Chapter 5


 
1 

The Politics Behind the Introduction of Stirring Up Religious Hatred Offences in 

England and Wales 

 

Alexander Brown (UEA) 

 

 

 

Introduction 

 

The Racial and Religious Hatred Act 2006 amended the Public Order Act 1986 to 

create new stirring up religious hatred offences in England and Wales, making it an 

offence, amongst other things, to use threatening words or behaviour or publish 

threatening words or distribute threatening materials, recordings or videos with the 

intention of stirring up hatred against people on grounds of their religion, albeit with a 

freedom of expression proviso protecting discussion, criticism and ridicule of 

religious beliefs and practices.1 But what was and is the real function of the new 

stirring up religious hatred offences in England and Wales from the perspective of 

government, parliamentarians and the judiciary?  

This question has already attracted some attention from legal scholars, and the 

most common conjecture is that the real driving force behind the Racial and Religious 

Hatred Act 2006 was for the Labour government to provide a sop to Muslims: to take 

with one hand from British Muslims, in the shape of draconian anti-terrorism laws, 

but give back with the other, in the form of protection against the stirring up of 

religious hated.2 Yet there has also been a lack of systematic, historical analysis of the 

question: both in terms of testing the validity of the sop explanation and in terms of 

identifying and assessing rival explanations. This article is in some small way an 

attempt to put that right. I am partly engaged, therefore, in a critique of the 

explanations found in the existing literature on this subject, but also partly concerned 

with evaluating potential explanations identified for the purposes of this inquiry. 

Why does an inquiry into events of more than a decade ago matter? I believe that 

it is inherently important to try to understand something of the politics behind the 

introduction of the new offences as an exercise in political history. But no doubt this 

investigation has other potentially significant implications, including gaining a better 

understanding of the true scope of anti-terrorism policy agendas in England and 



 
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Wales, re-evaluating the nature of the New Labour project, uncovering 

inconsistencies in the Prevent strategy, shedding light on the political position of the 

Muslim community in England and Wales, or even testing general theories of public 

policy and the dynamics of legislative change. However, my own particular interest is 

in teasing out how the best explanation of the true purpose behind the stirring up 

religious hatred offences bears on the many normative arguments that have been made 

about the rights and wrongs of these laws, including arguments about further 

extensions covering transgender identity and disability. I shall argue that although it 

might be perfectly possible to normatively evaluate these laws without understanding 

the real functions they were and are supposed to serve, it is much harder to do so in 

ways that stand a decent chance of impacting future governmental, parliamentary and 

judicial decisions. 

This article tries to explain the politics behind the introduction of the new stirring 

up religious hatred offences by examining not only the justifications provided by 

elected politicians, government ministers and peers at the time but also the wider 

context of legislation and the political environment, including the strategic aims of the 

Labour Party as set against the de facto power of members of the House of Lords to 

slow the passage of legislation, and also how the legislation has actually been used in 

practice by courts in England and Wales. In casting the evidential net so widely I do 

not mean to ignore or blur the distinction between the point of the Racial and 

Religious Hatred Act 2006 as seen from the government’s perspective, parliament’s 

perspective and a judicial perspective. Clearly such perspectives can, and often do, 

come apart. So where I do draw on evidence from post-enactment events (court 

decisions, political speeches made later on), I do so only in highly qualified ways. 

Nevertheless, one general point worth emphasising here is that since any public 

policy, including public policy on hate speech, is constituted not only by legislative 

acts that implement the will of the government but also by constitutional protections 

embedded in the principles of parliamentary supremacy and by judicial decisions 

applying those legislative acts to the circumstances of actual cases, it would be 

impossible to fully understand the politics behind the introduction of the stirring up 

religious hatred offences without knowing something of the perspectives of 

government, parliamentarians and the judiciary. Indeed, it is also important to note 

that under s. 29L of the Racial and Religious Hatred Act 2006 it is the Attorney 

General, a position appointed by the sovereign on the advice of the Prime Minister, 



 
3 

who must approve all prosecutions, and this fact alone inevitably brings some of the 

government’s intent into the courtroom. In other words, my aim is not merely to 

explain the Racial and Religious Hatred Act 2006 but also to explain the broader and 

ongoing public policy on incitement to hatred in England and Wales. 

 Drawing on this evidence I identify five possible accounts of the real function of, 

and true explanation for, the introduction of the new stirring up religious hatred 

offences. One of these accounts (the sop explanation) has already gained traction 

among academics as well as among some journalists and social commentators, but I 

seek to see how far it, along with alternative rival accounts, can be substantiated based 

on the available evidence. First, the public order explanation is that the government 

introduced laws banning the stirring up of religious hatred in response to mass 

disturbances and riots that had taken on more complex racial, ethnic and religious 

dimensions since the Race Relations Act 1965. Second, the sop explanation is that the 

government only developed a serious interest in the problem of the stirring up of 

religious hatred after the 9/11 twin towers attack in 2001 and the 7/7 London 

bombings in 2005 respectively, and only legislated new stirring up religious hatred 

offences as a way of sweetening the pill of anti-terrorism legislation for the Muslim 

community affected by it. Third, the anti-terrorism explanation puts the existence of 

the new stirring up religious hatred offences squarely down to the fight against 

Islamist terrorism, and security concerns over the potential for further atrocities like 

9/11 and 7/7 off the back of radical Muslim clerics and extremist Islamist activists 

stirring up religious as well as racial hatred. Fourth, the client politics explanation 

shifts the focus from Muslims as stirring up religious hatred to Muslims as the victims 

of the stirring up of religious hatred; the idea being that a concentration of the burden 

of hate speech on Muslims produced a highly motivated, mobilised and persuasive 

lobbying group. Fifth, the parity of protection explanation points to the more basic 

point that, due to the way legal authorities defined ‘race’, Muslims did not enjoy legal 

protection against the stirring up of racial hatred at a time when other groups that also 

partly identified themselves in religious terms, namely, Jews and Sikhs, did enjoy 

such protection. 

 In what follows I present and critically evaluate each of the aforementioned 

explanations in turn. In the end I come down on the side of a pluralistic approach, one 

that combines the public order explanation with the client politics explanation in 

conjunction with the parity of protection explanation, whilst deemphasising the sop 



 
4 

explanation and the anti-terrorism explanation. Finally, I try to spell out some 

implications of this largely historical analysis for how legal scholars today argue 

about and seek to normatively reject or defend incitement to hatred laws and the 

extension thereof to new categories of people. 

 Before I begin, however, I also want to make the crucial methodological point 

that when it comes to the interpretation of events dating back over a decade we are 

certainly not in the terrain of incontrovertible evidence. That is why I shall not say 

that the public policy on incitement to religious hatred we have in England and Wales 

cannot possibly have the chief purpose that a given explanation claims for it based on 

the available evidence. It is more a matter of sifting through the evidence and taking it 

as a whole. There are no smoking guns here, merely a balance of probabilities. 

 

 

The public order explanation 

 

The public order explanation draws strength from the history surrounding the 

introduction of the racial hatred offences. Following the end of the Second World War 

Britain saw a significant increase in immigration from the West Indies, India, 

Bangladesh and Pakistan. This was partly Britain’s recognition of the role played by 

the Commonwealth in the war effort, partly Britain’s post-colonial settlement, and 

partly a response to the need for labour in building British infrastructure and public 

services. By 1958, however, some parts of Britain, most notably Notting Hill in 

London, were the scene of racial violence and riots between whites and West Indian 

blacks. Latent tensions were sparked when a white Swedish woman who was married 

to a West Indian man was assaulted by a group of white men. These events fed into a 

larger national conversation about race relations in Britain. It was a conversation that 

would go on to encompass Enoch Powell’s infamous ‘rivers of blood’ speech in the 

summer of 1968, in which he issued dark warnings about threats to public order if 

questions of immigration and integration were not satisfactorily resolved. 

 Against this backdrop, the Race Relations Act 1965 sought to provide a 

framework of fair expectations between divided sections of British society, and 

included the introduction of new stirring up racial hatred offences. At the time several 

parliamentarians suggested the idea of incorporating religion as well as racial hatred 



 
5 

within the scope of the offences, but Dingle Mackintosh Foot, then Solicitor-General, 

rejected the idea. He claimed that it would be undesirable on free speech grounds. 

 

Both the tenets and the practices of various religious denominations are the 

subject of violent differences and of perfectly legitimate controversy. There is 

all the difference in the world between attacking a section of the public 

because of the colour of their skins and attacking them because, say, they 

subscribe to the Thirty-Nine Articles.3 

 

He also claimed that it would be unnecessary. 

 

I agree − we all agree − that nothing is more loathsome and more 

contemptible than expressions of anti-Semitism. But those expressions are 

not, at any rate in 99 cases out of 100, based on theological considerations. 

When there are attacks upon the Jews […] they are not directed merely 

against those who observe the Mosaic law. They are directed against Jews as 

a race.4 

 

In fact, the idea of including religion within the scope of the stirring up hatred 

offences never disappeared entirely from parliamentary debates on issues of race 

relations for the next two decades.5 But the idea continuously butted up against the 

sorts of objections articulated above by Dingle Mackintosh Foot.  

In the meantime, Britain continued to see mass disturbances and riots. In 1995, a 

district of Bradford, West Yorkshire, was the scene of three days of rioting, including 

violence between the police and South Asian residents. Then again, in 2001 both 

Bradford and Burnley saw conflict between the city’s British Asian population and its 

white British residents, fuelled by the activities of far right groups including the 

British National Party and the National Front. In 2005, in Birmingham, there was 

conflict between people with Afro-Caribbean origins and people of South Asian 

descent, triggered by unsubstantiated allegations of the gang rape of a black teenage 

girl by a group of South Asian men. What had previously been public disorder based 

on racial tensions and rooted in economic deprivation, now took on complex racial, 

ethnic and religious dimensions, relating not merely to poverty but also in some 



 
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instances to minority religious identities (Muslim, Sikh, Hindu) that people felt they 

needed to assert. 

During this period the Labour government made a series of attempts to introduce 

new legislation making it an offence also to stir up hatred on grounds of religion. It 

tried unsuccessfully via the Anti-Terrorism, Crime and Security Bill in 2001 and the 

Serious Organised Crime and Police Bill in 2004, introduced by Jack Straw’s 

successor as Home Secretary, David Blunkett. Then it succeeded via the Racial and 

Religious Hatred Bill in 2005 and, ultimately, the Racial and Religious Hatred Act 

2006, introduced by David Blunkett’s successor as Home Secretary, Charles Clarke. 

According to the public order explanation, the introduction of the legislation was a 

direct response to, and triggered by, the fact that mass disturbances and riots were not 

going away and were becoming increasingly more complex, meaning religion could 

no longer be left out of the equation in understanding them. Moreover, the inclusion 

of the stirring up religious hatred offences within the Public Order Act 1986 was not 

mere convenience but went to the heart of the real function of the offences. 

From the perspective of process tracing, it is difficult to argue with the timings of 

the various events described above, with the putative causes and effects in their 

correct temporal sequences. On this explanation, one looks at these events in terms of 

an evolving public policy response to an evolving problem: as mass disturbances and 

riots (public disorder) became more complex, so did the public policy response, in the 

shape of new public order offences. 

 In addition, the speeches of successive Home Secretaries clearly indicate a 

concern with public order. As David Blunkett put the matter when addressing the 

House of Commons in November 2001, ‘[t]his is a public order Act, and it is the order 

that we are talking about.’6 Or, consider the words of Charles Clarke during the 

second reading debate on the Racial and Religious Hatred Bill in June 2005.  

 

I [...] begin by emphasising that the Bill deals with hatred and incitement to 

hatred. It is about the nasty and extreme behaviour that drives people to hate 

others and sometimes, as the recent desecration of Jewish cemeteries shows, 

to turn that hatred against people and property. It is about behaviour that 

destroys individuals’ lives and sets one community against another. In 

evidence to the House of Lords Select Committee on religious offences, the 

Association of Chief Police Officers said that hatred stirred up by extremist 



 
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groups contributed to the Bradford and Burnley riots in 2001. The Bill is 

intended to help tackle that sort of hatred − I emphasise “hatred”.7 

 

Of course, it might be countered that just because the Home Secretary referred to the 

public order nature of these offences it does not prove that the government definitely 

did not see these offences as also potentially being used to prevent the spread of 

extremist ideologies or acts of terrorism, for example. Indeed, the very concept of 

public order is not necessarily limited to mass disturbances and riots. I take the point. 

