Crime and Policing Bill

Lord Moynihan of Chelsea Excerpts

Committee stage
Thursday 15th January 2026 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have signed this amendment because I think it is very sensible and covers some ground that really needs tackling. It would ensure that the police could not use live facial recognition technology when imposing conditions on public assemblies or processions under Sections 12 or 14 unless a new specific code of practice governing its use in public spaces has first been formally approved by both Houses of Parliament—that sounds quite democratic, does it not? It is intended to safeguard public privacy and civil liberties by requiring democratic oversight before this surveillance technology is deployed in such contexts.

It is always interesting to hear the noble Lord, Lord Hogan-Howe, former Met Commissioner, on the tiny little areas where we do overlap in agreement; I think it is very healthy. However, I disagree deeply when he says this is not the legislation and it should be something else. We keep hearing that. I cannot tell noble Lords how many times I, and indeed the noble Baroness, Lady Doocey, and the noble Lord, Lord Strasburger, have raised this issue here in Parliament and in other places. The noble Lord, Lord Strasburger, asked a quite interesting question: why should we care? Quite honestly, I care because I believe in justice and in fairness, and I want those in society. As I pointed out yesterday, I am a highly privileged white female; I have been arrested, but I was de-arrested almost immediately by the Met Police when all the surrounding people started saying, “Do you know who she is?” and they immediately took the handcuffs off.

At some point we have to accept that this needs regulation. We cannot accept that the police constantly mark their own homework. We were reassured that all the flaws in the algorithm and so on had been fixed, but clearly we cannot be sure of that because we do not have any way of knowing exactly what the flaws were and who has fixed them. Live facial recognition represents a huge departure from long-established principles of British policing. In this country, people are not required to identify themselves to the police unless they are suspected of wrongdoing. Live facial recognition turns that principle on its head by subjecting everyone in range of a camera to an automated identity check. It treats innocent members of the public as potential suspects and undermines the presumption of innocence.

I disagree deeply with the noble Lord, Lord Blencathra, when he says that it is not a blanket surveillance tool—of course it is. It is a blanket surveillance tool and is highly dangerous from that point of view. It is a mass biometric surveillance tool. It scans faces in real time, retains images of those flagged by the system and does so without individuals’ knowledge or consent.

If the police randomly stopped people in the street to check their fingerprints against a database, for example, we would rightly be alarmed. Live facial recognition performs the same function, only invisibly and at scale. Its use in the context of protest is a dangerous crossing of a constitutional line. We already have evidence that facial recognition has been deployed at demos and major public events, with a chilling effect on lawful protest. People will not go to these protests because they feel vulnerable. They are deterred from exercising their rights to freedom of expression and assembly because they fear being identified, tracked or wrongly stopped. While this amendment proposes a safeguard through parliamentary approval of a statutory code, we should not allow that to imply acceptance of live facial recognition at protests in principle. In my view, this technology has absolutely no place in the policing of democratic dissent.

We should reflect on the broader direction of travel. Live facial recognition is most enthusiastically embraced by authoritarian regimes, while a number of democratic countries have moved to restrict or even prohibit its use. That alone should surely give this Government pause to reflect on whether this is the right legislation to bring in. Independent observers have witnessed cases in which live facial recognition has misidentified children in school uniform, leading to lengthy and very distressing police stops. In some instances, those wrongly flagged were young black children, subjected to aggressive questioning and fingerprinting despite having done nothing wrong. What safeguards are in place to prevent misidentification, particularly of children and people from UK minority-ethnic communities? That is a basic question that we should be asking before we pass this legislation. I support the amendment as an essential check, but I hope that this debate sends a wider message that Parliament will not allow the routine use of intrusive biometric surveillance to become the price of exercising fundamental democratic rights.

I want to pick up something that the Minister said on Tuesday. He directed the Committee to the front page of the Bill and said that, in his view, the Bill was compliant with the ECHR. As the noble Baroness, Lady Chakrabarti, pointed out, that is his belief and his view. It is absolutely not a certificate of accuracy. I am not suggesting for one moment that there is any intent to deceive; I am merely saying that it is not a certificate of truth. With claims about seemingly authoritarian laws being compliant with human rights, that assessment can be challenged and should be challenged as much as possible. It remains subjective and is challenged by the organisation Justice, for example. We are clearly going to disagree about a lot in this Bill, but we are trying our best over here to make the law fair and representative of a justice that we think should exist here in Britain.

[Lord Moynihan of Chelsea (Con)]

My Lords, I was hesitant as to whether to speak here, but some years ago I had very close acquaintance with facial recognition software, so I thought it might be useful to say a couple of things.

First, I very much agree with the noble Lord, Lord Hogan-Howe, that this is an extremely good technology. I will get to the concerns expressed about it in a minute. This software has been used to apprehend murderers. For example, I think the Australian outback murderer was apprehended because of it and a far-right group of extremists in Sweden was identified by some very clever use of this facial recognition technology. It can be used successfully in preventing crime. Now, that is not all live use of the technology, and these amendments are about live use of the technology.

