28.09.2005
Censorship by stealth
The government's Racial and Religious Hatred Bill passed the House of Commons when it was read for the third time on July 11 by 301 to 229 votes. Respect MP George Galloway voted for it (Hansard July 11). The bill has been read for the first time (a formality) in the House of Lords and its second reading there (the main debate) is timetabled for October 11. It will then go to committee in the Lords (where amendments may be made), followed by a 'report stage' in the full chamber. If the House of Lords makes amendments, it will then have to return to the Commons for these to be accepted or rejected. The bill has been extensively opposed both by figures in the arts and media and by some religious individuals and organisations, though other religious groups have supported it. It can be expected that public debate will increase while it is going through the Lords, since the upper house offers a last slight hope of stopping it. What the bill does The bill is a short one (the text can be found at www.publications.parliament.uk/pa/ld200506/ldbills/015/2006015.htm). In essence it amends a group of provisions in part 3 of the 1986 Public Order Act, which criminalise various forms of 'inciting racial hatred'. The words 'or religious' are added to the 1986 act and some alterations consequential on this change are made. The best way to understand it is to look at what the 1986 act would look like as amended. A new section 17a defines "religious hatred" as "hatred against a group of persons defined by reference to religious belief or lack of religious belief". "Hatred" remains undefined. "Lack of religious belief" is the government's sop to atheists and secular humanists. Sections 18-23 criminalise, with slight differences in the wording to fit the context, "threatening, abusive or insulting" words or behaviour or public display of written material; publishing or distributing written material; public performance of a play; distributing, showing or playing films or video or audio recordings; radio and TV broadcasting; and possession of relevant material with intent to publish, distribute, etc. Each section contains effectively two crimes. The first crime is committed where the accused intended to stir up racial or religious hatred. The second crime is committed where, "having regard to all the circumstances, the words [or whatever] are likely to be heard or seen [or whatever] by any person in whom they are likely to stir up racial or religious hatred". This test is wholly objective: ie, does not depend on the intentions or motives of the accused. In relation to the second crime, each section provides a defence - slightly differently defined in each case - if the accused proves that he or she "did not suspect, and had no reason to suspect, that [the material] was threatening, abusive or insulting". Section 18 uses a slightly different form of words: that the defendant "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". Because these are defences, the accused would have to prove them (usually the prosecution has to prove all the elements of crimes). The section 18 version of the defence is subjective: ie, it is enough for the accused to show there was no intention to, or awareness of, insult. The section 19-23 defences have both subjective and objective requirements - the accused have to show both that they did not suspect the material was insulting and that they had no "reason to suspect" it was. This is a very high threshold. "Reason to suspect" is pretty broad. For example, I have reason to suspect that it may rain tomorrow, simply because this is Britain and the weather is like that. Section 19 penalises the publisher of written material, while section 20 targets the producer or director of a play. Section 21 penalises the distributor of a video, etc, as well as anyone who plays it. Under section 22 the broadcaster (eg, a TV channel), as well as the producer or director, can be charged. The object of the exercise is plainly to make managers of publishing houses, theatres, broadcasters, etc, chary of taking any risks with material which might be liable to prosecution. 'Threatening, abusive or insulting' Government supporters have insisted that the word 'hatred' and the definition in section 17a of "hatred against a group of persons defined by reference to religious belief" is a strong control on the reach of the legislation. In fact, it is wholly unclear what this means, and it is pretty clear that the parliamentary draftsman has no confidence in its clarity. This is can be seen in the fact that the defences made available (above) do not refer to hatred or the intention to stir up hatred, or even the risk of stirring up hatred. They focus on whether the material is "threatening, abusive or insulting". Anyone who has been a left or trade union activist for any length of time will be familiar with "threatening, abusive or insulting". The words come in origin from section 5 of the Public Order Act 1936: that old police stand-by for arresting pickets and demonstrators. Many readers of the Weekly Worker will at some stage either themselves have been arrested under section 5 or have friends who have fallen foul of it. In Brutus v Cozens 1972, anti-apartheid protestors disrupted Wimbledon. The magistrates held that this was not "threatening, abusive or insulting". The House of Lords upheld the magistrates' decision. They said that the words were ordinary English; hence, the magistrates' decision could only be overturned if it was unreasonable. Since then, magistrates have been upheld in the higher courts when they decided that "threatening, abusive or insulting" included masturbating in a public toilet when a police officer was present (Parkin v Norman 1982) and gay men 'cuddling' at a bus stop (Masterson v Holden 1986). The other side of this particular coin is Hammond v DPP 2004. Hammond, an evangelical christian preacher, displayed in the centre of Bournemouth a placard with the words 'Stop immorality', 'Stop homosexuality' and 'Stop lesbianism'. A small fight resulted, and Hammond was arrested, charged and convicted under section 5 of the 1986 act, which covers "threatening, abusive or insulting" behaviour causing "harassment, alarm or distress". On appeal, it was held that he was rightly convicted. In other words, "threatening, abusive or insulting" is extremely broad and vague. Requiring a defendant to prove that they "did not suspect, and had no reason to suspect, that [the material] was threatening, abusive or insulting" will thus make the defences provided almost worthless. The attorney general No prosecution can go ahead under part III of the 1986 act - and hence under the act as amended - without the consent of the attorney general. Government supporters have argued that this requirement amounts to an effective control on 'abuse' of the very broad crimes created. Some lawyers, on the other hand, have been more cautious, seeing the requirement that the attorney general consent as 'politicising' the prosecution decision. It is certainly a pretty unpredictable control. The attorney general is a politician and a government minister. A media hue and cry for prosecution is likely to have the result that consent will be given. Thus Nick Griffin and his BNP cohorts have been inciting racial hatred for years: it was only when a TV programme focussed on them that a prosecution was begun. Finsbury imam Abu Hamza was charged with incitement to racial hatred after difficulties appeared with extraditing him to the US and after a heavy-duty tabloid campaign. 