We have had a few weeks away from our blog, and have come back to find ourselves in the midst of the Coronavirus lockdown. We have made a conscious choice not to talk about the pandemic itself, at least this week, and probably in the overwhelming majority of posts in the coming months, essentially for two reasons: 1) We are obviously not experts in epidemiology, public health or anything else particularly relevant. Whilst there is undoubtedly a legal dimension to the Government’s response, our fundamental position is to be supportive of authorities doing their very best to manage an unprecedented situation; 2) Given the way in which news and commentary on the pandemic is saturating the media at present, we thought that it would be healthy, for our readers and ourselves, to spend at least some of our day thinking about something different. It goes without saying, our thoughts are with all those people who are suffering from this frightening disease, and we would like to show our admiration for those citizens who are working, commendably, in hospitals, supermarkets and in the provision of services to those who are in a vulnerable position. There are many heroes in our society, and we are extremely proud of them.
There have been recent headlines about naturism and Human Rights, following calls by Mark Bass, head of British Naturism, to have anti-naturist abuse classed as a hate crime. This campaign was sparked in large part by protests from non-naturists about the organisation’s annual nude family swim at Sandcastle Waterpark in Blackpool. There were claims from objectors that the event would attract paedophiles, even though British Naturism has a well thought-out and implemented safeguarding policy, which was developed in conjunction with the NSPCC.
The argument put forward by Dr Bass was essentially that a commitment to naturism is a philosophical belief, and should therefore be given the same protection as any other matter of conscience or religion. This seems a justifiable claim, for reasons which we shall discuss in a moment, but it has triggered a considerable amount of controversy and something of a backlash. One explanation for this negative reaction seems to be that several disparate issues have been conflated into a hideous and unhelpful mess, and in particular, people are likely to have been confused about the following: 1) The differences between Human Rights, Equality Law and Hate Crime; 2) The nature of Hate Crime in England and Wales; 3) The limits to protection of freedom of conscience. Therefore, we shall do our best to unpack this.
1: The differences between Human Rights, Equality Law and Hate Crime
Article 9 of the European Convention on Human Rights protects freedom of religion and conscience. In short, thanks to the Human Rights Act 1998 incorporating this into domestic law, people have the absolute right to believe whatever they choose in relation to faith or philosophy, and have a qualified right to put their beliefs into practice (see point 3 below). The Equality Act 2010 prohibits discrimination on grounds of religion or belief, in particular in relation to employment and the provision of goods and services. Now for both of these purposes, it is highly likely that naturism would qualify, as it is a serious belief about a fundamental matter, and British Naturism provides us with the following definition on their webpage: “A philosophical belief in a natural, naked lifestyle, characterised by respect: for oneself, for others and for the natural environment”. Taking into consideration that veganism has been held to qualify for Article 9 protection, logically there is ample scope for naturism to do the same (although unfortunately, the famous Naked Rambler case [YEAR], Gough v UK, turned on freedom of expression (Art 10) and the right to private and family life (Art 8), so the point was not fully aired in the European Court of Human Rights).
However, in relation to hate crime, s29A of the Public Order Act 1986 defines religious hatred as “hatred against a group of persons defined by reference to religious belief or lack of religious belief.” In other words, beliefs on religious matters are covered, meaning that attacking someone for being a Muslim, Pagan, Humanist or Atheist would be caught by this legislation, if an offender attempted to stir up hatred on this basis, whether by words or behaviour. In contrast, it seems that stirring up hatred on the basis of non-religious beliefs, e.g. naturism, veganism, pacificism would be not covered. Therefore, some aspects of hate crime would not at present extend its protection to naturism, at least on a straightforward reading of the statute. Nevertheless, a court might be willing to adopt a more creative interpretation, particularly in light of the human rights backdrop.
2: The nature of Hate Crime in England and Wales
Some of the reporting, including from broadsheet newspapers, has given the impression that laughing at people can, in and of itself, constitute a hate crime. It really cannot, and citizens are still at liberty to make fun of their neighbours on the basis of their religious or philosophical beliefs. Doing so might not always be kind, or polite, or especially mature, but it is not a criminal offence either. Aside from the provisions in the Public Order Act touched on above, hate crime is usually a piggy-back concept, or in other words, a criminal offence is committed, e.g. actual bodily harm, and it is “aggravated”, or treated as more serious, because of the dimension of hatred. Again, the concept of religious hatred for these purposes is confined to “religious beliefs”, so it is doubtful whether philosophical beliefs on non-religious matters would be covered (for the avoidance of doubt, it must be emphasised that beliefs about religion like atheism or humanism certainly would, ever though their essence is a rejection of faith). Yet, even if naturism did come within the scope of protection, making jokes or critical comments about it would not amount to an offence.
3: The limits to the protection of freedom of conscience
As we have already discussed, Article 9 of the ECHR, which protects freedom of conscience and belief, most certainly does extend to ideologies unrelated to faith, and probably shields naturism, and the same is true of Equality Law. Nevertheless, it is important to understand what this means once again. The right to hold a belief is absolute, but the right to put a belief into practice is not. The freedom to manifest beliefs can be limited, provided that there is a good reason, usually related to a need to protect the rights of third parties, as long as any restriction is imposed as a proportionate and balanced response. All of which comes out in the wash to mean that acknowledging that naturists have a human right to hold and practice their ideology does not translate to suggesting that adherents to this creed can scamper about unclothed wherever they please. Whilst being without clothes out of doors is not per se a criminal offence, there are many circumstances in which it might be (see the CPS guidance linked below). Readers can be reassured that irrespective of the way this legal controversy resolves itself, it is not likely that people will routinely be faced with turning around in the queue in Waitrose or Aldi, to discover a stark naked brigadier behind them, buying biscuits.
Related Articles
Naturists on This Morning claim abuse against them should be considered a hate crime Evening Standard (13/3/20)
The law only seems to protect trendy beliefs The Times (6/3/20)
Should making fun of naturists be classed as a hate crime? The Guardian (3/3/20)
Racist and Religious Hate Crime: Prosecution Guidance Crown Prosecution Service (21/10/19)
Nudity in Public: Guidance on Handling Cases of Naturism Crown Prosecution Service (September 2019)
