8th February
2009
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Secularists of the Year: the movers behind the abolition of blasphemy
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8th February
2009
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Secularists of the Year: the movers behind the abolition of blasphemy
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Based on article
from secularism.org.uk
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The National Secular Society's annual award for Secularist of the Year has been awarded jointly to Dr Evan Harris MP and Lord Avebury for their success in getting blasphemy laws abolished.
The prestigious prize was handed over by Professor Richard Dawkins at a glittering awards ceremony at the Imperial Hotel in central London on Saturday.
Terry Sanderson, president of the National Secular Society (NSS), said: The abolition of the blasphemy law in 2008 was a major coup for the NSS and a great victory for everyone who values free speech. The ancient laws had not been used successfully
since the 1970s, but there were efforts by Christian evangelicals to revive them, and a case was being considered even as the law was abolished.
Sanderson said that Dr Evan Harris and Lord Avebury – both Lib Dems – had engineered a clever parliamentary pincer movement that resulted in the Government being forced into bringing forward its own amendment to abolish the law. Having elicited the
promise from Ministers in the House of Commons that the law would be abolished, Lord Avebury, who has been campaigning against the blasphemy laws for decades, then brought forward his own amendment to ensure that the Government could not renege on its
commitment.
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7th March
2008
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The nonsense of blasphemy set for abolition after Lords vote
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The Government have announced that they are keen to get the bill passed in quick time and that Lords amendments are therefore likely to be accepted when the bill returns to the Commons.
From the National Secular Society
See full debate
from TheyWorkForYou
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After an acrimonious debate in which the bogeyman of secularism was repeatedly invoked, the House of Lords on Wednesday accepted the amendment to the Criminal Justice and Immigration Bill that abolishes the common law of blasphemy and blasphemous libel.
The amendment had originally been introduced by Lib Dem MP Dr Evan Harris in the House of Commons, but the Government had persuaded him to withdraw it after promising to introduce its own amendment later in the Lords. This it has now done with something
less than enthusiasm.
The Bishops in the House were divided, some saying that the abolition was unnecessary and undesirable and others saying that it was inevitable and that the Church should therefore concede. The Archbishop of York, John Sentamu, had agreed to the
Government's amendment during a consultation, but expressed strong reservations about the timing of the move.
Prominent Christian activist Baroness O'Cathain launched a blistering attack on the amendment, with particular fury aimed at Evan Harris. Lady O'Cathain maintained that abolition of blasphemy would unleash a torrent of abuse towards Christians.
Lib Dem peer Lord Avebury pressurised the Government into keeping its word by tabling his own abolition amendment.
The Government had conducted a "short and sharp" consultation with the Church of England about the amendment, and the Archbishops of Canterbury and York both agreed not to oppose the abolition, although both questioned its timing.
Evan Harris said that this debate had been going on for 21 years, since the Law Commission had recommended abolition of the law, and for the Church it would never be the right time.
Lord Avebury also introduced other amendments to the Bill that would clear out some other ancient Church privileges, such as Section 2 of the Ecclesiastical Courts Jurisdiction Act of 1860, under which Peter Tatchell was charged when he interrupted a
sermon by the-then Archbishop of Canterbury in Canterbury Cathedral. Lord Avebury's amendments were rejected by the Government and opposed by the bishops.
Keith Porteous Wood, Executive Director of the National Secular Society pointed out that although the UK blasphemy laws are in the course of abolition, there is growing pressure in the Islamic world to outlaw so-called "religious defamation", a
kind of super blasphemy law. This pressure is being applied at the United Nations and its Human Rights Council. He commented: "If the United Nations Human Rights Council succumbs to the pressure from the Islamic countries to permit laws against
religious defamation, it will be a major blow to freedom of expression, which underpins both democracy and civilisation itself. Nations who cherish freedom should wake up to the dangers of such moves, rather than sit idly by as they have done so
far."
The following amendment was passed by 148 to 87:
BARONESS ANDREWS
144B* Insert the following new Clause—
"Blasphemy and blasphemous libel
(1) The offences of blasphemy and blasphemous libel under the common law of England and Wales are abolished.
(2) In section 1 of the Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8) (orders for seizure of copies of blasphemous or seditious libel) the words "any blasphemous libel, or" are omitted.
(3) In sections 3 and 4 of the Law of Libel Amendment Act 1888 (c. 64) (privileged matters) the words "blasphemous or" are omitted.
(4) Subsections (2) and (3) (and the related repeals in Schedule 38) extend to England and Wales only."
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1st March
2008
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Bishops backtrack on abolishing the nonsense of blasphemy
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See full article
from the Times
See also the bishops' letter
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Senior Anglican bishops have warned the Government that they have serious reservations about the abolition of the blasphemy laws.
Dr Rowan Williams and Dr John Sentamu say in a letter today that the Government should not lightly change laws that, though their day-to-day importance may be small ...BUT... nevertheless carry a significant symbolic charge.
While not opposing abolition, they urge caution and question why the Government is pushing through the change now.
The abolition of blasphemy from the statute books moved closer this week with the tabling of a Government amendment in the House of Lords. The Bill is scheduled for debate on Wednesday.
The Government had promised in January that this would take place after a “short and sharp” consultation with the churches.
In a letter to Communities Secretary Hazel Blears, the Archbishops say that the pressing need for repeal is not clear and plead for more time to to assess the impact of the new offence of incitement to religious hatred.
They call on the Government to be clear why the offences are being abolished and to spell out what the implications are for Christianity in relation to State and society: At a time of continuing debate about the nature of our society and its values,
this change needs to be seen for what it is, namely the removal of what has long been recognised as unsatisfactory and not very workable offences in circumstances in which scurrilous attacks on the Christian religion no longer threaten the fabric of
society. It should not be capable of interpretation as a secularising move, or as a general licence to attack or insult religious beliefs and believers.
From the National Secular Society
The Government amendment this week comes at a considerably earlier stage than had been expected as it is very unlikely that the consultation has been completed.
What appears to have happened is that the Government has been panicked into tabling its own amendment following a near identical one being tabled by Lord Avebury. Lord Avebury is a long-time secular campaigner.
The Government is determined that changes to blasphemy are made through their amendments, to give the appearance that they are in control.
