Andrew Tettenborn

Does Britain really need more hate crime laws?

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Free speech requires a leap of faith: a belief that even if bad speech does harm, the good done by allowing people to say what they think clearly outweighs it. You either have that faith or you do not. Unfortunately it seems that the Law Commission does not, at least if a recent document it brought out on hate crime and hate speech is anything to go by.

In England, laws governing hate speech – which make it criminal to say offensive things to particular groups – are fairly limited in scope. You must not say or publish anything threatening, abusive or insulting which is aimed at stirring up racial hatred, or which is likely to do so; and you must not say or publish anything threatening with the intent of fomenting hatred based on religion or sexual orientation. That is it. Apart from a few provisions about causing alarm or distress to people in general, and a notorious law – section 127 of the Communications Act 2003 – making it a crime to post anything grossly offensive on the internet. But keep away from these and, broadly speaking, you can say what you like in Britain.

But is the Law Commission troubled by the existence of this degree of freedom? Its 530-page consultation paper is replete with references to hate crime reported to police and the awful effects of insults on members of marginalised and oppressed groups. Having turned to a detailed listing of the limits which the European Convention on Human Rights allows states to place on free speech (unfortunately a rather long list), its preliminary prescription is drearily predictable. The problem is the lack of proper controls on hurtful speech. The solution? An enormous extension of what we are not allowed to say about each other. If you have followed the difficulties surrounding the Scottish hate crime bill, all this will be depressingly familiar.

First, chapter 18 of the report suggests trans people, asexuals, non-binary people and women could be added to the list of disadvantaged groups people are not allowed to insult.

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