Submission by the Archbishops' Council of the Church of England to The House of
Lords Select Committee on Religious Offences and the Law of Blasphemy
Executive Summary
1.
The Church of England favours the introduction of a new offence of Incitement to
Religious Hatred, for reasons set out in this paper. If such an offence were enacted and
proved effective, that would provide the context in which the current offence of
blasphemy could be repealed. Therefore we welcome the proposal by the Government,
repeated in the Bill introduced by Lord Avebury to establish an offence of incitement to
religious hatred. However we dissent from the proposals in Lord Avebury's Bill on the
issue of public order and the disturbance of religious services. We prefer the
recommendations made by the Law Commission in its 1985 report.
The Case for Reform
2.
The Law Commission published an initial working paper on the law of blasphemy
in 1981 and a final report in 1985. The 1985 report was entitled Offences Against
Religion and Public Worship1. At this time, there was a considerable degree of harmony
between the main religious faiths in England, although the situation was very different in
Northern Ireland, and also to some extent in Scotland. There was also little reason to
suppose that religion would be a cause for civil disorder, although there had been
persistent intolerance of the Jewish community by right wing groups throughout the last
century. The Law Commission therefore argued that there was no need for a law on
religious hatred to replace the Blasphemy Law if this law were to be abolished.
3.
However shortly after the time of the publication of the Law Commission report
the situation worsened. There have been both signs of intolerance between religious
traditions, and a continuous level of attacks of religious buildings and individuals. At
times this has been quite muted, while at other times there have been high levels or
disorder, which have fuelled a real fear of persecution.
4.
Many of these attacks, although not all, have focussed on the Muslim community.
This claim can be substantiated both by the evidence of the police themselves, and by
reports from the Muslim community. One example, among many that could be cited, is
the report published in the autumn of 2001, by the Commission on British Muslims and
Islamophobia, entitled Addressing the Challenge of Islamophobia. This Commission was
established by the Runnymede Trust in 1995. The previous report Islamophobia—A
Challenge for Us All was launched in the House of Commons by the Home Secretary,
Jack Straw, in 1997. It is also worth noting that Jews and Sikhs have some protection
under provisions against incitement to religious hatred, whereas members of other faiths
(especially Muslims) do not. This is an anomaly which is strongly felt in the Muslim
community.
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Law Com. No 145
5.
Another example of worsening relations is provided by the Cantle report on the
disorder in Northern cities in the summer of 2001. This described a high degree of
polarisation in these cities and towns between different ethnic communities, which often
drew on religious hatred and intolerance. Both the report on Islamophobia and the events
described in the Cantle report took place before the events of 11 September 2001. The
situation undoubtedly worsened in the weeks after the terrorist attacks in America, and
while there is less overt expression of religious hatred at the moment, we believe that
beneath the surface there is still a high degree of offensive representation of religious
practice, and attacks on religious buildings and communities. In brief, we believe that the
situation is no longer the comparatively peaceful one which prevailed in the mid 1980s
when the Law Commission issued their report. Bishops who spoke in the House of Lords
on the Anti Terrorism Bill in November and December 2001 referred to the evidence of
parish clergy and of conversations with Islamic leaders. They were clear that the issue of
religious hatred is a real one in England at this time.
6.
If this is the case, the issues raised in the Anti Terrorism Debate in NovemberDecember 2001 remain pressing, despite the fact that some of the provisions in the
original Government Bill were removed before it was enacted. The original Bill
contained clauses, which would have both provided for additional penalties if an offence
was aggravated by religious hatred, and also made it an offence to incite religious hatred.
The former clause supplemented the existing legislation, whereby an offence can be
aggravated by racial hatred, and this passed into law with the completion of the debate on
the Anti Terrorism Bill in December 2001. However the proposed legislation on
incitement to religious hatred was defeated in the Lords, although it successfully passed
through the Commons. The Government withdrew the clauses on incitement to religious
hatred in order that the rest of the Bill could become law, which it did in December 2001.
