The United Kingdom was recently debate a Racial and Religious Hatred Bill, however, as the below article indicates, this would have been detrimental to true religious freedom.
Legal Lesson from Down Under
by Joshua Rozenberg, Legal Editor
If you still have any doubts over whether the House of Lords was wise to re-write the Racial and Religious Hatred Bill this week, just look at the chaos that resulted when a similar law was introduced in Australia.
As originally drafted, the Government’s Bill would have made it an offence in England and Wales for a person to use threatening, abusive or insulting words or behaviour if this was likely to stir up religious hatred.
Note that there was no need to prove that a defendant intended to stir up hatred: it was sufficient if this was merely likely. And note that there was no need to prove that the defendant used threatening words: all you needed to do to risk seven years’ imprisonment was to use abusive or insulting words that were likely to stir up religious hatred.
After suffering a defeat in the Lords on Tuesday by 260 votes to 111, the Government chose not to oppose an amendment drafted by the Liberal Democrat lawyer Lord Lester with cross-party support. This introduces a number of safeguards.
First, prosecutors would have to prove that the defendant intended to stir up religious hatred; mere likelihood would not be enough. Second, the words or behaviour would have to be threatening rather than merely abusive or insulting. And, crucially, there would be protection for freedom of expression.
If Lord Lester’s amendment is allowed to stand, it will not be possible for the law to be used in a way that “prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents”.
Nor would there be any risk of prosecution for evangelists or proselytisers who urge “adherents of a different religion or belief system to cease practising their religion or belief system”.
As Lord Lester said in the debate, these amendments would write the Government’s stated intentions into the Bill while reducing the “chilling effects that such broad and vague offences would have on freedom of speech”.
In response, the minister, Lady Scotland , hinted at jam tomorrow. “I do not say that the Government will not think again,” she started promisingly. However, she did not have anything new to offer. She thought she might be in a better position to make changes by the time her Bill reached its next stage in the Lords.
That, however, would be after it had completed its committee stage, when detailed amendments are meant to be made. If ministers had wanted to avoid the inevitable mauling they received this week, they would have made changes already: the Government seems determined to tough it out.
To see the likely consequences, we need look no further than Australia . In the state of Victoria , it became unlawful almost four years ago to “engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of” a person or a class of people on the ground of their religious belief or activity. Motive is irrelevant, although there are public-interest exceptions.
The statute describes this as “religious vilification” although the unlawful conduct – inciting religious hatred – is not very different from Lord Lester’s offence of intentionally stirring up religious hatred. By itself, inciting religious hatred is not a criminal offence in Victoria – although compensation may be ordered when it takes place. However, the state’s Racial and Religious Tolerance Act 2001 goes on to create a religious vilification offence punishable with up to six months in prison for an offender who intentionally engages in conduct on religious grounds that he knows is likely to incite hatred and threaten physical harm.
This seems a pretty steep test to meet and no criminal prosecution has yet been brought. But the Victorian Civil and Administrative Tribunal did uphold one civil complaint of unlawful conduct last December in a case that has become something of a cause célèbre.
The respondents were two Christian evangelists, Daniel Scot and Danny Nalliah. Mr Nalliah – who prefers to be called Pastor Danny – was born in Sri Lanka and is the president of a mission called Catch the Fire Ministries. Mr Scot is a Pakistani Christian mathematics lecturer who was charged with blasphemy in Pakistan because of his views on Islam. Fearing the death penalty, he fled to Australia – only to find himself in court over remarks he made about Islam at a Catch the Fire seminar in 2002. Three Australian Muslims had slipped into the seminar and lodged a complaint with the state’s Equal Opportunities Commission.
The hearing opened in October 2003 and the tribunal did not make its final order until June 2005. In the meantime, the judge had issued a ruling running to 130 closely printed pages, finding the allegations proved.
This involved a detailed examination of the teachings of Islam, going back to the seventh century. Mr. Scot denied mocking or ridiculing the religion, and was cross-examined at length on his comments and beliefs.
In the end, the judge held that Mr. Scott had not conducted a balanced discussion. “It was a process of taking literal translations from the Koran and making no allowance for their applicability to modern-day society,” he found. Ordinary people would have been incited to hatred, ridicule, contempt or revulsion.
In June, the tribunal ordered Mr. Nalliah and Mr. Scot not to repeat statements that had been found in breach of the law and to publish apologies in newspapers (at their own expense) and on their website. Two months later, the Supreme Court of Victoria granted them permission to appeal and suspended the apologies. So the case goes on.
Since one surely cannot be accused of stirring up religious hatred by giving an accurate account of Islam or Judaism, Paganism or Wicca, there is plenty of room for our own courts to become bogged down in just the same way. Even if no prosecutions are brought, the Act will inhibit public debate on issues of great importance.
The Government should abandon its Bill now.