Nick Herbert defends hate crime legislation

In a speech to the Bar Conference at the weekend, Nick Herbert, the shadow Justice Secretary, took on critics from across the political spectrum to put the Conservative case for retaining hate crime legislation - although he took care to express what he felt should be the limits to such laws.

“Victims of hate crime experience a form of stigmatisation which carries a clear message that they, and their community, are a target, and that they are of marginal value,” he argued. “These crimes also create mental crime maps of harassment for communities. They contribute to creating no-go areas for some people.” 

However, he was quick to add that there should be no infringements to the historic right to freedom of speech.

“The balance must always be struck so that people are free, and feel free, to voice opinions and disagreement which, even if objectionable, are not directly harmful,” he continued, outlining a need for a delineation between “temperate criticism” and “language which is so inflammatory that it causes harm or triggers violence”.

“The balance which I believe should be struck in deciding whether a hate crime is proved, and which reflects Parliament's will, is – to use the expression in the US Supreme Court decision R.A.V. v. City of St Paul – that 'fighting words' fall on the criminal side of the line, but merely offensive comment should not. Parliament has not introduced an offence of thought crime; nor should we.

“The response of our law enforcement agencies must always be proportionate and must target the criminal, not just the immoral or unpleasant. Parliament did not intend that harmless abuse should be subject to criminal sanction. People who set out their views about gay practices in a temperate way might still cause offence, as might those who call Irishmen leprechauns, but such comment is not criminal, and should not attract heavy handed policing, still less prosecution.

“The police and Crown Prosecution Service should focus on those who seek to spread violent hatred. They should not be wasting resources on the politically-correct pursuit of neighbours who engage in tasteless insults. We must guard against a culture that allows criminal justice agencies to pursue easy targets while simultaneously allowing preachers of hate to call for the stoning of gay people”.

He also made the important conclusion that legislation is not the primary, let alone the only, way to change behaviour and public morality:

“Attitudes may be constrained by laws, and sometimes led by them, but ultimately it is only by fostering a shared feeling of responsibility that we can promote a tolerant society where people are considerate towards others and their feelings,  and where they exercise judgement in what they say and do… So we should not believe that laws are a panacea. We will never outlaw hate, any more than we can outlaw anger. But we can set a careful framework to outlaw hatred which really harms, while protecting fundamental liberties.”

Read the Times's report of Nick Herbert's speech here.

Jonathan Isaby

Comments

[anon]

Idiot. Can we please have a second chance at rating the shadow cabinet members as Herbert has gone from 'excellent' to 'worse than Maude' in one go.

Tim / Jonathan - can you please post a link to the 'hate crimes' episode of South Park? This should be mandatory viewing.

[Moderniser]

This is a balanced approach to a difficult issue. Thankfully, the days when Conservatives harboured racists and homophobes amongst the membership particularly in the older generation, are behind us.

Nick is setting out a rational definition of modern conservatism. Tasteless abuse is acceptable, but fighting words will not be tolerated.

[David (One of many)]

"Tim / Jonathan - can you please post a link to the 'hate crimes' episode of South Park? This should be mandatory viewing."

Quite - "If you're going to kill someone, you'd better make damn sure they're they same colour as you."

I like Nick Herbert, but there is no justification for maintaining hate crime legislation, or indeed for having 'hate factors' included when passing sentence.

[anonymous]

allowing preachers of hate to call for the stoning of gay people”.

Has always been an offence. I knew I was right about BluLab. Pick anybody but the three main parties.

[Common Sense]

Of course, incitement to violence is something that the criminal law should punish. I'm afraid Nick is talking about something subtly different.

In practice, 'hate crime' is code for the institutionalisation of bias against unprotected groups. So if I say that gypsies are parasites, the police will come calling but if I say the same about public-school educated toffs, the police will ignore me. And if I say that Muslims are superstition-ridden nutters, the police will knock my door down but if I say the same about Christians, they will merely yawn.

I have not read the full text of Nick's remarks but I am afraid he has ignored the key fact: it is the Left that decides who is and is not protected by 'hate crime' legislation. Singling out particular groups for special treatment causes division and encourages a profoundly unhealthy victim mentality.

