Why Britain needs a religious hatred law

bnp-islam-posterWhy Britain needs a religious hatred law

By Murad Qureshi

Morning Star, 21 November 2005

This month anti-racists celebrated the fortieth anniversary of the introduction of the first race relations legislation in Britain.

Among its other provisions, the ground-breaking 1965 Race Relations Act made it an offence to use threatening, abusive or insulting words with intent to stir up racial hatred. However, while the Act marked an important first step in providing legal protection to minority communities from racism, it proved difficult to secure convictions for this particular offence.

In 1968 four members of a far-right organisation calling itself the Racial Preservation Society were prosecuted under the Act after publishing an anti-immigration newsletter in which they warned against “racial mixing” and accused politicians of encouraging “racial levelling.”

Even though the material plainly had the effect of inciting racial hatred, the prosecution was unable to prove that this was what the defendants intended – as was required by the 1965 Act. The defendants claimed that their intention was not to incite hatred but merely to educate the public about the consequences of immigration. As a result, they were acquitted.

In his inquiry into the death of Kevin Gately at an anti-fascist protest in London’s Red Lion Square in 1974, Lord Scarman argued that the racial hatred law needed “radical amendment to make it an effective sanction, particularly in relation to its formulation of the intent to be proved before an offence can be established.”

Subsequent legislation amended the law along the lines proposed by Lord Scarman. Part 3 of the 1986 Public Order Act improves on the original 1965 law by criminalising words and actions that have, or are likely to have, the objective effect of stirring up racial hatred. The 1986 Act allows the defence that the incitement of hatred was not intended, but, rather than the prosecution being required to prove intent, the onus is now on the defendant to demonstrate the absence of intent.

This is hardly a draconian law and, under the 1986 Act, it is still far from easy to mount a successful prosecution for inciting racial hatred. Earlier this year, the Attorney-General stated that, since 1987, when the Act came into force, only 65 people had been prosecuted for inciting racial hatred, resulting in 44 convictions. Indeed, the Commission for Racial Equality has complained that “the evidential test under the Public Order Act is extremely difficult to satisfy.”

A more fundamental weakness in the existing legislation, however, is that Jews and Sikhs are protected against incitement to racial hatred as members of monoethnic religions while multi-ethnic faith groups such as Muslims and Hindus are not.

The CRE has recounted how in May 2004 it failed to persuade the West Yorkshire police to prosecute the fascist British National Party for publishing a leaflet headed “Islam: Intolerance, Slaughter, Looting, Arson, Molestation of women.” The police wrote: “The stirring up of fear and hatred against Muslims is a likely result of its publication given the strength of the language used. Muslims are not, however, a racial group and the hatred stirred up could not therefore be defined as racial hatred.”

In order to close this loophole in the law, which allows racists the freedom to direct against some minority communities the sort of hate propaganda that would result in prosecution if it were directed against others, the government has introduced the Racial and Religious Hatred Bill. This Bill extends the present racial hatred law to cover religious hatred. Where Part 3 of the 1986 Public Order Act refers to incitement to racial hatred, the Bill does little more than insert the words “and religious.”

The campaign that has been launched against this Bill – by an alliance of militant atheists, evangelical Christians and second-rate comedians – has given a completely distorted picture of the Bill, claiming that it represents a terrible threat to free speech. Exactly the same argument was used by opponents of the original Race Relations Act forty years ago and has been heard in response to every proposal to extend it since.

The argument is nonsense. The present law did not result in the prosecution of the Birmingham Repertory Theatre for staging the play Behzti, even though many Sikhs, who are protected against incitement to hatred under that law, found the play extremely offensive.

For the Attorney-General to agree to a prosecution, it is necessary that a theatrical production, or a book, or a “joke” should incite racial hatred. Words and behaviour that are merely insulting, abusive or offensive to ethnic groups are not against the law. If they were, Bernard Manning would have been locked up long ago.

Exactly the same position would apply under the new law banning incitement to religious hatred. Only material stirring up hatred would be criminalised, not words or behaviour that insulted, ridiculed or offended faith communities.

In October, the House of Lords passed an amendment drawn up by Lib Dem peer Lord Lester which, if accepted by the government, would have the effect of wrecking this important Bill. Instead of extending Part 3 of the Public Order Act to cover both racial and religious hatred, Lord Lester and his supporters propose to introduce a new Part 3A dealing exclusively with religious hatred.

This new offence would remove the test of objective effect and require the prosecution to prove subjective intention – the same requirement that made it so difficult to secure convictions for inciting racial hatred under the 1965 Race Relations Act.

Worse still, under the new Part 3A only words or behaviour that are “threatening” would be criminalised, and stirring up hatred by means of abuse and insults would be entirely legal. It is not difficult to see what opportunities this would offer to racists and fascists to avoid criminal charges. The kind of anti-Islam BNP leaflet seen in West Yorkshire would probably still be immune from prosecution because it contains no explicit threats of violence.

In other words, the Lester amendment would leave us in much the same unjust and discriminatory situation we have at present. Some minority communities, in particular Jews and Sikhs, would enjoy relatively strong protection against incitement to hatred while others, most notably Muslims and Hindus, would have almost none at all. This is clearly unacceptable.

Speaking in the House of Lords on November 8, Baroness Scotland stated that the government would consider making concessions to the Bill’s opponents with the aim of achieving a consensus. Anti-racists should call on the government to stand by the main principles of its Bill and refuse to allow the opposition in the Lords to sabotage a vital piece of legislation that will provide all minority communities with the protection they deserve.

Councillor Murad Qureshi is a Labour London Assembly member