Like a man trying to stop a leaking wastepipe with a priceless Raphael drawing, the Britih government is about to do great damage in the cause of averting damage. This impending folly is its proposed legislation on “incitement to religious hatred”. Everyone who cares about free speech — the oxygen of so many other freedoms — must shout now to stay the government’s hand, and prevent it pushing through Parliament this ill-conceived, badly worded, dangerous piece of law.
But first of all, let’s acknowledge that there is a problem with that leaking wastepipe. Particularly since the Sept.11 terrorist attacks, the effluent of human hatred in Western societies, including Britain, has flowed more strongly against people rightly or wrongly described as “Muslims”. This ranges from casual remarks to serious agitation by the xenophobic right.
The law has already been strengthened to address this problem. When Mark Norwood, an activist of the British National party, displayed in the window of his flat in Gobowen, a small town in Shropshire, a poster with the words “Islam out of Britain” next to a photograph of the World Trade Center in flames, he was tried and convicted under a 2001 amendment to the 1998 Crime and Disorder Act. This extended the offense of causing alarm or distress to include cases that are “racially or religiously aggravated”. The conviction was recently upheld by the European court of human rights.
However, as Fiona McTaggart, the responsible Home Office minister, stressed in an interview for this column, while the law prevents people like Norwood from publicly offending or harassing Muslims, it does not yet stop them from inciting their followers to do so. In a curious anachronism, the British legislation on incitement to racial hatred protects Jews and Sikhs, but not Muslims. That inconsistency is a source of understandable grievance to British Muslims.
Unfortunately, the government’s proposed solution to this real problem will only make things worse. Its new Schedule 10 to the Serious Organized Crime and Police Bill, which went through its third reading in the House of Commons last week, despite strong objections, and now goes to the House of Lords, would criminalize a speech, publication or performance which is “likely to be heard or seen by any person in whom they are ... likely to stir up racial or religious hatred”. Religious hatred is defined as “hatred against a group of persons defined by reference to religious belief or lack of religious belief”. That would seem to cover all the bases, especially since “religious belief” is nowhere otherwise defined.
This loose talk cast as law is dangerous in several ways. While the government insists it’s intended only to prevent incitement against persons, not against religions, the line between criticizing believers and criticizing beliefs is unclear. Race and religion are quite different. There is no possible rational objection to blackness. There are many possible rational objections to religion, whether Christianity, Judaism, Hinduism or Islam, and some of the greatest thinkers in modern history have held them.
Moreover, the legislation does not require proof of the intent to “stir up” religious hatred, merely the effect. One could credibly argue that the effect (though obviously not the intention) of the publication of Salman Rushdie’s Satanic Verses was to stir up religious hatred, first among and then against British Muslims. “Oh no,” cry government spokespersons, “of course this law would never be used against something like the Satanic Verses.” But challenged on this point in the Commons debate last week, Khalid Mahmood, a Labour MP from Birmingham, said: “In the context of Salman Rushdie, the issue was the abusive words that he deliberately used, which were written in phonetic Urdu ... “ Such issues, he suggested, should be tested in the courts.
The effect of this law, if passed, could be to deter writers, actors or filmmakers from risking offensive portrayals of Islam and other religions. Indeed, as Kenan Malik points out in the latest issue of Prospect magazine, it might even encourage offended groups to mount riotous protests. For they might think that such public disorder would be evidence in court that religious hatred had, in effect, been stirred up. While ministers hasten to assure us that prosecutions under this legislation are likely to be few and far between, a single case could produce a martyr for the far right. If, however, there are no prosecutions, the government will have raised expectations among Mahmood’s constituents that will then be disappointed.
Why do it, and why now? A cynical interpretation is that, in the run-up to a general election, New Labour is trying to woo back Muslim voters alienated by Blair’s stance on the Iraq war, the detentions without trial of British Muslims in Belmarsh prison and Guantanamo, and so on. Fiona McTaggart argued to me, with passion, that it is about the historically vital task of making the Muslim community feel secure, included and at home in Britain. One can see how, for a committed Labour minister, the two things could merge in the mind.
Yet to impute motives for which one has no hard evidence is unfair, so let’s take the government’s case on its own terms. It’s still wrong. Ms. McTaggart says the government’s prime concern is the safety and security of communities. No! That may be her prime concern, but the task of the government, in all liberal democracies, is to strike a balance between two great public goods, freedom and security. Here they are proposing too great a risk to freedom, for too uncertain a gain in security.
There’s a simple solution to hand. In the Commons last week, the Liberal Democrat MP Evan Harris proposed an amendment, originally drafted by the distinguished human rights lawyer Anthony Lester, which would change the law on incitement to racial hatred to include “reference to a 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”. Basta. Problem addressed.
