Crime and Policing Bill

Debate between Lord Young of Acton and Baroness Hunt of Bethnal Green

Committee stage
Thursday 15th January 2026 Lords Chamber

[Baroness Hunt of Bethnal Green (CB)]

I thank the noble Baroness for her intervention. It is a really important question, and I will try to remember to keep speaking in the third person, because I do want to just talk.

Has the proliferation of legislation helped prevent hate crime? During the past two decades we often saw increases, and we would question whether those increases were a product of increased hate crime, or an increased awareness of the legislation that led people to report. I am aware that, being of my generation, I am reluctant to report. There is a part of me that thinks, “You had it coming, and you should probably have taken your tie off for that walk down that street. You brought it on yourself”, added to which I do not want to waste police time. There is a conditioning that goes on with minority communities, and it takes some changing in how we think about these things to give communities permission to say that they did not have it coming, they do not deserve it, and that they have the right to talk to the police about those incidents.

I welcome the increase in reporting. Nevertheless, there has been an overreliance on using some of this legislation for incidents that should not constitute a hate crime. What happens when those cases are brought and those complaints are made, and how they are investigated, absolutely requires examination and thought. However, that does not justify the wholesale removal of hate crime legislation, which is a disproportionate response to the problem that has been identified.

[Lord Young of Acton (Con)]

My Lords, I rise to support the amendment of my noble friend and the noble Baroness, Lady Fox of Buckley. I also declare my interest as a director of the Free Speech Union. I will make three arguments against the statutory hate crime regime, and against embedding the concept of hate crime in British law. As we have heard, and as we are all aware, the concept of hate crime is inextricably bound up with protected characteristics. A hate crime is either the stirring up of hatred against the bearers of certain protected characteristics, or it is a crime that becomes a hate crime because the perpetrator is motivated by hostility towards one or more of the protected characteristics of the victim.

The number of protected characteristics in this statutory framework, however, varies from law to law. Hate crime law, on the face of it, is for that reason slightly confusing and incoherent. There are three protected characteristics in the stirring-up offences in the Public Order Act, five are referenced in the aggravated offences regime, seven in the Hate Crime and Public Order (Scotland) Act, and nine in the Equality Act. How can we rationalise this anomaly? The solution of successive Governments has been constantly to add new protected characteristics to the statute book. I dare say it is possible that, in due course, amendments will be made to the Crime and Policing Bill to add yet more protected characteristics to the criminal law.

The direction of travel is clear: the number of protected characteristics is constantly expanding, and various lobby groups are constantly petitioning parliamentarians to add ever more protected characteristics to the statute book. The end point of this process will be that every characteristic is protected; but if every characteristic is protected, then no particular characteristic will enjoy special protection and we will, in effect, be back to where we started pre-1965, before the concept of hate crime raised its head in British law.

My first argument is that, in the interests of saving us all a great deal of time and effort, can we not just short-circuit the process of getting to the point where every characteristic is protected by stripping out the concept of hate crime and protected characteristics from British law and returning to the pre-1965 status quo?

My second argument has been touched upon by the noble Baroness, Lady Fox of Buckley, which is that the concept of hate crime is at odds with the sacrosanct principle of equality before the law. Why should bearers of protected characteristics enjoy more robust legal protections than non-bearers? Why is a criminal offence motivated by hostility towards a victim’s transgender identity punished more severely than exactly the same crime motivated by the victim’s sex? Sex is not a protected characteristic, apart from in the Equality Act. This two-tier justice—this sense that some people, because they happen to belong to protected groups, enjoy additional legal protections—fosters grievance, breeds resentment and undermines public trust in the law and in the police in particular. In 1981, around 87% of Britons reported having confidence in the police. By 2022, that had fallen to about 67%, a substantial long-term decline. I would suggest that one of the reasons for declining public trust in the police is this sense that some groups are better protected than others because of the hate crime, protected characteristic regime.

My third argument, which is probably the strongest argument, is that the aggravated offences regime introduces the concept of thought crime into British law. We need to distinguish between mens rea and the particular thought someone is having towards the victim while committing a particular crime. I do not think, when assessing the seriousness of an offence, you could exclude motive. It would be absurd not to take motive into account, but that is different from punishing a crime more severely if a person is experiencing a particular emotion—hostility, hatred—towards a particular group that the victim of the crime belongs to. Mens rea is universal and does not discriminate, but hate crime does. It says that if you are having particular thoughts about the victim when you commit the crime—importantly, not hatred in general, but hatred based on their possession of one or more protected characteristics—you should be punished more severely.

Not only is this criminalisation of certain thoughts a hallmark of a totalitarian society, but, as my noble friend Lord Moynihan pointed out, it is very hard to prove. It is very hard for a court to determine whether the person accused of the crime had the verboten thoughts while committing the crime. To paraphrase Queen Elizabeth I, we cannot open a window and see into men’s souls.

I am perfectly aware that an amendment stripping the concept of hate crime from British law has little chance of winning a Division in this House, so let me close with some more modest proposals. Do not add any more protected characteristics to the list of aggravators. Extend Section 29J of the Public Order Act, which protects various forms of criticism of religion and makes it more difficult for people to be prosecuted for stirring up religious hatred. You can criticise a religion, even quite robustly, thanks to Section 29J and not be prosecuted for stirring up religious hatred.

One useful improvement to the hate crime statutory regime would be to extend Section 29J to the other stirring-up offences. For example, the Free Speech Union paid for the legal defence of a former Royal Marine called Jamie Michael. He robustly criticised illegal immigrants in a Facebook video and, as a consequence, he was prosecuted for intending to stir up racial hatred. It took a jury in Merthyr Tydfil all of 17 minutes to unanimously acquit him of that offence. He should never have been prosecuted. We need a protection in the Public Order Act whereby, if you make robust criticisms, even of legal migration, you should not be vulnerable to a charge of stirring up racial hatred.

Finally, an anomaly in the stirring-up offences is that you can be prosecuted for stirring up racial hatred if the effect of your words or behaviour is likely to stir up racial hatred, even if that is not your intention—whereas you can be prosecuted for stirring up religious hatred or hatred on the basis of sexual orientation only if you intended to do that. That is an anomaly, and my recommendation would be that a two-limb test has to be satisfied before one of the stirring-up offences can be made out. To successfully prosecute someone, it should be incumbent on the Crown to show not only that what they said or did was likely to stir up hatred against the protected group in question but that they intended to as well. That would bring British law to a certain extent into line with the Brandenburg test in the US first amendment, whereby you can be prosecuted only if your words or actions are not only likely to but were intended to cause imminent lawless action.

So, accepting that this controversial proposal that my two colleagues have bravely made is unlikely to ever win enough support in this House as presently constituted to win a Division, I urge the Committee to consider those more modest reforms.