What are we to make of the Law Commission’s proposals on hate crime?

Richard Norrie, 24 January 2022

The House of Lords vote to make misogyny a hate crime

The House of Lords recently voted to make ‘misogyny a hate crime’. This would entail two things: (1) that police record ‘crimes motivated by hostility towards the victim’s sex or gender’, and (2) require courts to treat such hostility as an ‘aggravating factor’, meaning stiffer sentences.

The phrase ‘making misogyny a hate crime’ has become a magical incantation for many, seen as a badge of high virtue, while any rejection of it is met with dismay. Yet, this is precisely what the Law Commission recommended, rowing back on its previous proposals set out in its consultation. After careful consideration, it was decided that adding ‘sex or gender’ to the list of ‘protected characteristics’ would do more harm than good, making it more difficult to secure convictions. All such reservations, put to Law Commissioner Penney Lewis, including by campaigning women’s organisations, were overruled by peers.

The government has vowed to overturn what is an amendment to the Police, Crime, Sentencing and Courts Bill. But make no mistake, this will return in some guise at a later date, since there are campaigning organisations with strong influence within both Houses, that have made ‘making misogyny a hate crime’ their cause célèbre.

Most critical commentary questioned the need and suitability, in light of the Law Commission’s findings. Overlooked was the legislative commitment for the police to record misogynist hate crimes, meaning in effect, to produce statistics. The argument is that this gives police the necessary information to keep women safe and without it, ‘they are left stumbling in the dark’, according to Baroness Newlove, author of the Lords amendment. This is wrong, in that police do not need to know the motivation behind a crime, in order to determine if the crime itself is good or bad for women. In any case, the Home Office has already committed to introducing this, as has the National Police Chiefs’ Council.

But there is an overlooked problem in that campaigning organisations have a vested interest in statistics, since they provide evidence of a problem, for which the same organisations can then demand funding to provide ‘solutions’. It is Government policy to ‘get the numbers up’ but note how neatly this fits with certain vested interests.

The act of producing statistics on how many crimes there are and what their motivation was seems beyond the basic function of the police. Afterall, these have not been ascertained as factual in a court of law. Is this not a usurpation of the function of the courts, to determine if and when there was a crime, and what the circumstances were? Police recording of hate crime is subjective, based on the say-so of victims, but my own research has shown that often what is recorded is not a crime motivated by hatred or hostility, but rather unpleasant events, not necessarily criminal, where offensive language is used. It is likely we have moved into over-reporting.

Ruling out the ‘decent populist’ complaint

None of this is to say that the Law Commission’s recent report and recommendations are to be treated as necessarily authoritative on the matter. The report itself runs to around 500 pages, much of it devoted to relaying the results of its public consultation. That it is so difficult to decide these matters is perhaps a symptom of the problems which hate crime in legislation raises – which groups or characteristics are we to protect?

This is contributed to by a political faction that is always coming up with new ideas and new demands for protection, on matters that are not settled, only the weight of this is not necessarily in the public interest. The vested interest composed of state, charities and civil society organisations that advocate for social groups, needs to find victims, and hate crime law and statistics provide them with an apparent ample supply.

Reading the Law Commission’s final report shows 2,473 written responses from concerned individuals, members of the public, most of whom are strongly opposed to ‘hate crime’ legislation. By contrast, 173 ‘organisations’ (charities, governmental, civil society etc.) responded, mostly in favour. This shows a massive gulf between the civil society/state complex, and the concerned citizenry.

While the Law Commission’s consultation was nominally open, what might be termed the ‘decent populist’ call for repeal was ruled out, on grounds of it not being in the remit. Yet, the Law Commission felt free to recommend the Government appoint a ‘hate crime commissioner’; something not in the remit of the inquiry and a ‘pre-consultation’ suggestion by an unnamed interest. A policy suggestion, not a legal suggestion, which seems to go beyond even the Law Commission’s broad remit. Moreover, it was naïve, since it suits the interests of the hate crime industry for whom governmental structure gives it a focal point for its lobbying. It is furthermore, a proposal for one more technocrat and governmental office, where there ought to be a democratically-elected minister who we can get rid of should we wish.

The choices of retain, reform or repeal are all valid ones, but the inquiry should not have been so closed to what ordinary complainers were saying. Room could have been found within the remit – a good lawyer could easily find it, surely? Moreover, reading the Law Commission report, you see the weight given to the organisations’ responses time and time again.

The Law Commission does not provide a strong argument in favour of hate crime in legislation. Its support largely rests on the claim that ‘hate crime hurts more’ but this is only partially true. The empirical evidence shows that while hate crimes have more secondary psychological impacts, on the more severe harms, most have no additional harms. For example, 34% of those suffering a hate crime in the Crime Survey reported ‘anxiety or panic attacks’ compared to 14% of those suffering a non-hate crime. But that means two thirds with no additional psychological harm.

‘Levelling up’ hate crime legislation

The Law Commission proposes that the ‘aggravated offences’ be expanded from race and religion to include the characteristics – sexual orientation, transgender identity, and disability. These are offences that carry a greater penalty than their base equivalents, for example, racially or religiously aggravated common assault, versus common assault.

The argument is that this is in the interests of fairness, or ‘levelling up’.

But counter arguments are – we might reasonably expect race and religion to have this advantage since they are greater social cleavages on which conflict might occur, and therefore, might readily attract greater legal disapproval and punishment. Note the legislation began when significant racial disturbances in the United Kingdom, along with the conflicts in the former Yugoslavia, were in recent memory, and so seemed credible at the time.

