Submission from JUSTICE
JUSTICE is an independent all party law reform
and human rights organisation which aims to improve British justice
through law reform and policy work, publications and training.
It is the British section of the International Commission of Jurists.
We welcome the Select Committee on Religious Offences consideration
of these issues and we are writing to respond to the call for
evidence.
(A) Should existing religious offences
(notably blasphemy) be amended or abolished?
1. JUSTICE believes that the common law
offence of blasphemy should be abolished. This offence only applies
to the Christian religion, JUSTICE considers that this inequality
cannot be justified.
2. The last conviction for blasphemy that
resulted in a prison sentence was in 1921. Since then there have
been two private prosecutions, the 1976 private prosecution of
Gay News by Mary Whitehouse and the Salman Rushdie affair.
In 1985 the Law Commission proposed that it should be abolished
and in 1989 the Home Office undertook that there would be no more
state prosecutions for blasphemy. Consequently, JUSTICE considers
that there can no longer be justification for retaining this offence
on the statute book.
(B) SHOULD
A NEW
OFFENCE OF
INCITEMENT TO
RELIGIOUS HATRED
BE CREATED,
AND, IF
SO HOW
SHOULD THE
OFFENCE BE
DEFINED?
1. JUSTICE considers that the crime of incitement
to racial hatred should be extended to cover religious hatred.
This would act as an important measure to protect vulnerable minority
communities and a marker of societal disapproval of such behaviour.
The existing provisions on incitement to racial hatred cover some
minority religious communities, such as the Sikhs or Jews, but
not others such as the Muslims or Buddhists. This is inequitable
and unjustifiable.
2. "Incitement to Religious Hatred"
should be defined as hatred against a group of persons defined
by reference to their religion or belief. This would ensure consistency
with Article 9 of the European Convention on Human Rights (ECHR)
which has been defined to encompass a very wide range of religions
and beliefs including the right not to believe.
3. There is a delicate balance to be met
in any legislation relating to crimes of incitement to religious
hatred between protection of the rights to freedom of expression
under Article 10 of the ECHR and the prohibition of abuse of rights
under Article 17 of the ECHR. Crimes of hatred motivated by a
person's religion or belief can amount to breaches of the victim's
rights to protection from inhuman and degrading treatment under
Article 3 of the ECHR and they may also infringe the right to
respect for private and family life under Article 8 ECHR and in
some cases the right to manifest religion or belief as protected
by Article 9 ECHR. In order to achieve this balance we support
the retention of the Attorney General's fiat for any such prosecutions
as a way of retaining a balance between the right of freedom of
religion and belief and ensuring the continued protection of freedom
of expression and legitimate democratic debate. It should prevent
unmeritorious claims reaching the court and he will be subject
to article 10 as well as article 9 in the operation of his duties.
4. Courts are also subject to the Human
Rights Act 1998. Accordingly if there were an unjustified interference
with the right to freedom of expression under Article 10 they
too, like the Attorney-General, would be required to prevent the
prosecution. Therefore if the press and media organisations were
concerned that the creation of a new offence might be an interference
with their freedoms, they can be reassured that they will have
the benefit of a double protection against any improper interference.
In practice only the most irresponsible and actively aggressive
incitement to religious hatred which was likely to cause severe
interference with competing article 9 rights would be prosecuted.
5. There have been very few prosecutions
for incitement to racial hatred—61 between 1998 and 2001,
the vast majority of applications to the Attorney General are
granted, there have only been six refusals since 1988. Apparently
no racial breakdown of these prosecutions is available. This provision
has not had any adverse effect on press freedom, even though it
protects Jews and Sikhs whose racial identity is also a religious
identity.
6. JUSTICE would suggest a number of safeguards
if such legislation is implemented, for example:
— the legislation should include a
note of guidance setting out the criteria for the Attorney General's
use of his discretion;
— the Attorney General's discretion
should be subject to scrutiny by Parliament via an annual report
to be presented to the Home Affairs Select Committee. This report
should include racial/religious breakdown of the figures together
with reasons for proceeding/not proceeding with a prosecution.
A review of the way that the provisions on incitement
to racial hatred have been used would be opportune. The Criminal
Justice Act 1991, section 95(1) already makes provision for the
Secretary of State to publish annually such material,
"as he considers expedient for the purpose
of . . . facilitating the performance by such persons of their
duty to avoid discrimination against any persons on the ground
of race or sex or any other improper ground."
JUSTICE suggests either amending this section
by adding the word "religion" to race and sex, or adding
a more specific duty to break down the statistics by racial and
religious group.
August 2002
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