I very much respect the work of the noble Lord, Lord Strasburger. I am a great supporter of Big Brother Watch, and he and the noble Baroness, Lady Jones, make good points. Much is made of the disparity in accuracy between white and black faces. The software I was involved with had that problem. The reason for that is that it was trained on white faces—they were afraid of being thought of as racist if they focused on black faces. Therefore, the accuracy for black faces was much worse, they discovered, and so they quickly started training the software on black faces and the disparity closed right up. As far as I know, the disparity, if it still exists, is quite small, but others may know better than me. This was several years ago, but that definitely happened with this set of facial recognition software.

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[Baroness Jones of Moulsecoomb (GP)]

Shifty.

[Lord Moynihan of Chelsea (Con)]

Shifty is a great description—the noble Baroness could have said far worse than that.

I was given a hard time and then let go. We have to accept that there will be errors, but we have to understand where this is going. We can less and less afford to have police on the streets—we have seen that problem—and technology has to take over. Look at the super-spotters, a very successful crime-fighting group in New York. They would go to an area where there was a lot of crime—noble Lords will know that there was a process in New York where they directed people to crime hotspots—where they looked at the gait of individuals to see whether they were carrying guns or knives. Soon, people in those areas discovered that they had better not carry guns because they would be stopped by these super-spotters and arrested. If you are not carrying a gun, which they had all stopped doing, you cannot kill somebody because you do not have a gun to kill them with. It was a tremendously successful operation in lowering crime.

State-of-the-art facial recognition, at least before I stopped looking at it a couple of years ago, was more in gait than in face. We have to understand that you can start training technology to be much more effective than even these super-spotters at spotting people who are carrying, using their gait to recognise an individual rather than their face. There are all sorts of ways in which this software will be used to recognise people. It will get better and better, and fewer mistakes will be made; mistakes will always be made none the less, but that is the way of policing. They were mistaken when they stopped me—I was this tremendously law-abiding good chap, but they stopped me, and so will the facial recognition.

I loved the description from the noble Lord, Lord Strasburger, of the 20 police hanging around, which I am sure resonated with noble Lords around the entire Chamber as the sort of thing that happens, but over time we will have to depend on technology such as this. We will have to be extremely careful about civil liberties, but we cannot blanket get rid of this technology, because it will be very important to policing.

[Lord Blencathra (Con)]

My Lords, I had sought to intervene on the noble Lord, Lord Strasburger, before he sat down, but the noble Lord, Lord Hogan-Howe, beat me to it. I want to ask him a simple question but, first, I am sorry that we are on different sides of this—when we served together on the snoopers’ charter Bill, we were totally united that it was a bad Bill and we worked hand in glove to amend it. Can he tell me the substantive difference between a camera and a computer watching everyone in the crowd and picking out the wanted troublemakers and those 20 policemen he talked about looking at everybody in the crowd and picking out the wanted troublemakers from their briefing or their memory? What is the real difference between them?

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Moved by

[Lord Moynihan of Chelsea]

382F: After Clause 126, insert the following new Clause—
“Amendment to speech offences(1) The Malicious Communications Act 1988 is repealed.(2) Omit section 127 of the Communications Act 2003.(3) In the table in section 1(1) of the Criminal Justice and Police Act 2001 (offences leading to penalties on the spot) omit the entry relating to section 127(2) of the Communications Act 2003.(4) The Public Order Act 1986 is amended as follows.(5) In section 4—(a) in subsection (1)(a) after “threatening” omit “, abusive or insulting”, and(b) in subsection (1)(b) after “threatening” omit “, abusive or insulting”.(6) Omit sections 4A and 5.(7) In section 6—(a) in subsection (3)—(i) after the first “threatening,” omit “abusive or insulting”,(ii) after the second “threatening” omit “, abusive or insulting”, and(b) omit subsection (4).(8) In section 18(1)—(a) after the first “threatening” omit “, abusive or insulting”, and(b) after the second “threatening” omit “, abusive or insulting”.(9) In section 19(1) after “threatening,” omit “abusive or insulting”.(10) In section 20(1) after “threatening,” omit “abusive or insulting”.(11) In section 21(1) after “threatening,” omit “abusive or insulting”.(12) In section 22(1) after “threatening,” omit “abusive or insulting”.”Member’s explanatory statement
This amendment would amend a number of different Acts to ensure that freedom of speech is protected, so that a person cannot be prosecuted for causing “anxiety” or for “insulting” another person.

[Lord Moynihan of Chelsea (Con)]

My Lords, the amendments in this and the next group set out to remove criminalisation of elements of so-called hate crime on grounds that include incoherence, ineffectiveness and divisiveness. Anyone proposing an amendment of this sort risks being seen as favouring hate crime and hate speech, or of being careless or reckless about the real hurt that individuals at the receiving end of hate speech or hate crime might feel. The opposite is the case here. I vigorously oppose racism and any other form of discrimination, but I believe that the concept and the implementation of hate crime law are not just ineffective but counterproductive.

