English police could arrest Scots for criticising religion
The Westminster Government is planning a new law that could result in English police making arrests in Scotland for criticism of religion, says a leading Scottish lawyer. The Racial and Religious Hatred Bill creates a new offence of incitement to hatred on the grounds of religion. It will harm freedom of speech and has all the potential to criminalise ordinary religious debate.
Herbert A. Kerrigan Q.C. says although in theory the Bill only covers England and Wales, in practice it will have a profound effect in Scotland. Scottish publishers will be liable for any publications sold south of the border. Television or radio broadcasts that are transmitted to England and Wales will also come under the law. English Police could travel north to arrest any Scot who breaks the law by publishing or broadcasting anything in England or Wales that is insulting and likely to stir up religious hatred.
The wording of the new offence, which carries a maximum penalty of seven years imprisonment, is ambiguous and dangerously open to subjective interpretation. The Bill amends the 1986 Public Order Act, widening the offence of inciting racial hatred to include religious hatred. Yet it gives no definition of religion – so even dangerous cults could claim protection under the law.
The Government recently (Tuesday 25 th October) suffered a huge defeat in the House of Lords over the Religious Hatred Bill. The Lords passed an amendment introducing safeguards to protect free speech and religious liberty.
Speaking today, Colin Hart, Director of The Christian Institute, said, “Criminal law is supposed to be devolved to the Scottish Parliament but this plan from Westminster makes a dog’s breakfast out of the constitutional settlement. The Scottish Executive says a religious hatred law is not needed in Scotland but Scots are effectively getting one anyway. The Bill introduces a badly written, loosely worded law that will infringe religious liberty and free speech. It will promote the very disharmony between religious groups it is intended to stop.”
Joint Opinion of Herbert A. Kerrigan Q.C. and Neil Addison:
“Impact on Scotland of the Racial and Religious Hatred Bill”
Though the proposed creation of a Religious Hatred Offence in England and Wales in theory does not affect Scotland, in practice journalism, broadcasting, and publishing will all be affected.
There has always been an assumption that books, magazines, newspapers, videos and television programmes that are legal in England will be legal in Scotland. The religious hatred law will end that (Para. 10).There may even be cross-border prosecutions: “If a Police Officer in England and Wales has reasonable cause to believe that someone in Scotland has committed an offence of Religious Hatred affecting England then they may go to Scotland, arrest that person, bring them to England and search their premises in Scotland and seize items such as computers books etc regardless of the fact that no offence had been committed contrary to Scots law” (Para. 11).
Scottish Newspapers, Books and Videos
- Scottish newspapers would have to obey the ‘English’ Religious Hatred Law for any editions of their newspapers sold in England or Wales. If an article in ‘The Scotsman’ was held to breach the Religious Hatred Law then the Scottish publisher could be prosecuted as well as the English distributor (Para. 13).
- The same logic would apply to a Scottish publisher selling books to bookshops in England or to English customers via mail order or the Internet.
- An English visitor who bought a book or video in Scotland could be prosecuted for ‘possession of inflammatory material’ upon returning to England. (Para. 15).
Scottish TV and Radio programmes
“…if a Scottish Member of the UK Parliament was in the BBC Edinburgh studios being interviewed on Newsnight, or the Manager of a well known Glasgow football club was in Glasgow being interviewed by Grandstand then both of them would be liable for prosecution if what they said contravened the “English” Religious Hatred Law because both programmes are broadcast in England.” (Para. 16)
Someone prosecuted in England may bring a claim before the European Court of Human Rights. They could argue their Article 9 & 10 rights (freedom of religion and freedom of speech) have been affected in a way that discriminates against them compared to someone doing or saying the same thing in Scotland (Para. 9).
“…though it is correct to say that the Religious Hatred law will not directly apply to Scotland it is simplistic to say that it will have no effect on Scotland. In practical terms the law will affect Scotland and every institution in Scotland which is in any way involved in writing, publishing or broadcasting will have to obey it even though it is not part of Scots law. The law is being criticised in England because of its “chilling” effect on religious debate and because it will inevitably lead to “self censorship” and caution. It will certainly have those effects in Scotland also.” (Para. 19)