See full article
from Parliament
A few of the Criminal Injustice Bill amendments knocking around
BARONESS ANDREWS
144B* Insert the following new Clause—
"Blasphemy and blasphemous libel
(1) The offences of blasphemy and blasphemous libel under the common law of England and Wales are abolished.
(2) In section 1 of the Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8) (orders for seizure of copies of blasphemous or seditious libel) the words "any blasphemous libel, or" are omitted.
(3) In sections 3 and 4 of the Law of Libel Amendment Act 1888 (c. 64) (privileged matters) the words "blasphemous or" are omitted.
(4) Subsections (2) and (3) (and the related repeals in Schedule 38) extend to England and Wales only."
EARL OF ONSLOW
BARONESS STERN
145 Insert the following new Clause—
"Blasphemy
The offences of blasphemy and blasphemous libel are abolished."
LORD AVEBURY
148 Insert the following new Clause—
"Abolition of certain religious offences
(1) The following offences are abolished—
(a) blasphemy and blasphemous libel;
(b) any distinct offence of disturbing a religious service or religious devotions;
(c) any religious offence of striking a person in a church or churchyard.
(2) The following provisions are repealed—
(a) in section 1 of the Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8), the words "blasphemous libel, or";
(b) in sections 3 and 4 of the Law of Libel Amendment Act 1888 (c. 64), the words "blasphemous or";
(c) section 59 of the Cemeteries Clauses Act 1847 (c. 65);
(d) section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 (c. 32);
(e) section 36 of the Offences against the Person Act 1861 (c. 100);
(f) section 7 of the Burial Laws Amendment Act 1880 (c. 41)."
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30th January
2008
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Archnutter of Canterbury proposes Blasphemy II
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Based on an article from the Times
see full article
See also Williams' full speech
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The Archnutter of Canterbury, Dr Rowan Williams, has called for new laws to protect religious sensibilities that would punish “thoughtless and cruel” styles of speaking.
Williams, who has seen his own Anglican Communion riven by fierce invective over homosexuality, said the current blasphemy law was “unworkable” and he had no objection to its repeal ... BUT ... whatever replaces it should “send a signal”
about what was acceptable.
This should be done by stigmatising and punishing extreme behaviours that have the effect of silencing argument.
The Archbishop, delivering the James Callaghan Memorial Lecture said it should not just be a few forms of extreme behaviour that were deemed unacceptable, leaving everything else as fair game.: The legal provision should keep before our eyes the
general risks of debasing public controversy by thoughtless and, even if unintentionally, cruel styles of speaking and acting.
Dr Williams said: It is clear that the old blasphemy law is unworkable and that its assumptions are not those of contemporary lawmakers and citizens overall. But as we think about the adequacy of what is coming to replace it, we should not, I believe,
miss the opportunity of asking the larger questions about what is just and good for individuals and groups in our society who hold religious beliefs.
Dr Williams was criticised by the National Secular Society who accused him of promoting self-serving and dangerous ideas. Terry Sanderson, president, said that the Archbishop’s speech was a blatant pitch for new legislation to replace the
blasphemy laws that the Government are planning to scrap.
The Government is at present consulting the Church of England about its plans to repeal the blasphemy laws before introducing the changes when the Criminal Justice Bill is in committee stage in a few weeks.
It is as if the prolonged and widespread debate on the recently-introduced religious hatred legislation had never happened, said Sanderson. Dr Williams takes us right back to the beginning with his special pleading for the protection of
religious feelings – in other words, another form of blasphemy law that would be even worse than the one we’re about to ditch.
Sanderson pointed out that the Racial and Religious Hatred Act – which had been under consideration for five years - was now on the statute book. It was enacted only after a great deal of bitter dispute between religious interests and those who feared
for free speech.
There is also now in law a concept of religious aggravation that can be applied to some public order offences. It carries a potential prison sentence of seven years. This is draconian and extreme by any measure – and now the Archbishop appears to want
something else.
Sanderson said that the Archbishop appeared in his speech to be making excuses for those who rioted about the Salman Rushdie case and threatened the author with death. He also seems to think that those who created lethal street protests over the Danish
cartoons had a point. The Archbishop’s speech is, at base, self-serving and dangerously illiberal,” Mr Sanderson said. “We certainly hope that the Government is not now going to bring forward something even more extreme as a quid pro quo for
abolishing blasphemy.
Comment: Interpretation
31st January 2008
From MediawatchWatch
see full article
Owing to the Archbishop’s opaque style of discourse, it is unclear whether or not Times reporter Ruth Gledhill is correct in her interpretation of his James Callahan Memorial Lecture. Other reports, from more overtly religious sources, do not put the
same spin on it.
This appears to be the section which has led the Times to shout that he is calling for new legislation. It’s not quite there, is it? Williams said:
"It is clear that the old blasphemy law is unworkable and that its assumptions are not those of contemporary lawmakers and citizens overall. But as we think about the adequacy of what is coming to replace it, we should not, I
believe, miss the opportunity of asking the larger questions about what is just and good for individuals and groups in our society who hold religious beliefs".
Whichever way you look at it, he was talking drivel.
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10th January
2008
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Nutter Vaz talks of 'modernisation' of blasphemy law
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From the Guardian
see full article
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The Church of England gave a cautious welcome last night to the government's pledge to consult it before taking a final decision on repealing the ancient offence of blasphemy.
Downing Street's announcement that it is consulting the churches, particularly the Anglican church, before scrapping the offence came only hours before a Commons vote on the issue.
Keith Vaz, the Labour chairman of the Commons home affairs select committee, said the government had faced defeat: It is a pretty arcane law. It is old and unnecessary, and it does need to be modernised. What they need to do is bring that
forward as quickly as possible. [if it is unnecessary why does it need modernising?...it needs repealing. I guess nutter Vaz is eyeing the chance to extend it to all religions]
A Church of England spokesman said last night it became clear last year during the debates on the crime of incitement to racial and religious hatred that the church was open to the idea of the blasphemy law being abolished. But first there has to be
adequate time to assess the impact of the new legislation, he added.
The government has said it will introduce amendments to the criminal justice bill when it reaches the Lords if the consultations with the churches prove positive. I think it is right there is a proper process and a proper consultation before there is
change in legislation, said a Downing Street spokesman.