There are three types of hate crime law that I seek to amend in this and the following amendment: first, direct criminalisation of certain offensive words; secondly, an enhanced sentence when a crime is aggravated by directing certain offensive words towards individuals with certain protected characteristics; and thirdly, stirring up offences based on use of offensive words, behaviour or material so as to arouse hatred against an individual with certain protected characteristics. My first amendment would abolish the criminalisation of particular offensive words that are merely grossly offensive, while still leaving in place the sanctioning of any words that would cause or provoke actual violence or fear of violence.

In our national history, hate crime law is new. We got along perfectly well without it for many centuries until the Race Relations Act 1965 was passed to prevent race violence and discrimination. We have now gone a long way further than that first law, with hate crime legislation embedded in a number of different Acts, covering both deeds and thoughts, and going beyond race into a number of different protected characteristics, the most recent of these being transgender. Sometimes all that is needed for a conviction is if the victim or, indeed, any person takes offence, sometimes with no test of reasonableness. Many see this as having divided society into warring grievance groups.

These laws are not working. Unintended consequences roll in. Hard cases make bad law. Criminalise one obviously appalling thing and, by doing that, it is hard not to criminalise other not so appalling things—so Graham Linehan is arrested by five armed police at the airport. You get police incentivised to pursue soft targets for soft crimes. You get police encouraged into a Stasi mindset, telling ordinary citizens, “I need to check your thinking”. Have these laws created social cohesion? No. Antisemitism, for example, has suddenly become widespread in our country.

These laws are confusing. Late last year, the College of Policing issued guidance on female genital mutilation stating that trans women—which is to say men—whether holding a gender recognition certificate or not, are just as threatened by female genital mutilation as are women and girls. This was utterly absurd—but if you say it is wrong, you have to be prepared for possible investigation by well-meaning but improperly informed police.

These laws are cluttering up the justice system. I think noble Lords understand this, but I will talk about it in greater detail when I get to my second amendment later.

These laws are onerous on the innocent. It is difficult to exaggerate the devastating effect that an arrest and a subsequent multi-month legal process can have on a law-abiding citizen, even when, at the end of it, they are exonerated.

An overall hate narrative has spread across politics and society, with so many random accusations of hate speech or hate crime leading to controversy, or worse. Charlie Kirk was shot dead in America by someone who had been persuaded that Kirk had been hateful against the trans community. Last month, a teacher was referred to the national counterterror programme and forced out of his job after showing videos of Donald Trump to his sixth-form politics students.

These laws are crushing our country’s free speech tradition—the heartland of our national character and the driver of our national success over the centuries. In America, the First Amendment is:

“Congress shall make no law … abridging the freedom of speech”.


In our history, George Orwell is venerated for saying that free speech is worthless unless it extends to things that people do not want to hear. Lord Justice Sedley is venerated for saying:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to promote violence. Freedom only to speak only inoffensively is not worth having”.


We revere Queen Elizabeth I for saying that she had no desire to look into a man’s soul, but now we have judges looking into men’s souls on a regular basis.

Along with the suppression of free speech, cancel culture has flourished. A woman in a Stoke-on-Trent focus group that I observed shocked me when she said to general agreement in the group, “Of course, none of us can say what we’re really thinking”. Freedom in the Arts ran a large UK survey in 2024-25 that found that 84% of artists said that they never, rarely, or only sometimes feel free to speak about their social or political opinions for fear of ostracism, bullying or loss of work. Until people can say what they are thinking—so long as, of course, they do not incite imminent violence—we do not have our traditionally free country.

Turning to the key provisions in my amendment, proposed new subsections (1), (2), (5), (6) and (8) to (12) would remove the criminalisation of specific offensive words. Proposed new subsection (1) would repeal the Malicious Communications Act 1988. A person can currently be sentenced under that Act to up to two years if they send a letter or electronic message that is either intended to “cause distress or anxiety” or employs “indecent or grossly offensive” words. A well-known report from Big Brother Watch found that, over a three-year period, there were more than 1,000 charges and more than 600 cautions under that Act.

Proposed new subsection (2) would omit Section 127 of the Communications Act 2003, which provides for jail for up to six months for sending a “grossly offensive” message, or a message that is

“of an indecent, obscene or menacing character”,

or knowingly sending a false message to cause

“annoyance, inconvenience or needless anxiety”.

The Big Brother Watch report showed nearly 3,000 charges and more than 1,000 cautions under Section 127. These various numbers have probably increased, not declined, since that report. A lad stupidly joked on Twitter that if Robin Hood Airport was not going to be open next week, he would blow it up. He was convicted under Section 127, and it took three appeals before that was overturned. The process was his punishment, for someone who was innocent. The Big Brother Watch report found at least 355 cases under these two Acts involving social media, with the rate increasing, not declining.

