Faith in the law
Michael Gerrard looks at the ongoing debate over the possible abolition of ancient blasphemy laws, the introduction of an incitement to religious hatred offence and the new discrimination act set to face employers
Surprising as it may seem, discrimination on the grounds of religion is at present not illegal, but two measures currently under discussion are likely to change this.
The House of Lords announced this month that it is forming a select committee to investigate whether or not religious laws, principally the ancient offence of blasphemy, should be amended or abolished.
In addition, the committee - to be chaired by barrister Viscount Colville of Culross - will debate the merits of introducing a criminal offence of incitement to religious hatred.Alongside this, the government is poised to introduce legislation that would prohibit religious discrimination under employment law.
This form of discrimination is one of several, including ageism and sexual orientation, to be addressed following a European Union (EU) framework directive last year that instructed member states to have legislation on these issues enacted by December 2003.
Blasphemy laws against insulting the Christian faith, in particular the Church of England, have remained on the statute books, but have been used rarely in the past few decades.
The only successful application in recent times was in 1977 when Mary Whitehouse brought a private prosecution against Gay News, after the magazine published a poem deemed disrespectful to Christ.
That case apart, the only other time blasphemy has really come to the fore was after the publication of Salman Rushdie's The Satanic Verses at the end of the 1980s.
Islamic groups sought judicial review after the authorities refused to prosecute the author for blasphemy, but the attempt failed because of the law's exclusive application to Christianity.
Razi Mireskandari, a partner at London firm Simons Muirhead & Burton, represented Mr Rushdie on that occasion and remembers: 'At the time it was said that it was not right that one was able to blaspheme only against Christianity in a multi-cultural society.'
This is one of the reasons why many solicitors take the view that the laws, as they stand, have had their day, but few are willing to entertain the idea of simply widening the category to include other faiths.
Sadiq Khan, a partner at London civil liberties firm Christian Fisher, states: 'The way to level the playing field is not to expand it to cover other faiths, but to get rid of it altogether.
Rather than trying to improve on an antiquated law, it is better to abolish it and look at new ways of safeguarding the rights of religious minorities.'
Indeed, many claim that blasphemy itself goes against various acts enshrined in the European Convention on Human Rights, notably article 10, which covers freedom of expression.
But while this is a popular view, there remains some opposition to any challenge to the blasphemy laws.
Paul Conrathe, human rights solicitor at south London firm Coningsbys and a Christian lawyer, says: 'To some, the blasphemy laws represent an anachronism, but their repeal, however, would erode the unseen foundations upon which our society is built.'He adds that a reverence for God still underpins much of the country's social fabric, from the Queen's Golden Jubilee to the business of Parliament.
Mr Conrathe accepts that he is in a minority among human rights lawyers, a large proportion of whom would like to see blasphemy replaced by a law prohibiting incitement to religious hatred.
Those communities with the legal status of racial groups such as Jews and Sikhs are already covered by the laws prohibiting the incitement to racial hatred, yet many other communities who draw their members from diverse backgrounds are currently left unprotected - Muslims are a good example, but the same applies to Christians as well.
The issue hit the headlines last autumn, when Muslim communities found themselves vulnerable following the 11 September hijackings in the US.
Makbool Javaid, a partner at City firm DLA and formerly in-house at the Commission for Racial Equality, remembers the tension which came to the surface at that time: 'There has to be legislation outlawing incitement to religious hatred, because we have seen that some of the popular press used language and debated issues in a way that is offensive to minority religious communities, particularly Islam.'
The government unsuccessfully attempted last autumn to tag religious hatred clauses on to the Prevention of Terrorism Bill devised as an instant response to the disaster.
At the time, the House of Lords rejected these clauses, with some peers claiming that it could be a restriction on free speech, and this, in part, is why it has now set up the select committee to discuss the issue.
But if human rights solicitors generally accept the necessity of such a law, there remains debate over how it should be implemented and whether it would be effective.
For many, the right to express reasoned criticism of a faith should not be confused with physically attacking members of that faith.
Richard Price, head of community law at Howells in Sheffield, argues: 'Informed and reasoned discussion about a religion should be allowed, while at the same time there needs to be protection from excesses.'
Others look at the long-standing racial hatred incitement laws on which any new legislation is likely to be based and note that on average there are only two such prosecutions a year.
Those on the more radical wing, such as Mr Khan, maintain that a new religious law will only work as part of a general overhaul of the legal and policing system together with anti-discrimination laws as a whole.
He says: 'There is no point having a sophisticated law in place, if those that need it most are not given the protection they need.'
While blasphemy and the proposed incitement laws remain debating points, in the area of employment and training, anti-religious discrimination provisions are soon to find legislative form, thanks to the EU directive.
Employment lawyers have been canvassed by the government on their views, but that process has already exposed some likely flashpoints.
Most glaringly, the government appears unwilling to provide a definition of what actually constitutes a religion or belief for the purposes of the proposed Act, beyond saying that it will not cover political belief.
Practitioners in the field predict this point alone is likely to provide them with much work.Julie Quinn, deputy chairwoman of the Employment Lawyers Association and a partner at City giant Allen & Overy, says: 'When the legislation comes in, if there is to be no definition then it will be left to the appellants and respondents to work out one through the courts.
'The government has spoken of giving guidelines, but this will not give clarity and both employers and employees want certainty.'
Despite this potential hazard, employment lawyers largely see the sense of introducing such a law, a version of which has operated successfully in Northern Ireland for more than 20 years.
Bronwen Jenkins, head of employment at Irwin Mitchell's London office, says that religious discrimination is undoubtedly a factor in some disputes.
She explains: 'There is definitely a need for such a law, because although we live in a world of increasing cultural diversity, some people are not always as good at handling it as they should be.'
Whatever the merits of the case, EU demands mean that some form of this type of law will have to be in place by the end of next year.
It will bring another factor to play into an already crowded discrimination area, where it will sit alongside established pieces of legislation such as the Race Relations and Human Rights Acts.
Church attendance itself may be on the wane, but the issue of religious discrimination - thanks to the demands of the EU, the forthcoming deliberations of the House of Lords, and the on-going repercussions from 11 September - is certainly going to be a hot topic for some time to come.
Michael Gerrard is a freelancejournalist