Dr Evan Harris, the Liberal Democrat MP whose amendment to the criminal justice and immigration bill provoked the government move, welcomed the concession: As a result of the government's acceptance of the need to repeal ... Britain will no longer
have an ... illiberal blasphemy offence and will be in a far better position to ensure respect for human rights in countries like Sudan, Pakistan and elsewhere.
Terry Sanderson of the National Secular Society said the blasphemy law was harsher now than when one of his predecessors was jailed for the offence in 1921: In a multicultural society no one should have the right not to be offended; we should protect
people, not beliefs.
Don Horrocks of the Evangelical Alliance warned repeal would signal that protecting Jesus, God and the Bible was no longer regarded as so important.
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8th January
2008
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Amending the Criminal Injustice Bill
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Dr Evan Harris is surely an honorary Melon Farmer. He is doing some great work in parliament
From the National Secular Society
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The Your help urgently needed
We have been working closely with our Honorary Associate Dr Evan Harris MP, who has identified an opportunity to challenge the blasphemy law in the House of Commons.
On Wednesday, 9 January, Dr Harris will table as an amendment to the Criminal Justice and Immigration Bill. Below is a letter we have been working on with him which will appear in the Daily Telegraph signed by a large number of other Honorary Associates
and prominent supporters of the NSS as well as some other worthy names from a religious and other spheres.
The letter itself makes the case forcibly:
In the light of the widespread outrage at the conviction of the British teacher for blasphemy in Sudan over the name of a teddy bear we believe it is now time to repeal our own blasphemy law.
The ancient common law of blasphemous libel purports to protect beliefs rather than people or communities. Most religious commentators are of the view that the Almighty does not need the "protection" of such a law. We are representatives of
religious, secular, legal and artistic opinion in this country and share the view that the blasphemy offence serves no useful purpose. Yet it allows small partisan organisations or well-funded individuals to try to censor broadcasters like the BBC and to
intimidate small theatres, the printed media and book publishers.
Far from protecting public order — for which other laws are more suited — it actually damages social cohesion. It is discriminatory in that it only covers attacks on Christianity and Church of England tenets and thus engenders an expectation among other
religions that their sensibilities should be also protected by the criminal law (as with the attempt to charge Salman Rushdie) and a sense of grievance among minority religions that they do not benefit from their own version of such a law.
As the Law Commission acknowledged as far back as 1985, when they recommended repeal, it is uncertain in scope, lack of intention is no defence and yet it is unlimited in penalty. This, together with its chilling effect on free expression and its
discriminatory impact, leaves it in clear breach of human rights law and in the end no one is ever likely to be convicted under it.
The Church of England no longer opposes its abolition and the Government has given no principled reason to defend its retention. We call upon MPs to support the amendment proposed by Dr Evan Harris, Frank Dobson and John Gummer (tbc) tomorrow during the
Criminal Justice and Immigration Bill Report stage proceedings and for the Government — which rightly criticises countries like Sudan for their blasphemy laws — to give it a fair wind."
Lord Carey, the former Archbishop of Canterbury, is backing the new cross-party attempt by MPs to abolish Britain's blasphemy laws. They are supported by figures including Lord Harries of Pentregarth, the former Bishop of Oxford. Other signatories to the
letter include Philip Pullman, the author of the His Dark Materials trilogy, Ricky Gervais and Richard Dawkins, the Oxford academic and atheist and Nick Hytner the director of the National Theatre.
If you support the abolition of blasphemy laws, we urge you please to write immediately to your MP, preferably by email, explaining you would like them to support Dr Harris's amendment on Wednesday and add in your own words why you think this is
important. You could perhaps use some of the ideas in the above letter, but please do not reproduce them all.
It is best if you can to contact your MP by email – you can find out details if you don't know them from this website: www.theyworkforyou.com/mp
This allows you to write to the correct MP by putting in your postcode. Whatever method you use to contact your MP, it is essential to include your name and full address.
If for any reason you would prefer to write by letter, you can send it by fax by phoning 020 7219 3000 and asking for the MPs office and requesting a fax number. Alternatively you could write to them at House of Commons, London SW1A 0AA, but in view of
the urgency we would urge you to use email or fax if possible.
The NSS has been fighting for the abolition of blasphemy for the whole of its 140 year history. We have been working with Dr Harris on this important issue for some weeks including over the seasonal break assisting with research and soliciting the
support of many influential individuals. We know you will want to add your support.
Please act straight away, there is very little time.
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The Government have also been considering the
options for updating the law with regards to blasphemy. The update was
dropped from the previous year's assault on liberties masquerading as an
anti terrorism act but has been resurrected as a standalone consideration.
The House Of Lords Committee on Religious Offences
published the following report in June 2003.
It seems to be a well reasoned and considered report.
Perhaps a rather inconclusive work but that seems to be due to a lack
of enthusiasm for any new blasphemy laws.
www.parliament.uk/parliamentary_committees/lords_religious_offences.cfm
The Melon Farmers can perhaps help out
the Government on this issue. It is clearly unfair and unacceptable that the
law should protect only Christianity. On the other hand, if it is extended
to all religions in its present form then it will patently be unworkable due
to the sheer quantity of religious contradictory bunkum.
The Melon Farmers respect the beliefs of others and have
no wish to offend. The Melon Farmers therefore suggest that the law of
blasphemy may be retained and extended to all religions, but the scope
should be limited to protect only those items of bunkum on which all the
worlds religions concur.
The following are a few extracts from the report |
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Blasphemy: the Options
Introduction
31. The law of blasphemy is described in detail in Appendix 3, including
an assessment of the impact on it of the European Convention on Human
Rights. In this chapter we examine the three main options that are available
to Parliament:
(i) The common laws of blasphemy and blasphemous libel should be left as
they stand;
(ii) They should be repealed without replacement (the view of the
majority of the Law Commission in 1985);
(iii) They should be repealed but replaced with a new Statute, which
would cover all religious faiths and beliefs and the rejection of religion.
The objects of the protection would be the faiths, beliefs etc., not the
people or groups who hold to them.