Proposed new subsection (5) would amend Section 4 of the Public Order Act 1986, which provides for up to six months for intending to make likely or cause someone to believe that “immediate unlawful violence” will take place when using

“threatening, abusive or insulting words or behaviour”

or distributing or displaying “threatening, abusive or insulting” signs. My amendment would leave “threatening” in place, but remove “abusive” and “insulting”. Threatening behaviour involving imminent unlawful violence should clearly be illegal, but surely that is enough.

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[Lord Hanson of Flint (Lab)]

I thank the noble Lord, Lord Moynihan of Chelsea, for the way in which he put his arguments. I fully accept his contention that they are not designed to include his belief in racism or discrimination and the fair and open way in which he made his points. The same comments apply to the noble Baroness, Lady Fox of Buckley, and the noble Lords, Lord Blencathra and Lord Young of Acton. I understand their motivation and where they are coming from, but I have to say straightaway to the Committee that I do not agree with the direction of travel. We will resist it and I will explain why in my comments.

Before I do so, let me say that—and I hope this is helpful for the noble Lord, Lord Young of Acton—on the issues he raised around non-crime hate incidents, we are going to come to those in a later debate on Amendment 416E. The College of Policing is producing a report and review, chaired by the noble Lord, Lord Herbert, as the chair of the College of Policing. I commit to the Committee that that review will come forward before Report on this Bill, and we intend to look at it as a Government and respond to it. The points that the noble Lord, Lord Young of Acton, mentioned are probably more relevant when we have the debate on Amendment 416E, if he accepts my comments. We will revisit that in due course.

Amendment 382F proposes to repeal to the Malicious Communications Act 1988 and make significant changes to the Communications Act 2003 and the Public Order Act 1986. I understand the motivation for the noble Lord, Lord Moynihan, to bring them forward, but they include removing key provisions that have been in place for many years, were passed under different Governments of political complexity and have been consistently applied in case law.

The terms the noble Lord seeks to omit from the Public Order Act 1986 are understood by the police and the CPS, and there is case law interpreted by the courts. These provisions provide police with proportionate tools to manage low-level public disorder and protect the public from threatening or abusive behaviour, as well from those who seek to stir up racial hatred. The existing legal framework already ensures that enforcement decisions are made proportionately and in line with human rights obligations, including the right to freedom of expression.

I emphasise to the Committee that the personal example cited by the noble Baroness, Lady Brinton, shows that these laws are here for a purpose. Her comments have highlighted the question: how would each of us like to be on the receiving end of an abusive or insulting comment or phrase about a personal characteristic of our lives that we cannot change? Attack me for my politics by all means, because that is the view I have taken, but attacking individuals, or showing insulting or offensive behaviour towards individuals for characteristics they cannot change, is a step that we need to consider very carefully.

Let us look at what Amendment 382F from the noble Lord, Lord Moynihan, seeks to remove. The amendment would repeal the Malicious Communications Act 1988, including the offence of sending a

“letter, electronic communication or article”

to someone

“which is indecent or grossly offensive”,

if the purpose of sending it is to

“cause distress or anxiety to the recipient”.

That is quite a heavy protection for people that the noble Lord is seeking to remove.

The amendment also seeks to remove Section 127 of the Communications Act 2003, including the offence of sending, or causing to be sent,

“by means of a public electronic communications network a message or other matter that is grossly offensive … indecent, obscene or menacing”.

Again, those protections are included in the 2003 Act to protect individuals from grossly offensive, obscene, indecent or menacing communication, yet the noble Lord seeks to remove that today, for the reasons he outlined to the Committee.

The amendment also seeks to repeal Sections 4A and 5 of the Public Order Act 1986, including the offences of causing:

“Intentional harassment, alarm, or distress”,


or harassment, alarm or distress without intent. The amendment would remove, from the same Act, “abusive or insulting” from the following offences:

“Fear or provocation of violence … Use of words or behaviour … written … to stir up racial hatred … Publishing or distributing written material … to stir up racial hatred”,


and public performances of a play intended to stir up racial hatred. I want to protect free speech—protecting free speech is absolutely right—but we also have to protect the rights of individuals to enjoy a life free from “grossly offensive” insults, “intentional harassment”, and “abusive or insulting” material.

The noble Lord seeks to repeal “abusive or insulting” from Section 21 of the Public Order Act:

“Distributing … or playing a recording … to stir up racial hatred”.


The amendment, it appears, intends to strengthen protections for free speech. I understand where the noble Lord wishes to come from on that—that is a fair and open debate between us—but it does so by decriminalising behaviour that is, in the law and under all those Acts, “abusive and insulting”. I am sorry, in this Committee I am not going to accept that approach on behalf of the Government.

As we know, we will have the review from the noble Lord, Lord Macdonald of River Glaven, who will look at the wider issues of hate crime legislation and the independent review of public order. I take the strictures of the noble Lord, Lord Davies of Gower, that we cannot stick everything into the review, but we also have the review from the College of Policing—which I will refer to again; I have already done so in response to the noble Lord, Lord Young of Acton—which is looking at those issues.

