The Crusade against Discrimination in Britain Part 5

Continued from Part 4

Well here we are then, finally arrived at the last hurrah. We’ll progress through the remaining achievements of NuLabor in the domain of race relations, concluding the discussion with an overview of the sine qua non of the genre, the forthcoming Equality Act of 2010. A fitting capstone to thirteen years of Labour misrule.

New Labour – 2000 to the present

Once again the 2001 election was distinguished by an almost total absence of any discussion on race and immigration. The Tories under William Hague’s leadership did make a very tentative effort to introduce the topic during the run-up to the election campaign but the accusations of racism and xenophobia following Hague’s “Foreign land” speech at the Party Conference in March 2001 ensured that the taboo would remain in place. It was this episode that earned the Conservatives the media tag of ‘The Nasty Party’, a stigma that the modernisers under David Cameron have been assiduously trying to erase with the ongoing rebranding of the Conservatives as ‘BluLabor’.

The Anti-terrorism, Crime and Security Act of 2001

The Bill which preceded the act was a massive affair, running to 125 clauses plus numerous accompanying schedules. It was conceived during the fervid atmosphere immediately following the 9/11 attacks and presented to Parliament as the government’s initial contribution towards waging the global ‘War on Terror’. Characterised as emergency legislation which had to be rushed through Parliament, it was in fact a hodgepodge of several disparate measures, several of which various progressive forces for whom the prevailing anti-terrorist hysteria would provide a convenient pretext had been trying to get onto the statute book for many years.

Prominent amongst those ‘legacy’ measures that had been lurking in the wings was the proposal to introduce sanctions against incitement to religious hatred, along similar (in effect identical) lines to those existing for racial hatred, that is, by making it a criminal offence punishable under the Public Order Act. Although a number of the other elements in the Bill, particularly those involving extended powers of detention and the tightening up of asylum and immigration rules, also came under sustained attack for their perceived conflict with human rights legislation, it was the proposal to criminalise religious hatred that proved to be the most controversial. There were some surprising names in the ayes and noes lobbies when it came to time for a vote.

As noted, the Bill was exceptionally long and complex, and the timetable that the government set for its parliamentary passage was very ambitious, less than a month from First Reading to Royal Assent. The debates in both houses were unusually fractious, even hostile at moments, with numerous divisions and many late-night sessions. The Hansard records run to around a thousand pages.

For our present purposes the relevant section of the Bill is Part 5, dealing with Race and Religion. This comprised seven clauses, of which the operative ones were as follows (the missing clauses relate to specific provisions for Northern Ireland, which for historical reasons has its own provisions for dealing with religiously-related ‘fear and hatred’):

• 36. Meaning of racial hatred: amends the POA86 to extend the definition of ‘racial hatred’ to include groups outside Great Britain.

• 38. Religious hatred offences: amends the POA86 to create the new criminal offence of incitement to religious hatred, defined as ‘hatred against a group of persons defined by religious belief or lack of religious belief.’

• 39. Religiously aggravated offences: amends the Crime and Disorder Act 1998 to create new offences of religiously aggravated assault, harassment and criminal damage. The offences were defined in exactly the same terms as the ‘racially aggravated offences’ in the CDA98, and carried the same penalties.

• 40. Racial or religious hatred offences: penalties: increases the maximum penalty in the POA86 from two to seven years.

As we shall see, what eventually emerged from the parliamentary process was significantly different, and it is that process that we’ll examine in further detail next. We’ll also try to explore, to the extent possible, what lay behind the Part 5 proposals, and to uncover the identity of the prime movers.

Passage through Parliament

In early October 2001, less than a month after 9/11, Home Secretary David Blunkett announced that in a Home Office press release the measures which would form the legislative centrepiece of the government’s response to terrorism. Included were sanctions against money laundering, additional powers for law enforcement agencies, amendments to the asylum and immigration regulations, an overhaul of the extradition system, and the creation of new offences of religious hatred. The release announced the intention to:

… Widen the law on incitement to include religious hatred as well as racial hatred, while considering the creation of a new category of offences aggravated by religious hatred to complement the racially aggravated offences created by the Crime and Disorder Act [of 1998].

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Two weeks later the Home Secretary laid out further parameters of the proposals against religious hatred, indicating that the intention was to extend to Muslims, particularly, a similar form of protection against the backlash from 9/11 to that already provided to Sikhs and Jews under the Race Relations Act:

… It is not our intention to include in the Bill a definition of religion, for all the reasons that many in the House will be familiar with. The Attorney-General and I would wish to assure ourselves that we were handling the matter sensitively, bearing in mind the fact that the existing law in relation to race provides for those religions that have a direct relationship with the race of the individual concerned. We want to extend that facility to people who follow Islam and Christianity. The measures will also enable us to deal with those who deliberately use the current law to stir up dissention and hate, which we would all find unacceptable.

I am examining why existing law has been used so infrequently—in the past decade about four prosecutions a year have been successful—and whether, in conjunction with the police and the Crown Prosecution Service, we should be slightly more robust in what we do about those who, in writing or in speech, deliberately cause hate in our community.

Regrettably, there are those who are prepared to exploit the tensions created by the global threat. Racists, bigots, and hotheads, as well as those associating with terrorists, are prepared to use the opportunity to stir up hate. It is therefore my intention to introduce new laws to ensure that incitement to religious, as well as racial, hatred will become a criminal offence. I also intend to increase the current two-year maximum penalty to seven years. I am examining wider powers in relation to incitement by people in the United Kingdom, against groups or individuals overseas. I am also examining additional powers in relation to conspiracy. None of those measures is intended to stifle free speech, dialogue, or debate. Fair comment is not at risk, only the incitement to hate.

In fact an intention to criminalise religious hatred long pre-dated the 9/11 attacks. Each time that the Race Relations Act had been modified since the 1960s, calls had been made for it to be extended to cover incitement to religious hatred as well. In 1976 Roy Jenkins rejected such calls as being ‘impracticable to legislate for and to enforce’, and yet the concept never seemed to quite expire.

