Appendix Extract from the second review
of the Race Relations Act (1992)
RELIGION AND
THE LAW
The Commission recommends that a specific law
against incitement to religious hatred should be introduced and
a law against religious discrimination should be given further
serious consideration.
The Commission joined in sponsoring a series
of four seminars on these issues. Three were written up as a series
of discussion papers and published in February 1990: Law, Blasphemy
and the Multi-Faith Society; Free Speech; and Britain: A Plural
Society. The final seminar concentrated on legal solutions and
was held in October 1990. It is not possible here to cover the
full range of issues, and readers are recommended to refer directly
to the seminar reports.
As a result of those seminars and of its own
deliberations, the Commission feels able to offer comment about
three aspects of the current law:
(1) The current law of blasphemy protects
only the established Christian religion.
(2) There is in Britain no law of incitement
to religious hatred.
(3) There is no law in Britain protecting
people from religious discrimination.
The Commission's role includes the promotion
of good race relations. For substantial members of the ethnic
minorities, their faith, the sense of identity this gives and
the reaction of the rest of society to that faith and to them
as believers, are of the utmost importance. Indeed, for many,
identity through faith is more important than identity through
national origins. Are legal adjustments needed to secure good
race relations in a multi-faith society?
BLASPHEMY
It is now generally accepted that the law of
blasphemy is unacceptable in principle as it stands. In protecting
only one religion, it is discriminatory. The Home Office evidently
prefers to leave the law as it is on the grounds that there is
no consensus on what to put in its place. Our consultation reinforces
the view that the status quo is unsatisfactory. However,
there is no clear as to which of the two alternative options is
favoured.
Lord Scarman has given the view that:
. . . there is a case for legislation extending
[the offence of blasphemy] to protect the religious belief and
feelings of non-Christians . . . In an increasingly plural society
such as that of modern Britain, it is necessary not only to respect
the differing religious beliefs, feelings and practices of all,
but also to protect them from scurrility, vilification, ridicule
and contempt.
Certainly either the law of blasphemy needs
to be abolished or to be extended to protect other religions.
Prior to the Gay News trial in 1977 the blasphemy law had
fallen into disuse for 50 years and since then it has teetered
on the brink of abolition, with a majority of the Law Commissioners
in 1985 favouring that approach. The Satanic Verses issue
may have brought to a head what was virtually inevitable in any
event.
It cannot be for the Commission to resolve whether
ultimately considerations of free speech should triumph and result
in the abolition of the blasphemy law, or whether considerations
of respect for religion should triumph and result in the extension
of the law.
Leaving blasphemy law unchanged sends out the
message, to Muslims for example, that their religion is less worthy
of protection than the Christian religion. That must affect their
commitment to this society.
Extending the blasphemy law as it stands to
other religions poses limits on free speech which are bound to
be perceived as unacceptable because the present offence can be
committed without any intention to outrage, and the chances of
committing the offence unintentionally would be much increased
by the unlimited extension of the number of religions covered.
This was why the minority Laws Commissioners considered narrowing
the elements of the offence at the same time as extending it to
other religions. But does that strike the right balance?
We set out these points in the hope that, when
the present law is changed, which we think inevitable, legislators
will give consideration to them.
IDENTITY THROUGH
RELIGION
In Northern Ireland, laws exist prohibiting
discrimination on religious grounds and incitement to religious
hatred. There are no equivalent laws in Britain, where there are
laws prohibiting discrimination on racial grounds and incitement
to racial hatred. Yet in international law religion and race are
treated similarly.
Indeed there is good reason to support that,
in not offering any protection in respect of religion, the Government
is in breach of international treaty obligations as regards Britain.
Article 20.1 of the International Covenant on Civil and Political
Rights reads:
Any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility
or violence shall be protected by law.
Whilst blasphemy law is concerned with certain
forms of attacks on religion as such, a law of incitement to religious
hatred is concerned with stirring up hatred against persons identified
by their religion. Arguments that freedom of speech should include
the right to stir up hatred against persons inevitably seem limp
and the more so when it is done on grounds of religion, since
the freedom to practise the religion of one's choice is itself
recognised in international law. No country can be said to guarantee
the freedom to practise the religion of one's choice if at the
same time it permits others lawfully to stir up hatred against
those doing just that.
The current law of incitement to religious hatred
in Northern Ireland has hardly been used, let alone successfully.
In its present form since 1987, it has been based on the incitement
to racial hatred provisions in Britain which exist in the Public
Order Act. They have been used rather more successfully, though
not nearly as often as many would have wished. There is current
controversy on this point. But there is a difference between the
principle of having a law, and the effectiveness of its enforcement
which may depend basically on how judgment is exercised.
In principle, there is a strong case for saying
that there should be a law on incitement to religious hatred which
is uniform across the whole of the United Kingdom. In practice,
there will be an increasing need for such a law if, from day to
day, people are identified, both by themselves and by others,
by their religion as much as by their national origin. If it is
accepted that persons have the right to practise the religion
of their choice, it cannot be any more acceptable to stir up hatred
against people because they are seen as Muslims than to do so
because they are seen as Pakistanis. The UK has accepted that
right: it is enshrined in Article 9 of the European Convention
of Human Rights (based on the Universal Declaration of Human Rights).
A law against incitement to religious hatred
could be widened to include the intentional vilification of persons
because of their membership of the group. We ask for a review
of the working of the incitement to racial hatred law, and the
same point should also be considered in that context.
By bringing in elements of religion into the
definition of "ethnic group" in the Race relations Act
1976, the House of Lords in Mandla v Dowell Lee [1983]
IRLR 209 has, to an extent, made it possible to get round the
lack of a ban on religious discrimination as such. Much discrimination
against Jews and Sikhs can be dealt with as discrimination against
them as members of those ethnic groups. And much religious discrimination
is caught by the law on indirect racial discrimination, at least
where the exercise of a religion has a particular association
with the country of origin. A case of discrimination against Muslims
was held by a Sheffield tribunal to be indirect racial discrimination.
But, as the law currently stands, compensation would only become
payable if intention was proved. Improvements in the general law
of indirect racial discrimination, in particular permitting compensation
in all cases as we advocate elsewhere in this review, could remove
much difficulty.
Even so, a new statutory prohibition on religious
discrimination might be better than trying to stretch the Race
Relations Act to cover all cases of religious discrimination.
Stretching the Act might not work where the religious practice
at issue is that of a minority group in the country of origin
and that group is not recognised as an ethnic group under the
1976 Act.
It is anomalous that protection against religious
discrimination exists in Northern Ireland, but not in the rest
of the UK. But we doubt whether it would be appropriate merely
to tack onto the Race Relations Act prohibition on religious discrimination
for this Commission to enforce. The whole subject has ramifications
going well beyond the area of good race relations.
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