I still think, given what the noble Baroness, Lady Brinton, said, that there is a basic floor from which society needs to protect individuals from abuse and insulting behaviour. The existing offences are not just used to put that floor in place; they are also used—this is a really important point which I hope the noble Lord will accept—to ensure that the police have the ability to intervene early in public order situations where they could support the protection of vulnerable people, who may be alarmed by abusive or insulting conduct, which has a disproportionate impact. The existing offences are used to manage public order and racial hatred and provide the police with proportionate tools to respond to a range of behaviours.

The offence thresholds should not and do not interfere with free speech. The review is going to conclude very shortly and the Government will consider and respond to those recommendations afterwards.

I simply say to the noble Lord that I hope that he thinks very carefully—as I know he has already; I do not want to be patronising—about the content of the debate we have had today, the comments that I have put to him about why those legislation aspects have been passed by a Thatcher Government and a Blair Government, and why there is a need to protect individuals, along the lines of the experience of the noble Baroness, Lady Brinton, which she mentioned. They are there for a purpose and I believe that the Committee should ask the noble Lord, having heard the debate, to withdraw his amendment and, I hope, not visit it on Report.

[Lord Moynihan of Chelsea (Con)]

I thank noble Lords for what I hope everybody felt was a stimulating and useful debate, with a great number of differing views expressed by different noble Lords. I thank the noble Baroness, Lady Fox, for her eloquent support of the amendment. It was so depressing to hear her point out that we, the original home of free speech, are now seen around the world as one of the worst countries in suppressing it.

My noble friend Lord Blencathra presented the case for the amendment rather more eloquently than I was able to and, equally, with eloquent personal experience, which I felt was interesting, as indeed—I will talk about this in a minute—did the noble Baroness, Lady Brinton. My noble friend Lord Young, again in far more eloquent terms than I, gave stark evidence of the dysfunctionality of the law, with the huge numbers of interventions by the police. Some 12,183 arrests was one statistic he quoted, in one year alone for just one act.

I add to the various mentions of where the police were forced to pay £10,000 or £20,000 in compensation that we should remember that that is not police money; it is our money. I would rather like to see that money spent in better ways and police time to be spent in better ways.

I thank the noble Lord, Lord Strasburger, for his brief intervention and move on to the very affecting speech from the noble Baroness, Lady Brinton. She was talking about how hate material should be legislated against. I will address that in the next amendment, which comes immediately after this. By the way, I can assure her that I played no part in the degrouping of my amendments from those of my noble friend Lord Young. I was deeply sorry to hear of that awful and appalling incident that the noble Baroness had to suffer at the railway station. I entirely agree that the people there should have intervened and supported her. It must have been just dreadful to have been sitting there with no support—until, of course, after the event, when there was plenty of it.

The noble Baroness may want to look at Hansard tomorrow, but my amendment would leave in place the ability of the police to go after that dreadful person who abused her because she was threatening imminent violence with that kick. Whether it was accurately placed or not, that was violence. I agree with that law, which should have gone after her. Facial recognition might have helped.

[Baroness Brinton (LD)]

The issue we are trying to get to is where the boundary is between free speech and abusive behaviour. The police would have had problems saying that it was threatening if she said, “Oh, I was just dancing around the chair”. This is what they explained to me at the time. The issue that protected me was that she was abusive and insulting, and they could record it. Had they been able to find her, they could have checked to see whether it had happened elsewhere, which they thought would have been likely. That moves into the area of the next group, so I will not talk any further, but I am very grateful to the noble Lord for raising that.

[Lord Moynihan of Chelsea (Con)]

I thank the noble Baroness for that explanation. She clearly demarcated our difference in view as to where the line should be drawn. I suggest to noble Lords that it is important to draw the line at the threat of imminent violence. That has been a principle in the past, but it has been breached by recent laws and actions by the police.

The noble Lord, Lord Davies, kindly supported this amendment—

[Lord Katz (Lab)]

I hate to interrupt the noble Lord’s flow, but I thought this an apposite time to point out that Members should normally be brief when pressing or withdrawing an amendment. The Companion is clear that you do not have to respond to all points raised in the debate. We are now over five minutes. I urge the noble Lord to conclude his remarks.

[Lord Moynihan of Chelsea (Con)]

I remember the noble Lord, Lord Katz, taking almost 30 minutes the night before last when he had a time limit of 20 minutes. His remarks were so interesting that I did not feel like repining. I certainly would have finished by now had there not been interventions.

I thank the noble Lord, Lord Davies, for kindly and eloquently supporting my views and turn finally to the Minister who, although speaking as always in the kindliest way, gave a most disappointing reply. I hope that, after the debate on the next amendment, he might reconsider. I was surprised that he still supported criminalisation of offending feelings after such a comprehensive listing by many speakers of the problems created by that in the various laws. I will talk more on this on the next amendment. In the meantime, and for now, I beg leave to withdraw this amendment.

Amendment 382F withdrawn.

