Free speech under fire
Campaigners have fought a good defence against the government's bill to outlaw incitement to religious hatred. But we could go further still.
The UK government’s new bill to outlaw incitement to religious hatred scraped through the House of Commons on Tuesday night, but outside that hallowed hall the debate continues. Members of Parliament – led by the Lib Dem Evan Harris – have lined up alongside comedians, lawyers, writers and artists, as well as organisations such as the National Secular Society and Liberty, to attack this proposed law.
This bill poses a serious threat to free speech. You could be banged up for seven years should anything you say be heard by ‘any person’ in whom your words are ‘likely to stir up…religious hatred’. We should be free to criticise, insult or even to hate whomever we please. Criticisms may be rude or wrong – in which case others have a right to ignore them, or to take them up in the court of public opinion.
‘There is no right not to be offended’, said Liberty’s Shami Chakrabarti earlier this week. ‘Religion relates to a body of ideas and people have the right to debate and denigrate other people’s ideas.’ (1) Do we really want a society in which we tiptoe around one another, rather than argue face to face? At a speech at the House of Commons on Monday, comedian Rowan Atkinson said:
‘Is a tolerant society one in which you tolerate absurdities, iniquities and injustices simply because they are being perpetrated by or in the name of a religion, and out of a desire not to rock the boat you pass no comment or criticism? Or is a tolerant society one where…one is encouraged to question, to criticise and if necessary to ridicule any ideas and then the holders of those ideals have an equal right to counter-criticise, to counter-argue and to make their case?’
Today, this is an unpopular – even offensive – opinion. Minding your language and taking care not to step on anybody’s toes is now the done thing. Few people will stick up for the rough-and-tumble of a good public argument, where two sides try to take each other apart. Even the genteel jousting of MPs is now seen as ‘too adversarial’ and liable to put the public off politics.
Indeed, many commentators argued that the religious hatred bill doesn’t go far enough. The British Humanist Society asked the government to also protect people with non-religious beliefs, because ‘some atheists, like some Muslims, live in fear of abuse and physical attack, and this is equally unacceptable’ (2). And they got what they wanted: ‘religious hatred’ is defined in the bill as refering to somebody’s ‘religious belief or lack of religious belief’ (3). This points towards an endless series of new laws, criminalising incitement to hatred on the basis of your sexuality, sex, region, perhaps even your football team or taste in clothes. Every interest group fights to get special protection from the ‘hatred’ of others.
The government assures that the law won’t be used to stifle free expression. It insists that there are a series of safeguards – such as every case being approved by the attorney general – which means that respectable comedians and writers won’t end up in the dock. Quite rightly, Atkinson is far from reassured: ‘[The government] can come to someone like me and say: “Really, you’ve nothing to worry about, you arty people…you’ll be fine, we’re not after you, we’re after those nasty people in the North, the BNP etc”.’ But why should anybody trust the attorney general to do the right thing? ‘Huge latent power will be lying dormant, just waiting to be abused for political ends’, notes Atkinson.
Lawyers say that the law is far too vague to be able to judge its implications. Alastair Brett, legal manager at The Times (London), says that ‘the bill doesn’t define what constitutes the offence. It’s left up to the attorney general whether to prosecute, then we have to wait and see what the judge says’. As a news lawyer, he believes that this will have a ‘chilling effect on free speech’, as editors and columnists will be forced to reconsider their choice of words. Home Office press officers may insist that the law will be interpreted in a particular way, but it’s up to the courts, not them.
In any case, this new law is intended to curb speech. According to the National Secular Society, in a private meeting last week Home Office minister Paul Goggins said that part of the point of the bill was to make people think twice before they speak.
Yet the campaign against the religious hatred bill could go further still. Although Evan Harris has fought a staunch battle against the bill, his proposed amendment is in some ways little better. Rather than create a new offence of religious hatred, he tells me, the government should ‘close the loophole with respect to racists using religious words’, such as attacking Muslims. He wants to amend the 1986 law on incitement to racial hatred, to add a reference to ‘religion or religious belief or to a person’s membership or presumed membership of a religious group as a pretext for stirring up racial hatred against a racial group’.
Meanwhile, others in the campaign point out that there already is a 2001 Act creating religiously aggravated offences (and a 1998 Act creating racially aggravated offences), which means that assaults motivated by religion or race will be treated especially harshly in court. The laws protecting religions are already there, campaigners argue – there is no need for another one.
Harris’ proposed amendment is certainly more limited than the government’s bill. But doesn’t it rest on similar foundations? The law against incitement to racial hatred could also be used to suppress opinions that people find unpleasant. However distasteful the likes of the British National Party, they have a right to speak. And because we are competent adults, it should be up to us, not lawyers, whether or not we want to listen to them. The best way to deal with prejudiced views is to have them out in the open, and expose their idiocies for all to see. If they are silenced, racists get to take the moral high ground.
As for racially and religiously aggravated offences, why should they be singled out? It would be better for the law to judge a person’s deeds – that he hit somebody over the head, or vandalised someone’s car – not the thoughts that were going through his head when he did it. That way lies thought crime, where we are punished for our intentions, not our acts. It means an ever-broader range of behaviour being classified as criminal. Last year, a passenger in a cab used abusive language towards the driver – instead of being sent packing, he was jailed for four months for ‘religiously aggravated common assault’.
Just as the government insists that its law isn’t meant for arty types, there’s a danger that Harris’ law could also employ double standards. His targets, he says, are ‘groups using religion as a cover for racism’. How can you tell who is criticising religion, and who is really being racist? ‘You look at the context’, he says. ‘If it is a leader of a racist party speaking to a bunch of skinheads in a pub in Oldham, saying “these dirty Muslims, we don’t want them here”, that is different to a group of people discussing religion in a church meeting.’ So nice polite discussions about ethics are okay, but anything rowdy and rabble-rousing isn’t.
Mhairi McGhee, a spokesperson for Liberty, says that ‘your freedom of speech has to be balanced with the fact that what you are saying affects those around you. If you are found to be doing something that causes hate, you should probably be charged’. Meanwhile, Harris says it’s an ‘academic argument’ to defend free speech in the area of racial hatred. ‘The only game in town is not opposing existing race hate laws, but amending them.’
Harris and Atkinson’s campaign has made an admirable dent in the government’s plans to outlaw religious hatred. Perhaps we should follow the blow through.
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