations Act 1976.
17. Yet, the current law under the Race
Relations Act 1976 recognises both Sikhs and Jews as racial groups,
(Mandla v Lee (1983), Seide v Gillette Industries Ltd. (1980)),
but not Muslims and Rastafarians, (CRE v Precision Manufacturing
Services Ltd (1991), Dawkins v Department of the Environment (1993)).
18. This anomaly in the law thus sends a
message to some religious communities that they are less worthy
of protection than other faiths.
19. The amendment to the Crime and Disorder
Act to include offences that are "religiously aggravated"
filled a gap in the law, which the CRE drew to the Government's
attention when the "racially aggravated" offences were
introduced. The stated object of creating racially aggravated
offences was to convey the Government's message that racist crime,
particularly crimes of violence, were damaging to society and
warranted heavier sentences. Racially aggravated offences apply
to crimes against Sikhs and Jews, whom the courts have defined
as ethnic groups under the Race Relations Act, but not Muslims.
In the current highly-charged atmosphere, where words and actions
directed against people perceived to be Muslims have greatly increased,
it is welcome that this anomaly in the criminal law has been rectified.
Anomaly in the application of the law
13. In Northern Ireland laws exist to prohibit
incitement to religious hatred but there is no equivalent law
in Great Britain. (The Commission notes that there is a proposed
Protection from Sectarianism and Religious Hatred Bill in Scotland).
14. The Commission believes that as a matter
of principle, the law in incitement to racial and religious hatred
should be consistent and uniform across the United Kingdom.
15. THE GOVERNMENT
Proposed wording for an offence of Incitement
to Religious Hatred
16. The drafting of an offence of incitement
to religious hatred requires special attention; care is needed
to maintain the balance between freedom of expression as guaranteed
by article 10 of the European Convention on Human Rights and protection
for members of religious groups.
17. The Commission regrets that the incitement
to religious hatred clause in the Anti Terrorism Crime and Security
Bill was widely misunderstood; opponents of the clause feared
that it would restrict freedom of expression. However, the clause
as drafted was not concerned with words, displays, publications,
broadcasts etc which refer to the ideology or observances of any
religion; rather, it prohibited the use or possession of material
that was intended or likely to stir up hatred of a group of persons
who are defined by reference to religious belief (or lack of belief).
The target of the threatening, abusive or insulting words, displays,
publications, broadcasts etc was therefore not the content of
any system of religious belief but the people who are perceived
as sharing a particular religious belief, whether they do so or
18. It is equally important to recognise
that freedom of expression in article 10 of the European Convention
on Human Rights is not an absolute right and may be restricted
for the protection of the rights of others. In addition, article
17 of the Convention prohibits activities aimed at the destruction
of any of the rights and freedoms set out in the Convention. In
the case of Glimmerveen and Hagenbroek v Netherlands article
17 was used successfully to justify the prosecution of the applicants
for possession of leaflets likely to incite racial hatred and
their exclusion from local elections. By comparison in the case
of Jersild v Denmark the European Court found a violation
of article 10 where a journalist was prosecuted for aiding and
abetting race hatred views when he broadcast the views of three
self avowed racists.
19. What these two cases demonstrate is
the careful balancing exercise, which the courts will conduct
to provide protection for groups from hatred whilst maintaining
the right to criticise the tenets of a faith.
International Human Rights
20. International human rights treatise
provide for three forms of protection for religious groups:
Protection from discrimination (eg
International Covenant on Civil and Political Rights (ICCPR) article
2; European Convention on Human Rights (ECHR) Article 14 and Additional
Protocol 12; the UN Declaration on the Elimination of all forms
of Intolerance and of Discrimination based on religion or belief).
Freedom of religious belief (eg article
18 ICCPR; article 9 ECHR and articles 1 and 6 of the Declaration).
Protection from hatred (eg article
20(2) ICCPR; article 2 of the Declaration).
21. Article 20(2) of the ICCPR provides
that "any advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or violence
shall be prohibited by law."
22. It is arguable that in not offering
protection from religious hatred, the Government is in breach
of its treaty obligation under the ICCPR. Similarly, a failure
to protect a person from religious hatred may in certain circumstances
amount to inhuman and degrading treatment following the argument
in the case of the East African Asians that racism may constitute
inhuman and degrading treatment contrary to article 3 of the ECHR.
7 October 2002