MINDFUL, no doubt, of Jonathan Swift’s aphorism that “we have just enough religion to make us hate, but not enough to make us love one another”, the Government is asking Parliament to make it a criminal offence to provoke religious hatred. These are sensitive issues, as shown by the closure of the play Behzti in Birmingham after violent protests by Sikhs last month. But Parliament should resist the invitation and keep faith with freedom of expression. Offending religious convictions is no basis for imposing criminal convictions.

The relevant provisions are contained in Schedule 10 to the Serious Organised Crime and Police Bill. They seek to amend the Public Order Act 1986, which already makes racial hatred a criminal offence. If the Bill is enacted, the same scheme would apply to religious hatred. So it would be a criminal offence to use threatening, abusive or insulting words or behaviour if you “intend to stir up religious hatred”, or if religious hatred is “ likely to be stirred up”. Prosecutions could be brought only by the Attorney-General. A convicted person would face up to seven years in prison.

The Bill starts from the false premise that race and religion should be treated in the same way. But there are important differences. To make hostile comments about my race is to criticise me for what I am, for innate characteristics that I have not chosen and which say nothing (other than to the racist) about how I act. Because such comments insult my common humanity and can rarely if ever be justified, it is right and proper that the law should impose limits on your freedom of speech when it insults my race.

But to comment on my religion is to criticise the conduct of an organisation to which I choose to belong. Religious beliefs have a significant impact on the way its adherents treat each other and strongly influence how society is organised. Harshly critical comments on religions may serve a valuable function in identifying and remedying abuse of power. Such criticism is not reduced in value by the tendency of the religious to react with extreme sensitivity when their beliefs are subjected to rational analysis. We should be very slow to impose additional legal restrictions on freedom of expression on such a subject.

If this Bill were to be enacted, novelists, playwrights and comedians would need to seek legal advice before strongly criticising the Catholic Church for failing to take adequate steps against paedophile priests; or Judaism for its treatment of women (and their children) whose husbands refuse to give them a religious divorce; or Islam for its intolerance of “infidels” and its discrimination against women and homosexuals. The Bill offers no definition of “ religion”, so an author may be inviting prosecution by making harsh comments about the late L. Ron Hubbard, of the Scientologists, or the Satanist beliefs recognised last year by the Royal Navy.

Irreverently critical comment on religious topics, particularly by a comedian or a novelist, might well be regarded as “abusive or insulting”. Even if the author’s intention is to provoke debate on an issue of public importance, prosecutors might be able to establish that “hatred” (the quality and quantity of which is not specified in the legislation) is likely to be “stirred up” (an inelegant phrase that should lead to prosecution of the parliamentary draftsman). Indeed, the more powerful the work, the greater the risk of legal action. That you may have good reason for making insulting comments that provoke hatred of a religious doctrine would be no defence. Because of the uncertainty inherent in so vague a criminal law, it would inevitably have a chilling effect on freedom of expression about religious beliefs and practices.

Religions already have strong protection both spiritual (blasphemers will, no doubt, spend much longer than seven years paying the price of eternal damnation) and temporal. The law punishes (and rightly so) breaches of the peace, harassment and assault. In 2001, Parliament created new offences of religiously aggravated assaults, criminal damage, harassment and public order crimes where the defendant acts out of hostility towards a person’s religion. Discrimination on grounds of religion or belief is unlawful in employment. It is high time that we abolished the offence of blasphemy, which protects only Christianity. But there is no case for further restricting the freedom of expression.

No one would suggest seriously that the law should penalise words or behaviour that have the intention or effect of stirring up hatred of a political group. Such a law would be objectionable because critical comment on matters of public interest should not be further inhibited. Religion is as powerful a force (indeed, often much more powerful) than political affiliations. Schedule 10 to the Bill offends the strong beliefs of many of us that additional restrictions on free speech are wrong in principle. On this occasion, the devil is not in the detail.

The author is a practising barrister at Blackstone Chambers and a Fellow of All Souls College, Oxford

Explore Law

• Columnists

• Law Panel

• Law Reports

• Student Law

Times Recommends

• The best legal yarns this Christmas
• Legal school 'earned £1m by exploiting bar course'
• Axe may fall on 5,000 more City lawyers