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Abstract
The Racial and Religious Hatred Act 2006 represents a significant development in UK law. It extends the offence of incitement to racial hatred set out in the Public Order Act 1986 to make it also an offence to stir up hatred against persons on religious grounds. As the most celebrated liberal thinker of the nineteenth century, J.S. Mill might be expected to offer some lessons about the possible dangers of this sort of legislation. A Millian response to the 2006 Act is developed here by first applying Mill’s famous defence of free speech to the Lords amendments to the Racial and Religious Hatred Bill 2005 and then by looking at potential cases in which even freedom of expression loses its immunity when this is necessary to prevent harm to others. Three versions of the harm‐prevention justification for liberty‐limiting restrictions are assessed and it is argued that the most promising version is the claim that it may be permissible to punish incitement to racial and religious hatred not so much because it is itself a kind of harm but by virtue of the acts of discrimination, violence and injustice that are more likely to occur within a climate of hatred. Ultimately, however, this rationale must be weighed against what is, for Mill, the special value of free speech and may in the end justify intervention in only the most acute cases.
Acknowledgements
I would like to thank Graham Finlay, Iseult Honohan, Attracta Ingram, Saladin Meckled‐Garcia, Jonathan Riley, Peter Singer, Richard Bellamy and an anonymous referee from CRISPP for their useful comments and suggestions.
Notes
1. For detailed analysis of the various moral, legal and political issues raised by this case, see Parekh (Citation1990), Jones (Citation1990) and Slaughter (Citation1993).
2. For an outline of previous attempts to introduce such an offence in the UK, see Hare (Citation2006), Fenwick and Phillipson (Citation2006), and Goodall (Citation2007).
3. The Racial and Religious Hatred Act 2006, Schedule, para. 29B.
4. Ibid., para. 29A.
5. Ibid., para. 29B–F.
6. BBC online news, ‘Ministers lose religious Bill bid’, 1 February 2006. Available from: http://news.bbc.co.uk/1/hi/uk_politics/4664398.stm.
7. The Racial and Religious Hatred Act 2006, para. 29J.
8. Explanatory Notes to the Racial and Religious Hatred Bill, para 14. Available from: http://www.publications.parliament.uk/pa/ld200506/ldbills/015/en/06015x--.htm
9. Amendments to the Racial and Religious Hatred Bill, as at 31 January 2006. Available from: http://www.publications.parliament.uk/pa/cm200506/cmbills/120/amend/60131m 01.htm.
10. The Racial and Religious Hatred Act 2006, Schedule, para. 29B.
11. The Human Rights Act 1998, Sections 1, 12.
12. Guardian staff and agencies, ‘Jury hears of BNP’s ‘multiracial hell’ speech’, Guardian Unlimited, 3 November 2006. Available from: http://politics.guardian.co.uk/farright/story/0,,1939097,00.html.
13. These are, of course, not the only arguments for freedom of expression in the liberal tradition. Another important strand of argument claims that freedom of expression is indispensable to democratic self‐governance. See, for example, Rawls (Citation1971, p. 221–225), Weinstein (Citation2001, p. 161) and Post (Citation2007). Cf. Schauer (Citation1982, p. 40).
14. For more on these arguments, see Haworth (Citation2007).
15. For critical analysis of Skorupski’s view, see Riley (Citation2005, p. 152).
16. Guardian staff and agencies, ‘Jury hears of BNP’s ‘multiracial hell’ speech’ (note 12).
17. Joel Feinberg, of course, supplements Mill’s harm principle with a principle of offence (Citation1973, pp. 28–29).
18. For a useful discussion of Mill’s views on civilisation and the problem of cultural difference in attitudes to killing and the after‐life, see Tunick (Citation2005).
19. See, for example, Brison (Citation1998).
20. Baroness Ramsay of Cartvale, ‘My Lords’, House of Lords debate on the Racial and Religious Hatred Bill, 11 October 2005. Available from: http://www.theyworkforyou.com/lords/?gid=2005–10–11b.207.0.
21. For a general justification of freedom of expression on autonomy grounds, see Scanlon (Citation1972) and Dworkin (Citation1992).
22. International Covenant on Civil and Political Rights, Article 20, para. 2.
23. I ignore here the important and related issue of whether incitement to hatred legislation ought to cover a much broader spectrum of groups including women and homosexuals.