 “I SEE the Home Secretary scratching his head,” said Boris Johnson (C,
Henley) in the Commons on Tuesday night. Well may Charles Clarke have
scratched his head. The case he was making was being blown apart. The
Government’s Racial and Religious Hatred Bill was facing its second reading.
About an hour later, and as is the way with government measures which have
been comprehensively demolished in debate, this one went on to be passed by
a comfortable majority.
The easy passage of a battered and derided bill was news. The battering and
derision was not. Accordingly the newspapers reported a “victory” for Mr
Clarke, while the debate itself received scant attention. It was a fine
debate, during which the Home Secretary was reduced to repeating bald
assertions of obvious nonsense.
MPs were incredulous at his flat insistence that the Bible and the Koran
were incapable of containing words calculated to incite religious hatred. To
the Reverend Ian Paisley (DUP, N Antrim), Mr Clarke replied: Statements
in the Bible, the Book of Common Prayer and other faith books — the Koran,
for instance — are precisely that. They are not incitements to hatred.
This prompted Boris Johnson to offer the following passages from the Koran:
As for the unbelievers, for them garments of fire shall be cut and there
shall be poured over their heads boiling water whereby whatever is in their
bowels and skins shall be dissolved and they will be punished with hooked
iron rods.
Meanwhile, Edward Leigh (C, Gainsborough) had turned his attention to the
Bible, where Jesus says: Woe to you, teachers of the law and Pharisees,
you hypocrites! You are like whitewashed tombs, which look beautiful on the
outside but on the inside are full of dead men’s bones and everything
unclean. . . . You snakes! You brood of vipers! How will you escape being
condemned to Hell?
According to the Home Secretary these are not the kind of statement that
could encourage hatred. There is a growing Alice-in-Wonderland feeling about
Mr Clarke’s pronouncements. Moments earlier he had assured MPs that the mess
that comparable legislation in Australia has got itself into could be
avoided here. How? Well, Mr Clarke said, the wording was different: the
State of Victoria outlaws language which incites “serious contempt for, or
revulsion or severe ridicule of” other people on the grounds of their
religion. That, said Mr Clarke, is massively wider than what we are
proposing in the Bill.
It isn’t. It just isn’t. “Hatred” (the word Mr Clarke’s Bill uses) is
another word for serious contempt, revulsion or severe ridicule. Like Humpty
Dumpty, our Home Secretary seems to think words mean what he chooses them to
mean.
There are four things you need to know about the Racial and Religious Hatred
Bill, after Second Reading.
First, there really has been a loophole in existing protections which may
not cover troublemakers who use words like “Muslim” as synomyns for “Asian”;
but this could easily be dealt with through the small amendment proposed by
Lord Lester of Herne Hill, extending the existing law to cover those who use
religion as a proxy for race.
Secondly, the reason the Government blocks its ears to Lord Lester’s modest
proposal is that ministers were never much interested in what their new law
would do; they are interested in how it will look, especially to Muslims in
marginal constituencies. As Graham Allen (Lab, Nottingham N) pointed out,
the measure is arousing “false expectations”. Some Muslims have been
encouraged to think the law will protect the Prophet Muhammad from insult.
They should be told that Mr Clarke is now insisting it would not.
Thirdly, the Government’s case for this measure has been pulled to pieces,
and the Government knows it. The prime perpetrators of religious hatred are
religions. You can protect a particular faith by law but you cannot protect
Faith by law, because as purveyors of Eternal Life, faiths are in
competition.
Fourthly, that in despair the Home Office has now retreated to that last
resort of a beleaguered minister: the twin assertions that the measure was
only ever meant to “send out a message” and that actual prosecutions will be
exceptional and few.
The Home Secretary said on Tuesday that even if the police and the Crown
Prosecution Service agree to proceed with a complaint, the case must be
considered by the Attorney-General, who must consent to its continuation.
This is an implicit admission that the Home Office’s legal draftsmen have
failed to capture the offence in words which distinguish between what should
and should not be prosecuted. How could you, while (in Boris Johnson’s
phrase) eliding two notoriously foggy concepts, religion and hate, into a
great cloud of muddle and misunderstanding?
In a series of excellent speeches and interventions, Dominic Grieve and
Alistair Carmichael (Conservative and Liberal Democrat spokesmen,
respectively) sounded a warning about this filling of a legal vacuum by
expanding the office of Attorney-General.
The whole point of the rule of law is the certainty it gives the citizen.
There is no greater injustice than for a citizen to be unable to determine
what legal consequences would flow from an action contemplated. The bill,
which passed its Second Reading last week, could be used to criminalise
great swaths of speech and literature, ancient and modern. This will not
happen, but to behave as Mr Clarke is doing is tantamount to empowering the
Attorney-General to take such action as he sees fit to prevent or punish
such speech or writing as seem to him to encourage religious hatred.
Fine. But if we trust his judgment why not let him ban or punish any
publication or speech — religious or otherwise — that fans hatred? It is a
perfectly serviceable way of governing, to appoint a range of czars, but it
has not been the British way. Similar anxieties should be aroused by the
antisocial behaviour legislation, which seems to give remarkable latitude to
a range of officials who have in common only that they are not judges or
juries.
These latter become rubber stamps in a process whose intrinsic weakness is
that the offence is so loosely described that a conviction is easy to
secure; the real power has therefore passed into the hands of those who
decide whether to initiate a prosecution. The logical conclusion of this
trend would be to make it an offence to breathe, but leave it to the
Attorney-General to decide which prosecutions would be in the public
interest.
As Alistair Carmichael put it: It is not the job of a Law Officer to
establish boundaries of public policy in areas such as this. The question of
what constitutes legitimate religious comment or incitement to religious
hatred is surely one for which this place should be responsible; a Law
Officer should not be required to adjudicate on it.
Dominic Grieve added that nothing can stop individuals trying to initiate
prosecutions, or the headlines and sense of injustice when they fail.
Some legislation has to be a little loosely drawn but it is always a pity
when parliament creates a thousand apparent offences of which only a handful
were ever seriously intended to go to court. Only overriding need can
justify that. None has been established. Ministers have yet to describe a
single real example of behaviour that this measure would and should have
stopped.
The Bill is a manifesto commitment whose purposes the House of Lords may
feel they have no business thwarting. But this measure, in this form and
these words, fails to achieve those purposes in a proper manner. It is the
business of the Lords to address themselves to that.
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