[snegchui]

Anon :
http://uk.youtube.com/watch?v=whUrp-bDxGw
The whole area ia a morass:
(1) Intent vs Perception.
In Sexual harrassment, as I understand it, if an individual feels that intent was present to impose hurts, insecurity then a a crime has been committed and the perpetrator can argue till kingdom come that intent was not present, they are guilty.
(2) What is "fighting talk"? Too loose by half. A 20 st 6' 6" individual addresses a 12 st 6' individual A with a racial epithet. No fight ensues. Same epithet to B who is someone nearer sized or in possession of an "equalizer" (there is a term of the past), all hell breaks loose.
Who started the fight?
(3) Why are not such activities covered by "Breach of the Peace" legislation? ie name-calling tends to irritate people who on occasion may let fly. Police Officers seem to have no problems for arresting people who continue to swear at them, why cannot someone who continually uses epithets be arrested on the same principles without wandering off into hate-crime?
(4) Incitement to violence and direct threats of violence wer I though already covered by existing legislation.
I don't have any real answers to point 1, and I certainly wouldn't like to adjudicate, but I do feel the current legislation is vague and unworkable and just causes spurious cases to be brought or enables people who are genuinely guilty of other anti-social behaviour to sidetrack the issue of their behaviour.

[Moderniser]

Same old trolls on the site. When are people going to get behind Nick and the Party rather than indulging in pointless squabbling. Let's take the fight to Labour!

[Michael McGowan]

What Nick says is in fact put rather well, although the concept of "fighting words" is already perfectly well catered for under the laws of incitement.

The real problem is that a lot of the people who claim to be modernisers are hostile to freedom of speech; are quick to vilify social conservatives (but only if they are practising Christians, never Muslims); and are only too willing to endorse the politically-correct pursuit of those who engage in tasteless insults. Not surprising then that many people see them as fellow travellers of the left.

[MC]

For anyone who hasn't read the Hansard of the debates over the hate crime legislation (which inform the police, judges and others who enforce the law) of the land, this is an important contribution - not least because the Government seemed to have absolutely no idea what the offence of 'incitement' to religious/homophobic hatred was supposed to capture or where the line would be drawn.

Personally I think it's right for politicians and parliament to send a message that inciting hatred on these grounds is wrong. But how the law is enforced is the key.

In that context, surely he's right to stress that vexatious accusations should not be followed up by police eager to hit easy targets.

Ultimately this is about whether Parliament should be able to pass a law 'to send a message' or not...

[Moderniser]

Actually Michael we just like Britain as it is, not as it used to be. We want a new Britain without prejudice and stereotypes. A Britain of opportunity for all. David Cameron and Nick Herbert have a plan for that change and the Party should get behind it.

Just as the BBC will be essential for victory as David Cameron says, so will the support of third-sector bodies, including those working for rights for asylum-seekers and undocumented migrants. If we are to win we will need an analysis that is relevant to all groups in modern Britain. Hate crimes legislation is an important part of that mix, which is why Nick is offering support.

[David (One of many)]

"We want a new Britain without prejudice"

"If we are to win we will need an analysis that is relevant to all groups in modern Britain. Hate crimes legislation is an important part of that mix"

Those two statements contradict each other. Hate crime legislation is prejudicial in itself. It should be a crime to attack/kill someone whether they happen to be black/white/gay/Christian/Muslim or anything. But it should not be an 'extra' crime worthy of 'extra' punishment to attack/kill someone *because* they happen to be black/white/gay/Christian/Muslim or anything. And I'm not a troll - I have posted here for over 2 years, and this is perhaps only the third time in those 2 years I have expressed disagreement with what the Shadow Team has come up with.

[anon]

MC - isn't 'inciting hatred' on any grounds wrong? Why should it be especially wrong based on skin colour or what you do in the bedroom?

Moderniser - all well and good but what is the point in getting behind the party if there's no difference between our lot and the current lot?