Moved by

[Lord Moynihan of Chelsea]

382G: After Clause 126, insert the following new Clause—
“Abolition of hate crime and offences related to hate(1) The Public Order Act 1986 is amended in accordance with subsections (2) and (3).(2) In the long title, omit “to control the stirring up of racial hatred;”.(3) Part III and Part 3A are repealed.(4) The Crime and Disorder Act 1998 is amended in accordance with subsections (5) and (6).(5) In the long title, omit “to create certain racially aggravated offences;”.(6) Omit sections 28 to 33.(7) In the Anti-Terrorism, Crime and Security Act 2001, omit section 39.(8) The Racial and Religious Hatred Act 2006 is repealed.(9) In the Criminal Justice and Immigration Act 2008, omit section 74 and Schedule 16.(10) The Sentencing Code is amended as follows.(11) Omit section 66.(12) In section 160(1), in the table, omit the entry relating to “section 25 or 29I of the Public Order Act 1986”.(13) In Schedule 18, omit paragraph 22.(14) In Schedule 21, in paragraph 3 omit—(a) sub-paragraph (2)(g) and (2)(h), and(b) sub-paragraph (3).”Member’s explanatory statement
This amendment would abolish all classes of “hate crime”, aggravating factors based upon “hate” and stand-alone offences relating to “hate”.

[Lord Moynihan of Chelsea (Con)]

My Lords, my prior amendment would have removed criminalisation of offensive speech. This second amendment would remove criminalisation of hate as a motive. Mostly this relates to where, if a particular kind of hate directed at particular protected characteristics is proved to be involved, then the crime is considered to be aggravated and so the sentence is then increased. It also includes crimes associated with the stirring up of hatred.

Enhancing a convicted person’s sentence to an aggravated offence is a peculiar idea. In his latest Netflix special, which I am quite sure that most noble Lords have watched at least once, the comedian Ricky Gervais directly mocks this law—to loud audience applause. Recognition of the foolishness of the idea has now spread into popular culture. If I kick someone to the ground—I am not very good at fighting so I probably would not, but if I did—either for no reason or, let us say, because I hated their ginger hair, and I caused them grievous damage, I would go to jail for five years. But if I did exactly the same because I hated their sexual orientation or some other protected characteristic, that could be 10 years. Ricky Gervais pointed out that this implies that motiveless crime or a crime motivated by hate against a non-protected characteristic is not as bad as the same crime where there is hatred against a particular protected characteristic. I find that nonsensical and so did he. As he said to applause, “It’s a crime. Punish the crime”.

Prosecution would certainly be far simpler and investigations far more straightforward if we just addressed the crime and not the thoughts behind it. The whole idea of punishing thought is what used to be described as happening in a totalitarian state: thought crime. Stirring up violence directly should, of course, be criminalised, but criminalising the stirring up of hatred towards people with protected characteristics falls foul of free speech concerns in two different ways. First, it criminalises someone’s words by proving an intent to stir up based on the individual’s protected characteristics, which is very hard to discern. Secondly, it criminalises the stirring up of certain, specified thoughts about people with those protected characteristics in other people’s minds, which is equally hard to discern.

Note that the current popularity of the TV series “The Traitors” is precisely because of how impossible it is to detect another’s hidden thoughts. If those clever people on TV cannot do it, what chance has a court? It would be far better to criminalise just the stirring up of violence: after all, if violence is stirred up, a conviction occurs, so no further prosecution is necessary; if no violence is stirred up, given the concerns that will be raised about free speech and the like, why criminalise the words?

The key provisions in this amendment are, first, to repeal or omit Parts III and 3A of the Public Order Act 1986, which increase the imprisonment term to up to seven years when, in addition to the original crime, there is also the intentional stirring up of hate or likelihood that hate will be stirred up based on race, religion or sexual orientation—not disability, interestingly enough, as the noble Baroness, Lady Brinton, will note. Secondly, it would omit Sections 28 to 33 of the Crime and Disorder Act 1998, which increase the imprisonment term to up to 14 years when an assault, criminal damage, public order offences or harassment are “racially or religiously aggravated”. Thirdly, it would omit Section 66 of the Sentencing Code, which increases sentences for certain crimes where there is, in addition, hostility to actual or presumed racial, religious, disability, sexual orientation or transgender characteristics. Stirring up, intentional or otherwise, is considered an aggravator that leads to higher sentences, although there is a somewhat ambiguous partial get-out for religious hostility.

I will not repeat the points that I made in my speech on the previous amendment about the multiple ways in which these laws fail to work, but I promised then to talk in particular in the speech on this amendment about the way in which hate crime law is clogging up the judicial system—so here goes. First, police forces are wasting thousands of hours on investigating hate crime allegations. As my noble friend Lord Young of Acton pointed out, dozens are arrested every day for online posts. Around 140,000 hate crimes are recorded annually across race, sexual orientation, religion, disability and transgender issues.

The police are now being sued for wrongful arrest by, among many, Graham Linehan. The noble Baroness, Lady Nicholson, has alleged that, in that case, the police were manipulated into the arrest by a transgender former police constable who had been dismissed for gross misconduct some time before.

