The Law Commission wants to simplify and expand the law on hate crime in England and Wales. These proposals would have a significant negative impact on free speech and freedom of religion.
Below is a brief guide to how you can respond to the most important questions in the consultation. The deadline for responding is 24 December this year. You can read our full response here.
You can answer online at this link: https://www.lawcom.gov.uk/project/hate-crime/#hate-crime-consultation-paper
Do consultees agree that hate crime laws should, as far as practicable, be brought together in the form of a single “Hate Crime Act”?
We provisionally propose that the law should continue to specify protected characteristics for the purposes of hate crime laws.
Adding more characteristics would create more inequality before the law among victims. It would send out the wrong message to criminals.
We provisionally propose that the current definition of “transgender” in hate crime laws be revised to include:
- People who are or are presumed to be transgender
- People who are or are presumed to be non-binary
- People who cross dress (or are presumed to cross dress); and
- People who are or are presumed to be intersex
We further propose that this category should be given a broader title than simply “transgender”, and suggest “transgender, non-binary or intersex” as a possible alternative.
Adding more sub-categories to an existing protected characteristic would only further the problems we set out in response to question 2.
Making cross-dressing a protected characteristic could criminalise organisations that have dress codes for men and women and boys and girls.
Intersex is not a version of transgenderism as it refers to physical congenital anomalies mostly detected at birth. Including it in the transgender definition causes confusion in the law.
We invite consultees’ views on whether “sex workers” should be recognised as a hate crime category.
‘Sex workers’ is the progressive term for ‘prostitutes’ and is being used to normalise prostitution as ‘work’. Prostitution is not a permanent characteristic of a person; it is an activity. Treating it as a protected characteristic makes no sense.
This proposal would create a stigma around charitable and policy work opposing prostitution and pornography, and helping people exit the sex industry. Given the effect that hate crime legislation has had on the police and public behaviour, we believe that expressing strong opposition to and disapproval of prostitution and pornography could be reported as ‘hate incidents’. This would have a chilling effect on Christian and other work in this field. It would also complicate the field of safeguarding.
We provisionally propose that the stirring up offences relating to “written” material be extended to all material.
We disagree. These proposals would seriously erode free speech and freedom of expression in England and Wales.
These proposals would make it much more difficult to publish material critical of Islam and multiculturalism.
We provisionally propose to replace sections 19 to 22 and 29C to 29F of the Public Order Act 1986 with a single offence of disseminating inflammatory material.
The Public Order Act should not be used to diminish freedom of speech. The term ‘inflammatory’ is subjective and therefore defining it in law would erode free speech.
Material that is critical of or opposed to Islam could be deemed ‘inflammatory’ under the proposals and therefore criminalised. This will bring into being an effective blasphemy law protecting Islamic beliefs from criticism. This would have very negative effects on Christian work in apologetics, outreach, education, church planting and service.
Likewise, these proposals would have a seriously damaging effect on free speech and communications in society.
We provisionally propose that intentionally stirring up hatred be treated differently from the use of words or behaviour likely to stir up hatred. Specifically, where it can be shown that the speaker intended to stir up hatred, it should not be necessary to demonstrate that the words used were threatening, abusive, or insulting.
These proposals mean that there would be no need to prove actual stirring up of hatred had happened.
We provisionally propose that where intent to stir up hatred cannot be proven, it should be necessary for the prosecution to prove that: 1. the defendant’s words or behaviour were threatening or abusive; 2. the defendant’s words or behaviour were likely to stir up hatred; 3. the defendant knew or ought to have known that their words or behaviour were threatening or abusive; and 4. the defendant knew or ought to have known that their words or behaviour were likely to stir up hatred. Do consultees agree?
Not requiring intent to stir up hatred to be proven makes it far too easy for complainers to shut down all kinds of discussion, debate and disagreement. This applies equally to religious and non-religious beliefs.
Defining words as ‘threatening’ or ‘abusive’ is extremely difficult. Equally difficult is to presume that defendants ‘ought to have known’ that their words or behaviour counted as such.
We provisionally propose that there should be a single threshold to determine whether words or behaviour are covered by the “likely to” limb of the stirring up offences, applying to all protected characteristics. Do consultees agree?
Not all characteristics are the same and therefore should not be treated alike. Race is innate and inherited. Religion, sexual orientation and transgender identity are different: they are beliefs, behaviours and social identities that can be adopted and relinquished by individuals. This means that it makes sense to discuss and debate them. The law should not restrict free speech for such discussion.
We provisionally propose that the offences of stirring up hatred be extended to cover hatred on the grounds of transgender identity and disability. Do consultees agree?
The available evidence shows that transgender identity may be sought out and relinquished by individuals. The philosophy that has been used to normalise transgender policies and identity is highly contested and not always well understood in society. The history of debates in this area shows just how fragile free speech has become, and how much it is needed. People in all professions and all walks of life need the freedom to discuss the issues without fear of being reported for hate crime.
We provisionally propose that the current exclusion of words or behaviour used in a dwelling from the stirring up offences should be removed. Do consultees agree?
The Public Order Act should not be extended to cover private dwellings. Removing the dwelling defence would destroy free speech and religious freedom in England and Wales.
Prosecuting threatening, abusive or insulting words which cause a person harassment, alarm or distress in a dwelling would clearly affect the following:
- Parents reprimanding children
- It would cause a spike in false allegations of abuse within households
- It would result in prosecution on grounds of family feuds and could fuel them
- It could be used against house groups and house churches
- It could be used against deliverance ministry and exorcism in private homes
- It could be used to criminalise ‘insulting’ Islamic beliefs in private homes
This proposal would seriously erode free speech for people working from home and online.
We provisionally propose that the current protections in sections 29J and 29JA apply to the new offence of stirring up hatred. Do consultees agree?
We agree that the current protections in the Public Order Act must remain.
We invite consultees’ views on whether similar protections should be given in respect of transgender identity, disability and sex or gender, and what these should cover.
Free speech protections must be given with respect for all these characteristics. People must be free to use a person’s name given at birth and pronoun corresponding to their biological sex, and to refuse to use ‘preferred pronouns’. People must be free to say that girls and women cannot become boys and men, and that boys and men cannot become girls and women. People must be free to say that gender reassignment and transition are morally wrong and must be free to give reasons for this view without risk of arrest or prosecution. People must be free to say that there are only two sexes.