“I SEE the Home Secretary scratching his head,” said Boris Johnson (C, Henley) in the Commons on Tuesday night. Well may Charles Clarke have scratched his head. The case he was making was being blown apart. The Government’s Racial and Religious Hatred Bill was facing its second reading. About an hour later, and as is the way with government measures which have been comprehensively demolished in debate, this one went on to be passed by a comfortable majority.
The easy passage of a battered and derided bill was news. The battering and derision was not. Accordingly the newspapers reported a “victory” for Mr Clarke, while the debate itself received scant attention. It was a fine debate, during which the Home Secretary was reduced to repeating bald assertions of obvious nonsense.
MPs were incredulous at his flat insistence that the Bible and the Koran were incapable of containing words calculated to incite religious hatred. To the Reverend Ian Paisley (DUP, N Antrim), Mr Clarke replied: “Statements in the Bible, the Book of Common Prayer and other faith books — the Koran, for instance — are precisely that. They are not incitements to hatred.”
This prompted Boris Johnson to offer the following passages from the Koran: “As for the unbelievers, for them garments of fire shall be cut and there shall be poured over their heads boiling water whereby whatever is in their bowels and skins shall be dissolved and they will be punished with hooked iron rods.”
Meanwhile, Edward Leigh (C, Gainsborough) had turned his attention to the Bible, where Jesus says: “Woe to you, teachers of the law and Pharisees, you hypocrites! You are like whitewashed tombs, which look beautiful on the outside but on the inside are full of dead men’s bones and everything unclean. . . . You snakes! You brood of vipers! How will you escape being condemned to Hell?”
According to the Home Secretary these are not the kind of statement that could encourage hatred. There is a growing Alice-in-Wonderland feeling about Mr Clarke’s pronouncements. Moments earlier he had assured MPs that the mess that comparable legislation in Australia has got itself into could be avoided here. How? Well, Mr Clarke said, the wording was different: the State of Victoria outlaws language which incites “serious contempt for, or revulsion or severe ridicule of” other people on the grounds of their religion. That, said Mr Clarke, “is massively wider than what we are proposing in the Bill”.
It isn’t. It just isn’t. “Hatred” (the word Mr Clarke’s Bill uses) is another word for serious contempt, revulsion or severe ridicule. Like Humpty Dumpty, our Home Secretary seems to think words mean what he chooses them to mean.
There are four things you need to know about the Racial and Religious Hatred Bill, after Second Reading.
First, there really has been a loophole in existing protections which may not cover troublemakers who use words like “Muslim” as synomyns for “Asian”; but this could easily be dealt with through the small amendment proposed by Lord Lester of Herne Hill, extending the existing law to cover those who use religion as a proxy for race.
Secondly, the reason the Government blocks its ears to Lord Lester’s modest proposal is that ministers were never much interested in what their new law would do; they are interested in how it will look, especially to Muslims in marginal constituencies. As Graham Allen (Lab, Nottingham N) pointed out, the measure is arousing “false expectations”. Some Muslims have been encouraged to think the law will protect the Prophet Muhamma d from insult. They should be told that Mr Clarke is now insisting it would not.
Thirdly, the Government’s case for this measure has been pulled to pieces, and the Government knows it. The prime perpetrators of religious hatred are religions. You can protect a particular faith by law but you cannot protect Faith by law, because as purveyors of Eternal Life, faiths are in competition.
Fourthly, that in despair the Home Office has now retreated to that last resort of a beleaguered minister: the twin assertions that the measure was only ever meant to “send out a message” and that actual prosecutions will be exceptional and few.
The Home Secretary said on Tuesday that even if the police and the Crown Prosecution Service agree to proceed with a complaint, “the case must be considered by the Attorney-General, who must consent to its continuation”. This is an implicit admission that the Home Office’s legal draftsmen have failed to capture the offence in words which distinguish between what should and should not be prosecuted. How could you, while (in Boris Johnson’s phrase) “eliding two notoriously foggy concepts, religion and hate, into a great cloud of muddle and misunderstanding”?
In a series of excellent speeches and interventions, Dominic Grieve and Alistair Carmichael (Conservative and Liberal Democrat spokesmen, respectively) sounded a warning about this filling of a legal vacuum by expanding the office of Attorney-General.
The whole point of the rule of law is the certainty it gives the citizen. There is no greater injustice than for a citizen to be unable to determine what legal consequences would flow from an action contemplated. The bill, which passed its Second Reading last week, could be used to criminalise great swaths of speech and literature, ancient and modern. This will not happen, but to behave as Mr Clarke is doing is tantamount to empowering the Attorney-General to take such action as he sees fit to prevent or punish such speech or writing as seem to him to encourage religious hatred.
Fine. But if we trust his judgment why not let him ban or punish any publication or speech — religious or otherwise — that fans hatred? It is a perfectly serviceable way of governing, to appoint a range of czars, but it has not been the British way. Similar anxieties should be aroused by the antisocial behaviour legislation, which seems to give remarkable latitude to a range of officials who have in common only that they are not judges or juries.
These latter become rubber stamps in a process whose intrinsic weakness is that the offence is so loosely described that a conviction is easy to secure; the real power has therefore passed into the hands of those who decide whether to initiate a prosecution. The logical conclusion of this trend would be to make it an offence to breathe, but leave it to the Attorney-General to decide which prosecutions would be in the public interest.
As Alistair Carmichael put it: “It is not the job of a Law Officer to establish boundaries of public policy in areas such as this. The question of what constitutes legitimate religious comment or incitement to religious hatred is surely one for which this place should be responsible; a Law Officer should not be required to adjudicate on it.”
Dominic Grieve added that nothing can stop individuals trying to initiate prosecutions, or the headlines and sense of injustice when they fail.
Some legislation has to be a little loosely drawn but it is always a pity when parliament creates a thousand apparent offences of which only a handful were ever seriously intended to go to court. Only overriding need can justify that. None has been established. Ministers have yet to describe a single real example of behaviour that this measure would and should have stopped.
The Bill is a manifesto commitment whose purposes the House of Lords may feel they have no business thwarting. But this measure, in this form and these words, fails to achieve those purposes in a proper manner. It is the business of the Lords to address themselves to that.
