The head of the judiciary in England and Wales in 1985 appeared sceptical about an attempt to introduce an offence of possessing racially inflammatory material.
After raising a careful legal objection to the proposal as it was then drafted, Lord Hailsham wryly wondered whether the new offence would encompass the Biblical texts.
The letter, sent from Lord Hailsham to Lord President of the Council Willie Whitelaw and copied to the Northern Ireland Secretary of State, has been released at Belfast’s Public Records Office under the 30/20 year rule.
The Lord Chancellor wrote by hand at the top of the letter “My dear Willie” and at the bottom “I wonder whether ‘racially inflammatory material’ includes the Old and New Testaments”.
In the typed portion of the letter, Lord Hailsham said he had “reservations” about the proposal to introduce the new offence.
“It is my view that it will in practice be a difficult offence to prove,” the veteran Conservative politician wrote.
“The parallel offence under the Obscene Publications Acts has the requirement of having an obscene article ‘for gain’; and there is a defence, under section 1 (3) (a) of the 1964 Act of having no reasonable cause to suspect that the article is such that its possession would constitute an offence.
“As both of these qualifications serve to make the offence to which they relate more manageable I suggest that perhaps some appropriate trigger might be useful here.”
Ultimately, the Public Order Act 1986 made possessing such material an offence “if [the person] intends racial hatred to be stirred up thereby or, having regard to all the circumstances, racial hatred is likely to be stirred up thereby”.