This bit of evidence is not conclusive. But the real issue is whether or not the 

evidence as a whole suggests that public order was the primary concern. The 

aforementioned evidence suggests that it was. 

The public order explanation is also borne out in some of the ensuing case law. 

One interesting case involved the stirring up of religious hatred by Sikhs against 

Muslims. In R. v. Singh, Singh Athwel, Singh, Baning, and Singh8 three of the 

defendants pleaded guilty to publishing material intended to stir up religious hatred 

against Muslims, contrary to section 29C of the Public Order Act 1986. This related to 

contributions they made to a Facebook page they had set up for the purposes of 

discussing the need to be mindful of atrocities committed by Muslims, to prevent 

sexually motivated attacks by Muslim men on Sikh women and generally to beware 

the threat posed by Muslims. In her sentencing remarks Judge Dean described the 

general ‘tone of the conversation’ on the Facebook page as ‘one of an immediate wish 

to use gratuitous violence against Muslims, effectively, for the simple reason that they 

are Muslims and Muslims were being regarded in the conversation as deserving of 

violence.’9 Judge Dean also made four references to ‘tensions’ between Sikh and 

Muslim communities in Leicester. At heart, this case was about a concern on the part 

of the police, the Crown Prosecution Service (CPS), the Attorney General and Judge 

Dean about public order − a concern that the use of threatening words on Facebook 

could further heighten tensions between these ethno-religious groups and lead to 

violence and mass disturbances. Indeed, it is notable that the defendants were also 

convicted of various offences relating to the importing and possession of dangerous 

weapons including knives, knuckledusters, Tasers, pepper sprays, and batons, and to 

persuading people to travel to various locations around Leicester carrying these 

weapons. The two groups were gearing up for a mêlée on the streets of Leicester 

during which they and innocent members of the public could get hurt. That the court 



 
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treated the problems being tackled by the offences as principally public order 

problems tells us something of the real function of the wider public policy on 

incitement to religious hatred. 

Despite all this, however, the public order explanation is not the dominant 

explanation in the literature. In fact, it hardly receives a mention next to the 

explanation which is dominant, to which I shall now turn. 

 

 

The sop explanation 

 

The dominant account of the real function of, or explanation for, the new stirring up 

religious offences runs as follows. In the 1960s the government set out to restrict 

immigration – as a response to concerns about the threat to social cohesion posed by 

excessive immigration – but to balance off the negative impact of these restrictions on 

existing immigrant families it also created the stirring up racial hatred offences, as a 

way of protecting these groups. Similarly, in the 2000s the government wished to 

introduction tough new anti-terrorism laws10 – to respond to concerns about the threat 

to security posed by Muslim extremism – but to offset the negative impact of these 

laws on the Muslim community it introduced new stirring up religious hatred offences 

(the existing stirring up racial hatred offences protected Jews and Sikhs as racial or 

ethnic groups but not Muslims as a religious group). This is the sop explanation: a 

strategy, or ploy, devised by the Labour government to take with one hand from 

British Muslims but to give back with another.11 (Of course, among the implicit 

factual premises built into the sop explanation is that anti-terrorism legislation was 

and is specifically targeted against the Muslim community, whether by design or 

effect; which is, of course, something governments may deny.) 

 One way of motivating the sop explanation is to consider the timing of the Labour 

government’s attempts to introduce new stirring up religious hatred offences, first via 

the Anti-Terrorism, Crime and Security Bill in 2001 and then again via the Serious 

Organised Crime and Police Bill in 2004-5 and, finally, via the Racial and Religious 

Hatred Bill in 2005-6. It is no coincidence (the argument goes) that these bills were 

introduced in the wake of extremist Muslim terrorist atrocities, 9/11 and 7/7, and at 

times when the government was also introducing new anti-terrorism legislation in 

response to those atrocities. This timing at least seems to bear out the sop explanation. 



 
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If the Labour government had independent reasons to provide Muslims with new laws 

protecting them from the stirring up of religious hatred − reasons that had nothing to 

do with ameliorating the negative impact of anti-terrorism laws on the Muslim 

community − then one could have reasonably expected the Labour government to 

have been minded to provide these protections before its plans for anti-terrorism laws 

were developed. Yet prior to 9/11 the Labour Government had not clearly signalled 

any intention to introduce new stirring up religious hatred offences.12 The facts are 

that the introduction of new stirring up religious hatred offences did not make an 

appearance in the Queen’s Speech until 2004 (and then again in 2005),13 and did not 

figure in a Labour Party general election manifesto until 2005.14 This timing was 

certainly not lost on certain members of the House of Lords when it came to debating 

the Anti-Terrorism, Crime and Security Bill in November 2001. In the words of Lord 

Waddington, ‘[draft legislation on the stirring up of religious hatred] has precious 

little to do with the events of September 11th, except in the sense that after September 

11th it was offered to the Muslim community as a kind of sop to buy support for the 

war against terrorism.’15 

 Then again, not all the evidence stacks up for the sop explanation. In 2005, for 

example, Charles Clarke allegedly wrote to several mosques to explain that on the 5th 

of April, against the wishes of the Labour government, an amendment had been 

passed in the Lords that removed stirring up religious hatred offences from the 

Serious Organised Crime and Police Bill.16 Yet the letter makes no mention 

whatsoever of security and terrorism, anti-terrorism measures or the negative impact 

of such measures on the Muslim community. If the real function of the new offence 

had been to placate the Muslim community, perhaps the letter would have said 

something along these lines “We recognise the special role that the Muslim 

community is playing in tackling extreme Islamist ideology and terrorism, and that 

the burden of anti-terrorism measures have often fallen on Muslims, but we want to 

reassure you that we take the interests of the Muslim community extremely seriously, 

and so we are finally introducing new stirring up religious hatred offences.” 

 Of course, it might be argued that if the Labour government was attempting to 

soften the blow or in some sense compensate the Muslim community for anti-

terrorism measures − measures which the Muslim Council of Britain, for example, 

argued were targeted at the Muslim community − maybe the wise move would be not 

to make this explicit to Muslims. It might backfire on the government to admit that its 



 
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anti-terrorism measures are most likely curb and restrict the activities and freedoms of 

people from the Muslim community. Then again, if a group in society perceives that 

is facing burdens from anti-terrorism laws, and is alienated, disillusioned, and angry 

partly because of that perception, and one wishes to make amends, it might be a 

missed opportunity not to point out that introducing new stirring up religious hatred 

offences is designed to offer them something that improves their position. 

 There is another version of the sop explanation that is perhaps even weaker. It is 

that the introduction of the new stirring up religious hatred offences in 2005 was 

supposed to be compensation for the fact that the Labour government had pursued the 

war in Iraq − a war that was waged in a country populated by Muslims and, therefore, 

a war that Muslims might view unfavourably either simply as causing the unnecessary 

deaths of Muslims or as a declaration of war against the entire Islamic Ummah. This 

version of the sop explanation, however, is severely undermined by the fact that the 

Racial and Religious Hatred Bill was not the first attempt made by the Labour 

government to introduce the new offence. In the words of the then Labour MP (now 

Mayor of London) Sadiq Khan, during the second reading debate on the Racial and 

Religious Hatred Bill in the House of Commons in June 2005: 

 

The third objection is that this is a sop to the Muslim community, giving them 

preferential treatment because of the Iraq war. [But] the first time the then 

Home Secretary, my right hon. Friend the Member for Sheffield, Brightside 

(Mr. Blunkett) tried to introduce this legislation was in winter 2001 − more 

than a year before the war with Iraq − so I am afraid that the chronology of 

those who make that point is simply wrong. If British Muslims really were as 

powerful and influential as the hon. Member for Henley (Mr. Johnson) 

suggests, one would have thought that they could have persuaded the 

Government not to fight the Iraq war in the first place.17 

 

A more plausible argument, at least in terms of the sequence of events, might be to 

argue that the legislation was a sop to the Muslim community for the government’s 

failure to intervene to prevent the genocide and ethnic cleansing carried out against 

Bosniak citizens (Muslims) during the Bosnian war from 1992-1995. This, at least, 

predates the various attempts to legislate mentioned above. But here it is arguable that 

if the genocide was relevant to the creation of new stirring up religious hatred 



 
11 

offences, it was less likely to be because the new offences amounted to paying a debt 

to the Islamic Ummah and more likely to be because the government recognised 

patterns in history in which speech that stirs up ethnic or religious hatred ends in acts 

of genocide. In other words, the government could be interpreted as learning the 

lessons of the Bosnian genocide, along with the Rwandan genocide and, going further 

back, the Holocaust, about the sometimes devastating effects of incitement to hatred 

and the creation of a climate of hatred. I shall return to these ideas below. 

 In summary, it is arguable that the evidence which exists for the sop explanation 

is weak, and the counter evidence relatively strong. It is intriguing, therefore, that this 

has been the dominant explanation in the literature, even to the exclusion of other 

rival explanations. Perhaps one reason for this dominance might be the sort of 

literature involved. With the exception of Erik Bleich, the sop explanation has almost 

always popped up in articles and books written by legal scholars, as opposed to 

historians, political scientists and political theorists. A second, related reason may be 

that, within the relevant literature, the project of explaining why Britain introduced 

stirring up religious hatred offences tends to be of secondary, or minor importance, 

compared to the primary goal of critiquing the legislation. If an author is of the view 

that the legislation is bad legislation − perhaps because the author believes the law is 

badly drafted, unnecessary, ineffective, or has unjustified implications for freedom of 

expression − it is perhaps a convenient, similarly negative conclusion to draw that the 

motivations for the legislation were also compromised in some way. Among some 

social commentators, the sop explanation might also feed into a broader scepticism 

about ideas of multiculturalism and the New Labour project more generally. To 

embrace the sop explanation is to embrace the idea that attempting to recognise the 

special grievances of religious minorities, most notably Muslims, inevitably gets 

mired in difficult policy dilemmas and may cause the sacrifice of liberal freedoms; or 

belies a highly cynical strategy on the part of an electorally unsuccessful political 

party to assiduously accumulate a winning coalition of voters, whatever the cost. 

 

 

The anti-terrorism explanation 

 

A third explanation of the introduction of the new stirring up religious hatred offences 

makes a direct appeal to matters of terrorism and national security. Whereas the sop 



 
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explanation plays up the fact that the new offences prohibit the stirring up of religious 

hatred against Muslims, the anti-terrorism explanation instead highlights the fact that 

the new offences prohibit the stirring up of religious hatred by Muslims. In short, the 

new offences were introduced in the wake of 9/11 and 7/7 in an attempt to prevent 

radical Muslim clerics and extremist Islamist activists from engaging in incitement to 

hatred against Jews, Christians, and non-believers in general, of a sort that could 

ultimately lead to the spread of extremist Muslim ideology and terrorist atrocities. 

 According to the anti-terrorism explanation, it is no coincidence that the Labour 

government initially sought to introduce the new stirring up religious hatred offences 

via the Anti-Terrorism, Crime and Security Bill in 2001. In other words, its place in 

the Bill is not to be explained merely by the fact that adding new offences would be 

more efficiently achieved by adding the necessary amendments into an omnibus or 

bundle legislative bill − given that parliamentary time to pass new legislation is an 

incredibly scarce resource for any government − or by the fact that the Labour 

government anticipated that introducing the new offences would be controversial so it 

chose to hide the amendments in an high-profile bill and it just so happened to be an 

anti-terrorism bill. Rather, the introduction of the new stirring up religious hatred 

offences by means of the Anti-Terrorism, Crime and Security Bill reveals something 

about how the Labour government viewed the true purpose of the offences, the real 

problems the offences were intended to address. 

 If the real function of the new offences was to tackle threatening speech that stirs 

up religious hatred in ways that pose a threat to national security, this implies that the 

government believed this function was not being adequately fulfilled or could not be 

adequately fulfilled by the existing stirring up racial hatred offences. Given the value 

of parliamentary time as a scarce resource for implementing the government’s policy 

agenda, and assuming that senior civil servants in the Ministry of Justice, the Home 

Office and the CPS would have fully briefed both the Minister of State and the Home 

Secretary about the current state of incitement to hatred law, including successful and 

unsuccessful prosecutions under the law, then the current explanation only makes 

sense if the government had seen loopholes in the current offences as far as the 

protection of security is concerned. 

