On December 18th, DDU submitted a collective response to the Law Commission’s call for responses to Hate Crime Laws.The proposals in our review have considered the tension which exists between competing interests in society, but in our opinion there needs to be a commitment, traditional in Britain’s political development, to maximum space for individuals to flourish free from state interference. The Law Commission’s Consultation Paper, referred to in our response, can be read here: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2020/10/Hate-crime-final-report.pdf.
DDU’s collective submission, co-ordinated by Ash Hirani and Jenny Unsworth follows below:
While we accept some legal restrictions are needed to protect people from tangible harm, it is the scope and extent of that regulation that we question. More specifically, we think that the proposals in the proposed legislation blur the distinction between speech and acts that incite hatred and violence. One unintended consequence is that mission creep is encouraged that creates a fearful climate for freedom of thought and speech. For example, over the past five years police in England and Wales have recorded 120,00 non- crime hate incidents .[1] A tolerant and democratic society requires a strong commitment to free speech; it is the only way for ideas to be tested, refuted, changed or accepted.
Don’t Divide Us does not condone violence or hatred against any individual or any groups. We felt that the Report was wide-ranging and considered many sides of the question. However, we do not believe that society should be defined through groups; we believe that every individual in society is a human being and, as a person, entitled to be treated with respect even while challenging or openly ridiculing ideas.
We reject the idea of protected characteristics which give priority to an individual as a member of a group, which then determines the protection the law might afford against harm from speech. Our view allows for greater scope for nuanced judgments while also reducing the risk of encouraging individuals to see themselves primarily as victims through being a member of a group. Hate Speech legislation, based on giving greater punitive powers according to whether a victim falls under a protected category classification, is divisive and creates suspicion and fear where openness, trust and a generosity of spirit are needed for social solidarity.
We do not believe that the Review has succeeded in defining hate crime or in correctly determining, or perhaps as importantly, setting necessary limits. Little thought seems to have been given to determining its impact on society. Furthermore, legislation is not acceptable in a free democratic society unless basic principles are observed. These include equality before the law and the upholding of freedoms of speech, expression of ideas and of association. It is our view that some of the proposals in the Review fail to do this.
We object to the proposals for new Hate Crime legislation being put forward by the Law Commission because they:
- fail to provide a usable definition of hate crime. The conclusions of the study appear to be that “hate crime” is difficult to identify and can be subjective. It is important that society does not punish or criminalise people for holding an opinion or to satisfy the demands of others with a particular view. What will prevent hate crime just being in the mind of the beholder? The issue here is not only with those who perceive themselves to have been victims or witnesses to such matters, but also the views and subjective opinions of practitioners from the police, the CPS, the judiciary and pressure groups.
- have assumed that hate crime is mainly or solely experienced by groups in society who are in a minority position by virtue of an immutable personal characteristic or a self-identified characteristic.This would not extend protection to those who fall outside these categories and reveals the difficulties of trying to break society down into identity groups. Don’t Divide Us objects to this on the grounds that it has the potential to set sections of society against each other and destroy social harmony. Hate crime is not just the preserve of the white man or of majority groups. It can be perpetrated by anyone, regardless of background, against any group. Essentially, any act by any individual, if deemed to be a hate crime, brings about a position where a large section of the population could become criminalised merely for having a view on any given matter.
- in adopting the definition put forward by Barbara Perry, confirm the idea that hate crime can be defined solely as a victim/oppressor narrative defined by immutable personal characteristics. (3.4, p. 53). This ignores evidence to the contrary. It also ignores the rights of individuals to refuse to be identified by such characteristics. Power is often wielded by elites or minorities, and there is plenty of evidence that hostility and hatred can be demonstrated by members of minority groups toward members of majority groups and towards other members or individuals of minority groups. If “hate crime” exists, it should not be interpreted as just something that only “minority groups” can experience. We believe it is important to maintain a distinction between feelings of offense, or disrespect, and objective criteria of relevant harm defined as an assault to a person, or damage to, or disruption of a person’s enjoyment of their property or lawful activities.
- will exacerbate the perception of a two-tier society in which individual people are not treated equally before the law and, in doing so, fundamentally change a principle that has provided the bedrock of British justice for generations. This is not equality or human rights. The difficulty with categorising any individual is that they are labelled and grouped. In doing so, they are robbed of individual agency by a system that treats them as a victim, a responsibility for whom rests more with the state than the individual themselves.
- fly in the face of deeply entrenched and cherished expectations of equal justice, and have the potential to cause justifiable resentment in those who believe they are being treated as second-class citizens by reason of their skin colour, beliefs, sex or other personal characteristic.Instances where this has led to serious social upheaval have been down-played or ignored. This is particularly divisive as it assumes membership of a particular group on behalf of individuals based on visible, declared or perceived differences. Outcomes are not the same for every “member” of such group – nor are their respective positions on any given subject.
- through the adoption of the Perry position have taken an inappropriate political stance based on an unproven sociological theory.The theory is an extension of critical race theory and is overtly political. Its claims to be reliable knowledge are highly contested by some academics[2] because of its weak powers of generalisability and explanation.