The "leave blasphemy alone" option
32. Reform of the law of blasphemy has not been seen as a
priority by any Government since the Law Commission reported in
1985. The Home Office has declared that the present Home Secretary
is personally in favour of its repeal but that a constructive debate
first needs to be held.
This report could be seen as the start of that debate.
33. Our witnesses have reflected the many views of what the law should
now express and protect in the kind of society all respondents believe we
should be. Some believe with great sincerity that the time has come for this
country to abandon its religious heritage and become overtly secular; others
with equal sincerity believe that the law should continue to defend the
Christian character of our historic and constitutional roots; and a large
number, including many among these two groups, wish to see the multi-faith
nature of our society reflected clearly in our law. This diversity in the
evidence we have received reinforces the view that the nature of our society
is indeed a balance between the religious, the agnostic, and those of no
religion, and that no consensus seems to exist as to the direction in which
the balance should be changed, if indeed change it must.
34. The problem for parliament, however, stems not from the
legal detail, but in the need to respect the deeply held views of a
large number of the members of our society. Many think that the law
on blasphemy offers much more than legal protection; they believe it
to be an expression of the fabric of our society, of the values on
which our relationships with one another depend, of our
constitutional heritage, and of the nature of our national identity.
Church of England opinion however includes those who would argue for
the extension of the blasphemy law to embrace other Christian
Churches and other faith communities. For the secular reformers,
this can all too easily be characterised as nationalism,
sentimentality, or even denial of other faiths. To see it only as
the expression of such views would however be to misunderstand the
underlying sense of identity of the British people, their innate
respect for the values of a fair and just society resting on the
Christian teachings, and the 'tissue of dynamic relationships'.
which make up the British constitution.
35. In the recent census, 72% of the returns declared themselves to be
part of the Christian tradition and identity. While not regular churchgoers,
many still turn to the Christian churches at key times in the Christian
year, and at important moments in their own life cycle, as well as occasions
of local or national thanksgiving or tragedy. They are, in overwhelming
majority, people who are tolerant of the practice of other religions and
would wish to see that tolerance and protection reflected in our law and
practice. They believe also in the hard-won heritage of free speech in our
society. Many could feel a real sense of loss, which might easily be turned
to anger, if the delicate balance of religious and secular, the 'sacred
canopy'[30]
of our nation, were to be destroyed too roughly by legislation for which
there has certainly been no public surge of demand, and for which the only
justification would be either a complex legal argument about incompatibility
with a European Convention, or a mindless move for the 'modernisation' of
our ancient common law. It is worth noting, too, that most Muslim groups,
while preferring that the law be extended to cover all faiths, are opposed
to the repeal of the law of blasphemy. The Muslim Council of Britain, for
example, said that "abolishing the law on blasphemy would mean so far as
other faiths are concerned what we call negative equalisation"[31];
one of the proforma letters we received said that "from a Muslim
perspective, it is better for the law to protect at least one religious
denomination from blasphemy, the Anglican Church, than no religion at all."[32]
The Board of Deputies of British Jews believes that to extend the law to
other faiths would "raise inherent contradictions" and that it should be
retained as it is.[33]
36. The lesson from these considerations seems to be that Parliament
should reflect on the strong arguments for leaving the law as it stands,
even though its use might become increasingly uncommon, but also seek
urgently for ways of expressing in law the need for protection for all
faiths, all objects of religious veneration, and all followers of faith.
Such a law would need to recognise the overriding need for tolerance as well
as protection; and for freedom of speech, one of our most cherished national
freedoms, as well as for freedom of religion.
Repeal without replacement
37. The Law Commission's starting point in its 1985 report[34]
was that "if there is no argument which may properly be regarded as
sufficiently powerful to justify the derogation from freedom of expression
which any offence of blasphemy must occasion, that offence, whether it be
the present common law or some statutory replacement of it, should have no
place in the criminal law" (paragraph 2.20). They proceeded to examine the
arguments as they related to protection of religion and religious beliefs;
protection of public order; protection of society; and protection of
religious feelings. To these they added the "opening of the floodgates"
issue and the suggestion that, by abolishing blasphemy without replacement,
Parliament would be seen as, in some sense, bestowing approval of the
conduct currently penalised by the common law.
38. Although much has changed since 1985, we note that the Law
Commission's report on these matters is largely mirrored in the written and
oral evidence which was presented to us in 2002. On the Law Commission's
last two points, there are certainly vociferous groups who take their stand
on the Ten Commandments (especially the third), the Queen's Title as
Defender of the Faith, the Coronation Oath and the statement that the UK is
a country whose national religion is Christianity. As for the floodgates,
some think that "artists, comedians, the media and almost anyone"[35]
are only held in check by the current blasphemy law and, on its repeal,
would immediately take the opportunity to issue blasphemous material. It is
hard to judge how representative these views are, but they are probably a
small minority of the population at large. Those who favour this option
would contend that it is manifestly untrue that exhibitionists and attention
seekers are just waiting for the common law offence of blasphemy to be
repealed before they launch offensive attacks on religion. If that was their
objective, they could already have targeted any other religion than
Christianity with impunity, and if they attacked the Church of England they
would have gained the extra publicity of a court case, with the possibility
of a small fine.
39. Perhaps the most important deficiency in the existing common law is
that it imposes a strict liability on a person who intends to publish a
document, or make a verbal statement on a Christian topic, but who cannot
know at that stage whether or not he will be found to have blasphemed. In so
far as it is a strict liability, it offends current perceptions of fairness
and runs contrary to what Lord Edmund-Davies said (in Whitehouse v. Lemon[36]
p 920) is the increasing tendency to move away from strict liability. He
gave examples of instances where the courts have managed to evade such a
situation both under statute and under common law.
40. The European Court of Human Rights[37]
recognises that a legitimate ground for restricting freedom of expression
under Article 10.2 may, in certain circumstances, be the need to protect
people against insult to religious feelings[38].