One of the curious aspects of the Bill was the government’s reluctance to place in it a definition of what constituted a religion in terms of the legislation. In a pre-debate discussion in the Commons both David Blunkett, the Home Secretary, and Robin Cook, former Foreign Secretary and now Leader of the House of Commons, sidestepped the question:

Mr. Blunkett: It is not our intention to include in the Bill a definition of religion, for all the reasons that many in the House will be familiar with. The Attorney-General and I would wish to assure ourselves that we were handling the matter sensitively, bearing in mind the fact that the existing law in relation to race provides for those religions that have a direct relationship with the race of the individual concerned. We want to extend that facility to people who follow Islam and Christianity. The measures will also enable us to deal with those who deliberately use the current law to stir up dissension and hate, which we would all find unacceptable.

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Mr. Cook: […] [An] awful meal is being made of issues of definition. Personally, I see no problem whatever with understanding the difference between a joke about a religion and inciting religious hatred and violence. Indeed, we ourselves tackled those questions in the past. I remember when people said that legislation against incitement to race hatred was impossible because it could not be adequately defined. We managed that; the legislation was passed and plays a useful role. I see no reason why we should not do the same with religious hatred.

Public disquiet was beginning to grow in various circles about the haste with which the government was attempting to push through the legislation against religious hatred. On October 17th the Times published a letter from the comedian Rowan Atkinson (of Blackadder and Mr. Bean fame) expressing his concern with the proposed new law:

”… Having spent a substantial part of my career parodying religious figures from my own Christian background, I am aghast at the notion that it could, in effect, be made illegal to imply ridicule of a religion or to lampoon religious figures. Supporters of the proposed legislation would presumably say that neither I, nor any of my colleagues in the comedy world, are its intended targets, but laws governing highly subjective or moral issues tend to drag a very fine net, and some of the most basic freedoms of speech and expression can get caught up in it. I have always believed that there should be no subject about which one cannot make jokes, religion included. Clearly, one is always constricted by contemporary mores and trends because, after all, what one seeks above all is an appreciative audience. However, how would a film like Monty Python’s Life of Brian, criticised at the time of its release for being anti-Christian, be judged under the proposed law?

Other comics including John Cleese and Stephen Fry, as well as the somewhat less cerebral Bernard Manning and Frank Carson, also publically expressed concerns. A variety of other public figures, including the human rights advocacy group Liberty, also openly criticised the proposals for the effect they might have on right to freedom of speech, ironically enshrined as it had now become in the Human Rights Act.

Prior to the Bill’s publication and introduction to Parliament the Home Affairs Committee announced that it would conduct a short inquiry into the proposed legislation. Its report was critical in tone, and in regard to the proposal to outlaw religious discrimination it had this to say:

THE ANTI-TERRORISM, CRIME AND SECURITY BILL
SUMMARY OF CONCLUSIONS

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(k) We have not seen sufficient evidence to justify the proposition that extending the law of incitement to include religious as well as racial hatred will work in practice. The proposals in the Bill would be difficult to enforce. We note in particular the evidence from a group of distinguished Muslim organisations and individuals: “we have grave reservations about the extension of this criminal power to cover religious groups at this particular time.” We therefore see no reason for this measure to be included in this emergency terrorism Bill (paragraph 61).

The debate commenced in the House of Commons with David Blunkett introducing the Bill. He spoke about the provisions in Part 5, and provided a hint as to why they were included:

Mr. Blunkett : ... Part 5 covers issues that relate to the controversy that has arisen in respect of religious hate. For the sake of clarification, I again want to put on the record what we seek we do. The debate on this subject has been going on for a long time. We were approached by leaders of the Muslim community—it was a representative leadership group—who thought that it was only right, fair and protective to include religion with race in terms of avoiding incitement to hate using the Public Order Act 1986. I considered that and decided that their point was fair and reasonable.

Blunkett’s proposition was not well received, the following is a sample of some of the more trenchant comments from a surprisingly mutinous House:

Mr. Edward Garnier (Con, Harborough): ... Humbug often masquerades as high principle. … Nowhere is that more evident than in the Government’s proposal in the Bill to make it a crime to incite religious hatred. We do not need a law to make that type of behaviour illegal, and nor would it serve the purpose for which some of its proponents hope: deterring anti-Muslim unrest in this country and allowing Britain to be seen as fighting terrorism and not Muslims.
…
The criminal law should protect citizens, not ideas. Plenty of laws make the use or threat of violence against human beings a criminal offence. It is a mistake to confuse race and religion; they are not always interchangeable. They should not be likened as they are in the Bill, if the Government whip Parliament into passing a law that outlaws incitement to religious hatred but will not define religion and list the religions that are to be covered by the statute, its use to stifle debate and free expression can be foreseen. The Government may not want the law to do that or to be used to that end, but those who are more intent on curtailing than respecting free speech will employ it in precisely that way.

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Mr. Sedgemore (Lab, Hackney South and Shoreditch): When the troika of Eldon, Castlereagh and Sidmouth died, the people of England rejoiced and danced in the streets. We would not want that to happen if any of our modern troika died, would we?

The Bill clashes with habeas corpus, judicial review, the rule of law, the notion that justice should be public and be seen to be done and checks on the arbitrary power of the authority of the state, including the Home Office, the security services and invisible commissioners. It threatens freedom of expression with an extended version of the infamous blasphemy laws and invades privacy on the internet and God knows what else—we have not seen its full implications—so perhaps we should pause for a moment lest history judge us badly.

The fundamental fault line of the Bill lies in its refusal to accept the checks and balances of our constitution and its assertion, adumbrated with inelegant clarity by the Home Secretary, that the Executive must be all-powerful and beyond criticism. Our Home Secretary and our Government genuinely and sadly believe that the Executive can justify any action if it is given legitimacy by a compliant Parliament that has long since consigned to the dustbin of political history the notion that our primary function is to check and call to account the Government of the day.