Here, at least, there is some evidence to support the explanation. The evidence 

comes directly from the case law. It is certainly true that the existing stirring up racial 

hatred offences had been put to use in the name of security, not merely from the 



 
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government’s perspective but also from the perspective of judges at the coal face. 

Consider R. v. El-Faisal.18 In this case police investigating possible al-Qaeda links in 

the UK found tape recordings of speeches given by the Jamaican-born Muslim cleric, 

Abdullah el-Faisal, labeled ‘No peace with the Jews’ and ‘Jewish Traits’. He was 

convicted inter alia of two counts of distributing threatening recordings with intent to 

stir up racial hatred − the first Muslim cleric to be convicted of such offences in 

England and Wales. For each of the two counts El-Faisal received a sentence of 

twelve months imprisonment. In his sentencing remarks Judge Beaumont seemed 

clear that the offence is taken extremely seriously due in large measure to the threat 

that the stirring up of racial hatred will lead impressionable people to take up arms. As 

he put it: 

 

In my judgment, your offending was aggravated by the fact that as a cleric 

you were sent to this country to preach and minister to the Muslim 

community in London, and so had a responsibility to the young and 

impressionable within that community at times of conflict abroad and 

understandable tensions in the communities here over the period which is 

spanned by the indictment. Instead of calming fears, you fanned the flames of 

hostility, and furthermore, as I have said already, your words were not 

confined to the study circles you addressed but recorded to be distributed to 

bookshops for sale to the public, packaged as they were in the tape covers 

which were exhibited in the course of this trial, and to me it rang hollow for 

you to say in evidence that none of the young men to whom you preached 

went off to fight in Afghanistan or Chechnya or Kashmir. No-one, least of all 

you, will ever know.19  

 

This is far from being an isolated case. Consider also R. v. Iftikhar Ali,20 R. v. 

Hamza,21 R. v. Rahman,22 R. v. Javed,23 R. v. Saleem24 − all of which involved 

successful prosecutions of either radical Muslim clerics or extremist Islamist activists 

for stirring up racial hatred offences − the last three of which concerned the Danish 

embassy demonstrations in February 2006 and all of which involved parallel 

convictions for terrorism related offences. More importantly, although there have 

been far fewer convictions under the new stirring up of religious hatred offences, 

these offences certainly have been used in some instances for the purpose of tackling 



 
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extremist Islamist ideology and potential seeds of terrorism. In R. v. Ahmad,25 for 

example, a dual nationality British-Pakastani business information technology 

graduate using the pseudonym Abu Jahiman engaged in an on-line discussion via the 

website IslamicAwakenings.com concerning a college in India that had allegedly 

banned its students from wearing the Burka. Mr. Ahmad wrote that ‘[Muslims] should 

storm these filthy rabid sub-monkeys and stomp on their jaws until they hear the 

sweet crack sound and then some.’ For this he was found guilty on one count of 

publishing written material with intent to stir up religious hatred and given a one year 

sentence. In his sentencing remarks Justice Royce was not explicit about members of 

which religious group were having hatred stirred up against them by Mr. Ahmad, but 

the facts of the case suggest members of the Hindu faith. Mr. Ahmad was also 

convicted for various other serious terrorist and criminal offences relating to the 

publication of extremist Islamist views on the Internet. The total sentence was 17 

years. In passing sentence Justice Royce used phrases such as ‘your views were 

corrosively dangerous’, ‘a significant risk to members of the public’, ‘public 

protection’, ‘a viper in our midst willing to get as many as possible to strike at the 

heart of Parliament and of our system’.26 Whilst many of these phrases were clearly 

aimed at the more serious offences, the judge does not explicitly exclude the stirring 

up religious hatred offences from the scope of these phrases, nor does the overall 

thrust of the sentencing remarks point toward that restriction of scope. What all of this 

shows is that there was indeed potentially a gap in the law which meant that prior to 

2006 a radical Muslim cleric or extremist Islamist activist could in theory stir up 

hatred against Hindus or Christians, say, without fear of prosecution, and in so doing 

pose a potential threat to national security. 

 Indeed, the anti-terrorism explanation might also draw strength from other similar 

measures taken by the Labour government, and continued by the Conservative 

government, to prevent radical Muslim clerics and extremist Islamist activists from 

peddling hatred in England and Wales, the justifications for which make explicit 

reference to terrorism and threats to national security. For example, Art. 320(6) of the 

Immigration Rules sets out the following grounds on which entry clearance or leave 

to enter the country can be refused: ‘where the Secretary of State has personally 

directed that the exclusion of a person from the UK is conducive to the public good.’ 

In August 2005, in the wake of the 7/7 London bombings, Charles Clarke set forth an 



 
15 

indicative list of ‘unacceptable behaviours’ to be used as bases for such exclusions, 

including the following: 

 

– Writing, producing or distributing material; 

– Public speaking including preaching 

– Running a website; or 

– Using a position of responsibility such as teacher, community or youth 

leader 

To express views which: 

– Format, justify or glorify terrorist violence in furtherance of particular 

beliefs; 

– Seek to provoke others to terrorist acts; 

– Foment other serious criminal activity or seek to provoke others to serious 

criminal acts or; 

– Foster hatred which might lead to inter-community violence in the UK.27 

 

The then Prime Minister, Tony Blair, explicitly linked these new measures to ‘the 

terrorist threat in Britain’ and to ‘national security’.28 Interestingly, this list of 

‘unacceptable behaviours’ has been tested and upheld as lawful by the courts in 

subsequent cases. In Naik v. The Secretary of State for the Home Department,29 for 

example, the High Court of Justice (Admin.) upheld a decision taken in June 2010 by 

the then Home Secretary (and now Prime Minister), Theresa May, partly on the 

advice of the director general of the Office for Security and Counter Terrorism 

(“OSCT”), Charles Farr, to exclude an Indian national and Muslim writer and orator 

from entering the UK. The letter stated that Dr. Naik was to be excluded ‘for 

engaging in unacceptable behaviour by making statements that attempt to justify 

terrorist activity and fostering hatred.’ The Court accepted that the exclusion order 

was ‘necessary for, and proportionate to, the legitimate aims of protecting national 

security, preventing crime and protecting the rights of others.’30 This decision was 

subsequently upheld by the Court of Appeal (Civ.). Notably, the higher judgement 

contains 15 references to ‘national security’ but only 4 references to ‘public order’.31  

 Advocates of the anti-terrorism explanation might suggest that the real function of 

the public policy on incitement to religious hatred − although not the proximate cause 

of the Racial and Religious Hatred Act 2006 itself − has continued to reveal itself 



 
16 

over time as politicians have in their speeches, wittingly or unwittingly, combined 

discussion of anti-terrorism measures, such as the encouragement of terrorism and the 

glorification of terrorism offences, with discussion of the offences. One such example 

is a statement on national security issued by the office of the then Prime Minister, 

Gordon Brown, in November 2007 which talks in the main about the threat of 

terrorism and various anti-terrorism measures, including tackling those who use the 

Internet for the purposes of the encouragement of terrorism, but also mentions in 

passing that ‘the Home Secretary is inviting the largest global technology and internet 

companies to work together to ensure that our best technical expertise is galvanised to 

counter online incitement to hatred.’32 The discursive linking together of the stirring 

up hatred offences with issues of terrorism and national security has to some extent 

continued with the Conservative government through its reinvention of the Prevent 

Strategy, a set of policy measures aimed at challenging the ideological roots of 

terrorism as much as tackling the threat of terrorist atrocities themselves. 

Interestingly, in her Foreword to the publication of the new Prevent Strategy 

document in June 2011, Theresa May stated boldly:  

 

The Prevent programme we inherited from the last Government was flawed. 

It confused the delivery of Government policy to promote integration with 

Government policy to prevent terrorism.33 

 

Given this statement, it could seem indicative that, as well as discussing a range of 

anti-terrorism measures, this same Prevent Strategy document also throws into the 

mix the stirring up offences. ‘Powers derived from public order-related legislation, for 

example, can address activity which contributes to stirring up racial or religious 

hatred or hatred on grounds of sexual orientation.’34 The implication here (so 

defenders of the anti-terrorism explanation might argue) is that the Conservative 

government views the stirring up of hatred as part of government policy to prevent 

terrorism rather than policy to promote integration. 

 The anti-terrorism explanation faces some not insignificant problems, however. 

One problem concerns the idea that the Labour government’s attempt to introduce 

new stirring up religious hatred offences via the Anti-Terrorism, Crime and Security 

Bill in 2001 revealed something of the true purpose of those offences. One problem 

with this idea is that the Labour Government made no appeal to security issues during 



 
17 

the key House of Commons debates. Thus, in the second reading debate in the 

Commons the then Home Secretary, David Blunkett, explained the rationale behind 

the new offence in terms of responding to requests from Muslim leaders and 

achieving parity of protection among Jews, Muslims, Sikhs and Christians alike.35  

Now it is also true that in his comments Blunkett made the following additional 

argument.  

 

It has been suggested − I heard people say this as recently as this morning on 

the radio − that it might be used against Muslims. That is true; it might, 

because Muslims are no less subject to the law than Christians, Hindus, Jews 

or anyone else.36 

 

What this tells us about the underlying purpose of the legislation is open to 

interpretation, however. Conceivably Blunkett was making an implicit admission that 

the government really did intend the legislation as a way to help the police fight 

extremist Islamist ideology and terrorism. But this interpretation could also smack of 

historical revisionism. At the time several journalists, community leaders and to some 

extent the wider public were concerned that history could repeat itself in the sense that 

some of the early successful prosecutions under the Race Relations Act 1965 were 

against black people.37 Blunkett’s response was to grasp the nettle: to insist that if one 

does introduce laws banning the stirring up of religious hatred then it is only right that 

these laws are applied to everyone. Then again, those who favour the anti-terrorism 

explanation might simply say that Blunkett was using arguments about equity in the 

application of law simply as a smokescreen. Admitting that the new offences might 

also be used against Muslims was a way of preparing the public for the fact that the 

police would target their use of the laws particularly against extremist Islamist 

speakers, the real function of the laws. But this interpretation faces a dilemma. On the 

one hand, if the chief purpose was anti-terrorism and tackling extremist Islamist 

speakers, why did Blunkett not explicitly mention this intention at the time? On the 

other hand, if this was the chief purpose but nevertheless Blunkett took the view that 

it was more strategic not to reveal this purpose to the public, why say anything about 

Muslims at all? Why draw attention to a purpose that he wanted to remain hidden? 

 Now it is also true that during the House of Lords debate on the Racial and 

Religious Hatred Bill in October 2005 Lord Ahmed, a Labour member, declared, ‘My 



 
18 

Lords, the Bill is intended to give faith communities the levels of safety and security 

to which they are entitled in a diverse, civilised and democratic society.’38 However, 

there is reason to think that he meant ‘safety and security’ in the public order sense 

rather than in the security and terrorism sense. During the House of Lords debate on 

the Anti-Terrorism, Crime and Security Bill in November 2001, for example, Lord 

Ahmed had himself argued that the inclusion of the new offence within an anti-

terrorism law was not merely a red-hearing but could unwittingly create a pernicious 

association in the minds of people about terrorism and religion that ought to be 

avoided. In his words:  

 

The British Muslims are wary that they will be segregated from society 

because of their religious beliefs, especially in the light of recent world 

events. If we are to include religion under the same umbrella as terrorism, 

then it is inevitable that some people may consider certain religious beliefs to 

be a form of terrorism. We do not want to see that happen. While I strongly 

support religious discrimination laws, I propose that that should be a separate 

Bill. This is necessary to avoid any misunderstanding between the two issues 

and to emphasise that the Government are wholly supportive of the need to 

improve religious relations.39 

 

In a similar vein, Lord Dholakia suggested to his colleagues during the same debate 

that even the coincidental inclusion of new stirring up religious hatred offences with 

an anti-terrorism law could potentially undermine an important distinction. 

