Hate Crime plans would erode free speech

18 December 2020

Dr Carys Moseley comments on why new proposals to expand the law on hate crime in England and Wales would be disastrous for free speech.

The Law Commission has a consultation open on simplifying and expanding the law on hate crime in England and Wales. These proposals would have a significant negative impact on free speech and freedom of religion. They are just as bad as the proposals in the Scottish Hate Crime Bill tabled by the Scottish Government. They include consolidating existing hate crime law into a single Hate Crime Act and creating the post of Hate Crime Commissioner.

The Law Commission’s consultation document runs to 544 pages. This in itself is unfair as most people, including most churches, will not have the time and energy to respond to everything in it. As the government tends to listen to the Law Commission, there is a real risk that these proposals could become law sooner rather than later. We have responded to this consultation and provide a guide for you to respond as well.

The problem with hate crime legislation

There is a problem with hate crime legislation. The same crime is punished more harshly if courts find they were motivated by hatred on grounds of a small number of characteristics. This means offenders are treated unequally by the law. This sends out the wrong message to criminals. Victims are also treated unequally as a result. Some are effectively given greater protection in law than others. The principle of equality before the law is undermined. Those who are not deemed to have protected characteristics will justifiably feel inadequately protected by the law. The very notion that ‘hate’ motivated a crime rests on perception of victims or others. This is subjective and very hard to prove consistently.

In addition, recent history shows that hate crime legislation has become an excuse for undermining free speech. Words alone which are deemed ‘hateful’ can be recorded by the police as ‘non-crime hate incidents’. The excuse is that they could be signs that someone intends to commit a crime in future.

New protected characteristics

The Law Commission proposes the addition of a number of new protected characteristics to the existing list. The present list of protected characteristics under hate crime law includes race, religion, sexual orientation, transgender identity and disability. The proposal is for categories such as ‘sex workers’, ‘people experiencing homelessness’, asexual people and philosophical belief (including political opinions) to be added. As is illustrated below this would amount to significant state limitations on fundamental freedoms.

A major problem with these proposals is that they would deepen the existing inequality of victims before the law. The same crimes are treated differently if aggravated by hatred on grounds of any of the five categories listed above. Offenders found guilty on those grounds are sentenced more harshly. This sends out the wrong message to victims, offenders and society.

Sex or gender as a new characteristic

Chapter 12 of the consultation proposes that sex or gender should be added to the protected characteristics. However, the problem is that introducing sex or gender-based hate crime legislation would create a hierarchy of victims and leave victims of obvious sex-linked crimes such as FGM, forced marriage and honour-based violence lower down the rung of victims. This is because the authorities already do not convey the view that these are misogynistic crimes, i.e. motivated by hatred on grounds of sex, for fear of being accused of racial and religious hatred and Islamophobia. In addition, it would be impossible to prove in court that FGM is motivated by misogyny as it is a cultural practice done and approved by women.

We believe introducing sex-based hate crime category could demotivate people from coming forward to report some crimes against women and girls that are culturally-based, due to perceived breaking of ranks with hate crime lobbying within their own communities. This would be a particular danger in communities where the community and religious leaders are male, and where there are parallel problems of lack of respect for individual rights for women, eg. ballot-stuffing at elections.

Protection for ‘sex workers’ could jeopardise opposition to prostitution

Chapter 14 of the consultation shows that the Law Commission proposes that ‘sex workers’ (i.e. prostitutes) should become a protected characteristic. Aside from the fact that prostitution is an activity not an identity, and therefore not like race, this proposal is seriously flawed. This proposal would create a stigma around work opposing prostitution. Indeed, upon reading it is evident that the mentality is one of normalising prostitution as acceptable ‘work’. The Law Commission holds up the Yorkshire Ripper’s claim to have heard God telling him to ‘rid the streets of prostitutes’, as a key example of an anti-prostitution mentality (Section 14.29 of the consultation). However, it does not say that Peter Sutcliffe’s murderous mentality was very clearly the polar opposite of that of traditional Christian anti-prostitution campaigners. Yet the Law Commission’s uncritical citation of his defence at trial sends out the message that it would make his mentality – a cover for serial murder – the normative criterion for assessing all opposition to prostitution. It is very obvious that the intention here is to paint absolute opposition to prostitution as evil and to normalise prostitution as ‘good’ and harmless to society.

The end result of such distorted moral reasoning would be that people, including Christians, who work to opposite prostitution and pornography and their nefarious influence, could be reported for ‘hate incidents’ that are ‘whorephobic’. Sections of the Bible which oppose prostitution and paint it as a symbol of sin against God would be treated as ‘whorephobic’ hate speech. We already know what happens when speech is deemed ‘phobic’. These proposals need to be opposed in a principled manner.

‘People experiencing homelessness’

One of the more unusual proposals is that a hate crime characteristic should be created for ‘people experiencing homelessness’ (chapter 14). The entire proposal is built upon shaky foundations. The claim that crime against people experiencing homelessness is mainly perpetrated by ‘members of the public’ is only based on one sample of 336 respondents, and that their testimonies are taken at face value, not from court cases. This is unacceptable as the highest standards of evidence have not been reached. Somebody thinks it is perfectly fine to slander the general public in order to advance an agenda.