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Mr. John Gummer (Con, Suffolk, Coastal): When I first became a Minister, a wise colleague told me not to sign anything for the first fortnight, because a new Minister is always presented with all sorts of things that the civil servants have been keeping in the cupboard and that no Minister previously was prepared to sign. I have that feeling about the Bill. It contains all sorts of elements 82 that we have failed to pass previously and that are being presented to us again. We should start our consideration of the Bill by distinguishing between those elements that are necessary for the prevention of terrorism and those elements that have been brought in under the guise of an emergency Bill and clearly are not necessary.

...

So pathetic is this part of the Bill that the notes read: This definition is designed to cover a wide range of religious beliefs but does not seek to define either what amounts to a religion or a religious belief. If we cannot define what we are trying to protect, it seems odd to seek to protect it. We must know what we are doing, but the Bill does not know what it is doing. Let me give two examples. If anyone suggested that the author of “The Satanic Verses” was intent on stirring up his fellow Muslims, that would not be far from the truth. He wanted to do that, I believe, for what he thought was a good reason. He thought it important to sharpen people’s attitudes and get them talking. However, Muslims saw it as a blasphemous insult to their religion. Will the man whom we have spent millions of pounds protecting now be subject to the law for inciting religious hatred? That must be the result of the Bill if it is passed.

Such a pity that more Hon. Members had not had the courage of their convictions and been as vocal in their defence of freedom of speech during the many debates on the various race relations bills over the years. And, as if to show the correctness of the old adage that ‘fine words butter no parsnips’, the Bill passed its Second Reading with a majority of 453. Unusually, the Bill was not passed to a select committee for further deliberation, instead the House itself formed into a Committee, and proponents for the criminalisation of religious hatred went onto the offensive, led by a familiar figure who was to launch into an even more familiar refrain, ably accompanied by a sycophantic chorus of fellow tribalists:

Mr. Kaufman (Lab, Manchester Openshaw and Gorton): … The House of Commons should take a look at itself. What does it consist of? It consists overwhelmingly of white Christians. … I happen to be an observant Jew, but if I were to declare myself an atheist, people who may wish to hate me, apart from any personal dislike of me—

David Winnick (Lab, Walsall, North): There would not be many of those, would there?

Mr. Kaufman: Practically none, but one cannot rule out the possibility. Anybody who wished to hate me would still look at me as a Jew. I have experienced anti-Semitism in this very Chamber. Alec Douglas-Home, when he was Foreign Secretary and there was a controversy about war in the middle east, said that I was more loyal to Israel than I was to England—something that I do not think could be said about me today. During a heated debate, a Conservative Member for Eastbourne, Sir Charles Taylor, told me to get back to Jerusalem. Whether or not I want to be a Jew, I am a Jew, and because of that, I can be hated as a Jew. My hon. Friends—and many more people outside the Chamber—who are Muslim or Hindu or of other minority faiths can have humanist views but they will be hated outside the House, by those who are inclined to hate them, as Muslims, Hindus or members of minority faiths.

...

After the number of years that I have lived, I am pretty clear about my ethnicity and my religion. I am British; I was born in this country. …[T]here is no confusion in my mind about ethnicity versus religion. I am talking about religion, not ethnicity. Over the years, when I was at school and at other times, I have been the object of anti-Semitism, although happily it does not happen very much now. My ethnicity was never the reason for that anti-Semitism because my ethnicity is British; my religion was the reason for it.

I ask the Home Secretary under no circumstances to be persuaded to withdraw the measure from the Bill, because it is well overdue. We should legislate against incitement to religious hatred in the same way as this Government, as soon as they came to office, legislated against racial harassment—very belatedly indeed.

…  A lady in my constituency, whom I will not name as I do not have permission to do so, is a Muslim and is active in Muslim causes in my constituency; she has always taken part in a great many community causes. She is the equivalent of an orthodox Jew; she veils part of her face and will not shake people’s hands, but she is an active member of the wider community. On 12 September, she went into a shop in central Manchester, but was turned out and told that she would not be served because she was a Muslim. It is intolerable that people should be subject to that kind of hatred without any recourse whatever to the law.

… Over the years, the Jewish community has witnessed people like David Irving talking about holocaust denial. As Billy Wilder said, If there was no holocaust, where is my mother? We have had to deal not only with that but with Jewish cemeteries being desecrated—not because of Jewish ethnicity but because people wish to arouse hatred of Jews.

Dr. Evan Harris (LD, Oxford West and Abingdon): As a non-religious, secular, ethnic Jew, I have been listening carefully to the right hon. Member for Manchester, Gorton –

Mr. Kaufman: The hon. Gentleman may call himself, and no doubt he sincerely is, a non-religious, secular Jew, but Hitler would still have put him in an oven.

Dr. Harris: I agree.

Mr. Kaufman: In the same way, the hon. Gentleman may be a non-religious, secular Jew, but he could well be the object of incitement to religious hatred, because those who do not like Jews would consider him a Jew, whether he wants to be one or not.

David Winnick: This discussion almost resembles a teach-in, as we would have called it in the 1960s. Although there may be a case for the measures in respect of Muslims, as my right hon. Friend and others have suggested, did he not undermine his own case when he referred to Jews and anti-Semitism? He said that the hon. Member for Oxford, West and Abingdon (Dr. Harris) would have been murdered regardless of his not having a religion. That is a matter of race. It is race that is the subject of discrimination and other such actions, so one would have thought that the proper remedy was to strengthen laws on incitement to racial hatred.

Mr. Kaufman: I disagree with my hon. Friend. The Jews are not a race. Many people believe they are, but they are not. They are a religious group.

David Winnick: No.

Mr. Kaufman: My hon. Friend and I can have a philosophical discussion about the matter outside the Chamber. When I have been attacked by anti-Semites, it has not been for what they regard as my race but because I am a Jew.

David Winnick: Exactly, not because of your religion.

Mr. Kaufman: Yes. I am a religious Jew, but even if I, like the hon. Member for Oxford, West and Abingdon, were not, it would not let me off.

