Should ‘gay-hate’ be a crime? Stonewall, the gay lobbying group of which I remain a solid supporter, has just sent me a briefing paper urging members to support Jack Straw, the Justice Secretary, in his proposals to make inciting hatred of homosexuals a criminal offence. The government is proposing new amendments to its Criminal Justice and Immigration Bill, adding ‘Hatred on the Grounds of Sexual Orientation’ to the offences of incitement to hatred on the grounds of race or religion.
I’m not convinced. I was equally unconvinced it was appropriate to prosecute incitement to religious hatred. My doubts about that (relatively recent) arrival on the statute book were various, but among them was the suspicion that this would prove the edge of a slippery slope. Other groups — gays? women? the disabled? — would soon step forward asking for the same protection.
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].’
Disagreeable stuff, but are we really proposing to call in the police when we hear such nonsense? And if rappers are to be hauled from the stage in handcuffs, why should actors in a production of Marlowe’s Edward II be spared? Lightborn: ‘See that in the next room I have a fire, and get me a spit, and let it be red hot.’ Is the distinction that a rap audience might be inspired to try this at home, whereas a Stratford-upon-Avon audience might not? Will the decision turn upon how sympathetic the audience may be to the words? Could we get Edward II prosecuted by taking a contingent of BNP homophobes to the theatre?
No, the briefest contemplation of the inherent difficulties will persuade an attorney general to steer well clear of the whole thing. There will be few if any prosecutions. Mr Straw will then hope to have had his cake and eaten it: pleased liberal voters with the law he’s passed, while framing it in a way which discourages its ever being prosecuted. But using lawmaking as a cheap political messaging system debauches the currency of statute.
‘The proposed new protections would categorically not impede genuine freedom of speech or the telling of jokes by comedians, as some have suggested,’ writes Stonewall. Stonewall has no basis for this assurance. There are certainly jokes about ‘niggers’ which could constitute a serious incitement to hatred, and there is no reason to suppose queer-baiting, however comedic, could not do likewise.
‘It would not hinder freedom of religious expression,’ continues Stonewall — proceeding at once to demonstrate a loss of confidence in that assurance by adding that ‘voicing temperate [my italics] opposition to same-sex relationships’ is any believer’s right. How temperate was God’s punishment of Sodom? Let us be clear about this: Islam, Judaism and Christianity all include groups (if not the majority) that encourage, on religious grounds, serious hatred of homosexuality. Religion is not always a temperate thing.
I hope that considerations like this will embolden the House of Lords to head off these new clauses for very practical reasons. The law cannot be made to work, except as a totem. But it would not be brave or honest to oppose it on grounds of practicality alone. Imagine we were (per impossibile) able to define incitement to homophobic hatred sufficiently tightly to make the law work. Should we?
I would still argue that we should not. The comedian Rowan Atkinson has remarked, most penetratingly, that the band of territory to whose south lies opinion which is prohibited, and to whose north lies opinion which is universally approved, seems to be narrowing. Among many who would call themselves progressive, tolerance of an opinion seems to be confused with accepting it, or warming to it, or having an open mind about it.
I hate homophobia and have no doubt that it is stupid and wrong. I feel the same about racism, and about the demeaning of the disabled, or of women. My mind is made up and my opposition ferocious. Yet in no way does this incline me to legislate. Stonewall should beware. The idea that it should be against the law to promote undesirable beliefs has a pedigree. It was called Section 28.
Matthew Parris writes for the Times.