Legislating Against Hatred: The Law Commission Proposals on Extending Existing Hate Crime Legislation

In June of this year, the Law Commission (the law reform body for England and Wales) published a consultation paper entitled ‘Hate Crime:  The Case for Extending the Existing Offences’.

The current ‘hate crime’ legislation in England and Wales consists of the following:   a) the aggravated offences under the Crime and Disorder Act 1998 whereby basic criminal offences such as assault and criminal damage attract a higher maximum penalty if the defendant demonstrates hostility against race or religion or is motivated, or partly motivated by such hostility; b) offences under the Public Order Act 1986 where inciting hatred on the grounds of race, religion and sexual orientation is criminalised; and c) sentencing provisions under s. 145 and s. 146 of the Criminal Justice Act 2003.

The Law Commission was instructed by the Ministry of Justice to consider whether the Crime and Disorder Act 1998 offences should be extended to sexual orientation, disability and transgender identity, and whether the Public Order Act 1986 offences should be extended to disability and transgender identity.

Broadly speaking, the proposals were in favour of the extension of the legislation to a wider category of victim.  It should be noted that the Law Commission’s preferred first option for aggravated offences was not to recommend an extension but instead to deal with hostility on grounds of sexual orientation, disability and transgender identity at the sentencing stage; but the Law Commission is also open to an extension of the offences under the Crime and Disorder Act 1998 should sentencing be deemed insufficient.

The existence of hate crime legislation has attracted a great deal of controversy because of the doctrinal issues which arise in relation to the criminalisation of hatred.  The Law Commission was clearly aware of this debate, and to this end, asked John Stanton-Ife (an academic) to write a theoretical piece laying out some of the normative questions which have troubled commentators.

However, what is striking is that despite the Law Commission’s awareness of these concerns, John Stanton-Ife’s contribution and the importance of the questions he poses were not always overtly apparent in the shaping of the proposals.  The Law Commission declined to consider the rationale for the current legislation as it viewed this as being outside of the terms of reference set by the Ministry of Justice which required only a consideration of the widening of the law to other characteristics.

However, it is difficult to see how an extension of the law can be justified without some principled understanding of the purpose and limits of hate crime legislation.  This is not purely an academic question as there have been calls from other quarters to extend the law to other characteristics beyond race, religion, sexual orientation, disability and transgender identity.  For example: as a direct result of a campaign by the Sophie Lancaster foundation, Manchester Police now record crimes against members of alternative subcultures such as goths as hate crimes; Merseyside police treat allegations of crimes against sex workers in the same way as hate crimes;  there are campaigners asking for the inclusion of obesity on the list of protected characteristics; and the Crown Prosecution Service has already begun to focus on hate crimes against the elderly.  As such, we need a theoretical framework that can determine which groups should be protected by hate crime legislation and which should not.

My own view is that such a justification lies in linking the developments in hate crime legislation to the broader equality agenda, as seen particularly in the employment sector.  This can give us a clearer explanation of the rationale for hate crimes, and consequently can guide us in determining which victims should be included in the list of protected characteristics.

There may have been an attempt, both by the Ministry of Justice in setting a very restricted remit, and by the Law Commission in interpreting its role narrowly, to ensure that the publication of this report did not reignite the debate about the legitimacy of hate crime legislation.  However, although there is a clear need to move the debate beyond the question of whether we should have hate crime law, the underlying normative concerns still need to be addressed in order to ensure that the law we do have is fair, consistent and rational.  The Law Commission, by trying to side-step these core issues, missed an opportunity to change the parameters of the discussion.  As a result, their proposals appear in a doctrinal vacuum which makes it difficult to judge their true strength.

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