David Winnick: It is a matter of race.

Mr. Kaufman: It would not let my hon. Friend off either.

Mr. Bryant (Lab, Rhondda): Surely that shows why the provisions that we are considering are so important. The law has determined that Jews are protected because they are an ethnic grouping or because their ethnicity and religion coincide significantly. However, the protection that my right hon. Friend and the hon. Member for Oxford, West and Abingdon (Dr. Harris) might enjoy is not afforded to Muslims.

Mr. Kaufman: My hon. Friend is right, as I would expect. The law as it stands would protect Elizabeth Taylor, who is a Jew by conversion and a citizen of this country; she is now Dame Elizabeth Taylor. She would be protected under the current legal definition of Jewish, but not if she had been born a Jew and was religious.

And then, as if the invocation of Adolf Hitler were not frightful enough, the double act of Home Secretary and Mr. Kaufman formed themselves into a duet to really put the frighteners upon Hon. members by summoning up the grisly eminence of Nick Griffin in the form of the BNP and, yet worse, Enoch Powell:

Mr. Blunkett: … If we want to bandy about the names of those who are or are not in favour of the Bill, let us bandy about the website of the British National party, which states: Blunkett’s proposed new Heresy Law will…‘criminalise’ efforts to warn the public about the dire threat posed by Britain’s Islam. The BNP’s website is not, how ever, anywhere near as bad as the pamphlet that it has been putting through people’s doors. In expressing its view of Muslims, it states that they stand for slaughter, arson, looting, rape of women and the establishment of a Muslim dictatorship. Those are the sort of views that we are currently having to put up with from organisations such as the BNP. If the Bill would help in any way to ensure that we could take on and defeat such hatred and the sort of disgusting activity that seeks to incite people against each other, I stand guilty of supporting it.

… Taking a small step—something to which my right hon. Friend the Member for Manchester, Gorton [Mr. Kaufman] referred—may not satisfy everyone in achieving what they want, but it is a substantial move towards ensuring that we stop the sort of disgusting hatred that exists around us and that was demonstrated by the words that I read out a moment ago.

Mr. Kaufman: Is not it a fact that the race legislation introduced by Labour Governments has now made it impossible for a politician to make the “rivers of blood” speech made by Enoch Powell? Apart from practical application, will not the Bill have an important effect in creating a certain climate?

Mr. Blunkett: I agree with my right hon. Friend.

Thanks no doubt in part to that full court press the Bill comfortably negotiated its Committee and Report stages, and then passed into the Lords, where choppier waters would be encountered. In fact, this intervention by one of Margaret Thatcher’s former Home Secretaries provides a flavour of the hostile reception that the religious hatred proposals would receive, as well as shedding a little further light into their origins.

Lord Waddington of Read: ... The proposal to make incitement to religious hatred a criminal offence has been hanging around in the Home Office for a long time, at least since 1985 when it featured in a Law Commission report. So it has precious little to do with the events of September 11th, except in the sense that after September 11th it was offered to the Muslim community as a kind of sop to buy support for the war against terrorism. So I, for one, was very pleased when I read in the papers that it was going to be dropped from the Bill. I was correspondingly disappointed when I learnt that the reports were all wrong.

I am sure that the Minister knows that there are genuine worries that the measure could be used to punish no more than the intemperate voicing of sincerely held beliefs. Some fear that, in the event, it may be used more against Muslims, who are not always slow to attack others for their religion, than against those who vilify them. A fat lot of good that will do in ensuring that extremists do not get up to mischief in the Muslim community.
The proposal is not necessary to meet the present threat. It needs a lot more thought than can be given to it in emergency legislation. Having waited for 16 years for it to become law, we can face with equanimity the possibility of having to wait for a few more years.

The prevailing sentiment amongst their Lordships towards the religious hatred clause was – Why this? And why now? In calling for the complete removal of Clause 38 from the Bill the Lords once again demonstrated their ability and willingness to veto prospective legislation that had been rubber-stamped in the Commons. The extent to which that will be possible in the future, now that most of the hereditary peers have been replaced by political nominees, more often than not selected for reasons of gender, ethnicity and depth of pocket, remains to be seen. The Bill was thus returned to the Commons for consideration of the Lords’ amendments, the most contentious of which was the recommendation to dump Clause 38.

In the Commons it fell to the hapless Beverley Hughes to open the batting for the government. Ms Hughes, it may be recalled, would go on to distinguish herself as probably the most incompetent in a long series of incompetent Labour immigration ministers, eventually being relieved of her duties by an exasperated Tony Blair in 2004. Her role in this particular debate was to mechanically parrot the government line in the face of an increasingly restive chamber. Responding to Hughes’s dismal effort Oliver Letwin expressed the mood succinctly:

... We are considering purely whether the decision of the Lords, who not just by a majority, but by an overwhelming majority consisting of Labour peers, Cross-Benchers, Liberal Democrats and Conservatives, voted to throw the proposal out, should be reversed in an attempt to reinsert in emergency legislation a provision that is, at very least, highly controversial.

Nevertheless, the Bill was returned to the Lords with Clause 38 still intact, the government having added a half-baked amendment to the effect that the Attorney-General would be issuing ‘guidance’ as to what would constitute an offence under the Act, and what wouldn’t. Their Lordships were quick to expose this transparent wheeze for what it was and refused to endorse the amended clause on the grounds that it was up to Parliament to craft legislation, and a responsibility of an unelected political appointee. Lord Goldsmith was himself tasked with defending the government’s latest proposition in the Lords, however the words of Lord Dixon-Smith showed the level of impatience with the government’s mulish obduracy:

Lord Dixon-Smith of Bocking: I do not intend to repeat the ground that we have gone over so many times in that regard. This is a piece of emergency legislation; it is an anti-terror Bill with a few connotations added to it. The inclusion of religious hatred offences is not appropriate in a Bill of that sort. So far as I am concerned, that is the beginning and the end of the argument. The mills of this House grind slowly and they grind exceeding fine. That is superb in its way. I do not propose to waste more time on this matter—much time has already been spent on it.