Moreover, the Law Commission notes testimony that ‘aggravated offences’ are rarely punished beyond the maximum sentences of the base offences, so why the need?

‘Sex or gender’

As noted, the Law Commission decided not to include ‘sex or gender’ as a protected characteristic in hate crime offences. It does propose a ‘stirring up hatred’ offence on such basis.

But it is not clear what this means, how sex and gender differ, or if this will entail a legal recognition of ‘self ID’ by the back door. Such developments should be handled with great care. The Law Commission told me in private correspondence that any final wording would be up to Parliament, only was unable to provide any definitional clarity. While words may entail legal traps, perhaps a bigger concern is that ill-defined neologisms are getting written into law, befouling what is a glorious and unique legal tradition.

‘Stirring up hatred’ offences

Here the Law Commission has some good points, some bad, some perplexing, pertaining to the ‘stirring up hatred’ offences in the 1986 Public Order Act, currently limited to on grounds of race, religion and sexuality.

It is proposed to expand the ‘stirring up’ offences to include the other characteristics, including transgender status, disability and ‘sex or gender’. The latter is in response to ‘Incel ideology’ which does seem legitimately necessitating the law.

The problem is that its last report in 2014 recommended against ‘stirring up’ offences on grounds of disability or transgender identity, citing a lack of likely need. So why the change?

There are some positive signs here, in the Law Commission does have regard for protection of freedom of speech. It is made clear that such laws do not cover material that is merely ‘offensive’ and largely capture gratuitous incitements to violence. It is proposed to remove mention of ‘insulting’ conduct and specific defences are recommended explicitly, to protect ‘gender critical views’ as well as insult to foreign governments and countries. Also, the so-called ‘dwelling’ defence is to be extended to encompass all private conversations, including electronic communications. But as Joanna Williams noted, this moves us from ‘free speech’ into ‘permitted speech’.

The Law Commission’s ideas on stirring-up hatred offences are not unreasonable, only instead of naming each and every strand of forbidden hatred, might it not have been a better idea to have standalone offence of ‘stirring up hatred conducive to acts of violence’, reserved for the most gratuitous utterances, without mentioning any specific characteristics? The old Common Law offence of sedition used to provide this legal function.

It is further proposed to transfer the current legal stipulation that any such prosecution require the consent of the Attorney General, be transferred to the Director of Public Prosecutions. The reason for this is the former is a political appointment and may face political pressure. This is a mistake in that it is removing a democratic and political check on the Crown Prosecution Service which is liable to the authoritarian biases inherent in the state. Moreover, the CPS is not immune to politics itself, or are we to believe that during his time in office, former Director of Public Prosecutions, Sir Keir Starmer had no known links to the Labour Party?

What is a protected characteristic and what is not?

The problem with hate crime legislation, is as soon as you have one ‘protected characteristic’, someone always comes along and demands another. To counter this, the Law Commission proposed three criteria to limit the list: (1) demonstrable need, (2) additional harm, and (3) suitability, meaning compatibility with existing law legal practice.

‘Sex or gender’ was rejected on grounds of suitability. Instead, a standalone offence of ‘sexual harassment’ is proposed, only why is existing ‘fear, alarm, distress’ law not sufficient?

But the Law Commission feels free to ignore these standards by recommending changes to the definitions of the existing protected characteristics, that is smuggling things through the back door.

So, sexual orientation is reinterpreted to include ‘asexual’ people, the ACE community, despite the 2014 Law Commission report saying there was ‘no evidence to show that individuals suffer hate crime due to being asexual’. Also, ‘transgender identity’ is reinterpreted to include ‘transgender or gender diverse’ only people with ‘intersex’ characteristics are excluded. How is this fair? The term ‘gender diverse’ is so expansive as to risk criminalising criticism or rejection of life-style choices.

Both inclusions match, as it happens the suggestions of Stonewall, only there is no standard or explanation as to why they should be incorporated.

Conclusion

I would recommend these proposals be handled with care, I note the government quietly overlooked the last batch made in 2014 and is under no obligation.

There is a problem in that the Law Commission appears to be a neutral legal authority, only the act of open consultation opens it up to being a conduit for radical ideas, that are contested and potentially damaging, as well as vested interests. That the popular hostility to hate crime legislation was ruled inadmissible further compounds the problem. This set of recommendations will be bandied about as apolitical when they are not, and really, policy creation on this matter is best left to the democratically elected government. The Law Commission is little more than a think tank for the (academic) legal profession.  

The Law Commission is privileging identity politics and its proponents over the law as it unfolds in courts as well as ordinary people. This was not really an examination of the law in practice but rather one in response to the usual suspects and on their terms.

I am not opposed to some offences being penalised more than others, where greater harm or culpability might be demonstrated in court. I am not opposed to offences of gross incitement to violence in law.

But I wonder if ‘hate crime’ where every group gets its own offence is really in the public interest, and whether the Law Commission might better have thought of ways to stem the constant demand for protection, the snowball effect? An alternative would be to think of ways in which we might penalise the things that all offences have in common, irrespective of who is on the receiving end. Of course, the law used to do this on its own before the advent of ‘hate crime’ introduced by meddling politicians. The fact of the House of Lords amendment shows how even a considered rejection of adding a certain characteristic, will do nothing to stop the relentless demand.