That does not however exempt them from the denial by others of their
religious beliefs and even the propagation by others of doctrines hostile to
their faith. At the same time, any restriction of freedom of speech has to
be 'prescribed by law' and 'necessary in a democratic society' for a
legitimate purpose. It is not so much a question of whether or not the
criminal offence of blasphemy is 'prescribed by law', but the fact that its
discriminatory features (in only protecting Christians) could (and probably
would) lead to a conclusion that it is not proportionate to a pressing
social need (an essential element if it is to be seen as necessary in a
democratic society). Thus, insofar as the Wingrove case[39]
accepts that the law does not breach the European Convention, it was based
on (i) a misunderstanding of the law, and (ii) the margin of appreciation
which, as noted in paragraph 47 below, would not operate in the same way in
the UK courts.
41. The law of blasphemy is discriminatory. It prevents (say) a Muslim
from speaking about the sacred entities of Christianity in ways that would
not be criminal if a Christian were to speak in similar terms about Islam.
This violates Article 14 (prohibition of discrimination) taken together with
Article 10, unless an objective and rational justification for the
difference in treatment can be shown. Furthermore, failure to protect a
Muslim against abuse of his religion might also violate Article 14 taken
together with Article 9. Although the European Commission rejected an
application based on Article 14 taken together with 9 in the "Satanic
Verses" case[40],
that predated the heightened respect for protection against abuse shown by
the Court in Otto-Preminger Institut (para 48 below), and might not
be decided in the same way today.
42. Of the non-Christian faiths, the Muslims, as already noted
(paragraph 35) prefer to retain the law of blasphemy. Buddhists[41],
Hindus[42]
and Sikhs[43],
on the other hand, as well as some Christians, advocate its repeal, as do
the secularists. The present Home Secretary has told Parliament: "I want to
make it clear that there is no question of extending the blasphemy law to
all other denominations and faiths. We do not want to do that; we want to
find an accommodation and a sensitive way forward when few people believe
that the current position can continue"[44].
43. Several witnesses believed that recent unwillingness to invoke this
criminal law may, at least in part, derive from the tolerance of Christian
communities towards those who strongly question, criticise or insult their
faith. Muslim witnesses, too, have said that their community would follow
the course of tolerance so far as possible. It is however probably unwise to
rely on a policy of inactivity on the part of the authorities or a
commitment by the Attorney-General to take over any private prosecution (so
as to offer no evidence) and to ensure that the CPS brought no prosecutions
either. In the case of the former, the police were unwilling to intervene in
the absence of a breach of public order when the poem "The Love That Dare
Not Speak Its Name" (the cause of the "Gay News" case) was read recently
outside St Martin's in the Fields[45].
But a prosecution might follow later. Thus, sooner or later a prosecution
will be attempted. It does not much matter whether this arises from a
perceived affront to Christian tenets or an attempt to pursue a "Satanic
Verses" type case. Even if a prosecution were successful, it is likely that
it would eventually be overturned on appeal, either by the higher courts in
the United Kingdom or by the European Court of Human Rights on one or more
of the grounds that it is discriminatory, uncertain and a law of strict
liability. If this analysis is correct, the repeal might as well occur now:
that would at least save the expense of proceedings which led to Strasbourg.
Repeal and replacement by a broader-based Blasphemy Act
44. It is difficult to justify a law which protects the sacred entities
of Christianity but does not offer similar protection to other faiths[46].
This was the Law Commission's minority opinion. The Church of England would
support the proposition of replacing the blasphemy law if there were to be a
consensus among all faiths, but considers that to be unlikely[47].
Some Muslims would like an extension of the blasphemy law to other faiths[48].
The minority of the Law Commission team saw the drafting of such a measure,
while avoiding unacceptable limitations upon freedom of expression, as a
task of particular difficulty, but nonetheless achievable. They envisaged a
filter, that is, the Director of Public Prosecution's (DPP) consent, so as
to prevent private prosecutions and, particularly, litigation resulting from
disputation within or between religious sects. They did not, it seems, see
the DPP as the arbiter of freedom of expression. They envisaged the need for
expert evidence in some cases. The new offence would penalise the
publication (not verbal expression) of material proved to have been
published with the "purpose" of causing outrage ("purpose" being designed to
protect unintentional insult or outrage, which the blasphemy law does not).
They envisaged a list of religions, variable by Ministerial order. This may
be easier said than done.
45. In this area at least, there is a significant change since the Law
Commission reported in 1985. Such a legal drafting exercise would now have
to take full account of the Human Rights Act. For instance, the formulation
of a proposed Bill submitted to the Committee by the Association of Muslim
Lawyers ran into the problem that it defined the beliefs to be protected by
reference to a deity but omitted to deal with non-theistic beliefs or those
who reject religious belief[49].
Separate legislation for them cannot be the answer, since the first Bill
could not carry a Statement of Compatibility under s.19 of the Human Rights
Act (if a Government Bill), whilst a Private Member's Bill would run into
major difficulties at the Committee stage for the same reasons. However true
it may be that the Humanists and Atheists are not under attack[50],
they cannot be ignored. There will also be parallels in the future with
doctrines such as Scientology, which has succeeded in some countries in
establishing that it is a religion, whereas in others it has failed.
46. One advantage of any reformulation, however, may be that rights
enshrined in Article 10 of the European Convention could be protected by
borrowing the wording in section 12(4) of the Human Rights Act: "The Court
must have particular regard to the importance of the Convention right to
freedom of expression". Nevertheless, Parliament's task in selecting the
religions, or beliefs rejecting religion, must be fraught with difficulty,
as would be any amending Statutory Instrument.
47. One factor which may be seen as affecting a British court is the
difference in jurisprudence between the Strasbourg court and tribunals
within the UK. In a seminal case concerning the Scotland Act 1998, which
came into force before the Human Rights Acts 1998, the Privy Council had to
consider the constitutionality of a law which required a person to answer a
question whether she had been the driver of the car on the particular
occasion. The point concerned an interpretation of Article 6 of the European
Convention about fair trial. This Convention does not prohibit a requirement
to answer questions which would amount to self-incrimination, but the notion
of fair trial may make this an implied right. Lord Steyn, in his judgement[51],
dealt with "what deference may be accorded to the legislature?" He said:
"Under the [ECHR] system the primary duty is placed on domestic courts to
secure and protect Convention rights. The Function of the European Court of
Human Rights is essential but supervisory. In that capacity it accords to
domestic courts a margin of appreciation, which recognises that national
institutions are in principle better placed than an international court to
evaluate local needs and conditions. That principle is logically not
applicable to domestic courts. On the other hand, national courts may accord
to the decisions of national legislatures some deference where the context
allows it". He then referred to R v. DPP ex parte Kebilene [2000] AC
326, and two articles in legal publications, where the quotation from the
second said: "Just as there are circumstances in which an international
court will recognise that national institutions are better placed to assess
the needs of society, and to make difficult choices between competing
considerations, so national courts will accept that there are some
circumstances in which the legislature and the executive are better able to
perform these functions"[52].