[Michael McGowan]

Moderniser, I love the high-handed way that you refer to the Party getting behind the ruling junta, as if ordinary supporters should just grovel deferentially to their patrician masters. Contrast your disdain for ordinary supporters with your extreme solicitude for the natural enemies of the centre-right, with whom you feel so much at home: notably the BBC.

In truth, I don't think you do want a Britain of opportunity for all. David Cameron's cynical performance over grammar schools made that pretty clear. Intead, you want to pander to the left's politics of grievance, where only the rights of certain groups get looked after while others with an equal claim on public protection (the victims of violent crime, fathers denied access to their children, for example) get told to get stuffed, because they don't fit politically-correct stereotypes.

Glad you like Britain the way it is, with its knife crime epidemic, binge-drinking culture, massive consumer debt culture and record low standards of educational achievement. Small wonder that the Tories' poll ratings are going down...they have so little to offer.

[Malcolm Dunn]

Michael, Moderniser is actually Henry Mayhew Ukipper having a laugh.

[Michael McGowan]

Nice one, he should apply for a job on Platform 10 - they will need him after their Obamarave is over. Do I get the Sarah Palin award?

[snegchui]

Main Posting:
How do you reconcile

"fighting words' fall on the criminal side of the line, but merely offensive comment should not."
and
"Parliament did not intend that harmless abuse should be subject to criminal sanction."
Who decides what is "merely offensive" and/or "harmless abuse"? And this is the nub . MC is right in that the current legislation needs a thorough rethink - it is unclear, unworkable and divisive as it stands.
As for the Moderniser, if true, what does he make of a UKIP member's offer to open up discussions with the BNP to divvy up the country into a North/South campaigning area at the next General Election?

[Iain]

" it is the Left that decides who is and is not protected by 'hate crime' legislation. "

Spot on Common Sense, spot on, and that is the power this ill-conceived legislation gives the left, for its them and their organisations who determine who gets the protection and who doesn't, and that is why the discrimination against English people is permitted and Cameron gets away with racist language like calling English people 'sour faced little Englanders' .

[Anon]

This speech is clearly one that seeks to modernise the Conservative approach towards a potentially divisive topic, whilst also fighting tooth and nail for the defence of free speech.

It is right that Nick Herbert is putting out a pragmatic Conservative approach that, by the soundings of the speech, will work towards highlighting and then solving the problems that exist around the issue of 'race hate'. It seems obvious to me that Mr Herbert isn't seeking to promote the use of trivial policing, or more importantly the irrational utilisation of prosecutions; indeed his call is quite the opposite.

I am glad that we have someone on the front bench that is willing to offer sensible thoughts on the issue, and adapt policy so that it is as congruent as is possible within our changing society. I do have sympathy with some of the posts above my own, but I must urge you not to think that this speech is a 'soft' one. It is a thoughtful approach, that seeks to synthesise common sense policing with a pragmatic defence of our freedoms. Unlike Labour, Conservatives don't believe in a thought police. This speech makes that crystal clear.

[Dorian Englandism (retd)]

Moderniserer

We live in dangerous and delicate times and pimping the Conservative ride with Labour go faster stripes is somewhat facile. Check out the future. It ain't that lovely. You are riding a defunct model of pink fluffy-duffy that has just been terminated by negative equity and surplus to requirements.

We are all about to be Donald Ducked and anger will mill around and then focus despite the best efforts of those that would lecture us about our collective ignorance.

We deny ourselves self-respect, national pride, sense of identity in the absurd pursuit of accommodating respect and exclusive identity for all and everybody but ourselves.

Hate crime? Start with ourselves, look smug, and then realise that putting a .357 magnum up your own fundamentals is. 'Unwise.'

[Max]

I agree with Anon - the headline to this story would immediately suggest to many that this was a soft speech. Spend fifteen minutes reading it (I've just taken the time - not that I'd dream of suggesting any of the commenters hadn't done so ...) - you might just get a different perspective on this whole issue. It's actually very considered and, for me, explained sensibly why the Party took the view it did when the issues arose - a position that is both explicitly clear and inherently conservative (and yes, different from Labour's - when was the last time any bloody Government Minister explained their position on this, let alone make a powerful speech on a very sensitive issue?)

http://www.conservatives.com/News/Speeches/2008/11/Nick_Herbert_Hate_Crime_the_limits_of_the_law.aspx

By the way, it's getting quite boring for posters on here to bang on about 'the English' and grammar schools on threads that are clearly unrelated. Maybe go back to the stories from 18 months ago and comment on them?

