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 religious
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 religious hatred.
Offending religious convictions is no basis for imposing criminal convictions.
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 my race.
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 restrictions are
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 political affiliations.
Sometimes, the law has to recognise that it cannot sensibly resolve religious disputes.