On Saturday hundreds of people lined up outside Tescos in Belfast city centre clutching ‘I am shopping for Peter’ posters, in a creative anti-racist protest against the First Minister‘s assertion, among other matters, that he would only trust Muslims “to go down to the shop for me, to give me the right change…”. Peter Robinson made his remarks in an interview with the Irish News in the context of defending evangelical Pastor James McConnell for his widely publicized address at the Whitewell Metropolitan Tabernacle Church in which he stated “Islam is heathen, Islam is satanic, Islam is a doctrine spawned in hell” and warned of the “new evil” of “cells of muslims.” The PSNI have stated they are investigating the remarks as ‘hate crimes’. The First Minister complained Pastor McConnell had been demonised and stated “I’ll be quite honest, I wouldn’t trust them [Muslims] in terms of those who have been involved in terrorist activities. I wouldn’t trust them if they are devoted to Sharia Law. I wouldn’t trust them for spiritual guidance” but did say Muslims were trustworthy in matters like going to the shops for him.
The comments have been made in a context whereby the PSNI have recently raised concerns of UVF involvement in racist attacks which had a “deeply unpleasant taste of a bit of ethnic cleansing” about them. Peter Robinson in his remarks questioned what a hate crime is and sought to conflate distrust of politicians to incitement to ethnic or religious hatred stating “You need to define these issues… this is where we have this bogus argument that because someone says I don’t trust someone or a group of people that it is a hate crime. If it is then I’m going straight away to the police to ask them to take action against all those who say they don’t trust politicians – you can’t have it both ways”.
Saturday’s protest was organized by the West Against Racism Network (WARN) (Facebook users can see coverage here) and followed another anti-racist protest rally of around 4000 persons outside Belfast City Hall, a further anti-racism march has also been planned for Saturday 7 June 2pm (assemble Writers Square 1.30) by the trade union movement, NICEM and Amnesty International. WARNs press release about Saturday’s event stated that: “The First Minister’s remarks have also raised another fundamental issue. It would appear that there is a complete lack of understanding at the highest level of government as to what racism actually is. Peter Robinson’s trivialising of the legal concept of a hate crime by linking it to a mistrust of politicians is concerning in the extreme; all the more so given that his office of OFMDFM leads on the issue of racial equality.”
It is notable that Peter Robinson’s remarks resonate with both of the key concepts in the Council of Europe definition of racism – in insinuations of untrustworthiness and conflation with terrorism showing contempt for an entire ethnic group, and the air of supremisism around assertions that the type of things Muslims should be doing are his shopping. The Council of Europe definition is:
“racism” shall mean the belief that a ground such as race[i], colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons.
In relation to which types of speech or expression constitute unlawful advocacy to hatred Article 20 of the UN’s International Covenant on Civil and Political Rights (ICCPR), which the UK is party to, provides that:
The UN anti-racism convention (ICERD) also provides that the state shall outlaw ‘dissemination based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin’ (Article 4a.) The UK lodged an ‘interpretive declaration’ in relation to this provision stating in essence it will only implement the prohibition insofar it is compatible with freedom of expression. This reservation is somewhat redundant given as the provision is to be interpreted compatibly with free expression anyway, and there has been considerable work in recent years to clarify the ‘threshold’ question regarding the factors and contexts of where protected freedom of expression ends and where unprotected racist expression begins.
The UN Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence proposed a six-part threshold test for defining incitement to hatred in relation to application of Article 20 of the ICCPR. This involved determinations of assessing the severity and harm advocated of the speech in relation to matters which should face criminal sanction. The six part threshold test – which drew on earlier work by International NGO Article XIX – is set out in paragraph 22 of the Rabat Plan of Action as:
“1: Context: Context is of great importance when assessing whether particular statements are likely to incite to discrimination, hostility or violence against the target group and it may have a bearing directly on both intent and/or causation. Analysis of the context should place the speech act within the social and political context prevalent at the time the speech was made and disseminated.
2: Speaker: The position or status of the speaker in the society should be considered, specifically the individual’s or organisation’s standing in the context of the audience to whom the speech is directed.
3: Intent: Article 20 of the ICCPR requires intent. Negligence and recklessness are not sufficient for an article 20 situation which requires “advocacy” and “incitement” rather than mere distribution or circulation. In this regard, it requires the activation of a triangular relationship between the object and subject of the speech as well as the audience.