 

There is also concern about the security of all communities in Britain. The 

Government have rightly recognised that, but they have done so in the wrong 

context. Religious hatred, particularly when it is directed at minorities, has 

existed from the time when minorities set foot in this country. The events of 

11th September are not required to recognise that. We on these Benches find 

it difficult to accept that the Bill is the right place for such legislation. We are 

not alone in that − even the Commission for Racial Equality argues that a 

distinction can be made between anti-terrorism measures that can be justified 

as necessary in the current emergency situation and those that have wider 

implications and which should be given greater consideration in Parliament.40  



 
19 

 

Thus, not only did the Labour government make no appeal to terrorism and national 

security issues when attempting to introduce the new stirring up religious hatred 

offences in the immediate aftermath of 9/11 but also the House of Lords successfully 

removed the new offence from the Anti-Terrorism, Crime and Security Bill at that 

time partly because several peers argued persuasively that the new offence clearly 

could not be appropriately considered an anti-terrorism measure. 

 A second problem has to do with the fact that around the time that the Labour 

government was finally able to introduce the new stirring up religious hatred offences 

through the Racial and Religious Hatred Act 2006 it also introduced other offences 

the stated purpose of which was made explicit, to clamp down on so-called preachers 

of hate. Charles Clarke pushed through the Terrorism Bill in 2006, which, amongst 

other things, introduced new encouragement of terrorism and glorification of 

terrorism offences. The wider context was that the Labour government had been 

criticised over the failure of police to immediately arrest Muslim demonstrators who, 

in response to cartoons mocking the Prophet Mohammed published in a Danish 

newspaper, had, in February 2006, marched through London and stood in front of the 

Danish embassy wielding placards, amongst other things, praising the 7/7 bombings 

and calling for beheadings. Clarke was unequivocal about the point of introducing the 

new encouragement of terrorism and glorification of terrorism offences. 

 

The Government believes that the glorification of terror is an essential − I 

emphasise that word − method that is used by individuals and organisations 

that pursue terrorist ambitions and wish to get individuals such as the 

7/7 bombers to commit to their suicidal and destructive ends.41 

 

That the Labour government introduced in 2006 bespoke offences to deal directly 

with so-called preachers of hate casts doubt on an interpretation that says the stirring 

up religious offences, introduced around the same time, were also principally aimed at 

curbing the activities of extremist Islamist speakers. 

 A third problem is that if the government wanted to introduce new stirring up 

religious hatred offences under the banner of anti-terrorism, why did it choose to 

introduce the offences within the existing framework of public order legislation? Why 

not insert the offences into other, anti-terrorism legislation? After all, the courts, 



 
20 

whose job it is to implement the new offences, were always likely to take their lead 

from the fact that government was amending the Public Order Act 1986, a piece of 

public order legislation. Now it is certainly true that in some cases involving the new 

stirring up religious hatred offences courts have used the discourse of security and 

anti-terrorism in their sentencing remarks. But in other cases the courts have treated 

the problems being tackled by the offences as public order problems. Consider once 

again Singh. In her sentencing remarks Judge Dean gave no hint that the offences 

were being used to address issues of security and terrorism, as evidenced by the fact 

that the words ‘security’ and ‘terrorism’ simply do not figure in the sentencing 

remarks. In this case the stirring up religious hatred offences − public order offences 

in legal doctrine or classification − were being used to tackle a local ethno-religious 

public order problem. 

 A final problem relates to the anti-terrorism explanation not as an explanation of 

the Racial and Religious Hatred Act 2006 as such but as an explanation of the 

ongoing point and purpose of the stirring up religious hatred offences in England and 

Wales. It has to do with the above-discussed combining, within the discourse of some 

politicians, of statements about anti-terrorism measures with statements about the 

stirring up of hatred, especially in relation to iterations of the Prevent Strategy. The 

anti-terrorism explanation takes this correlation at face value, as telling us something 

about the shared purpose of encouragement of terrorism and glorification of terrorism 

offences, on the one hand, and stirring up hatred offences, on the other. But this 

explanation belies the nuanced nature of the correlation. For example, speaking in 

November 2014 about the Conservative government’s anti-terrorism measures, 

Theresa May stated: 

 

Since I became Home Secretary, I have excluded hundreds of people in total 

from Britain. I have excluded 61 people on national security grounds and 72 

people because their presence here would not have been conducive to the 

public good. In total, I have excluded eighty-four hate preachers.42 

 

Perhaps insufficient care is taken here to make the point that some “hate preachers” 

were excluded on national security grounds whereas other “hate preachers” were 

excluded because their presence here would not have been conducive to the public 

good, such as if they posed a risk to public order, say. But nevertheless the fact that 



 
21 

these two grounds for exclusion are separated gives a strong indication that the real 

function, as well as the actual practice, of immigration rules allowing the Home 

Secretary to exclude people who stir up hatred, cannot be exclusively related to the 

prevention of terrorism. Put crudely, if 61 people were excluded on national security 

grounds but 84 “hate preachers” were excluded, it stands to reason that at least some 

“hate preachers” must have been excluded for reasons other than national security. 

 

 

The client politics explanation 

 

Yet another explanation appeals to the idea of client politics.43 Put crudely, a client 

politics approach to explaining the introduction of new stirring up religious hatred 

offences back in 2006 highlights the patterns of benefits and burdens faced by 

different groups in society as a predictor of changes in legislation serving or not 

serving the interests of those groups. Where the stirring up of religious hatred, and the 

burdens associated with the climates of hatred and fear to which this sort of speech 

contributes, is concentrated on a particular group, one can expect that group to be 

more likely to mobilise to request laws that offer some protection against this hate 

speech than is the case if the burdens are dispersed across society. On this 

explanation, the basic reason why we ended up with new stirring up religious hatred 

offences was the fact that Muslim groups were being disproportionately burdened by 

this sort of hate speech. Indeed, the client politics explanation is also consistent with 

the putative fact that the introduction of new stirring up religious hatred offences 

happened at a time when there was an increase in the stirring up of hatred against 

Muslims in the wake of after high-profile extremist Islamist terror attacks. 

 It can be pointed out, in support of this explanation, that although the new stirring 

up religious hatred offences would also provide protection to Christians, Hindus, and 

Buddhists, for instance, most of the debate in public life concentrated on Muslims. So, 

for example, as early as 2003 the House of Lords Select Committee on Religious 

Offences in England and Wales recognised that the government’s proposal to 

introduce new stirring up religious hatred offences via the Anti-Terrorism, Crime and 

Security Bill in 2001 ‘proceeded from threats to the Muslim communities and their 

members, following the events of 11th September 2001 in New York, and other acts 



 
22 

of terrorism elsewhere.’44  And, in the words of David Blunkett during the House of 

Commons debate on the Anti-Terrorism, Crime and Security Bill in November 2001: 

 

We were approached by leaders of the Muslim community − it was a 

representative leadership group − who thought that it was only right, fair and 

protective to include religion with race in terms of avoiding incitement to hate 

using the Public Order Act 1986. I considered that and decided that their 

point was fair and reasonable.45 

 

Subsequently, in a speech to the Institute of Public Policy Research in July 2004 

Blunkett stated that ‘[i]f anything the arguments for this extension of the law have 

grown stronger since 2001’.46 He did not on that occasion pause to explain why the 

argument had ‘grown stronger’, but it may be plausible to read this statement as a 

response to civil society research being undertaken at the time on the rise of 

islamophobia since 2001. Take, for instance, a report by the independent Commission 

on British Muslims and Islamophobia in June 2004 setting out the impact of 9/11 and 

the ensuing wars in Afghanistan and Iraq on the experiences of British Muslims, 

including experiences of anti-Muslim hostility and its manifestation in verbal as well 

as physical attacks on Muslims in public places.47 

 A central claim of the client politics explanation is that if the burdens of the 

stirring up of religious hatred are disproportionately imposed on a particular group 

rather than being spread evenly across society, one can explain and would expect the 

affected groups to lobby governments to bring about legislation even at the expense of 

the interests of the general public. Putting this another way, even if the relevant 

incitement to hatred laws are not in the interests of the general public (e.g., speaker 

and audience interests in free public discourse on matters concerning religious 

believers as well as religious beliefs), minority religious groups would be acutely 

aware of the cost of other people enjoying the freedom to stir up hatred against them 

and so would be particularly motivated to persuade politicians to legislate. In that 

sense the real function of, and true explanation for, the new stirring up religious 

hatred offences was to serve the interests of Muslim clients and thereby to serve the 

interests of politicians standing for election in constituency containing these clients. 

 Two factual premises need to be substantiated, therefore. The first is that Muslims 

did lobby the government for a change in the law. This premise seems entirely 



 
23 

unproblematic. The evidence suggests, not least from the testimony of 

parliamentarians, that a many Muslim groups and leaders did assert that they were 

suffering from an increase in hate speech post 9/11 and 7/7 and did lobby their MPs 

and the government for new stirring up religious hatred offences as part of the 

solution. Of course, it is also the case that some Muslims argued against the 

introduction of the new offences precisely because they seemed to be another way of 

putting Muslims to the forefront of the public’s consciousness, and not in a good way. 

But this need not in itself undermine the client politics explanation. It is enough that 

some Muslim groups did mobilise in favour of the legislation because it represented a 

net benefit to them. 

The second premise is that this lobbying resulted from the facts on the ground. 

For the client politics explanation to work it must actually be the case that there was a 

disproportionate burden of incitement to hatred on a particular group (Muslims), as 

well as a concentrated benefit to be had from legal protection also for that group, with 

costs in freedom expression diffusely distributed across the general population. With 

regards to this premise, however, the main problem for the client politics explanation 

is a lack of tailored evidence. Official hate crime statistics, in the form released to the 

public, tend to be broken down by broad categories, including religion, but not 

disaggregated into particular religions. From time to time supplementary official 

reports are released which do provide this level of information. For example, in its 

2012 report Anti-Muslim Hate Crime: Learning From Casework, the CPS stated that 

‘[t]he majority of the religiously aggravated hate crime cases sampled (62%) involved 

an element of anti-Muslim sentiment’.48 Similarly, in its 2013 report An Overview of 

Hate Crime in England and Wales the Home Office, Office for National Statistics and 

Ministry of Justice stated that ‘the 2011/12 and 2012/13 ‘[the Crime Survey for 

England and Wales] showed that Muslim adults were the most likely to be a victim of 

religiously motivated hate crime’49 So in theory one could postulate for the purposes 

of the explanation that these figures would not have changed significantly from 

around 2005-6. Nevertheless, although these statistics are broken down by broad 

category of offence, such as public order offences, they are not broken down by 

specific type of offence, such as a particular public order offence. This means that 

even hate crime statistics on religiously motivated public order hate crimes will 

typically include public order hate crimes that are not essentially speech-based, public 

order hate crimes that are speech-based but are not the stirring up offences, and, 



 
24 

finally, the stirring up hatred offences.50 So it is quite possible that both hate crime 

statistics and the experiences of those Muslims who lobbied the government were 

based on a blurring of different kinds of incidents involving islamophobic hate 

speech. It is quite possible that what Muslims were actually experiencing was an 

increase in the incidence of the religiously motivated public order offence of 

intentional harassment, alarm or distress − for example, person A, who is non-

Muslim, uses threatening, abusive or insulting words or behaviour or displays a sign 

that is threatening, abusive or insulting, with intent to cause harassment, alarm or 

distress and thereby caused harassment, alarm or distress to person B who was 

Muslim or perceived to be Muslim, aggravated by religious hostility.51 But not 

necessarily an increase in the incidence of the stirring up of religious hatred − for 

example, person A, who is non-Muslim, uses threatening words or behaviour with the 

intention of stirring up hatred against Muslims, perhaps to an audience of fellow non-

Muslims. Of course, none of this proves that Muslims did not suffer a burden of 

increased incidence of the stirring up of religious hatred against them post 9/11 and 

7/7. But nevertheless the client politics explanation runs hollow if the disproportionate 

burden premise cannot be substantiated with evidence.  

