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Monday, June 20, 2005

Over-long post

This Religious Hatred Bill thingy. Second reading in the Commons tomorrow, and I’ve finally got round to paying attention to it. I know it only extends to England and Wales, but it's an interesting business.

The Bill can be found here; which is not very helpful, as it is entirely composed of amendments to the Public Order Act 1986. I have yet to find a full text of this online (HMSO online legislation only goes back to 1987), but the Barnabas Fund (a Christian charity) have put the amended version of the relevant sections here.

So what do people think about this? I must admit that what puzzles me is why incitement to a specific form of hatred is a separate offence at all. Shouldn't it be unlawful to incite hatred, full stop? The law could include clarificatory notes that race, gender, religion, whatever, is no grounds for hatred, though it should be blindingly obvious; I appreciate that the problem of racism has not been recognised until relatively recently, but it still seems odd, and possibly even counter-productive, to suggest that racist hatred is fundamentally different from any other kind. Laws concerning discrimination are another matter, since discrimination is something which is trickier to define, but hatred, if not a technical term, is readily understandable. (I think.)

The Bill itself strikes me as having two problems:

i) It seems to consider 'insulting' speech and material to be on the same par as 'threatening' and 'abusive' stuff. The ‘insulting’ part of the clauses would seem more relevant to racially-aggravated offences, where there is obviously no such thing as sober criticism of a racial group! Now clearly insulting people is not on. Insulting people is by no means, however, necessarily the same as stirring up hatred against them (or indeed hating them oneself); and, of course, one man's criticism is another man's insult. This latter is further problematic because:

ii) As far as I can see, the Bill is (at least potentially) self-contradictory. To take the first category of behaviour covered, 'Use of words or behaviour or display of written material'. (This would be section 18 of Pt III of an amended Public Order Act 1986):

(1) A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—
(a) he intends thereby to stir up racial or religious hatred, or
(b) having regard to all the circumstances the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they are (or it is) likely to stir up racial or religious hatred.

However, despite 1(b):

(5) A person who is not shown to have intended to stir up racial or religious hatred is not guilty of an offence under this section if he did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting.

OK, so innocent intent and ignorance cancel out effect. But what about the very common situation where one knows people may feel insulted even though objectively one has not insulted them or intended to? If I say atheists or Muslims or liberals believe falsehoods, I know perfectly well that some people in these groups will feel that I have insulted their intelligence or sincerity, even though I have not. Would I be considered guilty under this Bill? The government’s explanatory notes state that both insulting content and incitement of hatred are required to establish guilt, but the Bill itself does not make this relationship between insult and incitement at all clear. (This presumably arises because the 'religious hatred' matter is being piggy-backed onto the 'racial hatred' matter.)

Moreover, I also know perfectly well that there are eejits who think that the falsehood of Islam (e.g.) does make it all right to excoriate, hate or attack Muslims. Similarly, if I repeat the Church's teaching on homosexuality, I know perfectly well that there are other eejits (or possibly even the same ones) who, apparently unable to distinguish between temptation and sin, sin and sinner, will then feel justified in going out waving signs saying 'God hates fags.' I am not aware that whatever I have said is or might be threatening, abusive or insulting; indeed, am positively aware that it is not. But I do know that some people may mistakenly read it as such. I have not endorsed or encouraged hatred of anyone, but am I legally responsible for some people's stupidity? Under this Bill I have a horrible suspicion that someone could make a case that I am. In short, the problem may lie in the need for complete ignorance of possible readers and readings of one's words - in addition to innocent intent - which is apparently required as a defence under this Bill. This would seem to be the place whence the Bill might turn out to cover all the things the government says it doesn't.

This government research paper has an interesting note on Scots law at the end - it sounds like current provisions in Scotland are quite sufficient, but I don't know the details.