Another voice

I oppose a ‘gay-hate’ law because that is not what criminal legislation is for

Matthew Parris

Wednesday, 5th December 2007

A gay hate law would be nothing more than a gimmick

One such group now has. Let me outline my doubts in this case. First the difficulties of implementation. When seeking to identify proposed legislation of doubtful practical use, it is a useful rule of thumb to watch out for ministers and lobbyists claiming its virtue to be that it will ‘send out a message’ that this or that is socially unacceptable. It is as though the criminal law was really just a branch of public service advertising — another way, alongside radio, television and the newspapers, or perhaps direct leafleting, of signalling a recommended set of values to the citizenry.

And so it is in this case. Stonewall’s paper concludes by declaring that this provision ‘would send a strong signal’ that homophobic behaviour ‘is unacceptable in a civilised society’. Warning bells should ring at once. When the Theft Act was introduced in 1967, I don’t recall that anyone claimed its value to be that it ‘sent out a message’ that stealing was unacceptable. Road traffic legislation criminalising dangerous driving is not primarily there to send out a message that we should drive carefully. Good law, the kind that stands the test of time, is there to define with all necessary precision behaviour which will invite successful prosecution.

But those framing and those who recommend this new crime of gay-hate shift immediately on to the defensive when anyone raises the question of prosecution. Implicitly they concede that the concepts involved are too cloudy to be captured in language which could offer certainty as to what did or did not constitute the sort of offence it would be wise to bring to court. Ministers are driven, just as they were with proposals to criminalise incitement to religious hatred, to insinuate that the law won’t actually be prosecuted often, or perhaps at all; and that all kinds of safeguards will be put in place to limit recourse to it. There will be (says Stonewall) ‘a high threshold for prosecutions, which must be approved by the attorney general and heard before a jury’.

I am not against juries or attorneys general, but recourse to their involvement in relatively minor crimes like this suggests a lack of confidence that the wording of the statute can be a sufficient test; so ‘common sense’ needs to be enlisted to filter out cases which we would not in fact wish to prosecute, but which do seem to be caught by the wording.

Illustrating the sort of speech which Stonewall presumably would wish to see prosecuted, the briefing quotes the website www.amazon.co.uk, on which may apparently be found lyrics like: ‘Roll deep motherf***a, kill pussy-s***er [lesbians]’; and ‘Tek a Bazzoka and kill batty-f***ers [homosexual men].’