That the coup de grâce would be administered, ironically, by a ethnic minority peer, citing another minority ethnic in the House of Commons, must have seemed doubly humiliating for the government.

Lord Dholakia of Waltham Brooks: My Lords, we on this side of the House insist on the amendment that was considered on Report and which proposed leaving out Clause 38. It is for that reason that we support the amendment moved by the noble Lord, Lord Campbell of Alloway. There is a fundamental difference between what the Government are proposing and what we believe is the case. The amendment to the words proposed by the Commons does not meet our concern that provisions concerning incitement to religious hatred are inappropriate as part of the Anti-terrorism, Crime and Security Bill.

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Let me quote one of the noble and learned Lord’s colleagues—Diane Abbott, who is the Labour MP for Hackney North and Stoke Newington. In an intervention in the other place, she said: “My hon. Friend”—that is, the Minister in the other place— has been challenged about what the clause is doing in a Bill on terrorism and up to now she has not given us a satisfactory response”. She went on to suggest the motivation in that regard. She said: “The clause has been tacked on as a sop to certain sections of Muslim opinion that have long wanted such protection. It is an anomaly and it should not be in the Bill; wrong clause, wrong Bill. The Lords were right to strike it down”.—

Even the ubiquitous Lord Lester of Herne Hill piled in, which must have been a bitter pill for his erstwhile collaborator Roy Jenkins, present in the Chamber in his capacity of Lord Jenkins of Hillhead:

Lord Lester of Herne Hill: … If there really were an emergency or a pressing need for this legislation in the context of anti-terrorism, one could be perfectly sure that the Government would bring forward legislation early after Christmas in order to deal with it. But that is not the position for the following main reason. In so far as we are dealing with victim-orientated crimes, the existing criminal law is more than adequate to cope, as I believe the Attorney-General recognises.

With that the rout was complete, the government conceded defeat and removed Clause 38, and with it the crime of incitement to religious hatred from the Bill, which received its Royal Assent the following day.

Summary of the 2001 Act

If we refer back to the original Bill, and compare it with what actually formed part of the Act when it came into force, we can note the following changes (strikethroughs indicating what was withdrawn from the Bill prior to enactment):

• 36. Meaning of racial hatred: amends the POA86 to extend the definition of ‘racial hatred’ to include groups outside Great Britain.

• 38. Religious hatred offences: amends the POA86 to create the new criminal offence of incitement to religious hatred, defined as ‘hatred against a group of persons defined by religious belief or lack of religious belief.’

• 39. Religiously aggravated offences: amends the Crime and Disorder Act 1998 to create new offences of religiously aggravated assault, harassment and criminal damage. The offences were defined in exactly the same terms as the ‘racially aggravated offences’ in the CDA98, and carried the same penalties.

• 40. Racial or religious hatred offences: penalties: increases the maximum penalty in the POA86 from two to seven years.

Taking each in turn it is frankly difficult to discern how Clause 36 arose. Attentive readers may recall that the phrase ‘in Great Britain’ first appeared in the POA86, prior to which the commission of the act of ‘racial hatred’ was not geographically bounded. This restriction was included for the first time following a speech by Lord Monson in which he remarked that:

‘… Somebody could be caught even though the individual or individuals they have allegedly insulted had never been anywhere near this country, if the individuals who made the remarks had been referring to corruption or cruelty in some other continent, for example. Indian friends of mine who, a few months ago, made some far from complimentary remarks about Sikhs while having coffee in my garden, following some terrorist outrage in the Punjab, might easily be caught, to give one instance.”

Although that made sense at the time, somewhere along the line the point appeared to have been collectively forgotten by the year 2001, when the new Act once again extended the scope of ‘racial hatred’ beyond the borders of England, Scotland and Wales. Now, incitement to hatred on racial or religious grounds would be an offence even if there were no members of a particular racial or religious group actually resident in Britain. It’s something of a surprise that no-one outside the country (or even within) has yet sought to take advantage of this provision. There wouldn’t seem anything to prevent, for example, the Board of Deputies to conclude that the anti-Israeli stance of certain sections of the media amounted to incitement to racial hatred, and demanding that the police initiate a prosecution under the now-amended POA86. Lord Monson reiterated his point during the 2001 debate, perhaps a little tongue in cheek but nevertheless serving to highlight the potential absurdity implicit in the measure:

… Do the Government and, indeed, the Opposition, realise what the change to Section 17 of the 1986 Act made in what is presently Clause 36 of this Bill means? It will now be an offence to stir up hatred against any national group anywhere in the world. Thus, if this Bill had been in force exactly 60 years ago—that is, on 11th December 1941, when Britain was fighting for its life against the Axis powers—it would have been an offence, punishable by seven years’ imprisonment, to stir up hatred against the Germans or Japanese. Is that what the Government intend? Surely not. Does this not show the dangers of legislating in such haste?

The concept of ‘religiously aggravated’ offences excited little comment in either house, which is perhaps not so surprising given the non-controversial nature of ‘racially aggravated offences’ when first mooted three years earlier. They were waved through. As the Attorney General noted “no one has spoken against the idea that particular conduct that is criminal would be treated as the worse because of the circumstances in which it took place,” a curious legal concept to say the least. Rather like saying killing someone in self-defence is no different under the law than pre-meditated murder.

The last point concerns the increase in the penalty for incitement to racial hatred. Initially, Lord Goldsmith’s rationale ran as follows:

“…The simple point here is that the Government believe that the increase from two years to seven years reflects the seriousness with which the offence should be treated. It is in line with the existing sentence of seven years for the range of racially aggravated offences in the Crime and Disorder Act. In the Government’s view, that properly reflects the impact that these offences have on communities and public order in this country.”

