From race to religion: the next deterrent law?

Geoffrey Bindman
18 August 2004

Criminalising hate-speech is not new in Britain. Incitement to racial hatred became a crime in 1965 in the first Race Relations Act (followed by a second act in 1976, and subsequent amendments); with some modifications it is now part of the Public Order Act (1976). Discriminating on religious grounds in employment has been actionable as a civil wrong in the employment tribunals since December 2003. Extending the crime to cover religious hatred, as the British government proposes, would not therefore be the dramatic departure implied in the openDemocracy debate between Julian Baggini and Nick Cohen.

Geoffrey Bindman is responding to the openDemocracy debate between Julian Baggini and Nick Cohen: “Should ‘religious hatred’ be illegal?” (August 2004)

During a decade as legal adviser to the Commission for Racial Equality, I was involved in a case in 1982-83 which supported a discrimination claim on behalf of a 13 year-old Sikh boy, Gurinder Singh Mandla. The headmaster of his private school refused to allow him on the premises wearing a turban, on the grounds that all boys were obliged to wear the regulation school cap. Thus, a child was effectively denied the education his parents (wisely or not) had chosen for him.

It was a blatant act of discrimination in clear breach of the Race Relations Act but for one question: were Sikhs a group identifiable by “colour, race, or ethnic or national origins” – the definition of those protected by the act? Some argued that Sikhs were purely a religious group; others pointed out that Sikhism originated in a particular place and that most Sikhs could trace their ancestry to that area, which made them a racial group – even if others might subsequently have moved to the area from elsewhere and become Sikhs.

Gurinder’s case failed in the county court and on an appeal to the Court of Appeal, where Lord Denning pointed out that there was nothing illegal about discriminating on religious grounds – against Roman Catholics, for example. He had no doubt that by “ethnic origins” parliament had in mind primarily Jews. He went on to talk of Jews in a way I found upsetting. I got up from my lawyer’s seat and walked out in protest. It seemed ludicrous then, as it would now, to protect Jews from discrimination but not Sikhs. The latter could wear turbans while driving buses, or riding motorcycles, or even sitting as judges. Why not in school?

Gurinder’s further appeal to the House of Lords fortunately succeeded but the decision was very close. The judges realised that the notion of “ethnic origins” did not have the biological connotation which Denning ascribed to it but had more to do with the notion of a longstanding community. Lord Fraser listed a number of characteristics which he thought identified an ethnic group: a shared history, a cultural tradition, a common geographical origin, a common language, literature and religion, and – perhaps the most important – being a minority or group within a larger community.

By including Sikhs as an ethnic group the courts did not solve the problem for other groups. Later cases brought by Muslims and Rastafarians failed the Fraser test. Gypsies (Romany) passed it.

A question of definition

The proposed new law of David Blunkett, Britain’s Home Secretary, is about incitement to religious hatred rather than religious discrimination, but the issue of legal definition is the same. Blunkett wants incitement to religious hatred to be a criminal offence, as incitement to racial hatred – that is, inciting hatred of those defined by “colour, race, nationality or racial or ethnic origins” – already is.

One argument in favour of the existing ban on racial discrimination and incitement but refusing its extension to religion is that while “race” is not chosen or changeable, religion is optional: if you don’t want to face the consequences you simply change your religion. But this misconceives the mischief the law is aimed at. It is not about religious practices but about identification with a community. In Northern Ireland, religious discrimination and incitement have long been outlawed. It could be argued that Catholics and Protestants are ethnic groups on the Fraser test, but why trouble to define them so when they can be unarguably identified as religious?

Nick Cohen raises proper questions about the risk that outlawing religious incitement might stifle legitimate criticism. Julian Baggini is right that there is a clear difference between inciting hatred of individuals and hating a belief system or specific practices. The distinction may be harder to draw in the case of religion than of race but in at least one case charges of racial incitement have been successfully challenged on this basis.

In 1968, four members of the Racial Preservation Society (RPS) were tried for incitement to racial hatred in having distributed copies of the society’s Southern News in East Grinstead, Sussex. The content was essentially an attack on immigration, on the dangers of “racial mixing”, and on those politicians who favoured so-called “racial levelling”. There were also pseudo-scientific claims about genetic differences between black and white people. The defendants were all acquitted, clearly because they were perceived as merely expressing opinions, however offensive and irrational these might be.

Such views as those of the RPS clearly could stir up hatred, even though expressed moderately, and this legal precedent sent the unsatisfactory message that racial incitement is permissible if inflammatory language is not used. Yet violent language remains a big part of the problem; it causes more offence than non-violent abuse and is more likely to lead to actual, physical violence. That is a powerful reason for curbing hate speech.

Also on openDemocracy, Geoffrey Bindman examines the consequences of the British government’s post-9/11 laws in “Civil liberties and the ‘war on terror’” (May 2004)

A law worth having

Unlike most other crimes, prosecutions for incitement to racial hatred can only be brought by the attorney-general, the British government’s most senior legal adviser, or with his consent. I dislike the injection of a political element into the decision to prosecute; but if this were applied equally to religious incitement it would at least give some reassurance to those (like Nick Cohen) who fear that free speech is endangered by David Blunkett’s proposals.

The use of the power to prosecute for incitement to racial hatred since 1965 has been sparse. Most attorney-generals have been over-cautious and too worried about creating martyrs. In its early days the law was heavily criticised by anti-racists because it was used more frequently against members of the minorities it was designed to protect than against those who vilified them. More recently, however, there have been successful prosecutions against the neo-Nazis of the British National Party.

The practical problem targeted by the proposed law against incitement to religious hatred is that Muslims are harassed and put in fear for no other reason than their religious identification. A law which deters such aggressive behaviour and punishes the worst offenders is worth having. The risk that it may produce an occasional difficulty of legal interpretation at the margin is an acceptable price to pay for it. In short, I agree with Julian Baggini.

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