[Peter]

MP's are going to need the protection of hate crime laws.

[Louise]

Having spent several weeks trying to get a load of racists off the eBay forums - where I post as crowprincess if anyone wants a look - I want to thank Nick for recognising the usefulness of these laws for giving us ammunition against the BNP to make sure the debate stays civilised and doesn't descend into pointless and nasty racism.

The extremism of BNP supporters there eclipsed any Muslim extremists I've ever heard and reminded me of the necessity of hate speech legislation to put the wind up those who were essentially well out of their depth. Thames Valley Police were investigating it under that legislation and although eBay didn't publicly shut them up, the discussions tailed off after a week or so, suggesting to me that a visit from PC Plod stopped these vile people from polluting what was once quite an interesting forum peopled by quite a range of different viewpoints.

As for the UKIP/BNP pact, it has been flat-out rejected by Farage and the police had to be called to eject the person who proposed it when he wouldn't leave the meeting he had gate-crashed. It leaves me with more respect for UKIP as a result, though I don't support them.

PS "Moderniser" - you would be funnier if you were more extremely Cameroon. At the moment you could be mistaken for a real person :).

[Rolls Eyes In Disdain]

Having spent several weeks trying to get a load of racists off the eBay forums. . .

Haven't you got anything better to do?

[Moderniser]

I'm doing my best. Do you like the ritual incantation against the trolls and the first name references to shadow cabinet members?

Any constructive criticism and style points welcome.

[snegchui]

Never mind that gaseous eruption. Does this mean that the current laws will be overhauled so that both police and public get a much clearer idea of where they stand when disagreements break out, which unfortunately they always will do?
A policeman is supposed to be a man of the community, but for that to work, there have to have to be be common links that bind the community that have precedence over personal differences.
Or do we accept that we have to be ruled by random acts of unprincipled (in the sense that no thought is given to principle rather than wicked) vagaries that will shift with fashion and the media instead of good conservative commubity based principles?

[Philip]

I think the balance Nick Herbert seeks to strike and what he says is quite good. He does seem to want to protect free speech. He speaks about the issue (gays) he personally seems most concerned about, and says People who set out their views about gay practices in a temperate way might still cause offence, as might those who call Irishmen leprechauns, but such comment is not criminal, and should not attract heavy handed policing, still less prosecution. But, I wonder if he would regard quoting Leviticus saying that homosexual practices are an "abomination", and listing such practices as sins that call for repentance, as setting out views in a "temperate way"?

But he says we cannot outlaw hate (however a negative thing it is!), and Mr Herbert is absolutely right - he seems to realise that the state cannot make people inwardly moral! And as he says The police and Crown Prosecution Service should focus on those who seek to spread violent hatred, I wonder if it is still safest not to have anti-hate speech laws, and just keep laws against inciting violence and murder.

[Serf]

The whole concept of hate crime is a result of decades being soft on crime in general.

When the left realised that a bigoted thug could seriously injure someone whose sole crime was skin pigmentaton or sleeping with the "wrong" person, they invented hate
crimes.

The real solution would be to punish thugs properly in the first place

[Stewart Geddes]

There is no need for hate crime. If a crime is committed it is committed and should be punished regardless of the motives behind it.

Civilised behaviour is expected of all.

[resident leftie]

I didn't think hate crime legislation needed defending until I read this thread.

Does anyone seriously doesn't know why gypsies and "toffs" have a different status in hate crime legislation?

Let's try this.

Assaulting a police officer is subject to worse penalties than assaulting a member of the public. Why is that? Because of their status in society. They need special protection because of their relationship with the general public. Everyone OK with that? Same crime, different punishment? It's called public policy.