7.
Bishops defended the clauses on incitement to religious hatred in the debates in
the House of Lords, and the Archbishops' Council also supported the legislation in a
statement on 29 November 2001. The debate in the House turned on the difficulty of
defining incitement to religious hatred, and the danger to free speech, which the new
provisions were seen by some to represent. Not all Anglicans supported this change, but
on balance the Church of England believes that an opportunity was missed when these
clauses were dropped from the Bill. Muslim organisations continue to press for
legislation on incitement to religious hatred. Indeed, the need for a law on religious
hatred is not contingent on the question of legislation about blasphemy, although in
practice the two issues are closely related.
The Questions of Public Order and Freedom of Speech
8.
The primary question therefore is whether it is now appropriate for a law to be
enacted which would help protect the religious tranquillity of the nation and give
protection from the effects of incitement to religious hatred to all the religious
communities in England. The Bill presented by Lord Avebury goes part of the way to
remedying the situation, but for the reasons given below, we do not feel that it is
completely satisfactory.
9.
Before we move to our criticism of Lord Avebury's Bill, it is worth addressing the
issues of public order, freedom of speech and the Human Rights Act which were raised in
the Lords debate last year. It is important that the doubts expressed by peers are
addressed. There are two issues here. First, are not the existing Public Order Act
provisions sufficient to deal with the problem? Secondly, are the concerns about freedom
of speech and the suppression of human rights justified?
10.
The existence of public order legislation is not sufficient to address the question
of religious hatred. The existing public order offences are inadequate to protect religious
groups against calculated offence, even if this is intended to stir up hatred. This is
because the public order offences are drafted in a particular way. As we discuss in
Section 5 of this submission, the offences take as their starting point the need for
"threatening, abusive or insulting behaviour", and that test is not met by behaviour which
is merely offensive. The impact on religious communities of a scurrilous or deliberately
offensive depiction (whether in speech or artistic representation) of their religion goes
very deep. It may be also that no breach of public order is committed, because of the
restraint exercised by a religious community, but nevertheless there will be a great deal of
injury to feelings and to harmonious relations in society.
11.
This is not an argument for the re introduction of a law of censorship, because we
believe that religious communities should be able to accept humour at their expense as
well as criticism of their beliefs and practices. The beliefs of religious communities
should not be immune from reasoned, even if impassioned, criticism. It is the deliberate
attempt to incite hatred which we deplore. It is in the interest of society as a whole that
religious groups should be protected from criticism which is intended to stir up hatred
against them.
The mens rea requirements in relation to incitement to religious hatred
12.
We are aware that concerns have been expressed that provisions in the form
included in the Bill could penalise activity which is regarded, by those who undertake it,
as proclaiming the Gospel. We do not share these concerns because we believe that
reasonable evangelistic activity would not be caught by the proposed law and,
conversely, that any evangelistic activity which relies on inciting hatred between
religious groups is not worthy of any religion and particularly not of the Christian
Gospel.
13.
Turning to the issues of freedom of speech and the Human Rights Act, it is
important to recognise that the freedom of speech, which is enshrined in the Act and in
the Convention, has to value a responsible use of this freedom. Freedom to incite hatred
would not be seen as responsible. Freedom of expression is protected under Article 10 of
the European Convention of Human Rights. Nevertheless it is expressly stated that it
carries with it duties and responsibilities, and can be made subject to restrictions
necessary in a democratic society for the protection of the rights of others. There have
been examples where the European Court of Human Rights has shown itself sympathetic
to national laws which seek to protect peoples' religious sensibilities against exercises of
the right to freedom of expression which are offensive or scurrilous. Examples would
include Otto-Preminger Institut v Austria (1994) or Wingrove v UK (1996).
14.
