In October the Racial and Religious Hatred Act came into force in Britain that outlaws anyone from stirring up religious hatred against people on religious grounds. From the late Eighties onwards, it was argued that while certain religious groups such as Sikhs and Jews were seen as ethnic groups under incitement to racial hatred legislation, others like Christians and Muslims were not. The Act is meant to provide fair protection across the board for all the main religious groups in the UK.
Considering how controversial the Act has been, this milestone has received little or no comment. Why? The main reason is that the law is largely symbolic. The threshold for evidence is so high, given the fear that the freedom to criticize religion would be compromised, that the law is unlikely to be used. In fact it will do little to change, and may even exacerbate, the cultural standoff in Europe around Muslims that has been heating up over the past twenty five years or so.
After the Rushdie Affair in 1988-1989, both community politics and public perceptions of British Muslims were defined by free speech controversies until 9/11 when the “terrorist” motif took precedence. Arguably British Muslims have had three responses to direct cultural attacks on their identity, religion and culture, which is backed up by an academically-sound National Opinion Poll conducted in 2006.
The first, supported by about nine per cent, is the Muslim Power approach and is unconcerned with defending free speech. It supports complete free speech for Muslims even if they attack others in hateful terms or incite violence and the use of the law to silence critics of Islam and Muslims. This approach mirrors and plays into an anti-Muslim agenda and aids the authoritarian instincts that persist in even the most democratic of governments.
In autumn 2001, when the government first tried to pass a version of the incitement to religious hatred law, it was tagged with anti-terror legislation and promoted as protecting Muslim communities. In fact the Home Office had other ideas at the time: a friendly official showed the list of proposed prosecutions to a prominent activist and there were more Muslim than non-Muslim names on it — filled with the usual suspects of course. Similarly it’s often black people who have been prosecuted under incitement to racial hatred legislation.
The second and most popular, backed by around 29% of British Muslims, is the Defenders of Islam approach. It looks to defend Islam from external and internal attacks by using the law. This approach is quite happy to see both Abu Hamza and Nick Griffin silenced, a strategy that has proved tempting to successive Home Secretaries as well. However, as the legal expert Eric Heinze argues, European legislation outlawing forms of hate speech has a decidedly unimpressive track record in the courts.
The basic reason is that it is very difficult to establish the intent behind what people say and therefore court decisions are rare, sporadic and often seem biased and driven by the political climate. Given all this, Muslims are very likely to be a key target of this new legislation.
The Terrorism Act 2006 even goes a step further by not requiring the need to establish intent at all in any speech that glorifies or encourages terrorism. As Liberty said at the time, “outlawing passionate speech and criminalizing non-violent political parties will make Britain less safe by silencing dissent”. This has a chilling effect on political dissent within Muslim communities that the Defenders of Islam have inadvertently helped to create.
The third stance is a consistent free speech stand that protects all Britons against encroachments on their legal right to express their viewpoint freely, and to profess even controversial, rude or offensive views. According to the poll, only 3% of British Muslims supported this approach, so this is definitely a minority opinion. However it seems to me to be best option for three reasons.
Firstly, defending the rights of all is more likely to preserve the rights of minorities than legal restrictions that are liable to be applied discriminately. The law should serve to enable not disable free speech across the board. Secondly, the distinction in law between what people say and inciting people to some other criminal act, particularly to violence, that has been eroded should be reestablished. Thirdly, and most importantly, there should be a shift away from legal to cultural approaches. We need to censure but never censor anti-Muslim prejudice. Far better than rebuttals will be the humanizing of all our Muslim stories through the media, culture and the arts and the enabling and not the silencing of our political voices.
Yahya Birt is Director of City Circle and blogs at http://www.yahyabirt.com.
Reproduced courtesy of Emel Magazine. This first appeared in Issue 38, Nov 2007.