It is one of the odd quirks of our legislative process that new laws often receive the seal of approval from the Queen a long time before they are actually implemented.

Recent new laws on domestic violence took about three years from the date of approval until they were finally introduced. Thus the Racial and Religious Hatred Act 2006 was only substantially brought into force at the start of this month.

Freedom of religion is guaranteed by Article 9 of the European Convention on Human Rights. Likewise, laws against stirring up racial hatred already existed, but they were over 20 years old. The new provisions bring the law up to date by creating new criminal offences of inciting racial hated. That covers everything from the everyday use of words and behaviour to the production and distribution of written or recorded material. For each of the offences, the words or material must be threatening, and it must be intended to stir up religious hatred.

"Religious hatred" is defined as hatred against a group of persons defined by reference to their religious belief, or even their lack of religious belief. Oddly, though, the Act steers clear of defining exactly what amounts to a religion or a religious belief. Someone once famously grafittied “Eric Clapton is God”, but does that make him a religion? Who will decide then whether a particular belief amounts to a religion?

Step forward the judges. The courts will decide.

The new Act does produce a list of religions that will be covered, though it must be made clear that this list is by no means exhaustive. All the major religions are covered, along with various sects, but what about people who have no religious belief? Curiously, the Act does give atheists and humanists a degree of protection from scorn.

But the Act has important reservations. It makes clear that it is not intended to prevent people from seeking to convert others to or from a particular belief. Nor is its purpose to stifle discussion about different belief systems, even if that discussion steeps to "antipathy, dislike, ridicule or insult or abuse". But I am not sure that sits easily with the mischief the Act is attempting to prevent.

The dividing line between permitted discussion and unlawful criticism is a difficult one that is likely to test the mettle of the courts. Stirring up race hatred is clearly a very sensitive issue, so it is not surprising that the Act makes it clear that no prosecution can proceed without the consent of the Attorney-General.

While the good intentions of the Act are not to be doubted, its nuances are likely to keep lawyers and the courts busy for some time. But that's something new laws invariably do.

Stephen Gerlis is a District Judge at Barnet County Court

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