This is one of the problems which must be faced in any future prosecution
for blasphemy. The impact of Article 10.2 will be similar to its effect in
an offence of hate crime, as to which see Chapter 8.
48. In relation to blasphemy, however, the question
how this
evolving domestic doctrine may affect the constraints imposed by Article
10.2 of the European Convention upon the limits, one way or another, of
freedom of expression has still to be tested. In 1994[53]
the Strasbourg court had to rule upon a prosecution under s.188 of the
Austrian Penal Code, where the prosecutor argued that the film in question
aroused justified indignation and disparaged an object of veneration of a
church or religious community. The conviction was upheld on appeal. It then
went to the European Court of Human Rights, which held that restricting
freedom of expression was a legitimate aim for the protection of the rights
of others under Article 10.2. As Professor Feldman says in his book "Civil
Liberties and Human Rights" (Chapter 16): "this prevents the Court from
exercising much control over the solutions adopted by a public authority
faced by [these] kinds of arguments. Indeed, the Court's approach is
potentially dangerous as it could sometimes serve simply to legitimate,
rather than test rigorously, a regime of stringent censorship". But a
British court would have to come to its own decision within stricter
boundaries. The question would not, of course, arise if the common law
offences were abolished. A replacement Act would have to be drafted so as to
give effect to the principle set out in Otto-Preminger Institut,
which is worth quoting at length:
"Those who choose to exercise the freedom to manifest their religion,
irrespective of whether they do so as members of a religious majority or
minority, cannot reasonably expect to be exempt from all criticism. They
must tolerate and accept the denial by others of their religious beliefs and
even the propagation by others of doctrines hostile to their faith. However,
the manner in which religious beliefs and doctrines are opposed or denied is
a matter which may engage the responsibility of the state, notably in its
responsibility to ensure the peaceful enjoyment of the right guaranteed
under Article 9 to the holders of those beliefs and doctrines. Indeed, in
extreme cases the effect of particular methods of opposing or denying
religious beliefs can be such as to inhibit those who hold such beliefs from
exercising their freedom to hold and express them. In the Kokkinakis
judgement[54]
the Court held, in the context of Article 9, that a state may legitimately
consider it necessary to take measures aimed at repressing certain forms of
conduct, including the imparting of information and ideas, judged
incompatible with the respect for the freedom of thought, conscience and
religion of others … The respect for the religious feelings of believers as
guaranteed by Article 9 can legitimately be thought to have been violated by
the provocative portrayal of objects of religious veneration; and such
portrayals can be regarded as malicious violation of the spirit of
tolerance, which must also be a feature of democratic society. The
Convention is to be read as a whole and therefore the interpretation and
application of Article 10 in the present case must be in harmony with the
logic of the Convention...".
49. The British Humanist Association has outlined[55]
an alternative route. This would focus on the use of language or behaviour
that, in the judgement of a reasonable person, was in all the circumstances
likely to stir up hatred of a group of persons characterised by their
religion or belief, or to inhibit the exercise of their rights under Article
9 of the European Convention. There ought then to be a defence of
justification. This seems to be a hybrid between blasphemy (at least in the
Indian context—see para 51 below) and incitement. So far as the incitement
element is concerned, the formulation does not appear to present technical
problems any more complex than those they would face under, for example, the
Obscene Publications Act 1959. Juries deal with these successfully, and
benefit from a statutory formula (which a judge is not allowed to embellish
by interpretative directions) capable of being used flexibly as society's
attitude to moral issues of this sort changes or develops.
50. In their evidence to the Committee, the Home Office said that it
does not advocate a definition of "religion"[56];
it would leave it to the Courts. We feel that this evades the issue: laws
that have religious implications should either define or at least describe
what "religion" is. While the higher courts could be expected to deal with
the issue, appeals occur on a haphazard basis and it could take years
before the major faiths, let alone the minor or non-religious, received this
sort of consideration. What appears to have been overlooked is the trial at
first instance, before Magistrates or a jury. Formidable difficulties would
be faced by the Clerk or the Crown Court judge in directing a correct
approach to the decision on status of the religion, as well as the extent,
beyond freedom of expression, of the alleged insult or vilification. What is
more, the verdict would be based on an undisclosable (because by a jury)
finding of fact so that, unless some error of law could be discerned in the
summing up, the higher courts would have difficulty in giving the guidance
which would evidently be desired of them.
51. At one stage in the Committee's deliberations, it seemed promising
to examine the Indian Criminal Code[57]
(which has parallels in Sri Lanka). Both, of course, date from the Imperial
past but are still in use. The attraction of the Indian Code lies, at least
in part, in Lord Macaulay's sponsorship. There are three areas which merit
attention: (i) Part XV, which sets out a catalogue of offences to do with
maliciously outraging the religious feelings of any "class" of Indian
citizens, through a variety of means; (ii) the use of this as one of the
methods of suppressing publications which are held to have that effect
(under ss.99A-D of the Criminal Procedure Code); and (iii) in connection
with electoral campaigns which are founded on such religious divisiveness,
on which there are numerous very recent judicial decisions.
52. It should not be forgotten that between the end of the First World
War and the early 1930s a number of attempts were made in this country to
replace the common law of blasphemy by some adaptation of the Indian Code.
These received no support from the Home Office and came to nothing. The
rationale underlying the Indian laws was neither antipathy to freedom of
speech as such nor the protection of religious freedom, but the maintenance
of public peace and tranquillity in a country where religious passions were
considered to be easily aroused and inflamed. A distinguished Indian
commentator (Soli Sorabjee, the Attorney-General) has recently written[58]
that the British did not want a religious riot on their hands and were not
really concerned about the religious tenets of those who professed them.
