From the Margaret Howard Memorial Lecture by David Pannick
QC. 19 May 2005
It is bad enough that the blasphemy law survives in this country. The
Government is proposing to amend
the law to introduce a new offence of incitement to religious hatred.
That would make matters worse by adding to the restrictions on freedom
of expression in relation to religious sensibilities and by encouraging
communities to believe that it is the function of the legal system to
protect them against offence to their religious feelings.
Mindful, no doubt, of Jonathan Swift's aphorism that "we have just
enough religion to make us hate, but
not enough to make us love one another"19, the Government asked
Parliament earlier this year to make it a criminal offence to provoke
Offending religious convictions is no basis for imposing criminal
The Government will seek to amend the Public Order Act 1986 which
already makes incitement to racial hatred a criminal offence. The
Government want to apply the same scheme to hatred against persons on
religious grounds. So it would be a criminal offence to use threatening,
abusive or insulting words or behaviour if you "intend to stir up
religious hatred", or if your conduct is "likely to stir up" religious
hatred. Prosecutions could only be brought by the Attorney-General. A
convicted person would face up to seven years in prison.
The proposal starts from the false premiss that race and religion
should be treated in the same way. But there are important differences.
To make hostile comments about my race is to criticise me for what I am,
for innate characteristics that I have not chosen and which say nothing
(other than to the racist) about how I act. Because such comments insult
my common humanity and cannot be justified, it is right and proper that
the law should impose limits on your freedom of speech when it insults
But to comment on my religion is to criticise the conduct of an
organisation to which I choose to belong. And religions, unlike racial
groups, usually make claims about how society should be organised. By
reference to those views, religions seek to attract new members.
Religious beliefs have a significant impact on the way its adherents
treat each other and strongly influence how society is organised.
Critical comments on religious beliefs may serve a valuable function in
identifying and remedying abuse of power. It may be difficult to draw a
distinction between criticism of those beliefs and criticism of the
people who propagate those beliefs. Such criticism is not reduced in
value by the tendency of the religious to react with extreme sensitivity
when their beliefs are subjected to analysis.
If the Government's proposal were to be enacted, novelists, playwrights,
and comedians would need to seek legal advice before strongly
criticising members of the Catholic Church for failing to take adequate
steps against paedophile priests; or Jews for Judaism's treatment of
women (and their children) whose husbands refuse to give them a
religious divorce; or Moslems for Islam's intolerance of "infidels" and
its discrimination against women and homosexuals. The Bill offers no
definition of "religion", so an author may be inviting prosecution by
making harsh comments about the Reverend Moon or the Satanist beliefs
recognised last year by the Royal Navy.
Irreverently critical comment on religious topics, particularly by a
comedian or a novelist, might well be regarded as "abusive or
insulting". Even if the author's intention is to provoke debate on an
issue of public importance, prosecutors might be able to establish that
"hatred" (the quality and quantity of which is not specified in the
legislation) is likely to be "stirred up" (an inelegant phrase that
should lead to prosecution of the Parliamentary draftsman). Indeed, the
more powerful the work, the greater the risk of legal action. That you
may have good reason for making insulting comments which provoke hatred
of a particular religious doctrine would be no defence. Nor would it be
a defence that you did not intend to stir up hatred. Because of the
uncertainty inherent in so vague a criminal law, it would inevitably
have a chilling effect on freedom of expression about religious beliefs
and practices. At a time when religion is becoming both more powerful a
force in our society and more intolerant of criticism, the law should be
protecting those who wish to speak out on such matters, not threatening
to impose further penalties.
The very existence of such a law on the statute book would serve to
inflame religious passions, encouraging religious groups to believe that
the law will provide a remedy when a novelist or a film director creates
a work which criticises their religion or their prophet.
Religions already have strong protection both spiritual (blasphemers
will, no doubt, spend much longer than 7 years paying the price of
eternal damnation) and temporal. The law punishes (and rightly so)
breaches of the peace, harassment and assault. In 2001, Parliament
created new offences of religiously aggravated assaults, criminal
damage, harassment and public order crimes, where the defendant acts out
of hostility towards a person's religion. Discrimination on grounds of
religion or belief in employment is unlawful.
The Government's defence of its proposal is that a new law is needed
because the existing laws on incitement to race hatred cover offences
against Sikhs and Jews, as they are each regarded as a race, but the
race hatred laws do not protect Moslems. There are two answers.
The first is that if the current law offers inadequate protection, a
narrow amendment to redefine race hatred laws would suffice. The
objection to the proposed new law is the breadth of the interference
with freedom of speech on religious matters which it would introduce. A
much more tolerable solution is that proposed by the Liberal Democrats
earlier this year: race hatred would be redefined to include hatred
against a person's membership, or presumed membership, of a religious
group as a pretext for stirring up racial hatred. Such a law would not
inhibit freedom of expression on religious beliefs and practices.
The second answer to the Government's concern is that it is very
doubtful that existing law fails to offer sufficient protection. At the
end of 2001, Mark Norwood, a Regional Organiser for the British National
Party, displayed in the window of his flat in Shropshire, a large poster
with a photograph of New York's Twin Towers
in flames on September 11, 2001, with the slogan "Islam out of Britain –
Protect the British People". He was prosecuted under section 5 of the
Public Order Act for displaying a poster which was threatening, abusive
or insulting, and likely to cause harassment, alarm or distress, in
circumstances where his offence was aggravated by being motivated by
hostility towards a racial or religious group. He was convicted and
fined. The Divisional Court dismissed his appeal. The European Court of
Human Rights rejected his complaint that this was a breach of his right
to freedom of expression. There is no evidence of a need for a new law
to provide broader restrictions on freedom of expression.
The Government's proposal to amend the law to impose further
restrictions on freedom of speech which offends religious feelings
offends the strong secular beliefs of many of us that such additional
wrong in principle. On this occasion, the devil is not in the detail.
Intolerant religious groups pose one of the gravest threats to freedom
of expression in our tolerant society.
The laws against race hatred are based on a principle of common
humanity. But if all men and women are created equal, their religions
are not always a force for equal good. Religious doctrines and religious
practices may be foolish, dangerous or sometimes evil. Because adherents
may believe such doctrines and practices to be required by divine will,
rational debate is in any event difficult to promote. The law should be
encouraging freedom of expression in relation to such powerful forces.
No one would seriously suggest that the law should penalise words or
behaviour which have the intention or effect of stirring up hatred of a
political group. Such a law would be objectionable because critical
comment on matters of public interest should not be further inhibited.
Religion is as powerful a force (indeed, often much more powerful) than
Sometimes, the law has to recognise that it cannot sensibly resolve