Strong expression of disagreement, or of dislike, is not the same as seeking a
breach of public order. The Church of England is not seeking to stifle public debate,
which may be intense and use strong language, as religious disagreements often have in
the past. Nevertheless we believe that the Human Rights Act is not a licence for
promoting incitement to hatred. It is also worth pointing out that incitement to hatred "on
the grounds of religion or belief" would include the reference in Lord Avebury's Bill in
clause 2(3) to "lack of religious belief."
15.
We recognise that discussion, criticism or controversy, even when decently
conducted, may give offence, or even cause outrage, to those whose religious views are
being challenged. And we also recognise that the claims that may be advanced in the
course of evangelistic activity may be offensive to those of other religions (or, indeed, of
no religion). We continue to believe, however, that rational discussion and criticism of
religion, even in sharp terms, should continue as at present to fall outside the scope of the
criminal law.
16.
We believe that the approach reflected in clause 2 of the Bill will achieve this
result. We note that the mental element of the new offences will be such as to require that
the words or behaviour used must either have been "intended" or "likely" to stir up
religious hatred; and for this purpose "religious hatred" means "hatred against a group of
persons (our emphasis) defined by reference to religious belief or lack of religious belief"
(Clause 2(3)). We cannot imagine that any Christian would wish to assert their freedom
to engage in activities intended to stir up religious hatred in this sense (ie against a group
of persons) even if they wished to express their religious views themselves in the
strongest terms. And we find it hard to envisage circumstances in which either genuine
religious debate or genuine evangelistic activity, conducted in language appropriate to
those activities, could be said to be "likely" to stir up religious hatred in this sense.
17.
We note that, in any event, by virtue of s.27(1) Public Order Act 1986 the consent
of the Attorney General would be required for the bringing of any prosecution, a fact
which also reassures us that the new offences would only be invoked in circumstances in
which the nature of the words or conduct in question was such as to lead in genuine
concerns that religious hatred could be stirred up.
Blasphemy
18.
The Law Commission published its final recommendations in July 1985 for
abolishing certain common law offences against religion. It began its examination of this
area of the law in July 1977 after the editor of Gay News was tried on a charge of
blasphemous libel. The five Law Commissioners recommended the abolition of the
offence of blasphemy by a majority of three to two, and said that there should be no
replacement of the offence. In a note of dissent two Commissioners suggested that the
existing offences should be replaced by a new statutory offence.
19.
The majority of the Law Commission proposed the abolition of the offence
without replacement for a number of reasons. They felt that the law was uncertain to an
unacceptable degree. They also felt that the restriction of the offence to the protection of
the Christian religion, and possibly only to the tenets of the Church of England, could not
be justified, given the social composition of England and Wales. Thirdly, they felt that
there were difficulties about the requirements of the present law in relation to intention,
or mens rea. This latter point has been discussed above.
20.
However, the two dissenting signatories felt that there should be a replacement for
the existing offence. They argued in the 1985 report (paragraph 3:1) that the rationale for
a new offence is "the duty on all citizens, in our society of different races and of people
of different faiths and no faith, not purposely to insult or outrage the religious feeling of
others." They felt that the State should protect such religious adherence as far as it could
do, without impairing the rights of others. In a Note of Dissent (para 5) they argued for
penalising anyone who published grossly abusive or insulting material relating to a
religion with the purpose of outraging religious feelings. The offence should extend to
any religion, and prosecution should require the consent of the Director of Public
Prosecutions. Publication would exclude the ordinary private spoken word, but would
include all other public communication, through an intention to outrage religious feelings
would have to be established.
21.
The Church of England in effect endorsed this note of dissent in its 1988 report
Offences against Religion and Public Worship, chaired by the then Bishop of London.
We believe that Lord Avebury's Bill would ensure that the offence of blasphemy was not
simply abolished, and therefore we welcome the proposal to establish an offence of
incitement to religious hatred. We believe that a step by step approach is the best way
forward, in which the enactment of a new offence of incitement to religious hatred and
the effective working of such a law could provide the context in which the current law of
blasphemy could be repealed.
Disturbing religious services etc
22.
