Although the Race and Religious Hatred Act was passed 18 months ago, it has yet to be brought into force. The many who regard it as superfluous fear it will be soon. Polly Botsford reports


The Race and Religious Hatred Act is not the catchiest of titles for an Act of Parliament, but its passage caused major controversy. The government pushed it through, however, and it is now almost 18 months since it received Royal Assent. So why has it not been brought into force?



Many experts believe there has been insufficient political will from Tony Blair’s government for implementation – after all, he leaves office in less than a month. But even if the Act is eventually implemented, the consensus is that it will be rarely used. However, just last month, Home Office minister Vernon Coaker said officials are working on commencement and associated regulations and ‘it is hoped that implementation will be in the summer of this year’.



The Act outlaws any person from intentionally inciting hatred against someone else on the grounds of their religion or race. It is the incitement to religious hatred which is the critical component of the Act. Incitement to racial hatred is already contained in the Public Order Act 1986 (and has a criminal law back-story dating from the 1960s).



The recent history of religious hatred legislation starts with the 11 September attacks. The Labour government attempted to criminalise words or actions breeding religious hatred as part of the Anti-Terrorism, Crime and Security Bill, which began its parliamentary passage in late 2001. But the clause was dropped from the final version of the anti-terror legislation.



It reappeared a year later in a private member’s Bill, called the Religious Offences Bill, but this took it no further than to a House of Lords all-party select committee on religious offences. In 2005 the Serious Organised Crime and Police Bill had a provision criminalising religious hatred. However, in order to get the Bill through Parliament before the general election of that year, the provision was dropped.



The issue surfaced again in the Labour Party’s manifesto at that election, albeit on page 111 of a 112-page document: ‘It remains our firm and clear intention to give people of all faiths the same protection against incitement to hatred on the basis of their religion [and] we will legislate to outlaw it.’



It was in making its fourth appearance in as many years that the issue of religious hatred law finally got an airing in June 2005. As soon as it was introduced, however, the Racial and Religious Hatred Bill was criticised as a fundamental attack on freedom of expression. It was condemned by writers and comedians, secularists and civil liberties organisations.



Supporters of the legislation argued that there is uneven protection for religious faiths under English law: blasphemy law protects the Church of England, whilst Jews and Sikhs are protected against attack because they are classified as distinct ethnicities and gain that protection under existing race legislation. Muslims and Hindus do not have a single ‘ethnic origin’ and remain without protection. A spokesperson at the Home Office explains: ‘It was introduced to close a gap in the law to prevent extremists being able to stir up racial and religious hatred in the communities.’



As the Commission for Racial Equality (CRE) pointed out at the time, in the previous three years, of the 84 cases of incitement to racial hatred referred to the Crown Prosecution Service (CPS), four proceeded to prosecution, of which two resulted in convictions.



The Bill did eventually make it through the stormy seas of Parliament, but it landed on the statute books like a shipwreck – thanks to a Lords amendment which tore the Bill apart: the Lords changed the offence into one of specific intent and raised

the threshold on the type of behaviour to be caught by the Act from ‘abusive or insulting’ to ‘threatening’ behaviour, thereby fundamentally narrowing the remit of the Act in its final form.



For any act to be brought into force, it only takes a statutory instrument to effect it. It is now well over a year since that turbulent time, and there has been no sign of any such instrument.



One reason for the wait could be the need for preparation and training. But experts do not believe so. Ivan Hare, a barrister at Blackstone Chambers in London and author of Crosses, Crescents and Sacred Cows: Criminalising Incitement to Religious Hatred, cannot see why there should be any delay by the government if the intention is to implement the Act. ‘It isn’t like the Human Rights Act or the Freedom of Information Act where long run-ins are arguably justified by the need to train up the judges or civil servants,’ he says. ‘The police and prosecutors are well used to dealing with similar offences relating to race hatred and “religiously” aggravated public order offences.’



Nor does the CPS envisage such obstacles. A spokesman confirms that it had no planned training, and no funding was specifically earmarked. He says that if and when the Act comes into being, the CPS would provide ‘legal guidance to all prosecutors in the usual way’.



The cost of criminalising religious hatred may also be a determining factor. Rodney Warren, director of the Criminal Law Solicitors Association, explains: ‘All departments, when they propose legislation, must now consider the impact on the cost of legal aid. This piece of legislation, when it was introduced, did not have a legal aid impact test. Therefore, there would have been no assessment of the cost of legal aid for defending those accused of the new offence. If they did the test now, they would quickly discover it was too costly.’



So is the delay a permanent one? Not necessarily. Confirming the minister’s statement, a Home Office spokeswoman says implementation of the Act ‘will go ahead in due course’, and the Attorney-General’s office has confirmed this position. A Law Society spokeswoman observes that such a delay is ‘not unusual’.



So if implemented soon, will the Act be used? No, says Roger Smith, director of Justice, the law reform and human rights organisation. He explains: ‘The Act was always irrelevant. The existing law on incitement was quite sufficient to deal with those seriously advocating violence.’ Mr Hare agrees, adding: ‘It is likely that neither the police nor the CPS want it, as the requirement of specific intent and the public interest defence make it very difficult to prosecute. Why would you use it when there is section 5 of the Public Order Act 1986 anyway?’



Section 5 makes it an offence to use ‘threatening, abusive or insulting words’ which are likely to cause ‘harassment, alarm or distress’. As an example of the kind of action it covers, the section was used successfully in the case of Norwood v DPP [2003] EWHC 1564. Mr Norwood had displayed posters declaring ‘Islam out of Britain’ and ‘Protect the British People’, set against a backdrop of the destruction of the Twin Towers in New York.



The police and the CPS may also be discouraged from using the Act because it requires the Attorney-General’s consent to proceed with any prosecution – a robust but time-consuming and risky safeguard.



The Muslim Council of Britain, which originally supported the Bill, believes the Lords amendments are what have made the Act redundant. Abdurahman Jasar, vice-chairman of the council’s legal affairs committee, describes the finished product as ‘a watered-down useless piece of paper’.



The CRE, however, remains a supporter. In a paper issued earlier this year, it said it strongly supported the introduction of the law to correct the inconsistency with protection for incitement to racial hatred. It accepted that in principle the test for proving incitement to religious hatred should be high in order to permit criticism of religions, ‘but the law must adequately protect persons from possible attack’.



To some, the unattractiveness of the Act is caused by a more inherent problem: that there were also political motivations in introducing it, namely to appeal to the Muslim community whose assistance was needed to fight terrorism. As Mr Smith suggests: ‘The content of the Act is supremely irrelevant. Its purpose was to show that the government was doing something rather than actually filling any plausible loophole in the law… Juries were always likely to be suspicious of it, as were judges and the CPS.’



He adds: ‘It is a very good example of symbolic legislation, introduced as a symbolic act following an event rather than for its content.’



Polly Botsford is a freelance journalist