A general public perception now arises that phone theft is downplayed, shoplifting ignored, and carjacking, burglaries and sexual offences all have less time spent on them than if the police could focus on them rather than being distracted by their pursuit of hate crime.

Secondly, the Crown Prosecution Service is flummoxed by what the law actually says. Isabel Vaughan-Spruce has been left in legal limbo for almost a year after being arrested for standing in silence in an abortion buffer zone, with the CPS still unable to decide whether she should be prosecuted. She has already received five-figure payouts from the police—as I mentioned, that is our money—for previous unlawful arrests, but, again, the year-long process is her punishment. The Koran burner’s violent knife attacker was given only a suspended sentence, yet the CPS is still seeking to convict the Koran burner himself of a criminal offence using the violence of his attacker as proof that the Koran burning stirred up disorder. This is a blasphemy law in all but name.

The Law Lord Jonathan Sumption has pointed out that the CPS has issued official advice that hatred can include “ill-will”, or ill feeling,

“spite, contempt, prejudice, unfriendliness”—

so now we have compelled friendliness—and

“antagonism, resentment and dislike”.

The CPS showed its advanced level of confusion by advising that:

“Evidence of … hostility is not required for an incident or crime to be recorded as a hate crime or hate incident”.


It has now withdrawn that last piece of advice, but not before sowing much confusion. We cannot blame the CPS too much; the legislation is, overall, a dog’s dinner.

The list of hate words in the actual legislation is long, including anxiety, insulting, distress, harassment, alarm, threatening, annoyance, inconvenience and abusive. In some of the hate crime laws, only one or two of these words appear; in others, up to five appear, but never the full nine words in any of the legislation. The word “distress” happens to be the most favoured in the legislation, appearing in seven out of the 11 laws. Poor old “annoyance” appears in only one of these laws. As for the five protected characteristics that are mentioned in the various laws, again, it is an incoherent mishmash. Some hate laws mention only one protected characteristic, while only the Sentencing Code mentions all of them. “Transgender” appears the least frequently.

We could, with difficulty, make an attempt to help the CPS by clearing all of this up, but we could also sort out the problem much more easily by abandoning the whole hate crime approach, focusing on the deed rather than the thought in what we prosecute.

Thirdly, the courts are burdened. The Government are proposing to abolish many jury trials because the courts are overworked. If we got rid of hate crime laws, is that not a better way to free up court time? Because of the ambiguity in the law, it is a postcode lottery at the courts, with acquittals on the silent prayer issue in Birmingham but convictions in Bournemouth.

Fourthly, the prisons are overburdened. I estimate that there are just a few hundred, very likely fewer, hate crime offenders currently imprisoned. But given the recent reports of a crime wave due to violent prisoners having been released early, surely every single freed-up prison place that could come from the abolition of these laws should count as a blessing.

I had almost forgotten to include the Probation Service, but was handily reminded that it is burdened as well by a newspaper article today revealing that Lucy Connolly—I do not think I need to say who she is—has been told by her probation officer that she was risking being sent back to jail, after spending around a year there for a tweet, after some random, unknown member of the public complained that they were offended and that she was inciting violence because she had retweeted a meme suggesting that Donald Trump should send troops to kidnap Keir Starmer. As far as I know, there are quite possibly some Labour Peers and MPs who share her sentiment, but, even if they express that sentiment in public, I would argue that they should definitely not go to jail for doing that. It is yet another example of the metastasis of these hate laws and a waste of probation officers’ time.

All these problems could be resolved were we to cut out or severely cut back on this large and recently introduced body of hate crime law. I urge noble Lords to embrace the benefits of cleaning up and slimming down our criminal law, focusing better on the real physical and cybercrime that besets our country at this time, which in many cases goes unpursued and unpunished because there are not enough judicial resources to pursue those crimes vigorously enough. To that end, I beg to move this amendment.

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[Baroness Brinton (LD)]

Fortunately, the judge took a different view. I think that we have to accept—and I was not the judge and do not know what his thoughts were—that the tweet was clearly seen enough times by the public at the moment when a small number of people were causing real concern outside hotels that had asylum seekers in them who had absolutely nothing to do with the Southport stabbing. That was the issue. Therefore, I believe that this is exactly where the balance lies between rights and responsibility, to go back to John Stuart Mill, where we started in the previous group.

[Lord Moynihan of Chelsea (Con)]

I thank the noble Baroness for letting me intervene. Will she agree that it is unfortunate that there is a general perception that this lady—on whose case I do not rest any of my argument, or place any reliance, as I discussed in my 40-page submission to the Macdonald review—was inveigled into pleading guilty by being kept on remand in a case where it would not have been usual to keep such a person with such an alleged crime on remand? She pled guilty because she thought that she would be released early—more fool her, it turns out—and as a result of her pleading guilty, the matter referred to by my noble friend Lord Young, that she said “for all I care”, which may have turned out to be an excuse that led to her exoneration in front of a jury, much like that 17-minute jury decision that he mentioned, was never litigated, so that we could have discovered what the law said as to whether her tweet reached the standards for criminal conviction. Does the noble Baroness not think that unfortunate?

