Essential Law - Religious hatred and freedom of expression

Sean Egan explores the implications of the surprise victory of campaigners against key elements of the Racial and Religious Hatred Bill.

The incidents surrounding the productions of Behzti and Jerry Springer the Opera (both in the West End and on tour) illustrate the need for the artistic community to engage in the debate about the freedom of artistic expression. Historically, the limits on artistic expression have been in the context of obscene performance, before and after the Theatres Act 1968. However, the objections to these productions are different: they relate to the religious content and it is not the State preventing performances, but individuals or groups seeking to.

The Racial and Religious Hatred Bill has now passed through Parliament and is ready for Royal Assent. The rationale for the Bill is that the existing public order offences offer protection against racial hatred but not religious hatred. Religions whose adherents have distinct ethnic origins such as Jews and Sikhs are protected but not religions such as Christianity or Islam.

A stricter test

The incitement to religious hatred offence in its final form requires words or behaviour that are threatening and there needs to be specific intent to stir up religious hatred. This should be contrasted with the racial hatred offences, which have the wider requirement of threatening, abusive or insulting words or behaviour and only recklessness rather than specific intent is needed. The stricter test for the religious hatred offence is a direct consequence of the campaign mounted by a number of leading performers such as Rowan Atkinson, who were concerned that parody or other irreverent entertainment would be vulnerable to prosecution. With this amendment it is difficult to imagine successful prosecutions for the religious hatred offence, as proving specific intent in this context is very difficult.

It is interesting to note that some of the discussions during the Bills progress through Parliament sought to distinguish between race, which is fixed and involuntary, and religion which, is not. Partly as a response to this, the religious hatred offences were completely separated from the racial hatred offences, enabling this different approach. If the objective was to make the law consistent between different religions, then the Bill has failed.

Genuine artistic expression

There is one other aspect of the Bill I would highlight. At the heart of the Bill is a continuation of the view that performances of plays are capable of giving rise to public order offences. The Public Order Act 1986 created the offence of incitement to racial hatred and specifically provides that the director and the person presenting a public performance of a play that involves threatening, abusive or insulting words or behaviour commits an offence if he intends to stir up racial hatred or if racial hatred was a likely effect. There must be protection against performances of works that are thinly veiled attacks on a race or religion and have no genuine artistic intent. My concern is that there should be a distinction between works of genuine artistic expression and hateful words directly addressed to an audience. Artistic works inherently dramatise situations and the audience by attending accepts this.

Self-censorship

I would argue that a more appropriate way of protecting society from plays that are considered inappropriate is not under public order legislation but specific provisions relating to content. In arguing for a more appropriate approach I feel that the law of blasphemy needs to be reviewed. The blasphemy laws provide, in theory at least, protection for Christianity, but following the Human Rights Act 1998 it is generally accepted that these laws are unenforceable. It looks, therefore, as if there are now two laws in this area that only serve to confuse the position the religious hatred offences and the blasphemy laws. In theatre, the racial hatred offences may be seen as, at worst, adding some uncertainty without really affecting practitioners.

Now seems the right time to review the blasphemy laws and decide whether they should be abolished or apply to other religions. Could there not also be more attention given to the issue of protecting audiences and those working in venues from violence and threats of violence? Though these are mercifully rare, I believe that self-censorship now plays a greater role than direct censorship. I am convinced that this is more about fear than about consideration to particular religious sensitivities.

I do not pretend that legislation can remove tensions within society: the objections to specific productions would have happened regardless of what laws are passed. The right to demonstrate and peacefully put ones views is crucial and I appreciate the frustration felt if performances offend. But there needs at least to be clarity as to the law and how it is enforced so that both theatres and those objecting know where they stand.