This ignores the obvious point that the racially aggravated offences relate to violent physical offences committed against the person and not, as in the offence of incitement, the mere expression of thoughts, hateful as they may be perceived to be. Also, the fact that the increase in sentence had been introduced in the specific context of the new offence of incitement to religious hatred, which had since been abandoned, and yet was retained for the existing offence of incitement to racial hatred was allowed to remain largely unquestioned, even though no evidence was adduced for the necessity for such an increase. Lord Monson again puts his finger on the real rationale behind the proposal:

… My Lords, when the Minister comes to reply, I wonder whether he could tell us—this is germane to the amendment—first, how many sentences of more than 18 months’ imprisonment have been imposed for racial hatred offences in the 15 years since the Public Order Act 1986 came into force; and, secondly, whether the judiciary has ever complained that the current two-year maximum is too low and fetters its hands. If the answer is no then it appears that the near quadrupling of the maximum sentence to seven years is a public relations gimmick—or “spin”, as we are now meant to call it—designed to give the impression of the smack of firm government.

The Race Relations Act 1976 (Amendment) Regulations 2003

Unlike other legislation included in this discussion these Regulations are not the result of an Act of Parliament, but rather a ‘Statutory Instrument’ (SI), of which hundreds or even thousands may be issued by government departments each year. SIs are a means of modifying existing legislation without the necessity of obtaining parliamentary approval, although Parliament has to formally acknowledge each one and has the power to later annul an SI if it wishes to do so.

This particular SI is of interest because it illustrates the manner in which EU Directives are incorporated into British law without needing the consent of Parliament. The European Communities Act of 1972 requires the UK to ‘harmonise’ domestic legislation in accordance with the relevant EU Directive(s), in this case the Council Directive 2000/43 EC of June 2000, dealing with discrimination on racial or ethnic grounds. The corresponding UK legislation is the RRA76 which this Regulation modifies. The changes were not particularly radical, involving new definitions of indirect discrimination and harassment, new burden of proof requirements, and other minor changes, however the example serves to demonstrate the ease with which EU legislation can be made effective at the national level. 

It also highlights the point that to restore ancient freedoms of association and expression, as the BNP has committed to do, it will not be sufficient to repeal the Race Relations Act and related domestic legislation, it will be necessary also to derogate from the corresponding European legislation. If that is not feasible, the only alternative will be to leave the EU entirely.

?

The Racial and Religious Hatred Act of 2006

This Act represents the third (and also an ultimately successful) attempt by the Labour government to criminalise incitement to religious hatred. The first attempt was part of the Anti-terrorism Bill of 2001 from which the provision had to be removed at the last minute following two defeats in the Lords, as discussed earlier. The second attempt was as part of the Serious Organised Crime Bill of 2004 onto which, once again, the government had tried to piggy-back the religious hatred proposals, and which were once again rebuffed in the Lords. The proposals were dropped from the Bill to enable the Act to be brought into force prior to the 2005 general election.

In its 2005 election manifesto the government signaled once again an intention to bring forward legislation:

… Only Labour governments have ever introduced race relations legislation, and laws passed in 2000 are ensuring that all public bodies promote diversity and tackle discrimination against black and Asian Britons.

…

It remains our firm and clear intention to give people of all faiths the same protection against incitement to hatred on the basis of their religion. We will legislate to outlaw it and will continue the dialogue we have started with faith groups from all backgrounds about how best to balance protection, tolerance and free speech.

Supporters of the Bill were keen to highlight that ‘far right activists’ had, particularly in the aftermath of the 9/11 attacks and the London bombings in 2005, been able to exploit the lack of specific sanctions against religious hatred to revile Muslims. The Muslim Council of Britain, with active backing of the CRE, lobbied strenuously for the same form of protection that Jews and Sikhs receive under the RRA and POA. The difficulty was that, unlike Jews and Sikhs, Muslims do not have a single, recognisable ethnic origin and so fell outside the existing legislation. The Home Office subsequently confirmed that the legislation was being introduced “... to close a gap in the law to prevent extremists being able to stir up racial and religious hatred in the communities.”

Critics of the Bill however were just as vocal. They tended to separate into two camps. Grabbing the headlines, a consortium of high-profile media celebrities led by the ubiquitous Rowan Atkinson lobbied against the Bill on the grounds that it would restrict the right to mock or criticise religious belief. According to Atkinson: “To criticise a person for their race is manifestly irrational and ridiculous but to criticise their religion, that is a right. That is a freedom.”

The second group of critics had more overt political motives. Some, like Conservative MP and future Mayor of London Boris Johnson, claimed that the legislation was merely an effort to pander to Muslim voters disaffected by Labour’s military involvement in Iraq and Afghanistan. The utility of the legislation itself was questioned by others who claimed that the proposed offence was already caught by existing legislation. They cited the 2003 case of BNP organiser Martin Norwood who was successfully prosecuted under s5 of the POA86 for placing a poster in his window that depicted the Twin Towers in flames alongside the Muslim crescent and star symbol and the slogan ‘Islam out of Britain’. Norwood unsuccessfully appealed his case to the European HR Court on freedom of speech grounds but lost there too. According to Roger Smith, director of Justice, the law reform and human rights organisation: “The existing law on incitement is quite sufficient to deal with those seriously advocating violence. The content of the Act is supremely irrelevant. Its purpose is to show that the government is doing something rather than actually filling any plausible loophole in the law…” He added: ‘It is a very good example of symbolic legislation, introduced as a symbolic act following an event rather than for its content.’

Passage of the Bill through Parliament

Although the Conservatives and Liberals combined forces to table a reasoned amendment intended to block the progress of the Bill, the government’s majority was sufficient for it comfortably pass Second Reading. The Committee stage was similarly uneventful. Opposition in the Commons focused around issues of freedom of speech and concerns that different religious (and non-religious) groups would call for the prosecution of opposing groups. Such dissent as there was arose from the language contained in the Bill, rather than the principle itself.

The real fun and games, as well as the substantive opposition to the Bill, would start once it had passed into the Lords. How often have we seen in the course of this discussion that only token resistance has been offered in the Commons by the official opposition, and it has been left to the more-independent members in the Lords to place race-related Bills under proper scrutiny?

