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The Racial and Religious Hatred Bill

The second reading of this bill comes before the House of Commons on 21st June 2005.

This is an interesting issue because of its philosophical complexity. It has the so-called "chattering classes" particularly agitated because of its potential for further constraining free speech.

Free Speech is rightly not an absolute. It is entirely possible to use words published in various ways to cause massive dissent and disorder. It is, therefore, rational for the Public Order Act 1986 and other acts to constrain Free Speech.

People may not be aware of these aspects of legislation. However, they exist and they exist for a good reason.

The big question is whether further legislation is required and what further legislation is required.

There are clearly various types of criticism which can be applied to groups which can be described in a number of ways. Ridicule, humour and other types of offensive words can be used in a number of ways which can be critical of ethnic groups, religious groups or other groups of people such as Scousers.

We already have "Irish Jokes" which if nothing else do criticise an ethnic groups. These are entirely lawful.

It is entirely lawful to do things which are offensive and clearly this is right. I wish at times people would not be as offensive as they can be, but it should be their right to be offensive.

The difficulty arises when things go that big step further and come into the territory where any one particular group of people finds itself in a situation in which people are publishing words intentionally to create hatred.

The situation with Bezhti in Birmingham late last year shows how something can oscillate from side to side with camps gradually getting more and more wound up with each other until something happens. Luckily that particular situation stopped swinging from side to side just before it would have got particularly nasty.

Bezhti, of course, would not be caught by this legislation as it would not be caught by the descriptions in the legislation. Bezhti was very offensive to religious Sikhs, but entirely lawful and would remain entirely lawful - not least that it is argued that the Sikhs being (almost) all of one race (* see note) are protected by the current legislation in any event.

From my personal perspective, therefore, there is a good case for specifically making it an offence to create hatred based upon religious division. We had this problem in the UK in the past which resulted in people being burnt at the stake and once the pendulum starts swinging on such matters it is very difficult to reduce the temperature.

O Happy Day provides this flow chart demonstrating the nature of the relevant sections (18 - 20) of the Public Order Act 1986. (This chart applies to Section 18, but the other sections are much the same.)

As I see it whereas there is a good argument in a situation where someone has set out to cause hatred (not offense, but hatred) that they have committed an offence then the situation could sensibly fall within the purview of the criminal law.

I am more concerned about the sub-sections (1) (b) of each of the sections.

These deal with the concept of Mens Rea. As it currently stands S18 post of the 86 Act have an element of "strict liability" which covers someone committing an offence even if they did not intend to (a sort of Speed Camera of Free Speech).

My feeling is that the legislation clearly should be amended to remove these sections from effect.

In the Criminal Justice Act culpability is assessed against four levels of seriousness

intentionally - deliberately sets out to commit offence

recklessly - recognises that proposed conduct is liable to lead to an
offence being committed, but goes ahead anyway without taking mitigating
steps

knowingly - does not set out to commit offence, but finding himself in a
position where he knows there is a risk of committing an offence if he
continues, accepts that risk but steps over the boundary and does not then
immediately stop.

negligently - does not set out to commit an offence, but fails to take
reasonable measures to find out whether his course of action would lead to
an offence being committed, so ends up breaking the law.

As it currently stands S18post of the 86 Act include "Strict Liability" elements which goes further than "negligently" where arguably it should only apply intentionally for certain and possibly recklessly.

I have drafted a question to determine what prosecutions have occurred under the subsections (1) (b), but I feel an amendment is needed to deal with the issue of culpability.


*note
There are lots of arguments about what defines a group of people. Some sources indicate that people originating from south asia were part of the Caucasian race that developed in the Mediterranean area. Some people categorise all asians as of a "Dravidian" type. Other people make a distinction between Dravidian and Aryan. There are many ways of categorising people into groups. The danger that exists from this is that group loyalties then come to the fore and strife can occur on a feudal basis between groups. There really is only one "race" which is the "Human Race". However, there is a merit to laws which discourage the incitement of people to hate other based upon their membership of a particular group.

Comments

Manfarang said…
"Sikhs being(almost) all Dravidian"
Are you using the word Dravidian to mean dark skinned as opposed to Aryan meaning light skinned. Sounds a bit like the British Raj.
Most British Muslims are south Asian. BNP attacks on Islam are overwhelmingly racial in nature and should be treated as such.
Why not ban the BNP as a criminal organisation.
john said…
I take your point on the use of the word. My original source categorised people from South Asia (including the Pathans and Bangladeshis) as Dravidian. This means the answer to your original question is no.

There is no sense banning the BNP all that would happen is that they would regroup under another name and in a stronger position. Much that I protest against their views that mixed race children should not exist etc and will not share a platform with them, I do not support banning them.
Manfarang said…
I was talking to my Sikh colleagues this afternoon,the word Dravidian didn't mean anything to them.I have only seen the word used to refer to south India, ie Tamil.
The Sikh religion accepts converts but doesn't make many.People are fond of hair cuts!
Tom Barney said…
"once the pendulum starts swinging on such matters it is very difficult to reduce the temperature"

Mixed metaphor of the week?
Tom Barney said…
This comment has been removed by a blog administrator.
john said…
This particular pendulum is a thermometer.

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