Muslims are an ethnic group
Alasdair Palmer says the religious hatred law is unnecessary because Muslims and others are already protected The Lords did their best to amend the Religious Hatred Bill last week. Their best, however, is unlikely to make much difference. The government is determined to press ahead with the new legislation despite its defeat by 149 votes in the Lords. Lord Falconer and Baroness Scotland simply shrugged off the criticisms of the vagueness of the Bill’s language, its dangerously indeterminate offences of ‘incitement to religious hatred’, and the risks of generating expectations which the legislation cannot satisfy. (It was pointed out, for instance, that many Muslims who support the Bill do so in the belief that it will allow the prosecution of Salman Rushdie for The Satanic Verses.) It was all to no avail. The government simply repeats the same mantra in response to any and all of the law’s critics. That mantra is that the new law is ‘necessary because there is a gap in the existing law’ on incitement to racial hatred. ‘Jews and Sikhs’ are protected by the existing law, Home Office ministers and Lord Falconer, the Lord Chancellor, claim. ‘Other religions’, they insist, ‘are not’ — and that, they say, over and over again, is why we need the religious hatred legislation.
The government’s claim about the ‘gap in the existing law’ has been accepted by all sides in the debate — which suggests that if you repeat something often enough, people will believe it is true. In fact, it is not true. Indeed, it is almost the exact opposite of the truth.
The Home Office statement on the law says that ‘Jews and Sikhs are covered by existing incitement to racial hatred laws as a result of decisions made by the courts.... The existing law does not protect other religions that do not have distinct ethnic origins (e.g., Christians and Muslims).’ The Home Office refers to the case of ‘Mandla vs Dowell Lee, 1993’ as the crucial case law. Mandla vs Dowell Lee was actually decided by the Law Lords in 1983, not 1993 — a slip which creates the impression that the Home Office lawyers may not have looked at the case very carefully. That impression is reinforced when you read what the decision says. For it then becomes absolutely clear that Mandla vs Dowell Lee does not create a ‘gap’ in the law. It emphatically does not use a definition which means that Jews and Sikhs are protected by the laws against discrimination or racially aggravated assault or insult, but Christians and Muslims (for example) are not.
Lord Fraser of Tullybelton wrote the lead opinion in the case of Mandla vs Dowell Lee. The central issue which he had to decide was what conditions had to be satisfied in order for someone to be a member of an ‘ethnic group’ for the purposes of the 1976 Race Relations Act. He started by noting that it was ‘inconceivable that Parliament would have legislated against racial discrimination [in the 1976 Act] intending that the protection should not apply to Christians... ’. He then went on to explain that the word ‘ethnic ... cannot have been used in the 1976 Act in a strict racial or biological sense’.
What, then, is the correct definition of ‘ethnic’? Lord Fraser identifies only two conditions which he says are ‘essential’ for membership of an ethnic group for the purposes of the 1976 Act. They are ‘a long shared history, of which the group is conscious of distinguishing it from other groups, and the memory of which it keeps alive’ and ‘a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance’.
Lord Fraser also specified a number of other inessential but ‘relevant’ characteristics, including ‘being a minority or being an oppressed or dominant group within a larger community’. He insisted, however, that ‘provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is — for the purpose of the 1976 Act a member’.
You may wonder how this definition can possibly exclude Muslims. There is a simple answer: it cannot. Muslims clearly satisfy the two conditions identified by Lord Fraser in Mandla vs Dowell Lee as essential for being members of an ethnic group — in exactly the same way that Jews and Sikhs do (and Christians, for that matter). They therefore have exactly the same protection as Jews and Sikhs under the 1976 Act, and under the Acts which have criminalised assaults or insults motivated by hatred of, or discrimination against, any ethnic group. The definition of an ethnic group outlined by Lord Fraser in Mandla vs Dowell Lee is recognised as ‘the leading authority’ by the Crown Prosecution Service in determining who counts as a member of an ethnic group for the purposes of racially aggravated offences. No further case law is cited.
That means that the basis on which the government has claimed that its Religious Hatred Bill is necessary is entirely spurious. There is no need at all for a new law to fill a ‘gap’. The gap is a figment of the government’s imagination. The existing legislation covers Muslims in exactly the same way as it covers Jews and Christians and Sikhs — but without criminalising criticism of religion, or stifling it, or generating the belief that it will now be possible to prosecute Salman Rushdie for writing The Satanic Verses. The point is so elementary that it is difficult to see how the government’s lawyers, never mind its eagle-eyed Lord Chancellor, could possibly have overlooked it. But overlook it they must have done. It is surely inconceivable that ministers would present a piece of legislation as essential when they knew perfectly well that it was utterly superfluous.
An alternative explanation is that the desperate desire of Labour ministers to placate the Muslim community — having alienated it so thoroughly by going to war in Iraq prevented them consulting the existing laws of the land, and convinced them that the pointless, damaging and liberty-threatening Religious Hatred Bill is necessary. It is true that many Muslims support the Bill, but that often seems to be because they mistakenly believe it will extend the blasphemy laws to cover Islam. It is not obvious that the Religious Hatred Bill will persuade those people to vote Labour.
We rely on our representatives in Parliament to prevent government ministers from turning their electoral fantasies into bad laws. Unfortunately, MPs in the Commons seem to share the same fantasy as the government: the majority have simply swallowed the government line that the ‘gap’ makes the Religious Hatred Bill necessary. The government is going to ignore the Lords. It means that we, the people, will be the victims.
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