Filed under: Civil Liberties
More op-ed from Polly Toynbee today, on the subject of the Incitement to Racial Hatred Bill which, as is seemingly ever the case, is wide of the mark in both facts and histrionics.
The introduction of this bill was always bound to raise serious concerns as to its potential impact on civil liberities as it does raise the spectre of a stream of vexatious complaints from hardline religious groups seeking to enforce their interpretation of what is and isn’t acceptable in terms of free speech on wider society - and inevitably their interpretation is going to be rigid, over beraing and designed to prevent as much legitimate criticism and comment as possible.
That is the real problem we face with this particular bill should it become law. In the early stages, until the process of jurisprudence lays down a clear interpretation of what actually does consititute religious hatred in case law we are going to be faced with a free for all in which highly motivated groups like Christian Voice, amongst others, will take every possible opportunity to try to force their version of the ‘truth’ on to us all.
However, these are practical issues which require practical solutions some which would include the revival of the old common law criminal offence of barratry, ensuring that the cost of any legal aid given in such cases is recoverable shoould a court rule a case vexatious and, if things do get out of hand, the offence of wasting police time.
Underneath it all the fundamental principle of the bill, that we should offer some protection to law-abiding citizens against personal attacks predicated on their holding particular religious beliefs is basically sound. How can any reasonable person argue otherwise if they’ve ever seen the likes of Nick Griffin skirting around current race relations legislation simply by substituting the word ‘muslim’ for ‘paki’. Its an unsustainable position however you look at it - unless you’re a member of the BNP…
… or the Daily Mail who seem to complaining bitterly that the new law will even protect satanists - and as an aside there is at least one case I know of under Massachusetts state law, which offers similar protections, where a fundamentalist Christian group were prosecuted and convicted for religious hatred vented on a gathering of pagans in, of all places, Salem. For the interminably ignorant, btw, I should mention that paganism and satanism are two totally different things and are related only in the doctrinal prejudices of various Christian churches.
On some point Toynbee is so wide of the mark as to make you wonder which ballpark she actually thinks she’s in and her personal interpretation of what actually constitutes ‘race’ is increasingly archaic and at clear variance with the very best of current thinking on the subject, as exemplified by Rewind, hence comments such as:
Race is something people cannot choose and it defines nothing about them as people. But beliefs are what people choose to identify with: in the rough and tumble of argument to call people stupid for their beliefs is legitimate (if perhaps unwise), but to brand them stupid on account of their race is a mortal insult.
Race is, I agree, an outmoded and often unhelpful notion. There is only one race, dear old Homo Sapiens Sapiens, the Human Race but then the normative concept of race, which has pervaded society for centuries and which shapes, to a considerable extent, our laws on the subject are equally outmoded in much of their reasoning.
The curate’s egg in dealing with notions of race are the Jews, who are neither a homogenous race in simple anthropological terms - on this level there are substantive and measurable differences between Jews whose origins lies in Eastern Europe as opposed to those of North Africa and, especially, Ethiopia - by the crude visual standards which pervade many people’s concept of race, most would readily consider the Beta Israel to be a different race entirely from the European Ashkenazi.
Equally on can elect to become a Jew by converting to the Jewish faith or embrace apostasy and cease to be a Jew - unless one is trying to suggest that converts should be not be entitled to the same legal protections as are applied those who were born into the faith. This is also the fundamental problem with the amendment proposed by Evan Harris MP who suggests that instead of outlawing religious hatred we should outlaw ‘reference to a religion as a pretext for stirring up racial hatred’ - thereby presupposing that there is no such thing as a white, Anglo-Saxon Muslim not to mention the ignoring the ultra-competative religious environment within African and African-Caribbean communities which in which evangelical Christianity and Islam are facing off against each other in pitched philosophical and cultural battle for followers.
Whether you can do anything or not about the colour of your skin or who your parents are is irrelevant to the debate because in dealing with the concepts of race and ethnicity we are dealing with social constructs and, in particular, the individual’s personal sense of identity and culture, not merely with their genetic heritage. If Jews, Sikhs, Africans or anyone else for that matter were really different on that level they’d be a different and distinct species, not a ‘race’.
On a philosophical level an individuals notion of their race or ethnicity bears more relationship to the human genome than the concept of racism does to race itself - racism is a manifestation of the uneven power relationships which exist in society, the conflict between the powerful and powerless. Race is merely a social construct which enables that struggle to manifest itself in a particular form.
Like it or not, what we are dealing with here is people’s concept and sense of their personal identity and for those who do embrace particular religious beliefs those beliefs form a significant component of that sense of identity. A personal attack on someone due to their religious beliefs is no less damaging that one predicated on the colour of their skin or on other aspects of their cultural identity.
