Tackling religious terminology that stirs up racial hatred.

Written by Dr Peter Jepson

(Published in the New Law Journal 16th April 1999)

( Any comments to law@peterjepson.com )

This article argues that British law is inconsistent with the ëInternational Covenant on Civil and Political Rightsí and that the government should amend the Public Order Act 1986 so as to ensure that the law penalises the use of religious terminology that is ëthreatening, abusive or insultingí and which stirs up racial hatred.

International Covenant on Civil and Political Rights.

The International Covenant on Civil and Political Rights (ICCPR) was ratified through an executive act of Ministers on the 20th May 1976, and like most international treaties it is not incorporated into UK law. The treaty is primarily concerned with issues other than race, but it does have some relevance to the civil and political rights of citizens in that context. For example the ICCPR provides for:

bulletArticle 18: freedom of thought, conscience and religion,
bulletArticle 19: freedom of expression, and
bulletArticle 20: the requirement that "any advocacy of national, racial or religious hatred that incites racial discrimination, hostility or violence shall be prohibited by law."

In ratifying the treaty, the British government expressed a reservation by interpreting Article 20 consistently with Article 19 and reserving the right not to introduce any further legislation.(footnote 1)

Does British law comply with the ICCPR?

It can certainly be argued that British law, via Part III of the Public Order Act 1986, is reasonably consistent with this ideal so far as racial hatred is concerned. However, British legislation fails to tackle incitement to racial discrimination(f2) and makes no provision to tackle religious terminology that is used to stir up racial hatred.(f3) Indeed, given the occasional causative link between religion and race this is disappointing, especially so, when it can be seen that the UK government has legislated in Northern Ireland(f4) with reference to religious belief, colour, race, nationality (including citizenship) or ethnic or national origins and where hatred was likely to be stirred up or fear aroused.

By comparison under British law, racial hatred means hatred against a group of persons in Great Britain, defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.(f5) This, unlike in Northern Ireland, clearly excludes religion.

The House of Lords have interpreted British law further through the race discrimination case of Mandla v Dowell Lee.(f6) In this case, Sikhs were held to be an ethnic group on account of seven characteristics determined by Lord Fraser:

(2) A cultural tradition of their own, including family and social customs and manners.

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(1) ëThey have a long shared history of which the group is conscious as distinguishing it from other groups, and the memory of which keeps it alive,

In addition to these two essential characteristics, the following were also considered to be relevant in determining an ethnic group:

(3) Either a common geographical origin or descent from a small number of common ancestors,

(4) A common language, not necessarily peculiar to that group,

(5) A common literature peculiar to the group,

(7) Being a minority or oppressed by a dominant group within a larger community.

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(6) A common religion different from that of neighbouring groups or from the community surrounding it,

A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes, of the Act, a member.í

In applying this criterion, gypsies have been held to be an ethnic group,(f7) Jews a racial and religious group,(f8) but Rastafarians are not protected, being regarded as a religious sect.(f9) However, an employment tribunal decision confirming that Muslims are a religious group,(f10) and cannot be directly considered as a racial or ethnic group, has developed a state of perplexity. Logically, the tribunal decision appears consistent with the ratio of Mandla v Dowell Lee, with Muslims not possessing a clear-cut ëcommon geographical originí due to them being too broadly based as a world-wide religion. While this may, on the basis of Lord Fraser, be only a relevant characteristic (rather than essential), it is clear that Lord Templeman, while agreeing with the conclusion that Sikhs did constitute a racial group, took a much firmer line than Lord Fraser. Indeed, Lord Templeman reasoned that a racial group must have the characteristics of a race, namely ëgroup descent, a group of geographical origin and a group historyí. As a result of these arguments, it may be difficult to disregard the relevance of a ëcommon geographical originí, albeit that one of the consequences is that a religious term like ëMuslimí is often depicted, and considered, as being synonymous with a person of foreign descent (i.e. foreign to the UK).