'Chilling effect' US lawyers originated the idea that certain sorts of controls on free speech - especially libel laws - have a 'chilling effect' which goes beyond immediate risk of prosecutions or litigation. The problem is that lawyers have to advise their employers - broadcasters, publishers, theatre owners, etc - about legal risks. The vaguer the law, the larger the inevitable penumbra: the lawyer has to say to the client, if you go ahead with this you risk prosecution (or being sued). Broadcasters, publishers, and so on, are not in business mainly to confront governments and politicians (unless they are themselves political actors like the Weekly Worker and the other left press, or sell themselves as gadflies, like Private Eye). So when their lawyers tell them there is a risk, they will try to avoid publishing (or whatever). The penumbra of speech laws has the effect that much material which could not in reality be successfully prosecuted will nonetheless never be published: it is 'chilled'. Most notoriously, no-one could ever say outright in the mainstream media that Robert Maxwell was engaged in large-scale commercial fraud - until he fell off his yacht, leaving Mirror group pensioners and many others deprived of their savings. The vagueness of "hatred" and "threatening, abusive or insulting"; the objective tests; the narrow defences; the unpredictability of the attorney general - all these mean that the chilling effect of the new act will be considerable. Behtzi and Jerry Springer, the opera would not be staged; Monty Python's life of Brian might be filmed in the US, since the first amendment is robust, but would not be shown by British cinemas, and a great deal of the television series would not be broadcast; Salman Rushdie's The Satanic verses might well be de facto banned by English law. We might say that, with a prime minister who is gung-ho for more faith schools and an education secretary who is a member of the rightist political-catholic sect Opus Dei, the chilling effect may be what the government really wants but will not admit. But that would no doubt be a 'conspiracy theory'. 'Inciting racial hatred' Supporters of the 2005 bill have also argued it makes only a minor change to the existing law. It fills a loophole, because inciting hatred of religious groups was not covered under the 1986 act. Moreover, we have had laws against incitement to religious hatred in Northern Ireland since 1970 and it has not stopped free speech (Prevention of Incitement to Hatred Act [Northern Ireland] 1970; see http://cain.ulst.ac.uk/hmso/piha1970.htm). The crime of incitement to racial hatred was created in the Race Relations Act 1965. The first person prosecuted was - surprise, surprise - Black Power activist Michael X (in 1968). The Islamic Human Rights Commission in their 2002 submission to the House of Lords supported the creation of an 'incitement to religious hatred' crime. But they conceded that ethnic minority activists had been disproportionately prosecuted under the race hatred legislation before 1988. Since 1988 the government no longer provides an ethnic breakdown of defendants on racial hatred charges. The case of the Six Counties presents another side to the coin. There has been a law against inciting religious hatred on the books since 1970, but has it had the effect of reducing sectarian religious hatred? To ask the question is to answer it. Similarly, the number of race hatred prosecutions in the UK has been very small, and there have recently been suggestions in the press that in spite of 40 years of race relations legislation, etc, Britain is becoming a more segregated society. Communists oppose catch-all legislation like part III of the Public Order Act 1986. It adds weapons to the state's armoury against both the workers' movement and ethnic minority activists, and it does not achieve what its supporters claim for it. We do not think that reliance on the capitalist bureaucratic-coercive state is the way to fight racism. Even so, there is nonetheless an important difference between incitement to racial hatred and incitement to religious hatred. People do not in general choose the race or nationality which is ascribed to them. There are exceptions at the edges, but they are exceptions. Religions, in contrast, are bodies of ideas which people choose to believe - or not. I am a Brit and no amount of pretending would alter that. I was brought up an anglican christian, have been in the past a pagan, and am currently an atheist. I could choose, if I wanted to, to convert to islam, like Yvonne Ridley. This does not mean that people should be hated for being christians, atheists, muslims or whatever. But it does mean that there is a difference between hating christianity (as being a murderous religion which has shown a strong tendency to back heresy-hunting, witch-hunting and wars of aggression) and hating christians. Promoting the second would be a crime under the 2005 bill; promoting the first would not. But how the hell is a jury to tell the difference? Under the racial hatred legislation the problem only really arises with general racist theory (for which juries have shown themselves pretty unwilling to convict). Under religious hatred legislation it will arise in every conceivable case. The answer provided by the bill is the objective tests, "threatening, abusive or insulting" and the reversed burden of proof. In effect, this system creates a presumption that sharp criticism of a religion, using strong language, amounts to inciting hatred against the believers. Racial hatred legislation is not in the interests either of the working class as a whole or of ethnic minorities. Religious hatred legislation inherently involves a more serious threat to freedom of speech than racial hatred legislation. This bill in particular will strengthen, not weaken, racists' attempts to use islam as a stick to beat people of south Asian and Middle Eastern appearance. It will strengthen the hand of the state against the workers' movement and militants of ethnic minorities, and the hand of 'traditional community leaders' against critical youth and, in particular, women. It will undermine the right of free speech on religious matters which has been fought for over nearly 500 years in this country. The left, including Respect, should oppose it with one unequivocal, united voice. Mike Macnair
Worker