Right. Follow that line of reasoning for hate crimes. It's not that hard, is it?

[Sean Fear]

"Right. Follow that line of reasoning for hate crimes. It's not that hard, is it?"

That's a very weak analogy, in fact. If people who are charged with administering justice are assaulted, or killed, then that threatens our society with anarchy, so those who attack them receive especiallys severe punishments.

That's quite different from creating a hierarchy of victimhood, as hate crimes legislation does. Assaulting someone because you want to rob them is neither better nor worse than assaulting someone because you don't like their ethnic origin.

Laws on incitement to assault, and breach of the peace should be sufficient to deal with threats. Laws on something as nebulous as "inciting hatred" have an inhibiting effect on free speech, while at the same time, being pretty ineffectual.

[resident leftie]

"Right. Follow that line of reasoning for hate crimes. It's not that hard, is it?"

That's a very weak analogy, in fact. If people who are charged with administering justice are assaulted, or killed, then that threatens our society with anarchy, so those who attack them receive especiallys severe punishments.

Ah, you do follow the argument and agree with the principal. For reasons of public policy, certain groups get special status in the law, the police amongst them. You just don't agree which groups.

[Michael McGowan]

As you say, Sean, creating a hierarchy of victimhood is what it is all about. The list of expendable victims (i.e. the equivalent of Hitler's Untermenschen) tells you all you need to know about the bigotry and hatred of the left.

[Terry]

The police are representative of authority and (in theory) don't stand for any particular viewpoint. It's then a matter of choice whether you give protection to homosexuals, heterosexuals, Muslims, Christians, Jews etc. In practice those who end up on the wrong end of hate crimes legislation or law enforcement tend to be those with traditional values or values which were esteemed within society prior to 1970, 1960, whenever you want to date it. Basically the liberal agenda triumphs against the traditionalists.

[Graeme Archer]

Sean's phrase "a hierarchy of victimhood" is crucial. I know that there's no way of writing what I'm about to without seeming pompous, so forgive me, but I think it's important. The fundamental dogma by which I try to live my life is to refuse to even countenance the concept that I am "lesser" because of the random fact of my sexuality. I insist on equality, if you like, by just refusing to accept that there might be anything else on offer. Most of the time it works.

To be labelled a potentially "special" victim because of that random fact seems to me to perversely gnaw away at what I freely admit is a stratagem I devised for my own psychological resilience. Pompous enough but now I'm going for broke! I'm also quite strong willed, but I wonder sometimes what effect "institutionalised victimhood" has on the psychological development of young gay people. No-one loves a whinger but the cumulative effect of, essentially, re-inforcing the message "you are less" - for the best of reasons - surely can have a detrimental effect.

I'm in no way dismissing the horror of hate crimes and police forces deserve credit for the work they do to make specific groups feel safer in the public space. Nor am I dismissing Nick Herbert's thoughtful contribution. For obvious reasons he is a hero of mine ("yes we can!"). But I do wonder if these potential detrimental sociological outcomes of well-intentioned legislation are discussed enough.

[Norm Brainer]

Graeme, I don't think that sounded pompus, but then maybe this does.
I agree that it's wrong that others should be made to feel lesser, it that also means that those who aren't treated specially are also made to feel less as they are "normal" so it's just a normal run-of-the-mill murder and not a extra special hate crime if they are kicked to death.
..and then what about people who are in 2 of their hate categories, or 30% in one and 62% in another, unless they can calculate how much someone is in a certain category and have every possible catagory and calculate exactly how "disadvantaged" they think that makes them then the hate crime laws are absurd and only serve to make things worse.
So, yes, equality is the only way.
(and not in an equality of outcome type way that tries to make 2 wrongs into rights)

[resident leftie]

I agree that it's wrong that others should be made to feel lesser, it that also means that those who aren't treated specially are also made to feel less as they are "normal" so it's just a normal run-of-the-mill murder and not a extra special hate crime if they are kicked to death.

So should the murder of a police officer should be treated specially or not? You can't have it both ways. Either perpetrators get charged with the same offence for the same crime, or else you have special categories of crime for reasons of public policy.