However, setting aside the culture gap, there seems little reason why the
text should not form a starting point for a restatement of principles. After
s.295A[59]
was added to the Indian Code in 1927, with its component of deliberate
intent and malice, its provisions were tested against the constitutional
guarantees of freedom of religious belief and of expression and were found
to be compatible[60].
Thus it might be hoped that a formulation could be found which would also
comply with the European Convention. If there is nothing technically wrong
with the law, the problem may be the manner of its enforcement. In India,
the offences have been used to found actions to suppress writings on
political grounds, which are always brought by the Executive. In the UK
every safeguard is in place to prevent politically based prosecutions. Mr
Sorabjee concludes: "experience shows that criminal laws prohibiting hate
speech and expression will encourage intolerance, divisiveness and
unreasonable interference with freedom of expression. Fundamentalist
Christians, religious Muslims and devout Hindus would then seek to invoke
the criminal machinery against each other's religion, tenets or practices.
That is what is increasingly happening today in India. We need not more
repressive laws but more free speech to combat bigotry and to promote
tolerance".
53. The National Secular Society, in a detailed commentary on the Indian
Laws, points out that there is a major difficulty in attempting to protect
people's feelings as opposed to their beliefs. Beliefs are matters of fact,
and were at one time reviewed by the courts under the Test Acts, which then
required that undergraduates at Oxford and Cambridge had to be communicant
members of the Church of England. Feelings, on the other hand, are
subjective. "Given that religion itself is so difficult to define, then
defining hurt to religious feelings is still more demanding"[61].
|
| CHAPTER 10: Conclusions
131. As we have already commented in Chapter 1, the Committee's
appointment had its origins in the Anti-Terrorism, Crime and Security Act
2001, in particular parliament's decision not to agree to a proposed offence
of incitement to religious hatred. Our deliberations have, however, gone
much wider than the merits of such an offence, or even the proposals in the
Religious Offences Bill to repeal a number of old common and statute laws.
They have included consideration of the nature of religion in today's
society and the changes in that society over the last half century, both in
the numbers who follow other than the Christian faith, those who reject
religious belief, and those whose religious faith is usually expressed
privately. The census results show that Christianity, in its many forms, is
still the faith followed by the large majority of the population. But
memberships of other faiths constitute a significant minority, and it is
beyond doubt that Britain's is now a multi-faith society. Intrinsic to our
deliberation was consideration of the question of whether these changes to
society have been reflected in the role played by religion in the
formulation of morals and values and the way these continue to affect
community life, and whether the transition to multi-faith was in effect a
transformation to a secular society.
132. The constitution of the United Kingdom is rooted in
faith—specifically the Christian faith exemplified by the established status
of the Church of England. We did not however see it as our task, in
discharging our remit to "consider" the law on religious offences, to
challenge the constitution or question the Church's part in it, although
there is little doubt that the pre-eminent role enjoyed by the established
church is probably outdated. But our own researches, and the evidence we
heard, reinforce a view that religious belief continues to be a significant
component, or even determinant, of social values, and plays a major role in
the lives of a large number of the population. The United Kingdom is not a
secular state.
133. The question nevertheless arises as to whether the protections
afforded by law to religions and their adherents continue to have relevance
in the 21st century and, if they do, how they might be adapted to
meet the interests of all faiths (and those of no faith), rather than
discriminate in favour of some. We believe there should be a degree of
protection of faith, but there is no consensus among us on the precise form
that it might take. We also agree that in any further legislation the
protection should be equally available to all faiths, through both the civil
and the criminal law.
134. That equality will be reinforced under civil law with the
introduction in December 2003 of the Employment Equality (Religion or
Belief) Regulations, which are drawn from European Council Directive
2000/78/EC. As this report demonstrates, the criminal law is less
comprehensive. The law of blasphemy only provides protection for the Church
of England, although members of other Christian Churches draw comfort from
it. Race relations legislation has the effect of protecting Jews and Sikhs
from incitement to religious hatred, but not Christians, Muslims (at 3%, the
second largest faith community in the population) nor others, because they
are not regarded as coming from a common ethnic origin. The rarely used
Ecclesiastical Courts Jurisdiction Act 1860 can be invoked to provide
protection for properly certified places of worship of all religions, but is
archaic in its construction and carries minimal penalties that cannot be
categorised as having deterrent value. Finally, section 39 of the
Anti-Terrorism etc Act also provides for all religions, but provides a
statutory aggravating factor in sentencing rather than an offence in itself.
135. The starting point for legislation may be the requirement on
Government to enact legislation to implement the draft Council Framework
Decision on Racism and Xenophobia, which would not be confined to incitement
to hatred in the two areas so far selected: race and religion. It is
impossible to forecast how this might be transplanted into UK law, but the
occasion might be ripe to include incitement to hatred across the range of
targets of hate crime, even beyond the list currently under debate in
connection with the Decision, for example the gay community, asylum seekers
or whoever incurs the opprobrium of some branches of public opinion.
136. Since this would take the form of primary legislation, the
opportunity could be seized to take account of the other two matters which
have preoccupied the Committee: that is, the two aspects whereby
Parliamentary "statements" could be made about matters of faith itself as
opposed to the protection of those who profess the faiths. What is to happen
to the common law offences of blasphemy may not depend upon legislation but
upon the contemporary climate, both social and legal, which could lead to a
decision to take no action at all. Whether places of worship, of all faiths,
need a modern protection in criminal law is something which has become
increasingly marginal. Other offences cover the majority of incidents which
are seen to be offensive, but there remains a modest area still only covered
by the Ecclesiastical Courts Jurisdiction Act 1860. Evidently this Act is
not obsolete.
137. We support the protection of everyone's right to freedom of
thought, conscience and religion, and the freedom to manifest one's religion
or beliefs, under Article 9 of the European Convention on Human Rights, and
we consider that the ordinary law gives that protection. We agree however
that there is a gap in the law as it stands. We have examined whether there
needs to be any additional protection either for believers as a class, or
for the objects connected with their beliefs. There is no consensus as to
whether such protections should exist and, if so, the precise forms they
should take, but we do agree that the civil and criminal law should afford
the same protection to people of all faiths, and of none.