The Law Commission gave careful consideration to the offences proposed to be
repealed by clause 1(2) of the Bill in its report Offences Against Religion and Public
Worship2 published in 1985.
23.
In its earlier working paper3 published in 1981, the Law Commission took the
view that all of these offences should be repealed, with the exception of s.2 of the
Ecclesiastical Courts Jurisdiction Act 1860. It suggested that it should be amended so as
to penalise anyone who, with intent to wound or outrage the feelings of those using the
premises concerned, used threatening, abusive or insulting words or behaviour in any
2
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Law Com No 145
No 79
place of worship of the Church of England, in any other certified place of religious
worship or any burial ground.
24.
However, in its final report of 1985 no firm proposal was made: the Commission
preferred to await the response to its proposals as regards blasphemy. In taking that line it
made it clear that it was influenced by the substantial amount of work which would be
involved in implementing its proposal and the complexity of the drafting that would be
involved.
25.
But the Commission also indicated that it now favoured a different approach,
involving the penalisation of two different types of behaviour: "the disruption of church
services and other acts of communal worship . . .; and conduct in the nature of
desecration occurring in places of worship, regardless of whether it is at the time being
used by anyone for worship". It found a clear justification for the criminal law to
intervene in this area (which the majority did not of course in relation to blasphemy):
". . . worshippers engaged in such activities or using such places for mediation or prayer
should be entitled to do so free of undue disturbance which might cause outrage or
offence. There is an obvious difference between a law of blasphemy and a law protecting
places of worship. In the former case, the wider interests of society must be given proper
weight and in our view those interests outweigh the justification for an offence; in the
latter, where particular activities are in progress or where premises are specially set aside
for particular purposes, these justify the special protection which an offence would
give."4
26.
The Church's formal response to this proposal, Offences against Religion and
Public Worship5, ("the Leonard Report") favoured the Commission's view expressed in
the 1985 report . . . The Leonard Report proposed inter alia that:
o the new offence as regard the disruption of worship should be wider than s.2 of the
1860 Act—penalising behaviour which evidenced a disrespect or contempt for the
rights of others; and
o the new offence relating to desecration should involve "behaviour in a place of
worship which is likely to cause harm or serious offence to anyone who ordinarily
uses it for the purpose of worship" and should be wider than existing offences
under the Criminal Damage Act 1971 and the Public Order Act 1986.
27.
Against this background, the approach taken by Lord Avebury's Bill is
unsatisfactory, in repealing all the existing offences, including that created by s.2 of the
1860 Act, without replacement. We understand the Bill may have been drafted on the
basis that there is no need to retain s.2 of the 1860 Act because 2.5 of the Public Order
Act 1986 presents a satisfactory alternative. But:
o s.5 of the 1986 Act requires that the conduct in question be "threatening, abusive or
insulting", and there is legal authority to the effect that behaviour which is "merely"
offensive (but against which worshippers could properly claim to be protected)
would not meet that requirement (see Brutus v Cozens (1973) AC 854, 865 per
4
5
Paragraph 3.18
GS Misc 286 [1988]
o
Lord Dilhorne). This consideration was expressly recognised by the Law
Commission and influenced its own later position6; and
as the Leonard Report pointed out, s.5 of the 1986 Act does not criminalise
desecration as such; and even if the conduct in question could be aid to be
"threatening, abusive or insulting", it would have to be committed "within the
hearing or sight of a person likely to be caused harassment alarm or distress
thereby"—a requirement which would very considerably weaken the potential
impact of the provision and mean that it would not meet either the Law
Commission's or the Church's aims.
28.
The proposals on these matters in Lord Avebury's Bill are inconsistent both with
the Law Commission's revised proposals on the disturbance of public worship and the
Church's response to them. The Church would wish to see an approach much more
reflective of the Law Commission's proposals. It also believes that the issues raised by
the question of whether the existing offences are repealed or replaced are complex and
difficult, and that a more considered approach to the reform of the law in this sensitive
area is accordingly needed.
18 June 2002
6
See paragraph 3.20