Somehow this has passed me by until now. The Government plans to introduce the new offence of incitement to hatred on grounds of sexual orientation, with the support of the Lib Dems and some Tories. And, with tragic predictability, many of those who admirably fought the planned offence of incitement to religious hatred have switched sides - including my local MP Evan Harris. I'd like to set out what the proposal does and doesn't mean, and why it and all incitement to hatred laws are a bad idea.
Here is a copy of the amendments which would be made to the Public Order Act 1986 (I'm not wildly enthusiastic about the source, but the Christian Institute does have a reasonable collection of materials relating to the issue here). In most ways, sexual orientation would simply be added on to religion as a ground for which incitement to hatred would be prohibited, with the same provisions. These provisions are of course in their amended form, which the Government fought against tooth and nail at the time.
The Story So Far
Here's a quick history lesson on incitement to hatred. The Public Order Act 1986 included the offence of incitement to racial hatred worded as such:
"A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if (a) he intends thereby to stir up racial hatred, or (b) having regard to all the circumstances racial hatred is likely to be stirred up thereby."
The Blair Government was convinced that this should be extended to religion and so they attempted again and again essentially to amend the above simply to change "racial hatred" to "racial and religious hatred" in the (slightly misleadingly named) Racial and Religious Hatred Act 2006. Cue outrage from civil libertarians, secularists and religious groups (by no means exclusive categories!). Eventually they succeeded in passing an amendment creating instead a differently worded offence for religious hatred:
"A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up racial hatred."
Crucial to notice here is that abusive or insulting material will not suffice - it must be threatening. Moveover, it must be intended, and not just likely, to stir up hatred. Both are crucial concessions which the Government bitterly opposed, and which only succeeded because Blair famously left the chamber (believing the battle already lost) only to have the amendment pass by one vote. The third concession was a 'protection of freedom of expression' which I will consider below.
Now the Government has continued with its valiant efforts to police who and what we hate. Essentially the measure would amend the above offence, adding the following at the end: "...or hatred on the grounds of sexual orientation."
A Step Forwards?
Stonewall called for such homophobic hatred to be included with racial hatred, without the above concessions. Their rationale is that while religion is a choice, sexual orientation, like race, is not. For me, this is a powerful argument. There may be a choice element to sexual orientation in some people, but the evidence is quite clear that for most people, it is innate. A lot of people disagree with me on this, and I can see it being a nightmare were it to come into political debate.
However, despite the fact that this logic would suggest putting sexuality in with race, I prefer the Government's tactic of unifying it with religious belief. The reason for this is that if there are going to be incitement to hatred laws, they should have all the safeguards put in place in the religious hatred offence. And, to spell it out, that goes for racial hatred as well.
Considering the two formulations, the term "threatening" may suggest the possibility of violence, something with which the criminal law should be concerned. "Abusive" may also have this connotation, but it is less clear here, and adds nothing to "threatening" that should be the law's concern. "Insulting" is most worrying of all. No one should be legally protected from mere insult - unpopular and challenging views are often insulting by necessity. To denounce slavery would once have been insulting to slave traders, etc. Coupled with the fact that intention is not required in the racial hatred offence, it becomes worryingly easy to target people for expressing unpopular opinions on race when it stirs hatred - which as will explain later, pretty much means encouraging other people to hold the same views.
The 'protection of freedom of expression' amended into the religious hatred offence is complicated, so I will cut it down to its essentials: "[The offences shall not] prohibit or restrict discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of [religions or beliefs]." Given the width of power given to the police by incitement to hatred laws, such a protection is extremely valuable. It is interesting and worrying, therefore, that no such similar guarantee has been given in the sexual orientation proposals. Surely free expression demands that people be allowed to discuss, criticise, ridicule and insult?
I can imagine two possible reasons for the omission. The first is that it might be thought that religion itself and adherents of religions can be separated in a way that sexual orientation itself and people of a certain sexual orientation cannot. This is extremely dubious. Both can be discussed and criticised in the abstract, and such discussions and criticism implicate individuals in very similar ways.
The other reason again unifies sexuality with race and suggests that while there may be good reasons to criticise on grounds of religion, there will never be good reasons to do so on grounds of sexual orientation. While I would agree with the sentiment, it completely fails to comprehend free expression. It does not matter whether we can see any good reason for criticising on a certain ground. It must be protected in the name of democracy and public deliberation. Most of us see no merit in racist arguments, no matter how calmly put. Nevertheless, these must be protected from legal interference. To do otherwise is to use the law to set the majoritarian opinion (anti-racism) as dogma - something which is abhorrent in a free society. Bigots must be allowed to make their arguments, just like critics of religion.
The Limits of Free Speech
Such protections must come to an end where violence is incited. Almost no-one disagrees with this. But there are already incitement offences which deal with this, and there have been for many years. Incitement to hatred is something different. Hatred is a tricky concept. Some people have suggested that it involves a desire to do violence, but I find this unrealistic. Hatred is a commonly used phrase which easily encompasses situations with no violent desires. It suggests a passionate dislike, such as people may quite innocently have for injustices as well as disfavoured individuals. Quite clearly many political opinions may, and indeed will, fall within its bounds. Incitement to hatred therefore appears to be incitement to hold certain opinions, many of which will have political elements. This is the kind of thing which free expression simply demands be permitted. If some bigot wants to argue that homosexuality or inter-racial marriage is wrong, they must be allowed to do so, and then roundly criticised for their views.
What about the concessions made in the amendment to the religious hatred offence? The restriction to intention may help, but since people must be allowed to incite non-violent hatred in others, it is not sufficient. The restriction to "threatening" words or behaviour is much more reassuring. But again, what does it mean? Remember that incitement to violence is already criminal. "Threatening" must catch things beyond this therefore. Threatening changes in the law, perhaps? Threatening position in society? These are political threats, and must be protected. Perhaps threatening will be read more narrowly, but it is so far impossible to tell.
The 'protection of freedom of expression' should alleviate some of these fears, but it further confuses. If discussion, criticism, ridicule and insult are protected, then just what is the offence going to cover, beyond violence already covered? Perhaps the effect is that no behaviour is covered that was not already. Perhaps it really is just symbolic. But if so, it will lead to a dangerous degree of confusion with a chilling effect on free speech, due to the uncertainty in the words and concepts. Furthermore the exclusion of the protection from the latest offence suggests that religious figures who vociferously denounce homosexuality may get in legal trouble. That should worry any civil libertarian.
The offence now discussed is not close to the menace to free speech that incitement to religious hatred once was. Accepting the restrictions to intention and threatening words may rob both laws of much of their damaging capacity. However the remaining discrepancy between them may cause us to ask how far free expression really will be safeguarded.
Ideally, incitement to hatred laws would all be scrapped as a pernicious threat to free speech, including political speech. Unfortunately, that seems unlikely. As a second best, all three offences should be brought together with the most safeguards possible - restriction to intention, restriction to threatening words and behaviour, and restriction via the 'protection of freedom of expression'. Perhaps (and hopefully) the combined effect of these will be to ensure that only incitement to violence is covered. If so, then all the better. Nevertheless, the uncertainty introduced into the law of expression is damaging, further evidence of a worrying lack of concern on the part of the Government for crucial liberal values.