Written evidence from Humanists UK (FOE0115)

ABOUT HUMANISTS UK

1. At Humanists UK, we want a tolerant world where rational thinking and kindness prevail. We work to support lasting change for a better society, championing ideas for the one life we have. Our work helps people be happier and more fulfilled, and by bringing non-religious people together we help them develop their own views and an understanding of the world around them. Founded in 1896, we are trusted to promote humanism by 100,000 members and supporters and over 100 members of the All-Party Parliamentary Humanist Group.

2. Humanists UK has a long history of defending freedom of expression (FOE). We are a founding member of the End Blasphemy Laws campaign, which since its inception in 2015 has prompted the repeal of such restrictions in eight countries. We make regular interventions in support of freedom of expression and freedom of religion and belief at the United Nations Human Rights Council and led the successful campaign to repeal the blasphemy laws in England and Wales in 2008. We have also long worked in support of humanist student groups that have had their freedom of speech threatened on campus. Last year we met with the Law Commission as part of its review of England and Wales’s hate crime laws, and responded to its consultation.

RESPONSE TO INQUIRY QUESTIONS

Question One: Does hate speech law need to be updated or clarified as shifting social attitudes lead some to consider commonly held views hateful?

3. Broadly speaking, we believe current hate speech laws in the UK strike the right balance between defending FOE and tackling the propagation of hateful content. The importance of FOE and the right to freely criticise religious and humanist beliefs and ideas cannot be overstated. Any new Hate Crime Act must maintain the protection for FOE contained in the Public Order Act 1986 relating to the discussion of religion or belief.
4. With regards to what characteristics are protected under hate speech laws, we advocate parity of protection with aggravated offences and enhanced sentencing. Currently, stirring up offences only apply to race, religion, or sexual orientation. We believe this should be extended to include disability and transgender identity.
    
5. However, it is vital that it is made explicit that hatred against humanists is prohibited under the laws. There needs to be greater clarity regarding hate speech laws, and hate crime laws in general, to ensure that there is fair and equal protection for those who hold non-religious worldviews such as humanism. The definition of religion should be amended to make explicit the parallel inclusion of non-religious worldviews that are analogous to religions. Under section 3 of the Human Rights Act (HRA), it is already the case that the existing law must be read in a way as to protect non-religious worldviews that are analogous to religions, for example, humanism. This is also true of any new Hate Crime Bill. So these ‘philosophical beliefs’ are already a hate crime category, and if religion continues to be, then so must they. Section 3 of the HRA says:

6. ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the [ECHR] rights.’

7. It is well-established in case law that this means that references to religion should be read as inclusive of analogous non-religious worldviews. Therefore, references in law to ‘religion’ must be read as also including analogous non-religious worldviews. This is the approach of the UN Rabat Plan of Action on Prohibition of Incitement, which is the international gold standard for combating hate speech. Not only does the plan use the term ‘religion or belief’ throughout but explicitly states:
    
8. ‘restrictions [on hate crime] must be formulated in a way that makes clear that its sole purpose is to protect individuals and communities belonging to ethnic, national or religious groups, holding specific beliefs or opinions, whether of a religious or other nature, from hostility, discrimination or violence, rather than to protect belief systems, religions or institutions as such from criticism.’[1] (underlining added)

9. It is clear from the above that it is well-established that discrimination against non-religious worldviews that are analogous to religions is covered by Article 9. To claim that this is not the case or to restrict it only to religion would run counter to the HRA (as well as over 70 years of international precedent and human rights thinking).
    
10. Given this, it would be significantly clearer and assist all relevant stakeholders if proposals for a new Hate Crime Act are simply drafted in a way that explicitly includes such non-religious worldviews from the start. A law expressed only in terms of ‘religion’ will not be generally understood by most people, including victims. They will not realise even that such a law includes a lack of religious beliefs, never mind positively held non-religious worldviews. Using the term ‘religion or belief’ would make clear that non-religious worldviews are not only included but included on an equal basis and not as a technicality, after-thought, or as simply the negation of religious beliefs: as beliefs worthy of equal respect and consideration in a democratic society.

Question Two: Does current police guidance and practice on hate speech law help promote freedom of expression?

11. FOE is only referenced within police guidance concerning non-crime hate incidents, as one of several rights within the Human Rights Act 1998.[2] It does not define what is contained within this right or what exceptions exist within hate speech legislation. The examples given all relate to disability and the location of an incident rather than its content. We recommend that the guidance should expand upon the definition of FOE as a human right and include an example demonstrating what speech is protected under section 29J of the Public Order Act 1986.[3]
     
12. The guidance states ‘a religious or any other personal belief is not a defence to these offences, but the free expression or debate of a personal view is a protected human right.’[4] Though it is ultimately a decision for a judge whether a defence meets this threshold, it would help to promote freedom of expression if an example was given of acceptable religious criticism.
     
13. The very name 'religious hatred' or ‘religiously aggravated offences’ excludes the non-religious, which leads to poor understanding of the problems faced by non-religious people, particularly apostates. Unlike the Crown Prosecution Service’s guidance for racist and religious hate crime which states that ‘hostility towards converts and apostates’ is covered by the definition of ‘religious group’, this is not mentioned in police guidance.[5] It is unclear how police can be reasonably expected to address the type of treatment apostates are likely to receive, such as being forced to undergo violent exorcisms, without guidance on what an apostate is and how to identify this type of hate crime.
     