4: Content or form: The content of the speech constitutes one of the key foci of the court’s deliberations and is a critical element of incitement. Content analysis may include the degree to which the speech was provocative and direct, as well as a focus on the form, style, nature of the arguments deployed in the speech at issue or in the balance struck between arguments deployed, etc
5: Extent of the speech: This includes elements such as the reach of the speech, its public nature, magnitude and the size of its audience. Further elements are whether the speech is public, what the means of dissemination are, considering whether the speech was disseminated through one single leaflet or through broadcasting in the mainstream media or internet, what was the frequency, the amount and the extent of the communications, whether the audience had the means to act on the incitement, whether the statement (or work of art) was circulated in a restricted environment or widely accessible to the general public.
6: Likelihood, including imminence: Incitement, by definition, is an inchoate crime. The action advocated through incitement speech does not have to be committed for that speech to amount to a crime. Nevertheless some degree of risk of resulting harm must be identified. It means the courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group, recognising that such causation should be rather direct.”
The caselaw of the European Convention of Human Rights has also been delinating the boundaries between which types of speech qualify as protected freedom of expression. Certain types of expression, although they offend or make others uneasy are protected under the ECHR. There is no ‘right not to be offended’ that can be derived from the ECHR. In a general sense expression which merely ‘shocks, offends or disturbs’ (see Handyside v UK 1976) or is capable of ‘creating a feeling of uneasiness in groups of citizens or because some may perceive them as disrespectful’ (Vajnai v. Hungary,(2008) ) is protected expression which should not be restricted. However expression which ‘spreads, incites, promotes or justifies hatred based on intolerance’ (Erbakan v Turkey (1999)) or matters such as ‘the promotion of discrimination or ethnic division (’Vona v Hungary (2013) ) can be restricted. It has been held that in certain circumstances there is a positive duty on the state to protect persons from racist expression under Article 8 (private and family life) (Aksu v Turkey (2012) ). Some of these issues have been explored in previous Rights NI posts on parades-related expression here and here.
In relation to domestic legislation Part III of the Public Order (Northern Ireland) Order 1987 prohibits incitement to hatred. This covers offences of ‘stirring up hatred’ or ‘arousing fear’ against a group of persons on grounds of religious belief, sexual orientation, disability, colour, race, nationality (including citizenship) or ethnic or national origins. The categories of sexual orientation and disability were added in 2004. Offences under this legislation include (with some caveats) threatening, abusive or insulting words or behaviour, or displaying written material which either intend to stir up hatred or arouse fear (on one of the listed grounds), or which, having regard to all the circumstances, are likely to have that effect. The last time CAJ asked this legislation seemed to be used very rarely. In 2011 a freedom of information request we submitted indicated there had only been five arrests in five years for such offences. One explanation is that the PSNI feel it is easier to use generic public order offences for such incidents rather than test the threshold for incitement to hatred. One recent high profile case, relating to the actions of a loyalist band marching around in circles outside St Patricks Catholic Church on Belfast’s Donegall Street whilst apparently playing the ‘famine song’, resulted in acquittals of 11 defendants when reportedly the court held it could not be established that there was an intention to ‘provoke a breach of the peace.’ This indicates that generic public order offences rather than use of the incitement to hatred legislation were the bases of the charges against the 11 defendants.
The recently published human rights guidance from the Attorney General for Northern Ireland’s office for the Public Prosecution Service, makes reference to the UN Rabat Plan of Action and, at paragraph 31, includes the six-stage threshold test for incitement to hatred within the guidance. This provides therefore a framework the PPS should have regard to when considering charges under Part III of the 1987 Order. It remains to be seen whether the PSNI will adopt a similar approach, yet it is clear that there is a framework in international standards which can be drawn upon to delineate the ‘threshold’ question. Time will tell if this particular underused piece of legislation can now be used more effectively.
[i] The recommended definition from the Council of Europe European Commission against Racism and Intolerance states, in relation to the use of the term “Race”: “Since all human beings belong to the same species, ECRI rejects theories based on the existence of different “races”. However, in this Recommendation ECRI uses this term in order to ensure that those persons who are generally and erroneously perceived as belonging to “another race” are not excluded from the protection provided for by the legislation.”