Racial and Religious Hatred Bill

My Lords, my name is down in support of this amendment and, indeed, it is supported by our Front Bench. I should declare a personal and professional interest long past in that I appeared in the Salman Rushdie case when an attempt was made by Mr Choudhury to extend the law of blasphemy to protect Islam against insult. It is right that I should declare it and a little later I shall be saying something about that case and what one may learn from it. My task is briefly to explain where I think we are at the moment on the law of blasphemy because the situation now is untenable. The leading English case on the common law of blasphemous libel was decided by the Law Lords in 1979, in the Gay News case. By a majority of three to two, and without the benefit of the framework of the Human Rights Act 1998 or full argument on the issues of free speech, the Law Lords breathed new life into what had been regarded until then as an anachronistic and arbitrary relic of Tudor and Stuart times when draconian powers of censorship had been exercised by the Ecclesiastical Courts and the Court of Star Chamber until they were taken over by the common law courts. As Lord Diplock, one of the dissenting liberals in the Gay News case, observed:"““In the post-Restoration politics of 17th and 18th century England, Church and State were thought to stand or fall together. To cast doubt on the doctrines of the established church or to deny the truth of the Christian faith was to attack the fabric of society itself: so blasphemous and seditious libel were criminal offences that went hand in hand””." Mrs Mary Whitehouse brought a private prosecution against the editor and publishers of Gay News alleging that they had,"““unlawfully and wickedly published . . . a blasphemous libel concerning the Christian religion namely an obscene poem and illustration vilifying Christ in His Life and in His crucifixion””." For the previous 50 years, the offence had disappeared from the criminal calendar and was regarded as having become obsolete. The Gay News defendants were tried at the Old Bailey and convicted. The editor was sentenced to nine months’ imprisonment, suspended for 18 months, and fined £500. The publishers were fined £1,000. The Court of Appeal dismissed their appeal and so did the House of Lords. The only member of the Appellate Committee who referred to free speech was Lord Scarman, who explained that he wished not only to give new life to the offence, but also to extend its reach to protect all religions. In the Irish Supreme Court’s judgment in Corway, where it effectively abolished the law of libel, it referred to what it described as Lord Scarman’s ““remarkable”” rationale for the existence of an offence of blasphemy. Your Lordships will be pleased to know that I will not read out exactly what Lord Scarman said, but in conclusion, he said:"““I will not lend my voice to a view of the law relating to blasphemous libel which would render it a dead letter, or diminish its efficacy to protect religious feelings from outrage and insult. My criticism of the common law of blasphemy is not that it exists but that it is not sufficiently comprehensive. It is shackled by the chains of history””." That is an extraordinary statement from a very enlightened judge. The previous trial for blasphemy had taken place 50 years previously in the case of Gott. John William Gott was indicted for having published a blasphemous libel by selling to the public two pamphlets entitled Rib Ticklers, or Questions for Parsons and God and Gott, satirising the biblical story of the entry of Jesus into Jerusalem, from Matthew Chapter 21, verses 2 to 7, which is based on a literal interpretation of the prophecy that the King of Zion would come,"““riding upon an ass, and upon a colt the foal of an ass””," which is Zechariah Chapter 9, verse 9. One man in the crowd said, ““You ought to be ashamed of yourself””; one woman said, ““Disgusting, disgusting””. Nothing further occurred. Gott was convicted and sentenced to nine months’ imprisonment with hard labour, even though he was suffering from an incurable disease. In dismissing Gott’s appeal, the Lord Chief Justice, Lord Hewart, said:"““The appellant has been three times before convicted of publishing blasphemous libels, and he had ample knowledge of what he was doing. It does not require a person of strong religious feelings to be outraged by a description of Jesus Christ entering Jerusalem ‘like a circus clown on the back of two donkeys’. There are other passages in the pamphlets equally offensive to anyone in sympathy with the Christian faith . . . Such a person might be provoked to a breach of the peace . . . If the