138. These are matters of profound concern in the community, or
communities. There exists a series of subjects on which Parliament alone can
reach decision: the debate will be intense. What the proceedings of the
Select Committee have made clear is that it is perfectly possible to conduct
this debate, among witnesses and members of all persuasions, with equanimity
and understanding. There is recognition that the differences need to be
resolved, and there is much good will on which to draw in so doing. |
| Submission from the British Board of Film Classification
I have been asked to provide your Committee with a brief note about
past instances where the BBFC has had cause to intervene with video works on
the basis of potentially blasphemous content. I hope the following may be
useful.
The BBFC is the authority designated by Parliament under the Video
Recordings Act 1984 to classify video works for distribution in the UK. In
making a decision as to the suitability of a video work for classification
the Board is required to consider, amongst other factors, whether or not the
work in question is likely to be found illegal under UK law. Along with
other relevant legislation (including the Obscene Publications Act, the
Protection of Children Act, the Cinematograph Films (Animals) Act),
blasphemy is one of the issues the Board assesses when making a
classification decision. In fact since my arrival as Director of the board
in January 1999 there have been no cases in which the Board has sought to
intervene with a video work on these grounds. However, our records show that
since the introduction of the Video Recordings Act in 1984, the Board has
cut three works and rejected one on the grounds of potential blasphemy.
Cuts were made in the following cases:
1. In 1987 a cartoon video (The Big Bang) was cut by 10 seconds
to remove a sequence in which an animated version of God appeared to be
having sex and then uttered an expletive.
2. In 1988 a low budget horror film (Catacombs) received 12
seconds of cuts to remove a sequence in which a priest is punished for his
gluttony by Christ. In the sequence removed by the Board, a statue of Christ
came alive and stabbed the priest to death with a nail he had pulled from
his ankle.
3. In 1990 an underground movie by cult American film maker John
Waters (Multiple Maniacs) was cut by 4 minutes 53 seconds to remove
an entire sequence set in a church in which a male transvestite buggered
himself with a rosary. The shots of the transvestite were intercut with
footage of Christ moving through the Stations of the Cross.
I enclose extracts from the relevant BBFC Annual Reports detailing
these decisions.
Additionally, the Board refused in 1989 a video classification
altogether for a 19 minute short film entitled Visions of Ecstasy. In
this film, which was described by its maker as a meditation on the visions
of St Teresa of Avila, there was a lengthy sequence in which a woman dressed
as a nun (representing St Teresa) straddled the figure of Christ on the
Cross. The woman was shown kissing His wounds, lips, face and body, and
moving in a manner which indicated sexual intercourse.
In refusing the video a classification certificate, the BBFC's Director
James Ferman commented to the distributor:
"The video work submitted by you depicts the mingling of religious
ecstasy and sexual passion, a matter which may be of legitimate concern to
the artist. It becomes subject to the law of blasphemy, however, if the
manner of its presentation is bound to give rise to outrage at the
unacceptable treatment of a sacred subject. Because the wounded body of the
crucified Christ is presented solely as the focus of, and at certain moments
a participant in, the erotic desire of St Teresa, with no attempt to explore
the meaning of the imagery beyond engaging the viewer in an erotic
experience, it is the Board's view, and that of its legal advisers, that a
reasonable jury properly directed would find that the work infringes the
criminal law of blasphemy."
At the time the BBFC sought an opinion from Richard Du Cann QC, who
confirmed the Board's view that the work's treatment of its theme was "not
suitable for classification on the grounds that it infringes the criminal
law of blasphemy. The foundation for my view is that in my opinion a
reasonable jury properly directed on the law would convict". The blasphemy
law was understood by the BBFC at the time in the following terms, as
expressed in the House of Lords decision in R v Lemon (1979):
"Every publication is said to be blasphemous which contains any
contemptuous, reviling, scurrilous or ludicrous matter relating to God,
Jesus Christ, or the Bible, or the formularies of the Church of England as
by law established. It is not blasphemous to speak or publish opinions
hostile to the Christian religion, or to deny the existence of God, if the
publication is couched in decent and temperate language. The test to be
applied is as to the manner in which the doctrines are advocated and not to
the substance of the doctrines themselves."
The Board's decision was subsequently appealed against to the
independent Video Appeals Committee. This Committee was constituted under
Section 4(3) of the Video Recordings Act so that distributors could
challenge what they regarded as unduly censorious decisions by the Board. In
the case of Visions of Ecstasy, the Committee found in favour of the
Board and the Appeal was therefore dismissed.
The film's maker and distributor then took the unusual step of
appealing against the ban to the European Court of Human Rights. The court,
however, decided that the reasons given for the ban by the Board and the
Video Appeals Committee were relevant and sufficient and the decision was
not "arbitrary or excessive". The Court noted in their judgement that:
"Freedom of expression constitutes one of the essential foundations of
a democratic society. As paragraph 2 of Article 10 expressly recognises,
however, the exercise of that freedom carries with it duties and
responsibilities. Amongst them, in the context of religious beliefs, may
legitimately be included a duty to avoid as far as possible an expression
that is, in regard to objects of veneration, gratuitously offensive to
others and profanatory".
The court therefore recognised that the refusal to grant
Visions of
Ecstasy a certificate was intended to protect the rights of others in
line with the duty in Article 10. In concluding in favour of the BBFC, the
Court drew in particular upon the precedent established by the case of Otto-Preminger-Institut v Austria (1994) "where the Court had accepted
that the respect for the religious feelings of believers can move a State
legitimately to restrict the publication of provocative portrayals of
objects of religious veneration". The Otto-Preminger case involved a private
body which operated a cinema in Innsbruck which was open only to limited
membership. It wanted to show the film Council in Heaven, restricting
it to members only aged 17 upwards. Its advertisements for the film made the
offensive religious content apparent. The European Court, however, found the
showing to be a public offence which infringed the "rights of others" under
Article 10—even though it was accepted that Christians would be unlikely to
choose to see the film.
As a result, Visions of Ecstasy remains banned from distribution
in the UK on the grounds of blasphemy.
For the complete BBFC submission please see
www.parliament.the-stationery-office.co.uk/pa/ld200203/ldselect/ldrelof/95/95w07.htm |
|