[Graeme Archer]

resident leftie, this is slightly ot, but I think you're making the mistake of treating politics (a meta-narrative for a national conversation about How To Be Good) as though it were a branch of mathematics, which is the only system where consistency is vital for success. No such requirements exist in a political system, I think. It's desirable, but neither necessary nor sufficient. To weigh up competing desired outcomes and make different policy prescription in different cases may be inconsistent, but it's not incoherent.

[anon]

Having read Nick Herbert’s speech, I think that it is simply wrong to label it as soft. Mr Herbert stresses the vital importance of defending free speech, and clearly states that the police should not waste resources pursuing politically correct prosecutions.

I welcome this extremely considered position that seemed to me to blend successfully the attitudes of – as one of the earlier posts said – our changing society with a total commitment to the principle of free speech.

[Luke Stubbs]

Outrageous.

From a previous comment 'Mr Herbert stresses the vital importance of defending free speech'. Really? He not only wants to prosecute people based not on their actions, but on what they are thinking at the time, but seems to want to directly criminalise politically incorrect speech itself.

Just look at his words, "the police and Crown Prosecution Service should focus on those who seek to spread violent hatred. They should not be wasting resources on the politically-correct pursuit of neighbours who engage in tasteless insults".

In other words, non-PC jokes and comments are crimes, they're just not very important ones.

What we have here is another liberal bigot who wants to use the law to force his views on other people. Why even vote at the next election when we have candidates with views like that?

[resident leftie]

Posted by: Graeme Archer | November 04, 2008 at 15:10
resident leftie, this is slightly ot, but I think you're making the mistake of treating politics (a meta-narrative for a national conversation about How To Be Good) as though it were a branch of mathematics, which is the only system where consistency is vital for success. No such requirements exist in a political system, I think. It's desirable, but neither necessary nor sufficient. To weigh up competing desired outcomes and make different policy prescription in different cases may be inconsistent, but it's not incoherent.

I am very specifically not doing this. Sometimes you have to be inconsistent in politics, but you have to be open about your inconsistencies. People are not facing up to that here. There is special pleading for the police here, which shows the hypocrisy of these supposed arguments in favour of "equal treatment under the law."

For Tories it's all about the victim, unless it's hate crimes, when all of a sudden there are crocodile tears for offenders. The high dudgeon is disproportionate, and suggests that there are other motives for this attitude, slightly disturbing ones. It's subtle dog whistle politics, just like "why shouldn't sisters be allowed to enter civil partnerships?" Is it any coincidence that 21% of the population still think being gay should be crime? That Polish immigrants are OK, but Commonwealth ones aren't?

The Left has made extraordinary progress on homosexuality, against racism, on the toleration of other people's beliefs, and certain members of the Daily Mail faction oppose every advance tooth and nail. Do you think a Tory government would ever lowered the age of consent or instituted civil partnerships? Maybe in twenty years' time.

Lagging behind, forward-thinking Tories accept much of the Left's achievements. We still have a long way to go, and hate crime legislation is one plank in the hull. One day I hope it will not be necessary.

[Norm Brainer]

The police get special treatment if killed in the line of duty because they are special and any extra punishment is intended as an extra deterrent to aid the police to do their job when they put themselves in danger.
You could split it into 2 offences of Murder and preventing an officer from doing their duty so this doesn't really relate to hate crimes.

As for civil partnerships I would hope a tory government would have implimented them fairly so that any 2 (or more?) people could enter into them if they ever had them, whereas the left single out homosexuals into seperate groups, so it may be right that labour implemented sooner, but they did it wrong.