Now it might be pointed out at this stage that non-governmental organisations are 

also a source of tailored information about hate crimes. Tell MAMA, for example, 

provides self-identifying victims or witnesses of hate crimes and incidents an 

opportunity to self-report their experiences, and provides annual data on self-reports 

of anti-Muslim hate crimes and incidents. In 2014 academic researchers from the 

Centre for Fascist, Anti-Fascist and Post-Fascist Studies at Teesside University 

conducted a study of the methods and findings of Tell MAMA and found that 

‘[w]ithstanding the necessary caveats of self-reported data […] − now minimised as 

far as possible by the tightening of data collection processes – the data collected by 

Tell MAMA is reliable.’52 Both in the Tell MAMA annual reports investigated by 

Teesside University, and in Tell MAMA’s subsequent annual reports, the organisation 

identifies a clear correlation in the data: namely, spikes in the rate of self-reports of 

anti-Muslim hate crimes and incidents after high profile public events involving 

Islamistist extremism, such as after the killing of Lee Rigby, the Charlie Hebdo attack 

in Paris, the story of three Muslim schoolgirls leaving Britain to join ISIS, the attack 

in the tourist resort in Tunisia, and the November 2015 Paris attacks.53 Once again, 

perhaps one could postulate that spikes that are in evidence now would have also 



 
25 

occurred back in 2001 after 9/11 and in 2005 after the 7/7 London bombings. 

However, there remains a difficulty with the Tell MAMA data coding, at least as far 

as the client politics explanation is concerned. Tell MAMA caseworkers sub-divide 

self-reported anti-Muslim hate crimes and incidents as follows: for online incidents, 

the categories are ‘abuse’, ‘anti-Muslim literature’ and ‘threat’; for offline incidents, 

they are ‘property damage’, ‘assault’, ‘threat’, ‘extreme violence’ and ‘anti-Muslim 

literature’.54 But it cannot just be assumed that reports coded as ‘threat’ and ‘anti-

Muslim literature’ together amount to the use of threatening words or behaviour with 

the intention of stirring up of hatred against Muslims. Even if this is an imperfect, but 

workable proxy, there is also the problem of comparing this data, which focuses 

exclusively on Muslims, with the situation faced by other religious groups. If there is 

no comparable data on the extent of incitement to hatred against, say, Jews, Sikhs, 

Hindus, for example, or indeed, against the LGBT community or people with 

disabilities, the premise that Muslims were disproportionately burdened by incitement 

to hatred cannot vindicated. Then, of course, there is the problem that the data does 

not extend back to 2001 and 2005. 

 It might be tempting at this stage, therefore, to see if the case law can provide 

falsifying or corroborating evidence for the client politics explanation. But once again 

this evidence is inconclusive. If Muslims really were being disproportionately 

burdened by the stirring up of hatred, then, other things remaining equal, one might 

have expected to see a slew of convictions for people stirring up religious hatred 

against Muslims once the Racial and Religious Hatred Act 2006 came into force. But 

this did not happen. This author knows of only one such example, Singh. Compare the 

situation with the steady stream of convictions for the stirring up of racial hatred 

against Jews, for example. I have already mentioned R. v. Iftikhar Ali, R. v. Hamza, R. 

v. Rahman, R. v. Javed, and R. v. Saleem. To this list one can also add R. v. 

Birdwood,55 R. v. Atkinson, Piggins, Hill, Bostock, and Denis,56 R. v. Sheppard and 

Whittle,57 R. v. Heaton and Hannington,58 and R. v. Bonehill-Paine.59 On the other 

hand, it is clear that other things are not equal, meaning that other factors might 

explain the disparity. One is the willingness of members of different religious 

communities to report cases to the police. Another, more important factor is that the 

basic elements of the stirring up religious hatred offences are importantly different to 

the stirring up racial hatred offences. When it comes to the former offences, the 

legislation includes the intention clause, the threatening language clause, and the 



 
26 

Freedom of Expression clause − all of which have set the bar for successful 

prosecution so high that very few cases can pass muster. But when it comes to the 

latter offences, the test is intention or likelihood, threatening, abusive or insulting 

language, and no freedom of expression clause − all of which makes for a greater 

number of prosecutable cases, albeit still relatively few compared to other public 

order offences.60 It is also relevant here that the Freedom of Expression clause61 was 

introduced by the Lords, not by the government. The government took that view that 

the legislation offered adequate protections of free speech already, and so the clause 

was redundant. But the government did not succeed in overturning the Lords 

amendment in the commons. In short, the will of the government and the will of the 

Houses of Parliament pointed in different directions and the government did not get 

its way.62 All of these mitigating factors working together could mean that the client 

politics explanation is not undermined by the low conviction rates, after all. 

 Since the hate crime statistics and the case law neither establishes nor discredits 

the premise that Muslims were disproportionately burdened with incitement to hatred, 

however, it does remain a possibility that at the time Muslims were merely one group 

among many others who experienced a similar burden from incitement to hatred. In 

fact, some other relevant evidence points to exactly this situation. If the burden of 

incitement to hatred was actually diffusely distributed among numerous minority 

groups, then this suggest that numerous, well-organised interest groups would be 

motivated to persuade the government to adopt a much broader strategy on tackling 

the stirring up of hatred, such as by enacting legislation that banned the stirring up of 

hatred on the basis of a long list of protected characteristics. This is precisely what 

happened. At the time of the Racial and Religious Hatred Bill 2005, some gay rights 

campaigners were also calling on government to extend the stirring up hatred offences 

to include sexual orientation as well as religion. Some Liberal Democrat MPs were 

making similar suggestions in the 2005 General Election. This public influence was 

also clearly reflected in the parliamentary exchanges on the Racial and Religious 

Hatred Bill, where sexual orientation was also discussed and the case made for its 

inclusion.63 Likewise, only a year after the Racial and Religious Hatred Act 2006, the 

leading gay rights interest group, Stonewall, presented its argument for new offences 

covering sexual orientation during the Committee Stage of Criminal Justice and 

Immigration Bill in 2007.64 (In fact, there are signs that this is now starting to happen 

with disability. Consider the recent electronic petition calling on the government to 



 
27 

extend the stirring up hatred offences to cover disability.65) That Muslims were not 

alone in pushing for protection contradicts the client politics explanation. Instead, it 

points toward something like an umbrella of interest groups explanation.66 

 

 

The parity of protection explanation 

 

This final explanation of the government’s introduction of the stirring up religious 

hatred offences builds on the client politics narrative about Muslims being in an 

especially difficult situation, but redirects that narrative towards the more basic point 

that Jews and Sikhs did, but Muslims did not, enjoy protect against the stirring up of 

racial hatred under the Public Order Act 1986, due to the way courts in England and 

Wales interpreted the meaning of the words ‘race’ and ‘ethnicity’. According to this 

explanation, the real function of the Racial and Religious Hatred Act 2006 was simply 

to achieve parity of protection for similar groups, quite apart from whether or not 

Muslims were in fact disproportionately burdened by incitement to hatred. 

 According to the parity of protection explanation, the key turning point for an 

eventual change in the law can also be traced back to 1998 when the Runnymede 

Trust launched its Commission on the Future of Multi-Ethnic Britain (funded by the 

Joseph Rowntree Charitable Trust). Following the landslide victory of the Labour 

Party in the 1997 general election, the new Home Secretary and MP for Blackburn 

(another northern British town with a significant South Asian population and one of 

the highest proportions of Muslims in the country), Jack Straw, attended the launch 

event on behalf of the government. In October 2000, the Commission, now chaired by 

the scholar of British identity and multiculturalism, Bhikhu Parekh, published its 

report. At the time The Telegraph published a series of critical responses to the 

Parekh Report, falsely accusing it of declaring the term “British” a ‘racist’ term. Jack 

Straw sought to partially distance the Labour government from what was being 

portrayed in the media as the extreme multiculturalist ideology of the Parekh Report. 

Nevertheless, in the Report the Commission briefly touched on the problem of 

incitement to hatred. It made two crucial points: first, that the European Convention 

on Human Rights (ECHR) itself provided a broad framework for a new settlement 

between the diverse racial, ethnic and religious communities of Britain, including a 

balance between ‘the right to free speech and the right to freedom from incitement to 



 
28 

racial hatred’;67 second, that Jews in Britain had benefited from the strengthening of 

countervailing forces against anti-Semitism, including laws banning the stirring up of 

hatred on grounds of race, ethnicity and national origin, but also that ‘[i]t would be 

perverse […] not to acknowledge that, however deeply wounding and painful 

expressions of antisemitism are in Britain today, the racism experienced by Asian, 

black, Gypsy and Irish communities demands primary attention.’68 The Parekh Report 

was a high water mark of a type of public intellectual work on multiculturalism which 

enjoyed the ear of the Labour government. On the issue of stirring up religious hatred, 

its ideas echoed recommendations that had also been made back in 1992 by the 

Commission for Racial Equality in its Second Review of the Race Relations Act 1976: 

namely, that the government should introduce new stirring up religious hatred 

offences.69 The Commission for Racial Equality’s Review spoke of the doubly 

‘anomalous’ situation that whilst Jews and Sikhs (in the wake of Mandla v. Dowell-

Lee70) but not Muslims enjoyed protection against the stirring up of racial hatred in 

England and Wales, in Northern Ireland the law covered race and religion, and so 

Jews, Sikhs, Muslims, Christians and Hindus alike.71 Together these commissions 

seemed to have cleared a pathway for a change in the law, removing obstacles that 

had been laid down by Dingle Mackintosh Foot back in 1965. They addressing 

concerns over free speech and they motivated the necessity of the legislation to 

address lack of parity. 

Evidence for the parity of protection explanation is also not hard to find in the 

relevant parliamentary debates of 2005. Consider the words of Charles Clarke during 

the second reading debate on the Racial and Religious Hatred Bill in the House of 

Commons in June 2005. 

 

The Bill seeks to address the anomaly that means that Jews and Sikhs are 

protected under the existing law, but that other faith groups, and people of no 

faith, are not protected. I think that that is simply not right and that the 

problem needs to be addressed.72  

 

It is also appropriate to consider some of the arguments made in the House of Lords, 

who in the end would not oppose the Racial and Religious Hatred Bill once the 

Freedom of Expression clause had been added. During a House of Lords debate in 

October 2005, for example, several Lords defended the Bill on grounds of parity. 



 
29 

Lord Ahmed said: ‘Put simply, it is about preventing people inciting hatred and 

providing all communities with equal protection.’73 Or, as Baroness Ramsay put it, 

the provision will ‘remove the anomaly whereby mono-ethnic faith groups such as 

Sikhs and Jews are protected under the incitement to racial hatred provision, whereas 

multi-ethnic groups, such as Muslims and Christians, are not.’74 Lord Avebury then 

offered up the following example of the anomaly at work in English courts.  

 

A cleric who urged followers to kill non-believers, Americans, Hindus and 

Jews was jailed, first, for seven years for incitement to commit murder, and 

then an extra two years were added for incitement to racial hatred. If he had 

chosen his words more carefully and excluded Jews from this incitement, he 

would have been given only seven years and not nine.75 

 

Although Lord Avebury did not specify, it is highly likely from his description of the 

case and the sentence handed down that he was referring to El-Faisal. 

 Another potential advantage of the parity of protection explanation is that it can 

point to a coherent strategy pursued by the government in dealing with issues of 

religion and hatred. After all, the Labour government back in 2001, via the Anti-

Terrorism, Crime and Security Act 2001 (s. 39), successfully amended existing hate 

crime legislation (the Crime and Disorder Act 1998), so as to include sentence-

enhancement provisions for offences that are racially or religiously aggravated. This 

was an omnibus act which included both hate crime and anti-terrorism measures. But 

the legislative intention was, arguably, transparent: namely, to achieve parity of 

protection for victims of hate crime. The aim of removing the anomaly of unequal 

protection against hate crimes across all faith communities in England and Wales 

could be seen in the arguments put forth by various Lords during debates.76 

Significantly, this policy also had a bearing on instances of hate speech covered by 

public order offences other than the stirring up of racial hatred offence. Consider 

cases of religiously aggravated harassment, alarm or distress,77 such as Norwood v. 

DPP,78 in which the defendant displayed a poster that read ‘Muslims out of Britain’. 

