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Introduction
Welcome to the final lesson of our course. Having traced the history of seditious libel and the political and legal rationale for its abolition, we will now bring all the threads together. In our previous lessons, we examined the distinct legal regimes that governed speech-related offences: the broad common law of sedition and the more recent, specific statutory framework for incitement to hatred.
This lesson directly addresses the central question of your inquiry. We will synthesise the key differences in scope between the old common law offence and the current statutory framework. By placing them side-by-side, we can precisely identify the legal 'gaps' created by the abolition of seditious libel in 2009—that is, which forms of expression were criminalised under the old law but are no longer covered by modern statutes. This comparative analysis will illuminate not only the technical legal changes but also the profound philosophical shift in how English law balances free expression with the protection of social order.
The Old Regime: The Broad Scope of Seditious Libel
To understand what was lost, we must first have a final, clear picture of what seditious libel encompassed at its broadest. While its application narrowed significantly over the 20th century to require an intention to incite violence, its historical definition was far more expansive. The jurist Sir James Fitzjames Stephen provided the most influential summary of this definition in the 19th century.
Clear and Present Danger Test in Anglo-American and European Law, The
This article provides an excellent summary of the historical definition of seditious libel, which is crucial for our comparative analysis.
Please read the section titled "I. CONSTITUTIONAL DEVELOPMENTS PRECEDING THE DANGER TEST". Pay close attention to Stephen's definition of a "seditious intention." Note how many distinct types of intent it includes. Also, focus on the author's analysis of which parts of this definition are problematic by modern standards, particularly the criminalisation of raising "discontent or disaffection" and promoting "ill-will and hostility between different classes."
As you can see from the reading, Stephen's definition captured a wide array of activities. A "seditious intention" could be:
- To bring into hatred or contempt the Monarch, the Government, Parliament, or the administration of justice.
- To incite subjects to attempt to alter matters of Church or State by unlawful means.
- To raise discontent or disaffection among subjects.
- To promote feelings of ill-will and hostility between different classes of subjects.
The first two points relate to the protection of the state's authority and stability. It is the last two, however, that reveal the law's vast potential scope. Criminalising the act of raising "discontent" could, in theory, be used to suppress any robust political criticism. Crucially for your original query, the explicit prohibition on promoting hostility between "different classes" confirms that the common law of sedition did indeed cover the incitement of class hatred, just as Scruton suggested.
The New Regime: The Statutory Framework for Incitement
Following the abolition of seditious libel in 2009, the legal landscape for controlling "hate speech" is now composed entirely of a patchwork of statutes. These laws did not replace sedition directly but evolved alongside it and now stand alone. Unlike the broad, institution-protecting scope of sedition, these statutes are narrowly focused on protecting specific groups of people defined by protected characteristics.
[PDF] Unpalatable in Word or Deed: Hostility, Difference and Free ...
This academic article traces the development of modern incitement laws and highlights their specific features and limitations, contrasting them with older common law offences.
First, read Section II: Incitement to Racial Hatred. This section details the legislative path from the Public Order Act 1936 to the creation of specific incitement to racial hatred offences, culminating in Part III of the 1986 Act. Notice how the focus shifts from preventing a "breach of the peace" to penalising the stirring up of hatred against a "racial group." Next, please read Section III: Incitement to Religious Hatred, Blasphemy and Human Rights. Focus on the analysis of the Racial and Religious Hatred Act 2006. Note the key differences between the religious hatred offences and the racial hatred offences, particularly regarding the required intent and the wording of the prohibited act (using only "threatening" words, as opposed to "threatening, abusive or insulting").
The modern framework, principally found in the Public Order Act 1986 (as amended), creates specific offences of stirring up hatred based on:
- Racial grounds (Part III)
- Religious grounds or lack of religious belief (Part IIIA, added by the Racial and Religious Hatred Act 2006)
- Sexual orientation (Part 3A, added by the Criminal Justice and Immigration Act 2008)
This framework is fundamentally different from sedition. It is not concerned with protecting the Government, the Crown, or the constitution from contempt. Its sole purpose is to protect people who share a specific protected characteristic from the harm of incited hatred.