The problem of defining what is and isn’t religious hatred is that we’re tasked with reaching such a defintion in the face of ignorance on all sides despite the fact that the test which needs to be applied in law should be relatively clear and straightforward. One is committing an act of religious hatred when one denies the basic and fundamental humanity of the individual by reason of their belief or lack of belief in a particular faith and equally one is inciting religious hatred when one seeks to incite others to deny that same humanity. That’s the test and the standard which needs to be encapsulated in law.
Under such a test one is free to argue that an individual is stupid in their beliefs, that their beliefs are stupid and irrational and even by inference that may, in turn, make them a stupid and irrational human being but not that their beliefs make them less human or less than human as therein lies the seeds of hatred.
Polly’s comments about ‘choice’ are not an argument against having this law, much as she may believe it is, but an argument for the application of higher and more exacting standards in the legal test of what contitutes religious hatred than is in place in relation to the office of inciting racial hatred.
To call someone stupid simply becuase of the colour of their skin is, as she points out, logically and rationally unsustainable. However the same kind of comment regarding someone’s beliefs may be based on a valid opinion or point of view which can be supported both logically and rationally - the law, or rather the courts - as this where such precendents will be set - must recognise that while the terms ’stupid nigger’ and ’stupid christian’ may cause an equal degree of offence to a particular individual and be thought equally perjorative, as potential expressions of hatred they may be intrinsically different things.
This is not an intrinsically bad law as written, other than by reason of the omission of clauses repealing the law of blasphemy, the retention of which is archaic, inequitable and unsupportable and little more than futher ever that Tony really does ‘do god’ however much Alistair Campbell would wish us to think otherwise. There are any number of sound reasons for repealing the blasphemy laws and consigning them to the dustbin of history to which should be added the fact that its repeal would pretty much kill off any future prospect of hard-line religious groups getting the kind of overtly censorious laws and restrictions on legitimate free expression that they’re really seeking.
It could become a bad law, should the courts fail to apply the stringent tests necessary in defining something as complex and nebulous as religious hatred and, through loose interpretation, open the door for a case law-based model of religious hatred which restricts rather than protects free expression. That is and will always continue to be a real and legitimate danger so long as we lack a constitutional Bill of Rights, adopted by plebiscite, which protects us against the largely unestrained ability of both Parliament and the Judicary to make stupid decisions every now and then.
But equally, it could turn to be a good law if the courts adopt an attitude of rationality and common sense in applying the law, if they follow the lead set by the ‘trial’ of DH Lawrence’s ‘Lady Chatterley’s Lover’ under what was then the new Obscene Publications Act or it could go the way of Whitehouse vs Lemon, one of only two successful cases brought under the current blasphemy laws in the whole of the 20th Century.
At this stage, we just don’t know for sure and won’t know if or until this Bill becomes law and we start to see the development of a body of case law through the courts - that’s the risk but then that’s no more than the same risk we face with any changes to criminal law and an intrinsic part of our legal system.
What Polly is trying to sell us is that when it comes to religious hatred we have only two choices - bad law or no law. That’s simply not true. We have a third possibility, that of it becoming a good law, one which works well both in protecting the vulnerable from irrational and unjustified hatred and in protecting the free expression of legiimate criticsm.
And in this, perhaps the key to understanding where Polly’s coming from is in this comment near the end of her article:
“if you wonder why there have been no penetrating exposes of cults like Scientology in recent years, it is because they have sued so often that the media caved in - fear of litigation outweighs the story. That is how the law cast its shadow.”
Now apart from noting a slight factual problem here - Scientology is not considered a religion in UK law for reasons I won’t go into in this piece - it seems that what Polly may be most concerned about, as a journalist, in the freedom of the press, which is all to the good as that is something we should be concerned about. However arguing from the standpoint that legislation imposed unjustified censorship of the press is rather different from arguing from the standpoint of the media’s lack of backbone in the face of threatened litigation - the latter being no real argument at all.
In fact this just one of two glaring factual errors in the piece as a whole as Polly also describes the UK as ‘This most secular state in the world’ having clearly forgotton that this ’secular’ state has a state religion, Anglicanism, and therefore the State isn’t actually secular at all - the people may be moving in that direction but not the State. At least not until we disestablish the Church of England - which I would happily support anyway.
In terms of law and lawmaking, the Inctiement to Racial Hatred Bill poses two key questions of trust, and neither of those is the whether we trust the government which is introducing this bill but whether we trust the courts to apply this law in a reasonable and judicius manner and, more importantly, whether we trust ourselves to do likewise.
You see, in all this, the one thing that’s not been mentioned all along is that once this law comes into force and we start to see cases brought to court, the ultimate arbiter of the shape and form this law will take in practice will be us - the people - because when that first prosecution happens it will be twelve jurors who decide on the question of guilt or innocence. Not a judge and certainly not a politician.
So, ultimately, this law will be only what we make of it and nothing more.