 The parity of protection explanation might also be used to explain further 

extensions of the stirring up hatred family of offences to other groups. In 2007, for 

example, during the second reading debate on the Criminal Justice and Immigration 

Bill, Chris Bryant declared that it was high time to introduce an offence of stirring up 



 
30 

hatred on grounds of sexual orientation in order to ‘overcome anomalies’ in the 

relevant laws.79 Likewise, in 2011 the Equality and Human Rights Commission 

defended the creation of a new offence of stirring up hatred on grounds of disability 

for the sake of ‘parity’.80 More recently, a significant number of the individuals and 

stakeholder organisations who took part in the Law Commission’s consultation 

exercise allied to its report, Hate Crime: Should the Current Offences be Extended?, 

argued on the basis of parity for the creation of new stirring up hatred offences for 

both disability and transgender identity.81 The Commission itself ultimately did not 

recommend this extension for mainly practical reasons (they took the view that there 

was insufficient evidence that the kind of conduct that would be caught by the act is 

actually occurring). However, in 2015 the House of Commons Women and Equalities 

Committee also heard evidence from a number of expert witnesses on the need for 

parity of protection for people with transgender identities given facts on the ground.82 

Pace the Law Commission, the Women and Equalities Committee recommended that 

‘[t]he Government should introduce new hate crime legislation which extends the 

existing provisions on [...] stirring up hatred so that they apply to all protected 

characteristics, as defined for the purposes of the Equality Act 2010.’83 

 Nevertheless, I must also address four potential problems even with the parity of 

protection explanation. One problem is that by itself the explanation may struggle to 

explain why politicians and peers accepted the introduction of the new stirring up 

religious hatred offences as the appropriate response to anomalies in the protection of 

groups. The parity of protection explanation highlights the fact that courts in England 

and Wales have on occasions convicted radical Muslim clerics or extremist Islamist 

activists for inciting racial hatred against Jews − for example, Iftikhar Ali and El-

Faisal − but at the same time the courts have not regarded Muslims as belonging to a 

racial, ethnic or national group for the purposes of interpreting the stirring up racial 

hatred offence − a view consistent with a leading case in the field of anti-

discrimination law, Nyazi v. Rymans Ltd.84 And so, in 2005 a rabbi could not be 

convicted for stirring up racial hatred against Muslims. Yet, it would have been 

perfectly consistent with the principle of parity of protection to remove the protections 

offered to Jews and Sikhs by repealing s. 3 of the Public Order Act 1986, say, as 

opposed to retaining those protections and extending them to Muslims via s. 3A.85  

A second problem is that even if the parity of protection explanation can account 

for the introduction of new stirring up hatred offences covering religion and sexual 



 
31 

orientation, it does not at the present time seem to be a basis for making safe bets 

about the introduction of yet further offences covering transgender identity and 

disability, still less age or physical appearance. For example, in July 2016 the 

government published its long awaited plan for addressing the problem of hate crime, 

Action Against Hate: The UK Government’s Plan for Tackling Hate Crime. In 

response to recommendations from disability rights groups, academics including 

myself, and the Women and Equalities Select Committee, that the existing stirring up 

hatred offences should be extended to cover transgender identity and disability, the 

government’s new plan of action is to take no action. That is, ‘[g]overnment will 

consider these [recommendations].’86 In fact, the government had already been 

considering these recommendations (or kicking them into the long grass) since the 

Law Commission recommended against extending the stirring up hatred offences 

back in 2014.87 Not merely the Conservative government but parliament as a whole 

seems ambivalent at best about the extension project. At first blush, this might seem 

difficult to square with the idea that what tends to drive the introduction of new 

stirring up hatred offences is a concern with parity of protection.  

A third problem is that at least in 2005 the government had permitted other 

anomalies in the area of free speech and religion to continue − not least blasphemy 

laws protecting Christians but not Jews, Muslims, Sikhs, or Hindus, for example. So 

if the government’s core motivation when dealing with these policy issues really was 

to provide parity, then why did it allow uneven protection on this other matter?88 

Finally, the parity of protection explanation cannot explain why the stirring up 

racial hatred offence was introduced in the first place. 

 No doubt it is easier to reply to some of these problems than to others. The point 

about blasphemy laws, for example, is straightforwardly undercut by the fact that the 

Labour government fairly swiftly moved to also abolish common-law offences of 

blasphemy and blasphemous libel in England and Wales via the Criminal Justice and 

Immigration Act 2008. The other problems are trickier.  

Nevertheless, the problem about the anomaly being resolved through repeal rather 

than extension might be countered by saying that although the real driving force is a 

concern for parity of protection, that principle itself is likely to be embedded in a 

deeper principle of good administration, whereby governments seek higher-order 

consistency in the enactment of criminal law, that is, the principle of treating like 

reasons alike (and unalike reasons unalike). For example, one possible reason for 



 
32 

banning incitement to racial hatred is that certain kinds of racist hate speech can 

contribute to climates of hatred and fear. Applying this same rationale to the case of 

Muslims could justify the course of action of extending hate speech law to cover 

religion, based on a parallel concern that stirring up hatred against Muslims can 

contribute to climates of hatred and fear, rather than the course of action of repealing 

law.89 Alternatively, it might be that concern for parity of protection is actually 

derivative of a commitment to a more fundamental principle of showing equal respect 

for the ethnic and cultural identities of all human beings.90 This would certainly chime 

with other aspects of the multiculturalist vision set out in the Parekh Report 2000, 

assuming that the Report either echoed or influenced the Labour government’s 

thinking. 

The point about the Conservative government’s failure to extend the stirring up 

offences still further in the name of parity can also be countered as follows. Just 

because history tells us that when extensions of the stirring up hatred offences have 

occurred they have probably been driven by parity of protection; it does not mean that 

whenever parity of protection considerations are in play, then inevitably new 

extensions occur. Legislative change does not work like that. There are innumerable 

forces blocking the introduction of new legislation at any given time. The government 

is focused on Brexit at present; and it is considering a new British Bill of Rights. The 

latter especially would need to be dealt with as part of considering any further limits 

on free speech. This is in addition to the government’s contention that there is 

insufficient evidence of a serious problem of incitement to hatred on grounds of 

transgender identity or disability. So the parity of protection explanation cannot be 

expected to forecast future extensions even if it can explain past extensions. Or, if the 

explanation can make forecasts, maybe these need to be framed in the longer term, 

thus controlling for other variables.  

Or perhaps the parity of protection explanation needs to be combined with other 

explanations in order to explain why future extensions have not occurred. In any 

event, it will need to be augmented with other explanations in order to explain why 

the stirring up racial hatred offences were introduced in the first place. 

Following on from this, it seems to me that surely the correct response to these 

problems, and the best approach full stop, is to explain the real function, and true 

explanation for, the new stirring up religious hatred offences in a pluralistic way.  

 



 
33 

 

A pluralistic explanation 

 

A pluralistic explanation of the rise and purpose of the stirring up religious hatred 

offences proceeds on the basis that there is nothing inconsistent in explaining the 

original creation of the stirring up racial hatred offences in one way, explaining the 

stirring up religious hatred offences in a different, more complex way, and explaining 

the failure of government to introduce yet more stirring up hatred offences in another 

way again. 

 The pluralistic explanation might run thusly. First, a significant part of the 

impetus for the creation of the stirring up racial hatred offences was ethnic tensions 

and race riots following a period increased immigration (the public order 

explanation).  

Second, the Labour government introduced the stirring up religious hatred 

offences partly because it had concerns about public order in the wake of increasingly 

complex racial, ethnic and religious mass disturbances and riots (the public order 

explanation). Another part had to do with how Muslims, in particular, had mobilised 

as lobbyists, not necessarily because they were disproportionately burdened by hate 

speech, but instead because of an acute awareness that they did not enjoy the same 

legal protections as other groups (the client politics explanation combined with the 

parity of protection explanation). In other words, the relevant burden partly consisted 

in the fact that Muslims were being treated, and believed that they were being treated, 

as second-class citizens by the law. Consider, once again, the letter that was allegedly 

sent by the office of Charles Clarke to several mosques in 2005. The letter includes 

the statement, ‘[w]e cannot see why it is right to have protection in law for Jews and 

Sikhs, but wrong to extend it to other communities like the Muslim community.’ This 

foreshadows what Charles Clarke said in parliament on the matter. But it is also 

important to understand that the letter was on Labour Party headed paper, around 

election time, explicitly laying blame at the door of members of the Liberal 

Democrats Party and the Conservative Party for the removal of the stirring up 

religious hatred offences from Serious Organised Crime and Police Bill. So in that 

sense the letter − assuming it did exist, and was in fact sent to mosques − was making 

an appeal to Muslim clients. But the crucial point here is that the burden it 

acknowledged was not an increase in anti-Muslim hate speech post 9/11 but instead 



 
34 

an appreciation that Muslims were being treated differently than Jews and Sikhs when 

it came to legal protections against the stirring up of hatred (the client politics 

explanation combined with the parity of protection explanation). 

Third, when questions emerge about why other stirring up hatred offences have 

yet to be introduced, such as for transgender identity and disability, these questions 

require complex answers. It is may be true that currently the burden of incitement to 

hatred is diffusely distributed among numerous minority groups, and this has created 

a number of interest groups seeking further extensions of the stirring up hatred 

offences (the umbrella of interest groups explanation). And it may also be true that the 

government is inclined to want to undo anomalies in the cover provided by the 

existing offences (the parity of protection explanation). However, actual mass 

disturbances and riots in England and Wales have not evolved, yet, to include 

dimensions relating to transgender identity and disability (the public order 

explanation), and various other factors relating to Brexit mean that the government’s 

attention is currently taken up elsewhere (endogenous explanations). 

 

 

Implications 

 

I have argued that the best explanation not merely of why we ended up with the 

Racial and Religious Hatred Act 2006 but also the ongoing point and purpose of the 

stirring up hatred offences is likely to be pluralistic, and that our understanding is 

hindered rather than helped by the terrorisation of these offences, so to speak. In this 

section I want to briefly explore the implications of this conclusion for normative 

debates about hate speech laws and freedom of expression going forward. 

 The main point I want to make is that it matters what types of normative 

arguments academics and others are presenting to governments about why they 

should retain the stirring up hatred offences or even extend them further. The wrong 

types of arguments are those which are in tension with the best explanations of 

governmental intentions in this field of policymaking, potentially making them 

doomed to failure. Of course, one possible response to the tension is simply to deny 

that it matters: the right arguments are the right arguments and so it is up to those 

people who believe that the stirring up hatred offences should be extended, say, to 

convince governments to embrace their way of thinking. A second response, to which 



 
35 

I more sympathetic, is that legal and political theorists, if they want to change the 

world, have every reason, when presenting normative arguments to governments, to 

present whichever, already good arguments best match the government’s way of 

thinking. 

So what normative arguments could potentially play well with the Conservative 

government on the issue of extending the stirring up hatred offences to include 

transgender identity and disability? Predictably, one potential argument would 

emphasise people’s right to parity of protection. Put simply, if two similar groups of 

people are subject to similar forms of incitement to hatred, but one of the groups 

enjoys legal protections against such speech whereas the other group does not, then 

the other group has a prima facie right to similar protection also.91 As Alon Harel puts 

it, ‘treating the victims of racist speech more favorably than victims of sexist, 

homophobic, or other forms of abhorrent speech is itself a form of discrimination.’92 

Another potentially important argument combines the right to parity of protection 

with an argument based on the public assurance of civic dignity. According to Jeremy 

Waldron, certain sorts of group libel and incitement to hatred laws could be warranted 

if they help to protect people’s sense that they are members of society in good 

standing, the sort of assurance that can be undone when they are confronted by public 

hate speech which downgrades or denigrates them.93 It strikes me that the threat to 

assurance could be especially high where certain groups realise that they lack the 

legal protections against incitement to hatred that other groups enjoy. If people with 

transgender identities or disabilities, for example, see that they lack the legal 

protections that various faith communities and gays and lesbians have benefited from, 

then this may compound the harmful effects of the incitement to hatred they endure. 

