Tuesday, March 8, 2011

Select Committee on Religious Offences in England and Wales: First Report (2003)

Select Committee on Religious Offences in England and Wales: First Report (2003)

This document was the result of proposals in England to create a new offence of "incitement to religious hatred" and abolish the common law crime of blasphemy shortly after the attacks of September 11, 2001. It examines whether blasphemy should remain a crime in England and whether a new "incitement to religious hatred" crime should be enacted. As each of these things have already occurred, this document is now primarily of historical value only. This post focuses only on the sections of the report directly relevant to blasphemy.

Chapter 1 explains that the Select Committee was charged with answering two questions: (1) "Should existing religious offences (notably blasphemy) be amended or abolished?" and (2) "Should a new offence of incitement to religious hatred be created and, if so how should the offense be defined?" The Committee notes that blasphemy and incitement to religious hatred have different targets; "blasphemy concerns sacred entities or beliefs while incitement relates to people or groups who belong to a particular faith." The Committee states that it received more than five hundred written submissions on the two questions and held several public meetings to take evidence.

Chapter 2 is the Committee's attempt to provide context for the report. It notes special concern by the Muslim community that they are not protected by England's blasphemy law, nor are they protected by prohibitions on racist speech like Sikhs and Jews are.

Chapter 3, "The Law as it Stands", begins with a short summary of the common law offence of blasphemous libel in England. According to the Committee, "Two elements of the law are clear. First, the offence is one of strict liability. . . . Secondly, the offence protects only the Church of England." The chapter goes on to discuss several statutes dating from the 1800s that prohibit various types of "crimes against religion."

Chapter 4 explores three options for dealing with the law of blasphemy: leaving it as it stands, repealing it without replacement, or repealing it and replacing it with a new statute "which would cover all religious faiths and beliefs and the rejection of religion[, with t]he objects of the protection [being] faiths, beliefs, etc., not the people or groups who hold to them." On the first option, leaving the law as it stands, the Committee notes that "no [social] consensus seems to exist as to the direction in which the balance [between religious and secular elements of society] should be changed, if indeed change it must." The Committee notes that substantial segments of society believes that "the law on blasphemy offers much more than legal protection; they believe it to be an expression of the fabric of our society [and] of the values on which our relationships with one another depend[.]" In its discussion of the second option, repealing the law without replacement, the Committee notes several defects with the law: that it's a crime of strict liability, that it's discriminatory insofar as it only protects the Church of England, and that, if used, it would probably be struck down under free speech guarantees of domestic and international rights guarantees. On the third and final option, the Committee discusses the difficulties involved in trying to draft a new blasphemy offense that avoids each of these problems.

Chapters 5-9 discuss the following topics: the Ecclesiastical Courts Jurisdiction Act, 1860; the proposed offence of "incitement to religious hatred"; freedom of expression; hate crimes; and "aggravation."

Chapter 10 provides the Committee's conclusions. Unfortunately, the Committee was unable to come to a consensus on most of the crucial questions it discussed. The Committee notes that "we believe there should be a degree of protection of faith, but there is no consensus among us on the precise form that it might take. We also agree that in any further legislation the protection should be equally available to all faiths, through both the civil and the criminal law."

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