appellant is in ill-health, the hard labour will not be enforced so as to injure him. In fact, a sentence of hard labour will cause the prison authorities to pay even greater attention to his health than they would otherwise do””." The harsh sentence aroused great public indignation, with strong criticism of the press and condemnation by a number of clergymen. But there was no condemnation or criticism by any of the Law Lords in the Gay News case. In fact, Lord Scarman described as ““relevant to British society today”” the statement of the Home Secretary, Edward Shortt, when pressed to remit Gott’s sentence. The Home Secretary said:"““The common law does not interfere with the freedom of expression of bona fide opinion. But it prohibits, and renders punishable as a misdemeanour, the use of coarse and scurrilous ridicule on subjects which are sacred to most people in this country. Mr Shortt could not support any proposal for an alteration of the common law which would permit such outrages on the feelings of others as those of which Gott was found to be guilty””." In the wake of the Gay News case, the Law Commission reviewed the subject and, after a detailed study, its report was published 20 years ago in June 1985. It recommended the abolition of the common law offences of blasphemy and blasphemous libel. It identified three main defects in the common law. First, it stated:"““The law is to an unacceptable degree uncertain””." Secondly:"““In so far as the law requires only an intention to publish the offending words and not an intention to blaspheme, the offence is to an undesirable extent one of strict liability””." Thirdly, it stated:"““In the circumstances now prevailing in England and Wales, the limitation of the offence to the protection of Christianity and, it would seem, the tenets of the Church of England cannot be justified””." I shall omit the differences of view but I note that Brenda Hoggett—now the noble and learned Baroness, Lady Hale of Richmond, a very distinguished Law Lord—was one of those who recommended total abolition. Finally, in the case of Choudhury a challenge was made, with the support of many Muslims, to the publication of Salman Rushdie’s novel The Satanic Verses, seeking to prosecute Mr Rushdie and his publishers, Viking Penguin, for blasphemous libel. Reliance was placed upon what I have read to your Lordships in the Gay News case and on the European convention. I acted for Viking Penguin. It was a painful experience because it illustrated the great danger of retaining blasphemy as a criminal offence. The great danger was—and remains—that followers of other faiths seek a blasphemy law to protect their faith against gross insult. One religion’s faith is, of course, another religion’s blasphemy. The Divisional Court rejected the application. It agreed that extending the blasphemy law would be impossible, as did the European Human Rights Commission. Having had the appalling experience in that case of a major division between, as it were, white liberals like me, on the one hand, and people of genuine, strong Muslim faith who wanted a blasphemy law, on the other, I quite see that there is no equal protection of the law in their eyes—and there is not—so long as Christianity is given special protection against gross insult and other religions are not. The answer, surely, to the problem is not to seek to extend blasphemy law or to misuse the Bill that we are currently discussing and debating, but at last to bury, as has the Irish Supreme Court, the completely outmoded, almost mediaeval, crime of blasphemy. Unfortunately, in a Written Answer of 24 February 2005, the Minister indicated that the Home Office does not apparently regard the offence of blasphemy as dead. In a further Written Answer the noble Baroness, Lady Ashton of Upholland, stated:"““If material or conduct is gratuitously offensive to Christians, and is prosecuted as such, a finding of blasphemy may be the appropriate response by a court to ensure that the rights of others under Article 9 [of the convention] are protected””.—[Official Report, 3/3/05; col. WA 40.]" I protest at that. An official statement of that kind can only encourage bodies such as Christian Voice and the Christian Institute in their bigoted campaign against the BBC and the regional theatres to prevent public performances of ““Jerry Springer—the Opera””. Whether the offence is abolished in this Bill or soon thereafter, it will not be abolished until the Bishops tell the Home Secretary that they are willing to see it abolished. I believe they have moved strongly in that direction and I very much hope that they will be able soon to give the green light so that we can legislate as we should do.