The UK Parliamentary Select Committee Report

The offence of blasphemy, last successfully prosecuted in the UK in 1977, has now been abolished. However, an analysis of the offence is instructive and the history leading up to its abolition will be briefly recounted. Following a 1985 report by the Law Commission, which concluded that the offence should be repealed, and a similar recommendation by the UN Human Rights Committee, in 2002, the House of Lords appointed a Select Committee ‘to consider and report on the law relating to religious offences’. The Report did not offer a conclusion regarding the law of blasphemy, but offered several possible options for reform which will be discussed later. The report, in its approach to religious freedom, mostly encompasses the identity aspect of religious freedom rather than its expres­sive-critical aspect, as will be seen in the following discussion.

In its analysis of the law under the Human Rights Act 1998, the Committee saw in the prohibition a contravention of freedom of expression (Article 10) and of the obligation not to discriminate in the application of the right to religious freedom (Articles 9 to 14). It thus looked at the equality of protection of religious freedom of the members of groups, which the blasphemy laws either did or did not protect. The Report did not consider religious freedom as a critical- expressive right, the religious freedom of the blasphemer, which is impaired by blasphemy laws.

The Select Committee suggested three options for reform the offence of blas­phemy, without choosing between them: ‘leave as is’, repeal, or replace with a broader offence. The reasoning behind each of the approaches reveals more of a community-identity approach than an expressive-critical approach to religious freedom. One reason for the first option, leaving the law unchanged, was that blasphemy law was part of the legal fabric; this reasoning underscores the law’s constitutional heritage and national identity, which should be tampered with only for weighty reasons. This is a viewpoint that sits squarely within the community perception of the right to religious freedom.

Under the reasons in support of the ‘repeal’ option, the Report stressed that the common law offence of blasphemy was discriminatory as it protected only one religion. The Report also stated that the most serious deficiency of the blasphemy offence is that UK courts had interpreted the offence as one of strict liability. The Report did not directly ask, however, whether any offence of blasphemy would be commensurate with respect for religious freedom. An expressive-critical approach would raise this question and answer it by noting that a blasphemy offence is incommensurate with the right to religious freedom.

Under the option of replacement of the offence with a broader, non-discriminatory provision, the Report suggested the use of the Indian Penal Code provisions as a starting point, particularly Article 295A, which states:

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or religious beliefs of that class, shall be punished with imprison­ment… or with a fine, or with both.

The Indian Supreme Court viewed this Article as commensurate with the Indian Constitution’s provisions of freedom of speech and freedom of religion. The Indian approach, as the Report itself noted, is based on the uppermost con­sideration of preventing religious strife in a particular political context. The Report envisioned problems with such a law, namely potential misuse for political prose­cutions (which it did, however, see as unlikely to occur in the UK) and the difficulty of defining hurt to religious feelings.

Yet the more basic objection should stem from a view of religious freedom that sees the value of this right in the freedom to criticize and debate issues of religion and belief. Even deliberately insulting speech is not necessarily without merit; some effective conveying of religious ideas for and against religions is deliberately provocative and insulting. There is, however, speech that effectively silences, through propagation of hate or intimidation, members of a religious group from expressing their own voice and enjoying their rights as equal citizens. This speech should be more narrowly defined and is better addressed through prohibitions on hate speech.

What Has the Law to Do With a Wedding Invitations List?

One Saturday afternoon I brought my 17-year old nephew to my solicitor’s office. We were attending a wedding dinner that night. I ushered him into my chamber, and he found himself surrounded by voluminous law books, law periodicals and law reports. He cast an amazed look at the amount of papers piling up on my desk – all requiring my urgent and immediate attention. I also had several large cards laying haphazardly on the desk – wedding invitations.

My nephew, who was interested in a career in law, took a book titled ‘Family Law’ and began reading it. Meanwhile I continued my work of drafting a statement of defence to a plaintiff’s statement of claim, preparing an affidavit in reply at the same time. I also looked at some files of divorce cases which were scheduled for hearing at the High Court next month.

After reading for about 20 minutes or so, my nephew stood up and posed me a question: “Uncle, is there a relationship between whom one invites to his wedding and the law?”

“The simple answer to that question is, no, there isn’t. Whom do you invite is not governed by any law, of course. There would be legal chaos if there be a law governing how many guests one could include in one’s wedding invitations. But there may be relationship between whom one invites to one’s wedding and the state of one’s later married life, albeit a fortuitous one. Why do you ask?”

He shrugged, and said,” No particular reason. Just ask for the sake of asking.”

“OK, but you must avoid asking such questions in the future. If you are interested in the law, you are of course encouraged to ask questions – and good questions only. For example, you might want to ask why, in the first place, there are laws governing marriages and divorce.”

His curiosity piqued, my nephew was all ears, as I continued: “In the first place, do you know that a marriage is a contract? That means it entails contractual obligations on the part of the two parties to the marriage, and that’s why there are marriage and divorce laws and regulations.”

“Oh,” came my nephew’s answer, “I didn’t know that. It sounds rather unromantic that a marriage is a contract.” How true.

We spent the rest of the afternoon in my chamber. After my personal introduction to contract law, my nephew became quite interested in the law of contract. I handed him my Guest’s Law of Contract and he began to read it.

That evening, as we mingled with the guests who made the list on the wedding invitations, I couldn’t help reflecting on the question my nephew asked of me in the office earlier. Of course, a marriage (which is always lauded as being made in heaven) is a romantic affair, an occasion for joy and cause for celebration. Who would like to be told that, in the eyes of the law, a marriage, properly formalized, becomes a contract just as much as an ordinary, cold agreement comes into force after all the terms and conditions are fulfilled? Which couple would seek the solicitor’s legal advice on marriage while they are busy preparing the wedding invitations, wedding cakes, wedding reception and the associated paraphernalia? Of course that would be the last thing on their mind.

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