- imply a definition of hate crime that could be used to oppress, silence or punish those who disagree with a particular received or presumed opinion or point of view. This relates in particular to some of the proposals for the monitoring, policing and punishing of speech, thought and artistic expression. It might be more effective to have a Bill of Rights that enshrines the rights of everyone in society.
- adopt the idea of the “core values” of society, but fail to define how these should be recognised, reached, amended or debated in a free democratic society. (Paragraph 3.94). In fact, the proposals suggest a set of core values based on the ideas of identity politics and of punitive control of speech, ideas and expression. There are people who disagree with this. Who establishes or determines “core values” and, if debate is hindered, how will this process take place? This is problematic and an affront to what most people regard as their human rights, whether adequately protected by current law or not.
- fail to explain how the process of “denouncing social evils” can be achieved without criminalising speech, action and association that is currently considered lawful and compatible with a free democratic society. (Paragraph 3.94). The level of debate in society can be very acrimonious, but who will decide what is a social evil when this in itself is a matter of opinion? How much does this suggest that the judicial system is being used politically to curtail freedom of speech and to enforce a received opinion decided by an elite?
- fail to consider how the adoption of a process which aims to denounce social evils can be prevented from denigrating into witch-hunting and vendetta. “Social evils” are denounced on a regular basis by politicians and polemicists, in media outlets, in the theatre, in pulpits, in academic circles and in both the pub and the private house. The potential for this to escalate into a chillingly restrictive society and the practical difficulties involved in policing laws arising from the urge to “denounce”, are enormous. This is particularly problematic with the advent of social media. At DDU we have been contacted by numerous individuals who have either been officially sanctioned for questioning mandatory training which strayed beyond recognised professional requirements into the nebulous area of individual’s beliefs. Aside from the practicalities of monitoring individual speech (and, by extension, thought), this is highly unethical: freedom of conscience has been a longstanding cultural norm in Britain.
- propose a widening of the law to include invasion of privacy without explaining why this is really necessary or desirable. The proposals treat this as bringing hate crime into line with other offences that permit monitoring of private households, but do not give any valid reason why this particular misdemeanour or crime justifies such an invasion of privacy. This is dealt with under “stirring-up”, but there is little or no explanation of the scale or effect of this to justify such a draconian response. This is perhaps one of the most dangerous aspect of these proposals and amounts to excessive control over the lives and conduct of individual citizens on the basis of purely subjective criteria. Who can say what is offensive to one individual will be offensive to all others who can be similarly classified under the same protected characteristic?
- have the potential to criminalise trivial, hasty or ill-considered speech. This could lead to serious, life-affecting consequences for those who are convicted. Much of the decision-making process that is being proposed relies on subjective value judgments and would reduce the appeals process to a procedure where the judgment would also be subjective.
- when related to belief systems and identity, have the potential to silence dissenting voices and to allow the interpretation of such dissent as hate crime. This is particularly worrying where the matter relates to religious fundamentalism or bigotry, or to political arguments. The proposals do not appear to include safeguards for those who wish to oppose some philosophies and ideas. The crimes arising from the Charlie Hebdo incidents in France reveal the inherent difficulties of this position. The actual crime is murder, but defence for the murderers has framed this as a matter of religious freedom for them and as blasphemy for the producers of the relevant cartoons. It is important that the state should not frame laws that could be used as justification or mitigation for crime because different people hold different views.
- accept an approach to the principle of self-identity that is debatable and contentious. Whilst Parliament may be the final arbiter on this issue, the idea is itself both debatable and contentious. The proposals have the potential to render questioning of issues such as this into hate crime. At the very least, it creates a situation where people become outliers, operating on the fringes of society and of open debate, even where they represent a majority or have justifiable concerns.
- have the potential to lead to unexpected consequences. On the 28th November 2020, Law Commissioner Penney Lewis wrote in the Daily Telegraph that “nothing we suggest would affect the fundamental principle that hate speech laws should only criminalise expression likely to incite hatred, for example cartoons that demonise a particular racial or religious group, such as by showing the group raping or murdering others.” Such a provision would make a cartoon, lampoon, satirical or serious image a crime. It has the potential to criminalise such depictions as the Passion of Christ or images from extermination camps. These could be interpreted as images that “demonise a particular racial or religious group.” Yet both play a vital role in understanding Christian beliefs and verifying the facts and the evils of the Holocaust.
- duplicate existing legislation that already provides protection for many of the offences that have been identified.The Crime and Disorder Act 1988 already allows for the aggravated version of many offences, which allows for tougher punishment. The Public Order Act 1986 also provides for a range of words and behaviours to be curtailed in the name of preventing hurt to others. Some of this can be very subjective and could be highly problematic for individuals who have committed no crime, who later wish to work in a job that requires an enhanced DBS check; if a non-crime hate incident shows up as part of police records, that individual may lose a job opportunity.
The authors have stated in Chapter 3. 3.14 that “It is also important to emphasise that our terms of reference for this review do not ask us to question the notion of more severe punishment for hate crimes or determine if it is principled. We simply intend to outline some of the main arguments that have been offered to justify more severe punishment in this context.”
We appreciate the limits of the terms of reference, but we would hope that the Law Commission takes seriously the danger of over-reach and mission creep which have a strong chance of leading to division and injustice to individuals in the way we have outlined above.
Thank you
Don’t Divide Us – dontdivideus.com
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