Both the incitement to hatred and the failure of parliament to act against it could leave 

people with transgender identities or disabilities feeling that they are second-class 

citizens. In other words, lack of parity of protection could be particularly devastating 

for their sense of assurance that they are members of society in good standing.94 

However, anyone who wants to persuade the government to extend the stirring up 

hatred offences must also clear away barriers that the government currently 

recognises, as previous governments have recognised, for not extending these 

offences. First among these barriers is freedom of expression. Examples of laws 

banning incitement to hatred can be found not just in England and Wales but also in 

domestic penal codes and various other legal instruments in countries across the 



 
36 

globe.95 Yet these laws continue to be subject to fierce criticism, especially, although 

not exclusively, among US scholars who defend freedom of expression based on 

values of autonomy, democracy and legitimate government.96 (Note, laws banning 

incitement to hatred cannot be found at either the federal or state levels in the US due 

to the way in which courts have interpreted the First Amendment over the past half 

century.) When the Labour government introduced the Racial and Religious Hatred 

Bill in 2005, several legal scholars raised objections, based on what they viewed as 

inherent differences between race and religion which made the former but not the 

latter worth of protection under incitement to hatred legislation, and on their 

perception that the latter posed a special threat to freedom of expression.97 Others, 

myself included, tried to make the counter case for the extension.98 Nevertheless, 

what nearly all sides in this debate agree about is that if a plausible case is going to be 

made for extending incitement to hatred laws still further, then only the strongest, 

principled arguments will do; anything less would be easily defeated by principled 

arguments on the side of free speech. 

But what are the strongest arguments? More importantly, are any of the strongest 

arguments likely to chime with the best explanations of why governments have in the 

past extended the stirring up hatred offences and why the Conservative government 

might do so in the future? One potential argument is that laws banning the stirring up 

of hatred on grounds of transgender identity or disability can be warranted insofar as 

the stirring up of hatred against these groups contributes to a climate of hatred in 

which hate crimes are more likely, and to a climate of fear, in which individual 

members of these groups suffer debilitating fear that they could become the victims of 

hate crime.99 This sort of argument might chime with the umbrella of interest groups 

explanation. In the event that the burden of incitement to hatred is diffusely 

distributed among numerous minority groups, including people with transgender 

identities or disabilities, this could create a number of interest groups seeking further 

extensions of the stirring up hatred offences. The present argument speaks to the sort 

of burdens faced by members of these minority groups. It could also be useful to the 

relevant interest groups in putting their case to government; provided, that is, 

evidence can be found that substantiates the arguments linking incitement to hatred 

with climates of hatred and fear and linking those climates with hate crimes, say. 

I also do not think that arguments which speak to public order, and therefore, 

march in step with the public order explanation, are out of the question. No doubt 



 
37 

defenders of the status quo could react by saying that our society has experienced 

religious wars and race riots, but not violent public explosions of simmering tensions 

between cisgender and transgender people, and not rioting by people with disabilities. 

In other words, it may be that mass disturbances and riots in England and Wales have 

yet to evolve to include the dimensions of transgender identity and disability, along 

with the dimensions of race, ethnicity and religion. However, arguably this was also 

not the case with sexual orientation. Yet the government did not wait for mass 

disturbances to occur involving violence between religious conservatives and 

homosexuals, say, before extending the legislation to cover sexual orientation. The 

risk was enough. This is also borne out in the case law. In R. v. Ali, Javed, and 

Ahmed,100 for example, three Muslim men became the first people to be successfully 

prosecuted for offences relating to the stirring up of hatred on grounds of sexual 

orientation in England and Wales. Acting together the men distributed leaflets on the 

streets of Derby titled ‘Turn or Burn’, ‘GAY – God Abhors You’, ‘Death Penalty?’ as 

a protest to the Gay Pride Festival taking place that day. In his sentencing remarks 

Judge Burgess used the language of public order: ‘the vast majority of us get along 

together very well’, ‘the greatest freedom that we all enjoy is to live in peace and 

without fear’, ‘It was clearly perceived by parliament that people of a particular 

sexual orientation needed protection from that minority who wished to stir up hatred 

against them’, ‘your intention was to do great harm in a peaceful community’.101 

According to a more subtle version of the public order explanation, therefore, the 

government will, under the right circumstances, introduce laws banning the stirring up 

of hatred in response to the risk of mass disturbances and riots that have taken on 

more complex dimensions. So one potentially impactful line of normative argument 

might be that the stirring up of hatred against people with transgender identities or 

disabilities has the potential to become tomorrow’s Bradford riots, in any parts of the 

country with significant proportions of such people, and taking a precautionary 

approach to the avoidance of such public disorder can warrant a change in the law.102 

 

 

Acknowledgments 

 



 
38 

I would like to thank Sally Broughton Micova, Charles Clarke, Michael Frazer, Chris 

Hanretty, and Adriana Sinclair for useful feedback on an early draft. I am also very 

grateful to the journal’s two anonymous reviewers for their insights and suggestions. 

 

 

Disclosure statement  

No potential conflict of interest was reported by the author. 

 

 

Notes on contributor  

Alexander Brown is Senior Lecturer in Contemporary Social and Political Theory at 

the University of East Anglia (UEA). He is the author of Hate Speech Law: A 

Philosophical Examination (New York: Routledge, 2015). 

                                                 

1 In response to the Labour government’s introduction of the Racial and Religious 

Hatred Bill in 2005 Lords Lester and Lucas argued in a House of Lords debate that 

that legal professionals tasked with enforcing laws banning incitement to religious 

hatred would have an especially hard time distinguishing between speech that stirs up 

hatred against religious believers and speech that stirs up hatred against religious 

beliefs (such as through criticism, ridicule and satire). Hansard (HL), October 11, 

2005, vol. 674, cols. 173-5 and 203-204. The same worry was expressed by several 

high-profile writers, actors, and legal commentators. See, e.g., Rowan Atkinson, ‘The 

Opposition’s Case’, in L. Appignanesi (ed.) Free Expression is No Offence (London: 

Penguin, 2005); Philip Pullman, ‘Against “Identity”’ in L. Appignanesi (ed.) Free 

Expression is No Offence (London: Penguin, 2005); Gareth Crossman, ‘Religious 

Hate: A Criminal Offence? Liberty Says No’, Legal Action (March) (2005): 9; Joshua 

Rozenburg, ‘Now you face jail for being nasty to Satanists’, Daily Telegraph, June 10 

(2005). In October 2005 Lords Hunt, Lester, Carey, and Plant succeeded in 

persuading their colleagues to accept an amendment to the Racial and Religious 

Hatred Bill that addressed the problem, specifically, by inserting s 29J, ‘Protection of 

freedom of expression: Nothing in this Part shall be read or given effect in a way 

which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, 

ridicule, insult or abuse of particular religions or the beliefs or practices of their 



 
39 

                                                                                                                                            

adherents, or of any other belief system or the beliefs or practices of its adherents, or 

proselytising or urging adherents of a different religion or belief system to cease 

practising their religion or belief system.’ 

2 See, e.g., Peter Cumper and Peter W. Edge ‘Muslims, counter-terrorism, and human 

rights in the United Kingdom’, Research Papers, Research Papers, Human Rights 

Conflict Prevention Centre (HRCPC) 1-2 (2005), 595-616, reprinted in N. Bašić and 

A. H. Siddiqui (eds.) Rethinking Global Terrorism (Islamabad: International Islamic 

University Press, 2009); Alan Thornett, ‘Racial and Religious Hatred Bill - A Serious 

Threat to Free Speech’, International Viewpoint, November 9 (2005), 

www.internationalviewpoint.org/spip.php?article903; Shami Chakrabarti, Comments 

cited in ‘Satanists to be protected under Religious Hatred Bill’, Times Online, June 9, 

2005; Erik Bleich, ‘Faith and State: British Policy Responses to “Islamist” 

Extremism’, in R. Eatwell and M. Goodwin (ed.) The New Extremism in 21st Century 

Britain (London: Routledge, 2010), p. 79; The Freedom to Be Racist? How the United 

States and Europe Struggle to Preserve Freedom and Combat Racism (Oxford: 

Oxford University Press, 2011), p. 26; Clive Walker, Terrorism and the Law (Oxford: 

Oxford University Press, 2011), p. 382. 

3 Hansard (HC), May 3, 1965, vol. 711, col. 1043. 

4 Ibid. 

5 For a summary, see Law Commission, Hate Crime: The Case for Extending the 

Existing Offences, Appendix B: History of Hate Crime Legislation (London: The 

Stationery Office, 2013), pp. 31-33. 

6 Hansard (HC), November 19, 2001, vol. 375, col. 35. 

7 Hansard (HC), June 21, 2005, vol. 435, col. 668. 

8 No. T20147226, Leicester Crown Court, February 6, 2015 (unreported). 

9 Transcript obtained from Margaret Wort & Co. 

10 Consider, for example, the Anti-terrorism, Crime and Security Act 2001, the 

Prevention of Terrorism Act 2005, and the Terrorism Act 2006. 

11 See footnote 2 above. 

12 For example, when in 1994 two Lords suggested amendments to the Criminal 

Justice and Public Order Bill to include new stirring up religious hatred offences, the 

then Labour Party Shadow Home Secretary, Tony Blair, neither came out in support 



 
40 

                                                                                                                                            

of these Lords Amendments nor tabled his own similar amendment in the House of 

Commons. During one commons debate on the Criminal Justice and Public Order Bill 

in January 1994 Blair rose to interrupt the then Home Secretary, Michael Howard, on 

so many occasions that the latter ultimately resorted to instructing Blair to ‘Sit down’. 

Hansard (HC) January 11, 1994, vol. 235, col. 30. In that debate Blair tabled an 

amendment consisting of a list of ten additional measures including ‘measures to 

strengthen the law on racial harassment and violence’, but the list did not include a 

new stirring up religious hatred offences. Ibid., cols. 34-35. Moreover, as Prime 

Minister, Tony Blair made no mention of introducing this new offence in his ‘Britain 

is stronger together’ speech in 2000. Tony Blair, Speech to the Association of 

Regional Newspaper Executives, March 28, 2000. Nor in his ‘Values and the power 

of community’ speech in 2000. Tony Blair, Speech to the Global Ethics Foundation, 

Tübigen University, Germany, June 30, 2000. 

13 Evidence from the UK policy agendas dataset, available at: 

www.policyagendas.org.uk. The Queen’s Speech (or Speech from the Throne) sets 

out the executive and legislative priorities of the government in the forthcoming 

session. This supplies a powerful signal of the intentions of the executive to the public 

and acts as a means of setting out the political agenda for the forthcoming year. 

14 No mention of introducing such an offence appeared in either the 1997 or the 2001 

Labour Party general election manifestos. 

15 Hansard (HL), November 27, 2001, vol. 629, col. 189. 

16 A blank version of Clarke’s letter appears on the following website: 

http://www.civitas.org.uk/pdf/ClarkeLetter.pdf. 

17 Hansard (HC), June 21, 2005, vol. 435, col. 737. 

18 No. T20027343, Central Criminal Court, March 7, 2003 (unreported). 

19 Transcript obtained from Smith Bernal Reporting Ltd.  

20 No. T20010599, Southwark Crown Court, May 3, 2002 (unreported).   

21 No. (unknown), Central Criminal Court, February 7, 2006 (unreported). 

22 No. T20150244, Central Criminal Court, July 5, 2007 (unreported). 

23 T20067103, Central Criminal Court, January 5, 2007 (unreported). 

24 No. T20077199, Central Criminal Court, February 1, 2007 (unreported). 

25 No. T20107575, Bristol Crown Court, July 29, 2011 (unreported). 



 
41 

                                                                                                                                            

26 Transcript obtained from Mendip-Wordwave Partnership. 

27 Charles Clarke, Secretary of State for the Home Office, Press Release: Tackling 

Terrorism-Behaviours Unacceptable in the UK, August 24, 2005. 

28 See, e.g., Prime Minister’s Press Conference, August 5, 2005. 

29 [2010] EWHC 2825 (Admin.). 

30 Ibid., para. 71. See also para. 83. 

31 R (Naik) v Secretary of State for the Home Department [2011] EWCA (Civ.) 1546. 

32 Gordon Brown, National Security Statement, November 14, 2007. 

33 The Secretary of State for the Home Department, Prevent Strategy (London: The 

Stationary Office, 2011), p. 1. 

34 Ibid., p. 27. 

35 Hansard (HC), November 19, 2001, vol. 375, cols. 34-35. 

36 Ibid. 

37 Consider the conviction of the Black Liberation Movement leader Michael Abdul 

Malik in R. v. Malik [1968] 1 All ER 582 (CA). 

38 Hansard (HL), October 11, 2005, vol. 674, col. 229. 

39 Hansard (HL) November 27, 2001, vol. 629, col. 194. 

40 Ibid., col. 211. 

41 Hansard (HC) February 15, 2006, vol. 442, col. 1429. 

42 Theresa May, Speech to The Royal United Services Institute (RUSI), London, 

November 24, London. 

