This article is taken from the February 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

Do we need a Hate Crime Act? Offences that are motivated by hostility towards victims’ race or sexuality already attract heavier penalties. But the government’s law reform advisers are now recommending clarifications and amendments, ideally in a new act of parliament.

In a 545-page report published at the end of last year, the Law Commission acknowledged that most people who responded to an earlier consultation were against its provisional proposals. As a result, the commission’s final recommendations are more conservative.

But commissioners pointed out that many responses came from individuals who disagreed in principle with protecting different classes of victims differently. And yet incitement to racial hatred has been an offence since 1965. In the government’s view, there can be no going back.

Currently only race and religion trigger an aggravated offence

It’s important to stress that we are not discussing the police recording of so-called non-crime hate incidents, but the criminal law of England and Wales. I should also declare an interest as a non-executive board member at the Law Commission, although I have no responsibility for its recommendations.

Hate crimes work in two different ways. Sometimes the law starts with a basic offence, such as assault or criminal damage, and creates a more serious “aggravated” version if there is hostility towards a racial or religious group which attracts a higher maximum penalty. Other offences can also lead to enhanced sentencing without change to the offence or maximum penalty. But a higher sentence, within the existing range, is given where the hostility is based on five “protected characteristics”: race, religion, disability, sexual orientation or transgender identity.

Currently only race and religion trigger an aggravated offence. The commission recommends adding the other three characteristics. It also thinks the definition of sexual orientation should be extended to protect those who are asexual. And transgender should now include gender-diverse identities such as non-binary.

There are also specific offences of stirring up racial or religious hatred and hatred on grounds of sexual orientation. But most hate speech is prosecuted under public order or communications laws. The test for these is gross offensiveness and, earlier in 2021, the Law Commission recommended replacing this with a test based on harm.

It was ironic, then, that some of those who responded to the consultation believed it was proposed that hate crimes should operate on the basis of offensiveness. Their recommendations had been “grossly misrepresented”, the five commissioners said. “In particular, a large number of respondents had been led to believe, wrongly, that we had proposed that visual representations of Mohammed, or at least cartoons like those published in Charlie Hebdo [in 2015], would be criminalised.”

The offence of stirring up racial hatred can be committed by using words or displaying written material (except in a dwelling); by publishing written material; performing a play; showing a recording; broadcasting a programme; or possessing inflammatory material. The test for such offences is that the words, behaviour or material were threatening, abusive or insulting and intended or likely to stir up racial hatred.

Stirring up hatred in similar circumstances on grounds of religion or sexual orientation is also an offence. But the bar is set higher: the words, behaviour or material must be threatening and the conduct must be intended to stir up hatred. There are specific protections for freedom of expression. But these apply only to stirring up hatred or grounds of religion or sexual orientation. So critics of Jewish or Muslim practices may be protected against charges of religious hatred but not racial hatred.

Has the commission found the right path between protecting minorities and preserving free speech?

The law commission recommends a single test. It would be an offence if the defendant had used words or behaviour intended to stir up hatred; or had used threatening or abusive words or behaviour likely to stir up hatred. The definition of hatred would be extended to all five protected characteristics plus sex or gender, including stirring up hatred against women — or against men.

The commission also says the “dwelling” exception for words should be replaced with a provision exempting private conversation. The definition of written material already includes any sign or other visible representation; commissioners say that should cover images.

Turning to possession and dissemination of inflammatory hate material, the report recommends consolidating existing laws into a single and more limited offence. Freedom of expression would be better protected and there would be new protection for the view that sex is binary and immutable.

In 2020, the historian David Starkey made remarks about slavery in a video interview with Darren Grimes that led to both of them being investigated by the police. No further action was taken — but the commission recommends a new defence for neutral reportage.

Has the commission found the right path between protecting minorities and preserving free speech? That’s what the government must now decide.