Synthesis: A Comparative Analysis
To identify the "gaps" left by abolition, a direct comparison is most effective. Your background in quantitative analysis and preference for structured information should make this table a useful tool for synthesis.
| Feature | Common Law Seditious Libel (Historical Scope) | Modern Statutory Incitement (e.g., Public Order Act 1986) |
|---|---|---|
| Protected Entity | The State and its institutions (Crown, Government, Parliament, judiciary); social harmony between "classes". | Groups of people defined by protected characteristics (race, religion, sexual orientation). |
| Prohibited Harm | "Hatred or contempt," "disaffection," "discontent," "ill-will and hostility." | "Hatred." The standard is high and does not cover mere offence, dislike, or ridicule. |
| Actus Reus (The Act) | Publishing words with a seditious intention. The act itself was simple; the focus was on the intent and content. | Using words or behaviour, or displaying/publishing material that is "threatening, abusive or insulting" (racial) or "threatening" (religious/sexual orientation). |
| Mens Rea (The Intent) | Intention to cause one of the prohibited outcomes. Over time, this narrowed to requiring an intention to incite violence or public disorder. | For racial hatred: Intention to stir up hatred, OR that hatred is likely to be stirred up. For religious/sexual orientation hatred: Intention only. |
The Legal Gaps Created by Abolition
This comparison reveals several clear areas that were once covered by the common law but are now outside the scope of specific criminal statutes in England and Wales. These are the "gaps" created by the 2009 abolition.
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Sedition Against the State: The primary function of seditious libel—to criminalise speech that brings the government, the Crown, or the constitution into "hatred or contempt"—is gone. There is no longer a specific offence for attacking the institutions of government, short of inciting violence (which is covered by other general public order or terrorism laws). This reflects a fundamental shift in a modern democracy towards tolerating even the most virulent anti-government sentiment as long as it does not directly incite lawless action.
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Incitement of Class Hatred: As your initial query highlighted, Stephen's definition of sedition explicitly criminalised the act of promoting "ill-will and hostility between different classes of Her Majesty's subjects." This is arguably the most significant gap in the context of Scruton's argument. Modern incitement laws are built around fixed, personal characteristics (race, religion, etc.), not fluid socio-economic categories like class. There is no statutory offence of inciting hatred against a person or group on the grounds of their social or economic class.
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Stirring up General "Discontent": The old law could be used to prosecute individuals for raising general "discontent or disaffection" among the population. This was a vague and powerful tool for social control. The modern statutory framework requires the much higher and more specific threshold of "hatred" directed at a particular group. General political agitation, even if it creates widespread discontent, is not a crime.
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Abolition of Blasphemous Libel: The same Act that abolished seditious libel also abolished the distinct common law offences of blasphemy and blasphemous libel. Historically, these protected the tenets of the Church of England from scurrilous attack. Like sedition, this was a law that protected an institution. Its abolition further underscores the legal system's move away from protecting institutions and belief systems towards protecting groups of individuals.
Conclusion
This course has charted the journey from a broad, state-protective common law of sedition to a narrow, person-protective statutory framework of incitement. The 2009 abolition of seditious libel was not merely the removal of an obsolete law; it was the culmination of a centuries-long legal and philosophical evolution.
The key takeaways from our analysis are the specific "gaps" this abolition created. The modern legal framework in England and Wales intentionally does not criminalise:
- Speech that brings the state or government into contempt.
- The incitement of hatred or hostility based on social or economic class.
- The stirring up of general public discontent or disaffection.
Therefore, your understanding of Roger Scruton's point is correct: the old law of sedition, at least in its classical formulation, possessed a far wider remit than modern hate speech laws. Its abolition consciously narrowed the boundaries of criminal speech, leaving criticism of the state and the stirring of class-based animosity to the realm of political, rather than criminal, contestation. This reflects the modern legal consensus that in a democracy, the power of the state should be used to protect vulnerable groups of people, not the state itself from criticism.