43 Cf. Gary P. Freeman, ‘Modes of Immigration Politics in Liberal Democratic States’ 

 International Migration Review 29 (1995): 881-902.   

44 House of Lords Select Committee on Religious Offences in England and Wales, 

Report, April 10, 2003, para. 95. 

45 Hansard (HC), November 19, 2001, vol. 375, col. 34. 

46 David Blunkett, Speech to the Institute of Public Policy Research, July 7, 2014. 

47 Commission on British Muslims and Islamophobia, Islamophobia issues, 

challenges and action (Stoke on Trent: Trentham Books, 2004). 

48 Crown Prosecution Service, Anti-Muslim Hate Crime: Learning From Casework 

(London: Equality and Diversity Unity, 2012), p. 17. 



 
42 

                                                                                                                                            

49 Home Office, Office for National Statistics and Ministry of Justice, An Overview of 

Hate Crime in England and Wales (Titchfield: Office for National Statistics, 2013), p. 

23. 

50 Ibid., p. 20. 

51 s. 4A of the Public Order Act 1986, along hate crime provisions in the Crime and 

Disorder Act 1998 (as amended by s. 39 of the Anti-Terrorism, Crime and Security 

Act 2001) or in the Criminal Justice Act 2003. 

52 Matthew Feldman and Mark Littler, Tell MAMA Reporting 2013/14: Anti-Muslim 

Overview, Analysis and ‘Cumulative Extremism’ (Middlesbrough: Teeside University, 

2014), Para. 2.4. 

53 See, e.g., The Geography of Anti-Muslim Hatred: Tell MAMA Annual Report 2015 

(London: Faith Matters, 2016), pp. 21-23. 

54 Feldman and Littler, Tell MAMA Reporting 2013/14, para. 2.4. 

55 No. 94/2421/X2, Court of Appeal, April 11, 1995, 6 Archbold News 2. 

56 No. (unknown), Central Criminal Court, November 4, 2005 (unreported). 

57 No. T20080094, Leeds Crown Court, July 10, 2009 (unreported). 

58 No. T20107203, Liverpool Crown Court, June 25, 2010 (unreported). 

59 No. (unknown), Southwark Crown Court, December 2015 (unreported). 

60 Compare Parts 3 and 3A of the Public Order Act 1986. 

61 s. 29J of the Public Order Act 1986. 

62 In line with the Salisbury Convention the House of Lords is expected to avoid 

opposing out of hand legislation promised in the government’s election manifesto. For 

the first time, the 2005 Labour Party Manifesto included ‘a firm and clear intention to 

give people of all faiths the same protection against incitement to hatred on the basis 

of their religion.’ www.politicsresources.net/area/uk/man.htm. Nevertheless, the 

House of Lords exercised its prerogative − arguably its central function − to dissect 

proposed legislation and put forward amendments designed to improve that legislation 

based on the insights of relevantly experienced peers. Whilst under the Parliament 

Acts the House of Lords cannot block indefinitely government legislation, it can slow 

it down sufficiently to make it extremely difficult for a government to have its own 

way on the finer details of legislation, because of the scarcity of parliamentary time. 

In that sense it is not simply a case of the government of the day introducing new 



 
43 

                                                                                                                                            

legislation but both Houses of Parliament working in conjunction under a multi-

layered system of majority voting, with a government, even one that has a healthy 

majority in the House of Commons, sometimes winning, sometimes losing.  

63 See Law Commission, Hate Crime: The Case for Extending the Existing Offences, 

Appendix B, p. 45.  

64 Hansard (HC) Criminal Justice and Immigration Bill, Public Bill Debate 

(Afternoon), October 16, 2007, cols. 74-85. 

65 https://petition.parliament.uk/petitions/163896. 

66 See, e.g., Gary P. Freeman, ‘National Models, Policy Types, and the Politics of 

Immigration in Liberal Democracies’, West European Politics 29 (2006): 227-247. 

67 Bhikhu Parekh, The Future of Multi-Ethnic Britain: Report of the Commission on 

the Future of Multi-Ethnic Britain (London: Profile Books, 2000), p. 90. 

68 Ibid., p. 61. 

69 Commission for Racial Equality, Second Review of the Race Relations Act 1976 

(London: Commission for Racial Equality, 1992). 

70 [1983] UKHL 7. 

71 Commission for Racial Equality, Second Review of the Race Relations Act 1976.  

72 Hansard (HC), June 21, 2005, vol. 435, col. 678. 

73 Hansard (HL), October 11, 2005, vol. 674, col. 229. 

74 Ibid., col. 209. 

75 Ibid., col. 219. 

76 See Law Commission, Hate Crime: The Case for Extending the Existing Offences, 

Appendix B, p. 10. 

77 s. 5 of the Public Order Act 1986, along with the Crime and Disorder Act 1998 (as 

amended by s. 39 of the Anti-Terrorism, Crime and Security Act 2001). 

78 [2003] EWHC 1564 (Admin.). 

79 Hansard (HC) October 8, 2007, vol. 464, col 59. 

80 Equality and Human Rights Commission, Hidden in Plain Sight (London: Equality 

and Human Rights Commission, 2011) at p. 154. 

81  The Law Commission, Hate Crime: Should The Current Offences Be Extended? 

(Paper No 348) (London: The Stationery Office, 2014), paras 7.12 and 7.17. 



 
44 

                                                                                                                                            

82 House of Commons Women and Equalities Committee, Transgender Equality, 

First Report of Session 2015–16, January 14, 2016, at paras. 269-72. 

83 Ibid., para 275. 

84 (1988) IRLIB 367. 

85 See Ivan Hare, ‘Crosses, Crescents and Sacred Cows: Criminalising Incitement to 

Religious Hatred’, Public Law (2006): 521-537, p. 533; Alexander Brown, ‘The 

“Who?” Question in the Hate Speech Debate: Part 1: Consistency, Practical, and 

Formal Approaches’, Canadian Journal of Law and Jurisprudence 29 (2016): 275-

320, pp. 283-4, pp. 287-92. 

86 Home Office, Action Against Hate: The UK Government’s Plan for Tackling Hate 

Crime (London: Home Office, 2016), para. 111.  

87 Law Commission, Hate Crime: Should The Current Offences Be Extended?. 

88 See Hare, ‘Crosses, Crescents and Sacred Cows: Criminalising Incitement to 

Religious Hatred’, p. 533. 

89 Brown, ‘The “Who?” Question in the Hate Speech Debate: Part 1’, pp. 284, 288-90.  

90 See, e.g., Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and 

Political Theory, Second Edition (Basingstoke: Palgrave, 2006), ch. 10; Alexander 

Brown, Hate Speech Law: A Philosophical Examination (London: Routledge, 2015), 

ch. 6.  

91 See Brown, ‘The “Who?” Question in the Hate Speech Debate: Part 1’, pp. 283-93. 

92 Alon Harel, ‘Bigotry, Pornography, and the First Amendment: A Theory of 

Unprotected Speech’, Southern California Law Review 65 (1992): 1887-1931, p. 

1906. 

93 Jeremy Waldron, ‘Dignity and Defamation: The Visibility of Hate’, Harvard Law 

Review 123 (2010): 1596-1657. 

94 See Brown, Hate Speech Law, pp. 152-6; Alexander Brown, ‘The “Who?” Question 

in the Hate Speech Debate: Part 2: Functional and Democratic Approaches’, 

Canadian Journal of Law and Jurisprudence 30 (2017): 23-55, pp. 29-30. 

95 See Brown, Hate Speech Law, pp. 26-27.  

96 See, e.g., C. Edwin Baker, ‘Hate Speech’, in M. Herz and P. Molnar (eds.) The 

Content and Context of Hate Speech: Rethinking Regulation and Responses 

(Cambridge: Cambridge University Press, 2012); Ronald Dworkin, ‘Reply to Jeremy 



 
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Waldron’, in M. Herz and P. Molnar (eds.) The Content and Context of Hate Speech: 

Rethinking Regulation and Responses (Cambridge: Cambridge University Press, 

2012); Robert Post, ‘Interview’, in M. Herz and P. Molnar (eds.) The Content and 

Context of Hate Speech: Rethinking Regulation and Responses (Cambridge: 

Cambridge University Press, 2012); Nadine Strossen, ‘Interview’, in M. Herz and P. 

Molnar (eds.) The Content and Context of Hate Speech: Rethinking Regulation and 

Responses (Cambridge: Cambridge University Press, 2012); Eric Heinze, Hate 

Speech and Democratic Citizenship (Oxford: Oxford University Press, 2016); James 

Weinstein, ‘Hate Speech Bans, Democracy and Political Legitimacy’, Constitutional 

Commentary, forthcoming. 

97 See, e.g., Susannah C. Vance, ‘The Permissibility of Incitement to Religious Hatred 

Offences Under European Convention Principles’, Transnational Law and 

Contemporary Problems 14 (2004): 201-251; Hare, ‘Crosses, Crescents and Sacred 

Cows: Criminalising Incitement to Religious Hatred’; Ivan Hare, ‘Blasphemy and 

Incitement to Religious Hatred: Free Speech Dogma and Doctrine’ in I. Hare and J. 

Weinstein (eds.) Extreme Speech and Democracy (Oxford: Oxford University Press, 

2009); Peter Cumper, ‘Outlawing Incitement to Religious Hatred: A British 

Perspective’, Religion and Human Rights 1 (2006): 249-268; David Nash and Chara 

Bakalis, ‘Incitement to Religious Hatred and the ‘Symbolic’: How will the Racial and 

Religious Hatred Act 2006 work?’, Liverpool Law Review 28 (2007): 349-375; Kay 

Goodall, ‘Incitement to Religious Hatred: All Talk and No substance?’ Modern law 

review 70 (2007): 89-113; Eric Barendt, ‘Religious Hatred Laws: Protecting Groups 

or Belief?’ Res Publica 17 (2011): 41-53.  

98 See, e.g., Alexander Brown, ‘The Racial and Religious Hatred Act 2006: A Millian 

Response’, Critical Review of International Social and Political Philosophy 11 

(2008): 1-24; Simon Thompson, ‘Freedom of Expression and Hatred of Religion’, 

Ethnicities 12 (2012): 215-232. 

99 See, e.g., Brown, ‘The Racial and Religious Hatred Act 2006’, pp. 13-14; Brown, 

Hate Speech Law, pp. 66-75; Brown, ‘The “Who?” Question in the Hate Speech 

Debate: Part 2’, pp. 27-29. Of course, some people argue that even though security is 

the sort of value that has the normative stature to hold its own against arguments for 

freedom of expression based on autonomy and democracy, the threat to security from 



 
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the stirring up of hatred is not sufficiently imminent to justify the cost to freedom of 

expression. See, e.g., Peter Molnar, ‘Responding to “Hate Speech” with Art, 

Education, and the Imminent Danger Test’, in M. Herz and P. Molnar (eds.) The 

Content and Context of Hate Speech: Rethinking Regulation and Responses 

(Cambridge: Cambridge University Press, 2012). Other people claim that allowing 

such arguments inevitably creates a slippery slope to hate speech laws that cover 

every protected characteristic going, which is devastating for free speech. See, e.g., 

Eric Heinze, ‘Cumulative Jurisprudence and Hate Speech: Sexual Orientation and 

Analogies to Disability, Age, and Obesity’, in I. Hare and J. James Weinstein (eds.) 

Extreme Speech and Democracy (Oxford: Oxford University Press, 2009). And some 

people also maintain that the preponderance of evidence would suggest that laws 

banning the stirring up of hatred are ineffective at best at reducing this sort of speech 

and the security threats associated with it. See, e.g., Eric Heinze, Hate Speech and 

Democratic Citizenship (Oxford: Oxford University Press, 2016). For counters to all 

of these arguments, see Brown, Hate Speech Law, pp. 66-75, 239-242; Brown, ‘The 

“Who?” Question in the Hate Speech Debate: Part 2’, esp. p. 54. 

100 No. T20110109, Derby Crown Court, February 10, 2012 (unreported). 

101 Transcript obtained directly from Judge Burgess. 

102 Brown, ‘The “Who?” Question in the Hate Speech Debate: Part 2’, pp. 30-31.