Sadly, the net result of the ëcategorisation of Muslims as a religious group and not an ethnic groupí, is that militant racists have become significantly involved in stirring up racial discrimination/hatred through anti-Mosque campaigns,(f11) applying a warped racially political message that turns the term ëMuslimí into a shorthand description for coloured foreigners who are not welcome. In fact, materials seized by the police in Merton have been considered to be insulting, but the Crown Prosecution Service has declined to prosecute a BNP activist who was allegedly found in possession. The basis of this refusal being inter alia, that the material may use religious terminology to stir up racial hatred, but the term ëMuslimí relates to religion rather than race.(f12)

The CRE and a call for change.

In 1976, in its ëSecond review of the Race Relations Actí, the Commission for Racial Equality criticised the law saying:

"Öit cannot be any more acceptable to stir up hatred against people because they are seen to be Muslims than to do so because they are seen to be Pakistanis."

For example, this ëcategorisation of Muslims as a religious groupí means that a slogan painted on a London tube station wall, which says "Kill a Muslim for Christmas", could not amount to stirring up racial hatred under the Public Order Act 1986,(f13) but if it said "Kill a Paki for Christmas" it might.

This situation is made all the more nonsensical when you consider the possibility of a ëreligious conflictí between Sikhs and Muslims(f14) within Britain, resulting in a Muslim distributing a leaflet saying: "Stab a Sikh". These words would provide grounds, on the basis of Mandla v Dowell Lee, for a prosecution in relation to the stirring up of ëracial hatredí, since Sikhs are considered to be an ethnic group. However, an almost identical leaflet produced by a Sikh that said, "Stab a Muslim" would not.

While these may be examples, the evidence from the London Borough of Merton shows that militant racists are producing literature, which combines ëthreatening, abusive or insultingí words with the religious term of ëMuslimí to get around the public order legislation. The apparent intent, and likelihood, is that through this literature they are able to stir up racial discrimination or hatred towards people primarily because of their colour - while at the same time highlighting the limitations of British race law. Indeed, it cannot be acceptable, on public policy grounds, that a law can be so openly abused in this way.

Recently the Home Office has indicated that they are prepared to review the race elements of the Public Order Act 1986. On the basis of Article 20 of the International Covenant on Civil and Political Rights - while also establishing legislative consistency between Britain and Northern Ireland, there exist strong grounds for amending the legislation so that the law penalises the stirring up of racial hatred through the use of religious terminology.

Indeed, the long-standing cries of the CRE should be heard - ëit cannot be any more acceptable to stir up hatred against people because they are seen to be Muslims, than to do so because they are seen to be Pakistanisí.

13 March 1999.

Footnotes.

1The UK government argues compliance is established via the Public Order Act 1936, as amended since by the 1986 Act.

2 This is an issue in its own right, and the subject of a future article.

3 S.28(3) of the Crime & Disorder Act 1998 ensures that a person, facing a racially aggravated offence, does not have a strong defence by claiming that he was motivated by religious hostility rather than race.

4 Public Order (Northern Ireland) Order 1987.

5 Section 17 of the Public Order Act 1986.

6 [1983] IRLR 209.

7 CRE v Dutton [1989] IRLR 8.

8 Seide v Gillette Industrial Ltd [1980] IRLR 427.

9 Dawkins v Crown Suppliers [1993] IRLR 284.

10 In Malik v Bertram Personnel Group (1990) No: 4343/90, Muslims were not considered to be protected by the direct discrimination provisions of s.1(1)(a) of the Race Relations Act 1976, but may be able to show indirect discrimination on the basis the majority of Muslims may be coloured.

11 ëVeteran racists behind anti-mosque campaigní - Searchlight, November 1996.

12 In R v DPP ex parte London Borough of Merton (CO/1319/1998) the local authority were unsuccessful in a challenge to this CPS decision.

13 It is also possible it may not amount to an offence under Part 1 (s.4 or 5) of the Public Order Act 1986, since any ëthreatening, abusive or insultingí words need to be directed to a person rather than a group.

14 See ëCollege blames extremists for religious riotí, Hounslow, Feltham & Hanworth Times, 13 January 1995.

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