That the law of blasphemy - or, to give it its formal designation, the common law offence of blasphemous libel - is effectively dead in Britain was established beyond doubt last December when the High Court threw out Stephen Green's self-publicising attempt to prosecute the makers of Jerry Springer the Opera. If that judgement can be regarded as having administered the last rites to the old law, yesterday, in two separate developments, the House of Lords committed its body to the ground. There might still be those who have a sure and certain hope of its ultimate resurrection, but they seem destined to have as long a wait as members of various fringe denominations who anticipate the Second Coming.
In its judicial capacity, the Lords rejected Green's attempt to appeal against the decision to block his case. Later, their lordships debated an amendment to the current Criminal Justice Bill, proposed by the government after MPs made their opinions clear in the Commons, which would abolish the offence. The amendment was carried by 148 votes to 87.
It was an interesting debate. Baroness Andrews, for the government began by revealing that the law had proved to be something of an international embarrassment:
As long as this law remains on the statute book, it hinders the UK's ability to challenge oppressive blasphemy laws in other jurisdictions, including those used to persecute vulnerable Christian minorities. As signatory to a number of international conventions that commit us to tackling discrimination in all its forms, the UK is regularly criticised by international bodies for having these laws. As recently as February this year, the UN special rapporteur on freedom of religion expressed concern at the continuing existence of the blasphemy offences in this country. As such, their presence represents a blemish on what is otherwise an excellent record on combating discrimination and promoting human rights. It is therefore right that we should seek to abolish them without further delay.
Most of the bishops who spoke were prepared, albeit reluctantly, to go along with abolition, so long as it were not seen as a "secularising" move. Which of course it is. Others were less enthusiastic. Baroness Park of Monmouth, for one, was very concerned:
An enormous number of ordinary Christians, some of whom are rather old like me, feel threatened and vulnerable.... They are often surrounded by unfriendly communities. It is true that they have not thought much about this; they probably do not even get to church. However, that does not alter the fact that they are Christians and that they feel that this is a Christian country in which they have a right to some defence and consideration.
The bishop of Portsmouth was equally convinced that the country was populated by deeply-religious people who only rarely ventured to church, setting great store by the fact that "40 per cent of the population went to a carol service of some sort or another last Christmas". However, the extent to which such events have anything to do with religiosity is doubtful. Even the good bishop seemed to doubt it. "One of the nice things about becoming a bishop," he said, "is that you do not have to go to as many carol services as a parish priest." Let's hope, for his sake, that Baroness Park was wrong in her prediction that "the press will certainly not report this debate except in some mischievous and irrelevant way". "Bishop hates Christmas Carols" would be a good headline for the Daily Mail.
This was one of several lighter moments in the debate. The magnificent Lord Onslow, who is one of the best arguments for keeping the hereditary peerage, described it as "deliciously New Labour" that it should be the minister for local government who moved the amendment. Quite. He went on to say,
On the question of blasphemy, it has always struck me that if Jesus Christ exists, and if Jesus Christ in his Godlike form was capable of creating the universe, then he could quite easily hack the bit of left-wing obscurantism and b-mindedness that writes things such as "Jerry Springer: The Opera". If he does not exist, nothing will happen; if he does exist, it is up to him to get hold of the chap who wrote it and make sure that he does time in the diabolical house of correction. The offence is unnecessary.
But it was a fellow Conservative hereditary survivor, Lord Selsdon, who made what was perhaps the most surreal contribution to the debate:
The final thing was when a particular man wrote a book called The Satanic Verses and I was the only one allowed to go to Tehran, where I sat with great names and prelates. I learnt that the monotheists or the people of the book, as they are called, who believe in one God, were pretty considerable—roughly half the world's population. I would be there as the Jesus man; there would also be a Moses man and a Muhammad man. We would sit and debate. It is difficult when you have bowlegs to sit cross-legged in the dark smoking hookah pipes with a few people and trying to have a discussion when you are not briefed. In the holy city of Isfahan I was given a team of a couple of lawyers and a couple of mullahs and we had a debate about blasphemy.
Ayatollah Khomeini issued a fatwa that said that you could not play chess because it was too secular and you were defending the king. The prelates pointed out that the king was the weakest person on the board and even the queen was more powerful. The king hid behind his castles, knights or bishops. Even the peasants could move two steps forward and attack the king. Another fatwa was that you could not eat caviar anymore because it was not halal. Cousteau, who became a Muslim, worked out that the sturgeon's backbone was stronger, so suddenly the British embassy, which was flooded with cheap caviar, found that it could eat it again.
It is, of course, countries like Iran that still take blasphemy seriously. Just today, the Iranian foreign minister demanded that international human rights conventions be amended to protect religious beliefs. Among other nuggets of information, the Bishop of Portsmouth revealed that, as a member of the Select Committee reviewing the legislation, he had taken evidence from representatives of non-Christian religions. "It is interesting to note," he said, "that the Muslims were keen on the retention of a blasphemy law, but that the Sikhs, Hindus and Buddhists were not."
What a surprise.
Few of the bishops who spoke were prepared to die in the ditch defending blasphemy. There were, however, some expressions of regret that the new Religious Hatred Act had not been tested in the courts. Opined the bishop of Chester:
the recent law might well turn out to be absolutely as hopeless as some people think the blasphemy law is. There is a real sense of uncharted waters and untested law. I suspect that the recent law is utterly useless. We certainly do not know that it is not utterly useless, so I find the timing of this provision unhelpful.
I hope he's right.