Charities and churches working to get people out of homelessness could fall foul of these proposals, as ‘experiencing homelessness’ would be treated in some quarters as beyond criticism. Strong criticism and disapproval could be reported as ‘hate incidents’. Family members seeking to help might be particularly at risk. Again, what we already know about public and police overresponse to hate crime legislation should serve as a warning. What is going on here is an attempt to normalise homelessness, and that is a tendency that should be strongly challenged. Homelessness is often linked to prostitution as well as the drug trade. In whose interests is it to introduce legal restrictions on free speech in this area?

Extending transgender category

The Law Commission proposes extending the existing transgender category to include people who cross-dress and people who identify as non-binary. This would make it impossible for churches and other organisations to formulate and uphold dress-codes for men and women and boys and girls. Those Christians who wish to teach from the Bible about dress-codes (Deuteronomy 22 and 1 Corinthians 11) could be reported for ‘hate incidents’.

The category of ‘non-binary’ should not be permitted as part of the definition of transgender. The Home Office has admitted in court that the provision of gender-neutral passports to assuage demands for recognition of non-binary identity would lower the efficacy of border security internationally. This should serve as a warning of what the criminal justice system would have to deal with if the transgender category were to be expanded further.

Some beliefs are more equal than others

The Law Commission proposes that philosophical beliefs such as humanism, naturism and veganism should be protected under hate crime law. Whilst this isn’t surprising there are some additional points made that would cause widespread erosion of free speech.

The legal case of Maya Forstater being sacked for defending the absolute nature of biological sex is referred to as one of her believing in an ‘objectionable political philosophy’ (section 14.169 of the consultation). As the Law Commission does not critically assess this interpretation of her case this suggests that it agrees, and therefore that it objects to the scientific truth that biological sex is actually based on people’s chromosomes and is therefore absolute. Oddly, this clashes with the Commission’s proposal to make sex a protected characteristic under hate crime law!

Protecting political beliefs stifles free debate

Astonishingly the Law Commission wants political beliefs to be protected under hate crime law. The idea that people holding political beliefs are potential victims of crime is not going to help free speech and decent debate. It is going to give a massive excuse for people to accuse political opponents of ‘hate speech’ and do so in order to stifle debate and criticism.

For a recent example of this we have the recent attack on a Welsh politician opposed to gender self-identification. This arguably is a philosophical and political belief, but interestingly not one that the Law Commission appears to want to protect. Helen Mary Jones the Welsh Parliament Member for Ceredigion has been wrongly attacked as hateful for retweeting a critical comment about transgender activists comparing the High Court judgment on puberty blockers to the Holocaust. For this she has had to apologise and there were calls to expel her from Plaid Cymru.

Ban on criticising multiculturalism

Bizarrely the Law Commission consultation document treats some ideas a ‘beyond the pale’ when they aren’t. For example, at section 18.66 criticism of multiculturalism is treated as a wholly objectionable idea. It is only a step to codifying this into hate crime law. This would censor not only all future critical writing on the subject but risk censorship of existing writing and recorded material as well.

If this proposal were to become law, it would only exacerbate the existing problems in the Home Office and local authorities regarding handling of grooming gangs. The recently-published report on them does not mention their links with certain Islamic beliefs.

Ban on anti-Islam cartoons

It is extremely concerning that paragraph 18.73 of the consultation paper complains about ‘Islamophobic cartoons’, following the Home Affairs Select Committee. The Commission’s proposals amount to legislating for an assassin’s veto.

It is very concerning that not offending Islam appears to be such a high priority of the Law Commission. This will only make life much more difficult for people living in the UK who are trying to leave Islam, those seeking asylum on grounds of religious persecution in Islamic countries, and Christians in ministry among Muslims.

‘Disseminating inflammatory material’

The Law Commission is very keen to reform the Public Order Act. It wants to reform it to create a single offence of ‘disseminating inflammatory material’.

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. Clearly all kinds of other controversial and unpopular views, including large swathes of the Bible itself, could be deemed ‘inflammatory’. Back in June the Roman Catholic Church in Scotland warned that similar proposals there could criminalise owning a Bible.

Criminalising conversations at home

Plans to criminalise words or behaviour ‘stirring up hatred’ inside people’s homes have been widely criticised in the press. Again, this would involve amending the Public Order Act, which currently has an exception for private homes.

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 carried out in private homes
  • Any criticism of Islamic beliefs and practices could be deemed as ‘insulting’ and therefore blasphemous in the eyes of Muslims. This means hate crime law would incorporate Islamic blasphemy law

Threat to online free speech

Criminalising speech in the home would also effectively cover everybody who is working from home including online. Given that so many people are now working from home due to the response to the Coronavirus pandemic, this law would cover conversations over telephone and social media platforms such as Zoom. These can be recorded and could be used as evidence against people.

Thus, the Law Commission’s proposals amount to a massive invasion of privacy and erosion of trust between colleagues and family members.

Threat to fundamental freedoms

It is obvious that these proposals amount to a very serious attack on free speech and religious freedom in England and Wales. They clearly present another potential risk to Christian work in certain areas, as well as to the fabric of society. You can read our guide to how to respond to these proposals. If we don’t speak up now, it will soon be too late to do so.

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