14. The Government confirmed that it ‘does not currently collect data on crimes motivated by anti-apostasy.’[6] The question is why not? If apostasy is included under the provisions, there seems to be no reason why data is not collected by police forces and reported alongside that of religious groups. Police guidance and recording practices are not providing adequate protection for apostates, [7] We recommend that the term ‘religious hatred’ is changed to ‘religious or belief hatred’, to make the inclusion of the non-religious explicit. Accompanying guidance also needs to be amended to make explicit reference to apostates.

Question Three: Is there a need to review the wording and application of Public Space Protection Order (PSPO) legislation?

15. We support the use of PSPO legislation to enable ‘buffer zones’ to be created around abortion clinics, as was first trialled by Ealing Council in 2018. This measure balances the competing rights between women accessing safe and legal medical services without being harassed and intimidated for doing so, and those of anti-choice demonstrators to express their views. However, we also think legislation specifically providing for buffer zones is needed.
     
16. There is an established consensus that buffer zones are a legitimate limitation on FOE. The US Supreme Court upheld buffer zones, finding they do not infringe upon the (very strong) first amendment right to FOE.[8] Similarly, magistrates in the Australian state of Victoria dismissed an appeal against the prosecution of an anti-choice activist who had violated a buffer zone restriction, stating that such provisions did not infringe upon the freedom of political communication. In neither country has the introduction of buffer zones had wider implications for FOE. Activists can mount such activities, only a set distance from the entrance to a clinic, and they are free to lobby, hold rallies, and demonstrate outside the political institutions that determine abortion laws. In 2019, the UK Court of Appeal dismissed a challenge to the Ealing PSPO, finding that interference with FOE could be justified.[9]
     
17. There is an important distinction between protest against abortion as a political view and protest aimed at preventing or deterring an individual from receiving medical services. When accessing medical services, confidentiality is a cornerstone of best practice. The decision to have an abortion is a deeply personal and often emotional one for women. It is highly distressing for activists who are not a party to their medical or personal circumstances to attack their decisions in public. A medical professional cannot expose their medical information to an outside body, and neither should an activist be able to. In abortion, like all medical procedures, there should be an assumption that the patient has a right to privacy. The PSPO has been a successful measure, in the absence of national legislation, in achieving this.
     
18. Although PSPOs are a useful interim measure, we believe only the introduction of buffer zones through legislation is an appropriate long-term solution. PSPOs are cumbersome to introduce, as each requires a consultation to take place within each local authority wishing to implement one. PSPOs focus on the quality of life of those in the affected areas, so focus more on long-term residents, rather than women visiting the clinic on a maximum of two occasions. Therefore, such consultations may not capture a true picture of the type of harassment that is occurring. They are also time-sensitive, typically only being in force for three years, with no guarantee of being renewed.

Question Four: Is greater clarity required to ensure the law is understood and fair?
Please see our answer to question one.

Question Five: How has the situation changed in universities in the two years since the Committee’s report on the issue?

17. We welcomed the publication of the Committee’s guidance on FOE in universities. The need for new guidance formed the basis of Humanists UK’s written[10] and oral[11] submissions to the Committee’s inquiry in December 2017. Although it does not address specifically the right to freely critique religious beliefs, it is a useful document for decision-makers in universities and student unions in understanding both the importance of free speech and the very limited instances where it can be legitimately curtailed.
     
18. We do not think the guidance published from Equality and Human Rights Commission is helpful as it implies that, unlike religious societies, non-religious groups would have to have opposing views represented at all events if other members of the university felt offensive views could be presented.[12] A logical extension of that would be that every time a sermon is preached in a college chapel, an atheist should be allowed to present an opposing viewpoint. This is an unacceptable stifling of freedom of religion or belief, yet imposed upon the non-religious.

Question Six: Does everyone have equal protection of their right to freedom of expression?

19. The continued existence of blasphemy laws in Scotland and Northern Ireland constitutes unequal protection of FOE. The right to express dissent from religion, including criticising, ridiculing, or parodying religious beliefs, is a necessary element of both the right to freedom of expression and the right to freedom of religion or belief. For many religion or belief groups, public proclamation of their own beliefs as the only true beliefs, proselytising and attempting to convert others are rightly considered a legitimate manifestation of their beliefs, and therefore protected under Article 9(2) of the ECHR. Blasphemy laws run counter to this principle.
     
20. We campaigned for an end to the blasphemy laws in England and Wales for over a century and warmly welcomed their abolition in 2008. Similarly, we welcome the Hate Crime and Public Order (Scotland) Bill, which is set to repeal the offence in Scotland. However, blasphemy and blasphemous libel in Northern Ireland are criminal offences under the common law and various Acts in Northern Ireland.[13] These need to be repealed.

21. Similarly, the Advertising Standards Authority’s broadcasting and non-broadcasting codes contain specific regulations which require advertisers to minimise the risk of offending on the grounds of religion or belief. We believe these restrictions impede legitimate FOE and operate in a way that protects beliefs and ideas rather than people, targeting offence rather than hate. In reality, this rule has meant that non-religious people can’t express their beliefs through advertising, whereas religious groups can.[14]

26/01/2021