The Bill that left the Commons was in all essential respects identical to the one that the government had originally presented to Parliament. What was to emerge from the Lords, and subsequently ratified by the Commons, proved to be a different animal entirely, much to dismay of activist proponents. The unamended Bill called for the offence of incitement to religious hatred to be defined in exactly the same terms as the existing offence of incitement to racial. In fact, what was proposed was fundamentally the substitution of the term ‘racial and religious hatred’ wherever the term ‘racial hatred’ appeared in the POA86. This was widely felt to be too broad a definition, and the debates in the Lords focused around the need to separate the two offences, while narrowing the scope of the religious hatred offence. There was also considerable discussion on the potentially chilling effect of the proposals on freedom of speech conducted in large part by (credit where credit is due) Lord Lester of Herne Hill. On this occasion Lester was wearing his Human Rights hat and he proved to be instrumental in securing Lords’ agreement for a specific amendment to secure freedom of expression. Only the cynically uncharitable would seek an ulterior motive in Lord Lester’s less than total enthusiasm for legislation that would extend to Muslims the same protections against religious hatred that Jews already received under the POA86.

In addition to the freedom of expression provision, the Lords amendments restricted the offences to instances where it could be shown that the person had intended to stir up religious hatred, and the requirement that the incitement must be abusive, insulting or threatening was confined to words or behaviour that was threatening only. The amendments became so extensive, that the Lords completely decoupled the racial and religious offences, defining the latter in a new Part 3A of the POA86. In this way the existing racial hatred offence remained as it was, unaltered in the amended Bill. When the Bill returned to the Commons for consideration of the Lords’ amendments the outcome was a spectacular humiliation for the government which was forced to concede defeat in order to ensure passage of the Bill even in its final emasculated form. The Lords’ amendments were accepted in their entirety, the alternative for the government would have been to abandon its third attempt in five years to criminalise religious hatred.

The Aftermath

One curious aspect of the new Act is that it took almost twenty months after the Bill received its Royal Assent in February 2006 before it came into force on 1st October 2007, a process that ordinarily takes a few months at most. Some commentators attribute this unprecedented delay to a lack of political will on the part of the government, stemming from a reluctance on the part of Tony Blair to press for the implementation of such controversial legislation while still in office. Whatever the reason, the consensus amongst political insiders was that the Act, in its now emasculated form would be rarely used and was in effect now a political liability. In attempting to force the legislation through Parliament the government been humiliated into accepting wholesale changes to its scope resulting in an Act that was not just practically unenforceable, according to legal experts, but one which failed completely in achieving one of its principal objectives – placating the Muslim community which saw itself as being victimised by the constantly-evolving anti-terrorism measures. Muslim leaders considered this to be a betrayal.

Matters came to a head following the conclusion in late 2006 of the second trial of Nick Griffin and Mark Collett on racial hatred charges. Griffin and Collett were acquitted on all charges, including the former’s notorious description of Islam as a ‘wicked, vicious faith’. It may be recalled that following the verdict prime minister-apparent Gordon Brown made a statement about the verdict, with dark mutterings indicating that both the existing law on racial hatred and the yet-to-be implemented religious hatred sanctions may both have to be strengthened to avoid the ‘wrong outcome’ being reached again in the future. According to the Independent in a report on 11.11.06:

… Gordon Brown, the Chancellor, said mainstream opinion in this country would be “offended” by some of the statements that had been made during the course of the week-long trial. “Of course, the courts make their judgments on these things,” he told BBC News 24. “But if there is something that needs to be done to look at the law then I think we will have to do that. Any preaching of religious or racial hatred will offend … and I think we have got to do whatever we can to root it out, from whatever quarter it comes. If that means that we have to look at the laws again, I think we will have to do so.

Two weeks later the Independent again covered the fallout from the trial verdict, this time involving Attorney General Lord Goldsmith on 26.11.08:

…  Now a letter from Lord Goldsmith makes clear that the Attorney General agrees with senior ministers such as Gordon Brown who want the Government to admit that the new Act is practically useless.

The Attorney General’s letter – dated 15 November – informs Mr. Reid that the Crown Prosecution Service believes Mr. Griffin would have walked free, even he had been if prosecuted under the new Act. “Our judgment is that the new religious hatred law would not have assisted the prosecution here. This is because the law was so diluted in its passage through Parliament.”

He points out that Mr. Griffin had not used “threatening” words, as required by the 2006 Act, which insists on “proof of intent to stir up religious hatred” and includes wide “freedom of expression” provisions.

Lord Goldsmith tells Mr. Reid bluntly that “the 2006 Act will have a very limited impact on this when it comes into force”.

In fact in the two years since the Act came into force there has only been one prosecution, that of BNP activist Anthony Bamber who was charged with incitement to religious hatred in connection with a leaflet that he published and distributed which claimed that Muslims were responsible for the heroin trade in Britain. This leaflet in fact:

Bamber appeared in Preston Crown Court on 12th August last and denied the charges. The case is ongoing and in accordance with usual practice the media as well as the participants (including the BNP) are required to refrain from comment whilst proceedings continue.

It will be interesting to see how this case unravels since there is much riding on it, not least of course for Mr. Bamber himself since he faces a prison sentence of up to seven years if convicted. The government’s credibility is also at stake, as well as its standing with the Muslim minority in which it is investing hundreds of millions over the next few years in the interests of ‘community cohesion’. It will be interesting to see whether reports like this one, which also appeared in the Independent carry any evidential weight or whether, as has often been the case in prosecutions involving racial matters, the truth is inadmissible as evidence.

The Equality Act of 2006

This Act is relatively small beer compared to many of the others we have reviewed, its principal function being to bring into life the Equality and Human Rights Commission (EHRC) as the successor to the three separate quangos formerly charged with policing racial and sexual discrimination, and supervising disability rights (the CRE, EOC and DRC, respectively).

