Incitement to Religious Hatred: All Talk and No Substance?

Date01 January 2007
DOIhttp://doi.org/10.1111/j.1468-2230.2006.00627.x
AuthorKay Goodall
Publication Date01 January 2007
LEGISLATION
Incitement to Religious Hatred: All Talk and No
Substance?
Kay Goodall
n
The Racial and Religious Hatred Act 2006 has a frenetic history. It is the culmination of
six attempts in Parliament in the last twelve years to make incitement to religious hatred
unlawful.
1
Each attempthas met with i ntense criticism. But nowthat the legislation is here, what
may it achieve?
THE BACKGROUNDTO THE LEGISLATION
The ¢rst version of the Racial and Religious Hatred Bill
2
aimed to revise
the entire existing o¡ence of incitement to racial hatred, adding hatred of
others on the grounds of their religious beliefs.
3
Many thought th is too wide.
Lord Lester complained that the provisions were ‘using a steamroller to crack
anut,
4
Geo¡rey Robertson QC described them as ‘unnecessary and clumsily
framed’,
5
and the Telegraph declared: now you face jail for being nasty to
Satanists’.
6
It was indeed wide. Incitement was to be by words, behaviour, or material
whichwere ‘threatening, abusive or insulting’. Intentionto stir up religioushatred
was not necessary.The o¡ence would be committed if the words, behaviour or
materialwere likely to be seen or heard by any person in whom they were likely
to stir up such hatred.
7
n
Universityof Glasgow.Thanks to Francis Bennion, AdamTomkins,Colin Gavaghan, Anna Burnside
and ATHSmith for their helpfulcomments.The opi nions expressed here, and of course any mistakes,
are mine alone.
1 Lord Lester proposed two amendments to the Criminal Justice and Public Order Bill, June 1994
and the (Lord) Bishop of Oxfordmoved an amendment in July1994.Lord Aveburyi ntroduceda
Religious O¡ences Bill in 2001. The government has tried three times: in the Anti-Terrorism,
Crime and Security Bill in 2001; in the Serious Organised Crime and Police Bill, introduced in
November2004 and (successfully) in the Racial and Religious HatredBil l,i ntroducedJune 2005.
2 Bill 11,54/1;i ntroduced 9 June 2005.
3 It also proposed minor changes in the wording of the existing o¡ence: I will not discuss those
here.
4 Anthony Lester in Lisa Appignanensi (ed.) Free Expression is No O¡ence(London: Penguin, 2005)
234. See also the highly critical comments later made by FAR Bennion,‘in‘Gilding the Lily on
ReligiousHatred’ (2005) 14(1)The CommonwealthLawyer 35.
5 Quoted in Ruth Gledhill et al.TheTimesFebruary 7 2005.
6 Headline over report by Joshua Rozenberg, Legal Editor,The Telegraph10 June 2005.
7 Schedule, paragraphs 5^11, Bill 11 54/1, which would have been inserted as sections 18^23 of the
198 6 Act.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(1) MLR 89^113
During the debate, the Lords narrowed the o¡ence in several ways, of which
three in particular ^ the ‘Lester’ amendments ^ are signi¢cant. First, the Lords
introduced a saving for freedom of expression, discussed later. Second, they
removed the‘likely to’test, so the o¡ence could be committed only if it could be
shown that the person had intended to stir up hatred. Third, they altered the mode
of incitement from abuse, insult or threat to simply threat.
In the Commons at third reading, the government tried to replace the ‘likely to’
element with a new test of subjective recklessness. They were spectacularly defeated
and the Lester amendments stayed.
8
The media reported a mood of relief:
9
creating
an o¡ence of incitement to religious hatred was seen as unpopular and ill iberal
10
and
many argued that the Lester amendments created a sharper, more e¡ective piece of
legislation which had less impact on freedom of expression.Were they right? This
article will consider the many questions which the new Part 3A raises. It will con-
clude that an o¡ence con ¢ned to requiring proof of intention si mply will not work.
THE NEW OFFENCE
The Act creates a new Part 3A of the Public Order Act 1986 for England and
Wa le s .
11
Like the law on racial hatred,
12
Part 3A casts a wide net. It covers speech
and actions. It includes displaying material, publishing it and distributing it, and
sometimes even possessing it. Those who present or direct a play, or distribute,
show or play a recording, or include a programme in a programme serv ice,
13
may all be caught within the o¡ence.
The prosecution must show that the words, behaviour or material were threa-
tening, and that the person intended to stir up religious hatred.‘Religious hatred’
is de¢ned in section 29A as ‘hatred against a group of persons de¢ned by reference
to religious bel ief or lack of religious belief ’.
The o¡ence need not be committed in public. It can take place in private. A
person maycommit the o¡ence in aprivate dwelling by using threatening words
or behaviour or displaying (with the requisite intent) any written materialwhich
is threatening, if he has any reason to believe that this might be seen or heard by
people outside.Woe betide those who live in moderntenements? The o¡encecan
also be committed in an inchoate form, such as storing material with the inten-
tion of broadcasting it.
Any o¡ence which includes written and broadcast material will extend beyond
territorial border s. Part 3A will mostly not apply to Scotland, b ut anyone being
8 HC Deb 31January 200 6vol 442 cols 235^244. This wason lythe seco nddefeat su¡ered by new
Labour in the House of Commons since 1997.
9 David CharterTheTimes 1February 200 6,Michael White;TaniaBraniganThe Guardian1 February
2006, Ben Russell; James Lyons; Brendan Carlin and Neil Tweedie The Telegraph 1 February
2006. Similar views were presented in the red-toppress.
10 Such views were expressed throughout the parliamentary debates: see Jonathan Petre The
Telegraph,31 January 200 6, LeaderThe GuardianJanuary 31 2006, MatthewTempest; PollyToynbee
TheGuardian January 312006 as examplesof the last comments before the ¢nal Commons debate.
11 Racial and Religious Hatred Act 2006 s 4.
12 Which remains unchanged.
13 This will include a cable ‘programme service’:for a de¢nition, see the Broadcasting Act 1990s 201.
The Racial and Religious HatredAct 2006
90 r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(1) MLR 89^113

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