Blasphemy is an odd case of a law that not merely has fallen into disuse, but that rather has never been used regularly at all. Moving the amendment yesterday, Baroness Andrews stated that she could only find four instances of successful prosecutions for the crime. Ever. The first was in 1676, the next in 1841, the third in 1922, and the last, the private prosecution brought by Mary Whitehouse, in 1976 when Denis Lemon, publisher of Gay News, received a suspended sentence and heavy fines. These figures suggest, strangely, that the offence was actually becoming more rather than less often resorted to. Certainly, that is the case if you add in all the instances in which campaigners have attempted to resurrect the law, and the BBFC's decision in 1989 to ban the film Visions of Ecstasy on the grounds that it might be considered blasphemous. The law, it seems, has always been obsolete, but has only relatively recently emerged as positively dangerous.
That yesterday's vote was taking place at all is largely the result of last year's Jerry Springer case. As recently as 2005 the lords voted by a considerable margin to retain the law, and hardly anyone noticed. Ironically, however, it was the devastating judgement of Lord Justice Hughes in that case that made repeal little more than a formality. Hughes laid down the principle that blasphemous words could only be prosecuted if they endangered society. Clearly, no attack on Christianity today would endanger society, if only because Christians are far too mild-mannered.
What is necessary to make such material a crime is that the community (or society) generally should be threatened. This element will not be shown merely because some people of particular sensibility are, because deeply offended, moved to protest. It will be established if but only if what is done or said is such as to induce a reasonable reaction involving civil strife, damage to the fabric of society or their equivalent.
While Hughes claimed merely to be declaring the law as he found it, his emphasis is very different from the remarks of Lord Scarman when the Gay News case reached the House of Lords:
I would only add that it is a jejune exercise to speculate whether an outraged Christian would feel provoked by the words and illustration in this case to commit a breach of peace. I hope, and happen to believe, that most, true to their Christian principles, would not allow themselves to be so provoked. The true test is whether the words are calculated to outrage and insult the Christian's religious feelings: and in the modern law the phrase "a tendency to cause a breach of peace" is really a reference to that test. The use of the phrase is no more than a minor contribution to the discussion of the subject. It does remind us that we are in the field where the law seeks to safeguard public order and tranquility.
Hughes also doubted whether an offence of blasphemy was compatible with the principle of free expression granted by the Human Rights Act, and before it the European Human Rights Convention. And Baroness Andrews quoted the view of the Joint Committee on Human Rights, who this January stated that
the continued existence of the offences of blasphemy and blasphemous libel can no longer be justified, and we are confident that this would also, in today's conditions, be the view of the English courts under the Human Rights Act and the Strasbourg Court under the ECHR.
Yet Scarman - and, following him, the European Court itself - said quite the opposite:
Article 9 provides that every one has the right to freedom of religion, and the right to manifest his religion in worship, teaching, practice and observance. By necessary implication the article imposes a duty on all of us to refrain from insulting or outraging the religious feelings of others. Article 10 provides that every one shall have the right to freedom of expression. The exercise of this freedom "carries with it duties and responsibilities" and may be subject to such restrictions as are presented by law and are necessary "for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others..." It would be intolerable if by allowing an author or publisher to plead the excellence of his motives and the right of free speech he could evade the penalties of the law even though his words were blasphemous in the sense of constituting an outrage upon the religious feelings of his fellow citizens. This is no way forward for a successful plural society.
It's hard to believe that even thirty years ago society could have been endangered by a poem, or that Scarman's argument against freedom of expression could not be applied with equal, or even greater, force today. Yet such is apparently the case. So here, in celebration of the final demise of a silly law, is the work that so upset Mary Whitehouse. No doubt she is spinning in her uncorrupted grave.
The Love That Dares To Speak Its Name
by James Kirkup
As they took him from the cross
I, the centurion, took him in my arms-
the tough lean body
of a man no longer young,
but well hung.
He was still warm.
While they prepared the tomb
I kept guard over him.
His mother and the Magdalen
had gone to fetch clean linen
to shroud his nakedness.
I was alone with him.
For the last time
I kissed his mouth. My tongue
found his, bitter with death.
I licked his wound-
the blood was harsh
For the last time
I laid my lips around the tip
of that great cock, the instrument
of our salvation, our eternal joy.
The shaft, still throbbed, anointed
with death's final ejaculation.
I knew he'd had it off with other men-
with Herod's guards, with Pontius Pilate,
With John the Baptist, with Paul of Tarsus
with foxy Judas, a great kisser, with
the rest of the Twelve, together and apart.
He loved all men, body, soul and spirit - even me.
So now I took off my uniform, and, naked,
lay together with him in his desolation,
caressing every shadow of his cooling flesh,
hugging him and trying to warm him back to life.
Slowly the fire in his thighs went out,
while I grew hotter with unearthly love.
It was the only way I knew to speak our love's proud name,
to tell him of my long devotion, my desire, my dread-
something we had never talked about. My spear, wet with blood,
his dear, broken body all open wounds,
and in each wound his side, his back,
his mouth - I came and came and came
as if each coming was my last.
And then the miracle possessed us.
I felt him enter into me, and fiercely spend
his spirit's final seed within my hole, my soul,
pulse upon pulse, unto the ends of the earth-
he crucified me with him into kingdom come.
-This is the passionate and blissful crucifixion
same-sex lovers suffer, patiently and gladly.
They inflict these loving injuries of joy and grace
one upon the other, till they die of lust and pain
within the horny paradise of one another's limbs,
with one voice cry to heaven in a last divine release.
Then lie long together, peacefully entwined, with hope
of resurrection, as we did, on that green hill far away.
But before we rose again, they came and took him from me.
They knew what we had done, but felt
no shame or anger. Rather they were glad for us,
and blessed us, as would he, who loved all men.
And after three long, lonely days, like years,
in which I roamed the gardens of my grief
seeking for him, my one friend who had gone from me,
he rose from sleep, at dawn, and showed himself to me before
all others. And took me to him with the love that now forever dares to speak