The EHRC came into full operation earlier this year under the tutelage of the former head of the CRE, Trevor Phillips. That in itself is a leading indicator of the relative priority that the government places on the three equality ‘strands’. Although the merger is supposed to deliver significant benefits in terms of operational efficiencies, it is not going to save any money. In contrast to the private sector where organisational consolidation is usually undertaken to reduce costs and shed excess headcount, the reverse is true in NuLabor’s fairytale quangoland. In their last full year of independent operations, the three equality commissions had a combined budget of £43 million (of which the CRE accounted for half). In its first year of operation the EHRC budget will be £70 million, plus another £24 million for ‘start-up’ costs. It is instructive to recall the answer given in Parliament by Home Secretary Frank Soskice in response to concerned questioning about the cost of the new Race Relations Board which was constituted as part of the very first Race Relations Act in 1965:

… The new conciliation machinery will involve a certain amount of public expenditure. That makes it necessary to move this Resolution. If the Committee desires an estimate, the best that I can give as to the probable cost involved, so far as I can give an estimate, would be about £35,000 per annum. There are the costs of the salaries of the members of the Board, administrative expenses, salaries of staff which will assist the Board and various travelling allowances, and so on, of the conciliation committees to be paid. We total them up to something like £35,000 a year.

Allowing for inflation, £35,000 is less than the cost of Trevor Phillips’ present annual salary.

The Equality Bill of 2009

So we have almost reached the end of the trail. The Equality Bill currently before Parliament – it has comfortably passed the Report stage just today in the House of Commons – will most likely be the last major piece of race and equality legislation that will be enacted for quite considerable time to come, assuming that, as widely expected, the Labour government is turfed out of office at the next election which must be held by May 2010. Although the Bill has been sold as merely a kind of extensive housekeeping operation, designed to ‘de-clutter’ the legislative framework as that relates to race and equality laws, in reality it goes much, much further and in some important respects it represents a major philosophical shift.

The Bill has attracted considerable attention since its first publication in late 2008 and there has been much media commentary. We will review some of the latter in a moment, in particular that do with the new areas covered by the legislation, as well as the projected costs and benefits associated with its implementation.

Scope and Objectives of the Bill

The Equality Bill represents the culmination of close to a half-century of concerted effort to entrench the concept of group rights into British law. It centers around the concept of ‘protected characteristics’ (analogous to protected groups under US equal opportunities laws) of which there are eight currently recognised. These are, in alphabetical order: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. This is by no means a closed-ended arrangement; given the necessary political support others can and probably will be appended in the future. During the consultations on the proposals that led up to the publication of the Bill calls were made for the inclusion of groups distinguishable by genetic factors, caste, or Welsh language use. Other potential candidates are limited only by the imagination, although the point of diminishing returns is fast approaching unless the unlikely step of extending protection to heterosexual white males under 65 is taken. As it is, someone has estimated that almost 75% of the population will be included as a member of one or more protected groups.

Each of the present set of protected characteristics is covered by existing legislation in one form or another, for example the Race Relations and Sex Discrimination Acts. The Equality Bill is intended to consolidate all such legislation into a single new act, enabling the repeal of nine separate Acts of Parliament as well as dozens of Regulations and Statutory Instruments. Not included and intended to remain in force unchanged is the Public Order Act which covers the criminal offences of incitement to racial and religious hatred.

The new Bill, which comprises 250 pages and a further 250 pages of explanatory notes is voluminous to say the least, and when enacted will form the largest single piece of legislation on the Statute Book. To render coherent over forty years of legislation is not a straightforward exercise especially laws that cover many subject areas such as pay and employment issues, race, religion and gender equality. The Select Committee deliberations following the Bill’s second reading in the Commons entailed an unprecedented 20 sittings over the course of over a month; four or five sittings are more the norm for the typical Bill. It remains to be seen what sort of difficulties and challenges organisations in the public and private sectors will encounter when they are required to comply with the Act once it comes into force sometime next year.

Controversies

Our focus in this present series is on race-related legislation and in that respect the Equality Bill does not – with one major exception that will be explored later - represent a major departure from or addition to the existing legislation. However some aspects of the Bill have excited considerable attention in the media and it might be of interest to touch on a few.

Amongst the more contentious issues are the proposal to extend the present provisions for ‘positive action’ in the Race Relations Act, which are ostensibly concerned with training opportunities only, to permit employers to openly discriminate in favour of minority and female candidates. This was decried as a back-door effort at introducing US-style affirmative action practices, and a philosophical departure from a focus on equality to one of equality of outcome. Connected with the last concern is the plan to force medium and large businesses to report annually on the status of the ‘gender gap’ in pay.

Labour’s introduction of women-only shortlists in 2005, which resulted in 75 women MPs, drew critical fire at the time and despite widespread public opposition the law is to be changed to allow all-women shortlists to continue until 2030. Predictably, other ‘under-represented’ groups have clambered on to the bandwagon, some homosexual activists are now calling for all-gay shortlists as well. All-ethnic shortlists are currently illegal, which has led to all the mainstream parties adopting the practice of ‘parachuting’ preferred minority candidates into safe seats, or installing them as life peers in the House of Lords.

The Christian Institute and other religious groups (but not the mainstream denominations) have raised concerns about the new statutory duty that will be placed on public bodies to promote homosexual and transgender equality. The prospect of the official encouragement for homosexual proselytisation, especially on vulnerable young people in school and elsewhere is particularly worrisome, says the CI.

Other areas in the proposed legislation which have attracted media attention include: the removal of all exemptions from anti-discrimination legislation from private clubs; the extension of awards made by tribunals in discrimination cases to include not just the plaintiff but also all similar employees in a concern; the automatic incorporation of all future EU-level equalities directives into British law without parliamentary oversight; and last but not least, the tabloids’ favourite, the abolition of any restrictions against women breastfeeding in public.

Grrrrrrr - it’s happened again! the editor has lopped off the last quarter or so of my text.

There’ll have to be a Part 6.

Posted by Dan Dare on Thursday, December 3, 2009 at 01:02 AM in Crusade against Discrimination in Britain
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