Hate crime law reform in England and Wales: Another casualty of the “culture wars”?

On 2nd April 2026 by Mark Walters in hate crime, Hate crime legislation, Hate Crime Policy, Hate Speech, LGBT hate crime, Stirring up hatred

By Prof Mark Walters

When the government’s Crime and Policing Bill passed through the House of Lords last month, it was widely welcomed as a long-overdue step towards fairness in hate crime law. On its face, the Bill’s amendments represent significant and welcome reform. For years, England and Wales have operated a legal framework that critics have described as a “hierarchy of hate”; some forms of targeted abuse are prioritised within core criminal legislation, while others are relegated to sentencing provisions that carry less consistent application and weaker symbolic force. The Bill will, partly, resolve this disparity by extending the pre-existing racially and religiously aggravated offences set out in the Crime and Disorder Act 1998 to include the characteristics of sexual orientation, disability, transgender identity, as well as the new characteristic of “sex”. When fully passed, the legislation will send a clear signal that all characteristics are deserving of the same level of legislative protection.

Yet beneath the surface, this reform is far less ambitious than it first appears. Indeed, there is a real risk that it will come to be seen not as a turning point, but as a missed opportunity – one that prioritised political manageability over legal effectiveness. Before coming to power, the Labour Party had outlined in its manifesto a commitment to make “all existing strands of hate crime an aggravated offence”. Despite this pledge, the government did not take any immediate steps to amend the law during its first 18 months in office. Instead, progress came through a private member’s bill introduced by Rachel Taylor MP. Taylor’s proposed amendment was subsequently adopted by the government in June 2025 and fast-tracked to the Lords, with little to no fanfare.

In recent months, as the Bill progressed through the House of Lords, I advised several parliamentarians on further amendments that I believe are needed to strengthen protections against anti-LGBTQ+ and disability-related hate crime. I was initially told that my recommendations could not be included because the government had to tread cautiously due to the “culture wars”. I was separately urged not to make my concerns public, lest they undermine attempts by members of the House of Lords to secure the amendments I had outlined.

My advice was based on over 20 years of research on hate crime law, and importantly, on the Law Commission’s 2021 comprehensive review of hate crime law in England and Wales. The Commission’s 500+ page final report was the product of years of research and more than 2,000 consultation responses from members of the public, practitioners, academics and civil society organisations. It sets out 34 detailed recommendations designed to modernise the legal framework, address gaps in protection, and improve the consistency and effectiveness of prosecutions. Yet the government has chosen to implement just one of those recommendations: the extension of aggravated offences to new protected characteristics. That narrowness matters because the existing framework is not only incomplete but, in key respects, remains outdated and ill-suited to effectively addressing many of the types of hate crime it seeks to prevent.

Outdated definitions of protected characteristics

Consider, first, the legal definitions of the characteristics in the legislation. The Law Commission found that the definitions of sexual orientation and transgender identity were outdated and potentially exclusionary of some non-normative sexual and gender identities. The Bill ignores this issue. “Sexual orientation” still excludes orientations other than “homosexuality”, “heterosexuality” and “bisexuality”, including asexuality. Likewise, the definition of “transgender identity” remains narrow and outdated, defined as “being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.” This potentially fails to recognise violence that is directed towards victims who are non-binary or gender-fluid due to their non-conforming gender identities and expressions.

Meanwhile, Scotland’s Hate Crime and Public Order (Scotland) Act is not only more inclusive of the characteristics that it covers – including variations in sex characteristics and age – but its definition of transgender identity specifically states that it covers non-binary persons and individuals who cross-dress. Other British Territories that had originally adopted the provisions in the Crime and Disorder Act have also now moved away from this model, including the Falkland Islands, which repealed the English provisions in 2024, instead adopting the Scottish model, along with new more inclusive definitions of transgender identity and sex characteristics.

A legal test that doesn’t reflect the nature and dynamics of certain types of hate crime

It is not just the definitions of characteristics that have been left unchanged. The Bill also does nothing to address one of the most persistent problems in hate crime prosecutions: the central role of proving “hostility” as a legal threshold. Under current law, prosecutors must often prove that an offence was motivated by, or demonstrates, hostility towards the victim’s protected characteristic. Between 2015 and 2017, I led a team of researchers at the University of Sussex who examined the application of this legal test. We found that while the test is relatively straightforward in some cases, it poses evidential difficulties in others, particularly those involving disabled victims. Targeted crimes against disabled people are frequently driven not by overt expressions of hostility, but by other forms of prejudice, exploitation or opportunism rooted in biased perceptions about disabled people’s vulnerability. These dynamics do not always fit neatly within the legal concept of “hostility”, and courts have often refused to apply the existing provisions, frequently declaring that the abuse directed towards disabled victims is the result of their perceived vulnerability and not because the offender was “hostile” towards them. The result is a persistent “justice gap”, whereby most offences targeting disabled victims fall outside the scope of hate crime law.