[Baroness Brinton (LD)]

I do not think that it is unfortunate given that the judge said that 310,000 views of that tweet happened at a time when there was discord on the streets. My argument is not about Connolly’s case; it goes back to Article 10 in the Human Rights Act, which says that along with freedom of expression or freedom of speech there are rights and responsibilities, and it is the role of the state to have laws to protect people. It cannot have been right to think that even one person seeing that tweet could have started one of the arsons in the bins outside one of the asylum seeker hotels. I do not know whether that happened; the point is that 310,000 people saw it, and that is the difference with her last phrase, which probably most people did not see or did not take in the way that the noble Lord has indicated—he has raised his eyebrows at me, but there are different ways of taking it. I do not want to get into the detail of that; I am trying to make the argument that, for every instance of freedom of speech by an individual, there are quite often consequences that may or may not end up as a crime as well. That brings me back to the point that the noble Baroness, Lady Hunt, raised earlier—that the level of hate crimes is increasing. We also know that hate crimes are seriously underreported.

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[Lord Moynihan of Chelsea (Con)]

I apologise for intervening again, but does the noble Baroness not accept that had that matter been litigated it would not have been before the judge? It would not have been for the judge to rule; it would have been before a jury, which is something that we in this country enjoy and that unfortunately there are moves to suppress. It would have been in front of a jury, and a jury would have been able to decide whether that final point justified her exoneration.

[Baroness Brinton (LD)]

The noble Lord said that he did not rely on Lucy Connolly in his earlier argument; he is now trying to rely on that case here. I am trying to make the point that it is more complex than he made out in his earlier contribution. I would like to make some progress, if I may.

The previous Government’s LGBT survey in 2018 showed that fewer than one in 10 LGBT people reported hate crimes or incidents. The noble Baroness, Lady Hunt, has explained one of the reasons for that. The other reason, I know from friends who have also experienced this sort of hate crime, is they do not believe that the police will do anything. I say to the noble Lord, Lord Young, that that is one of the reasons why there is concern about the police: too often, people who are targeted in this way feel that they do not get the help that they need.

As has been described, there is no single piece of hate crime legislation. It includes aggravated assault, which the noble Lord, Lord Young, was particularly concerned about. The point about hate crime is that it is not just the individual; the protected characteristic means that they and their community are also affected by it. We have spent many hours on previous groups on this Bill discussing the absolute abhorrence of antisemitism. If actions in Israel can cause people in the UK to start attacking members of our Jewish community, either verbally or against a person or their property, then that is absolutely unacceptable. That is one of the reasons why I would never want hate crimes to be removed.

Research by Professor Mark Walters of Sussex University shows that hate crimes do not affect just those individuals targeted; he describes them as having a “ripple effect” through their wider communities. Some people will avoid certain routes and places, and others will not leave home at all, particularly in our Jewish communities at the moment, but the same is true in certain areas for our Muslim communities. If laws about hate crime are weakened or repealed, it would send an appalling message to these communities of faith, as well as to LGBT and disabled people. Do the supporters of the amendment really no longer regard it as important that the state recognises the communities that have protected characteristics—their vulnerability—as warranting distinct legal recognition and criminalisation?

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[Lord Hanson of Flint (Lab)]

The noble Lord, Lord Macdonald of River Glaven, is expected to produce a report at some point during the next couple of months. I cannot give a definitive time for that, but I can tell the Committee that we will obviously make sure that it is published. There are likely to be Statements or an Urgent Question in this House on the report. We will first look at how we as a Government consider the recommendations and, secondly, if we need legislation, what mechanism that would be and when it would be brought forward. I can tell my noble friend that there will be a full discussion on the report when it comes. I cannot, as yet, constrain the discussion from the perspective of the noble Lord, Lord Macdonald, by answering the question my noble friend posed.

[Lord Moynihan of Chelsea (Con)]

My Lords, I thought that too was a great debate and that the Minister managed to articulate very clearly that there is clear water between two opposing groups of thought on these matters. I am gagging to launch into a half-hour speech to attempt to respond to what he and others said, but I am mindful of the earlier admonitions from the noble Lord, Lord Katz. I merely thank the noble Baronesses, Lady Fox, Lady Hunt and Lady Brinton, my noble friends Lord Young and Lord Davies, and the Minister for their contributions.

I believe that it is time to call an end to this hate crime law experiment. The criminalisation of hate speech and hate crime was overambitious. It punishes ideas and motives, as opposed to actions. As I have shown, I believe it is choking up the justice system and shutting down free speech. I will close by slightly misquoting Samuel Johnson:

“How small, of all that human hearts endure,

That part which laws ”—

or Lords—“can cause or cure”. Having said that, for now, I beg leave to withdraw my amendment.

Amendment 382G withdrawn.