The Law Commission explicitly identified this problem and recommended that the law be amended to include offences motivated by “prejudice” as well as hostility. The Commission reasoned that prejudice better reflects incidents driven by negative stereotyping, but which are not always conceived of as acts of “hostility”, at least in the literal sense. The government declined to adopt the recommendation. It is not clear why, but the result is a Bill that, while extending its scope to include disability, does so without resolving one of its most significant operational weaknesses.

Intersectional victimisation remains invisible in law

A similar pattern can be seen in relation to intersectionality. In practice, individuals are often targeted because of multiple aspects of their identity – race and religion, sexual orientation and gender identity, disability and gender. Yet the current legal framework struggles to accommodate this complexity, frequently forcing prosecutors to select a single characteristic as the basis for aggravation. This can distort the reality of the harm experienced and fail to reflect the full context of the offence. Again, the Law Commission proposed reforms to address this issue. Again, they have not been taken forward.

Abolition of Non-crime hate incidents (NCHIs)

Perhaps most tellingly, the Bill avoids engaging with the broader framework governing “stirring up hatred” offences, one of the most contested and politically sensitive areas of hate crime law. Currently, the Public Order Act 1986 covers three forms of stirring up of hatred: race, religion and sexual orientation. This means that the stirring up of hatred on the grounds of transgender identity, disability or sex is not a specific criminal offence. This omission leaves unresolved longstanding inconsistencies in the protection afforded to different groups. The government has indicated that it will wait for the Macdonald review before acting. But delay in this area comes at the cost of continued legal fragmentation and a failure to protect commonly targeted communities from hatred. Again, Scotland has already changed its legislation, based on extensive consultation and an independent review, ensuring that the stirring up of hatred towards all protected characteristics is included in law.

If the Bill’s omissions suggest caution, some of its inclusions point to a more problematic direction. Section 334 of the Bill explicitly abolishes non-crime hate incidents (NCHIs), representing a significant shift in policing policy. Introduced following the Stephen Lawrence Inquiry, the recording of such incidents was intended to help police identify patterns of hostility and intervene before incidents escalated into more serious forms of criminal offending. Their use has, in recent years, been the subject of controversy, particularly in relation to free speech online and perceived overreach.

There is a legitimate debate to be had about how such incidents should be recorded and used. But outright abolition risks discarding a potentially valuable preventative tool rather than reforming it. Properly implemented, the recording of NCHIs can play an important role in evidencing patterns of harassment, particularly in cases that later develop into offences such as harassment or targeted violence. Removing the mechanism for categorising incidents as hate-related will undoubtedly make it harder, not easier, to understand and respond to the dynamics of repeat victimisation. Readers may be interested to know that a detailed report on reforming police policy for recording incidents motivated by hate or hostility – led by Chief Constable Mark Hobrough and Paul Giannasi (National Police Chiefs’ Council hate crime leads) – has not been published and appears to have been quietly shelved. In its place, a completely separate, and much shorter, review was conducted by the College of Policing which recommended the abolition of NCHIs. Both Mark and Paul have resigned their positions as a result. The government has since announced that incidents will no longer be recorded as NCHIs, and any incident that is reported to the police will only be recorded if it is “relevant to policing for preventing or solving crime, safeguarding individuals or communities or fulfilling other statutory policing purposes”. Neville Lawrence, Stephen’s father, was not consulted on the new recommendations. He recently responded to the announcement stating that “This is going back on what Lord Macpherson’s inquiry did 27 years ago, back to where they used to be.”

Political expediency over a committment to social justice

Taken together, these choices reveal a reform agenda that is cautious to the point of constraint. The government has embraced the most visible and politically palatable aspect of reform, extending the aggravated offences, while sidestepping the more complex and, arguably more important, structural issues identified through years of expert analysis. This matters because hate crime law does more than label offences. It shapes how police record incidents, how prosecutors frame cases, and how courts interpret the nature and seriousness of targeted victimisation. A legal framework that fails to reflect the realities of hate-based offences risks undermining its own effectiveness, no matter how inclusive its formal categories appear.

There is also a broader political context that cannot be ignored. Efforts to reform hate crime law have become increasingly entangled in wider cultural and political debates. The result is a tendency towards incremental, carefully managed change rather than comprehensive reform. While this may be understandable from an unpopular government, it comes at a cost. The Bill has now returned to the House of Commons. If passed in its current form, the communities most affected by hate crime will be left with a framework that acknowledges their experiences in principle but does not fully address them in practice. In the end, the risk is not that this reform does nothing. It is that it does just enough to create the appearance of legislative protection, while the more difficult work of ensuring justice for victims of hate crime remains far from accomplished.