[snegchui]

Resident Leftie:
I might have time for your argument if I did not see fairly frequently people abusing hate crime legislation to resolve differences that are not based on hate-crime origins.
Like a lot of the slack, useless, divisive, idiotic, poorly thought-out, poorly enforced legislation introduced and deployed by this glib, careless, arrogant, pompous, power-seeking traducers of community, the legislation is not fit for purpose.
The approach to legislation by this Govt is that legislation be as loose and as encompassing as possible. so that RIPA enables Councils to practice functions brought in to deal with terrorism, so that it is impossible for a citizen not to break the law at least once a day, in general to move the balance of power very firmly from the individual to the state. To me summed up by the fact that the only person who can protest legally outside Parliament is Brian Haw, the very person the wide-sweeping all-encompassing legislation was intended to evict and proscribe.
The hate-crime, like some other legislation, is dangerously moving the presumption of innocence to a presumption of guilt - and no penalty for specious complaint. This truly is a waste of police and civil time and resources. But as long as some 5th rate official can tick a box, that seems OK.
Some rigorous thinking of what aims are intended (and let us not dither here, all legislation is brought in to achieve something) and some two-sided thinking as to how to achieve those aims (does this achieve the aim? does this conflict with existing law? what compromises have been concluded, does the end product comply with the original aim?) Steps in producing legislation, this shower of pompous twits seem to enjoy by-passing as it entails hard work and the admission that sometimes soundbites don't work no matter how grand they sound.

[Simon Denis]

Bravo, Snegchui - you hit the nail on the head with your point about the presumption of innocence. As to the Bolshevik Rat in the basement's idea that the right is shedding tears for the the perpetrator's of "hate" crime, it is nothing but a sneer. What we are discussing is the proper limit of law; what, after all, IS crime? In open societies, it cannot embrace thoughts or attitudes.

Does the poor, thick rat see no contradiction between his cant about respecting "views" and the persecution his chums on the left have unleashed against critics of homosexuality? Does he recall the arrest of the Christian preacher for the crime of distributing the words of St Paul?

If any man physically attacks or intimidates another FOR WHATEVER REASON he should be apprehended, tried and punished. Why he has done it is not the business of the state, the law or the Bolshevik rat in the basement. It is between himself and his conscience and any person to whose spiritual authority he voluntarily submits himself. Moreover, noone from the left has any right to squeal about hatred. Their whole philosophy is predicated on the notion that a mass outbreak of envy will lead to an orgy of violence against the successful leading - who knows how? - to Utopia.

Would the BRITB (Bolshevik Rat in the Basement) have a poor immigrant given extra penalties were he to have vented himself of communist slogans when butchering his wealthier victim? I imagine not - which suggests at least that once we venture into the business of condemning motives we are entering into a chaos of subjective and oppressive assumptions.

We don't stick up for criminals, Bolshevik rat, you do. Worse, you tie the police and the courts up in red tape relating to sinister totalitarian presumptions so that violence rises unchecked. You should hang your head in shame - but you are a rat, aren't you, so no likelihood of that.

Pity that lily livered trimmer Herbert should have given way to your vile agenda.

[Graeme Archer]

resident leftie wrote The high dudgeon is disproportionate, and suggests that there are other motives for this attitude, slightly disturbing ones. It's subtle dog whistle politics ... Is it any coincidence that 21% of the population still think being gay should be crime?

Oh come on. I don't have a dog whistle in my body, but for the reasons I set out above, I have qualms about the concept of 'hate crime'.

As for the proportion of the population who would recriminalise homosexuality ... do you really think that all who hold that view fit comfortably into the box you mark "Daily Mail reader"? Don't you think it's just possible that quite a large proportion of that part of the population who hold those views are members of A N Other Special Population Group which, in other arenas, your divisive approach to Identity Politics seeks to prioritise? How does the Left square that circle, exactly, when the interests of its Special Interest Groups start to collide? I've never understood.

This is starting to remind me of the arguments between Left and Right in the run-up to the London Mayoral election. In fact I wrote about it on the old ConHome page in a piece called Only Connect, here. This was my key point:

What happens when we focus on the (arbitrary, random) differences between us? Not to repeat myself from last week, but the politics of identity leads to balkanisation, which leads to suspicion, which leads to hate, which leads to death. I’m sick of this feeling that everyone who is not-me is slipping further and further away from me, that we’ve already reached the point where I’m not able to so much as start a conversation with someone who is not-me without fearing socio-legal repercussions (or “hate crime”). I want a politics of Only Connect. It’s not possible for me to be 100% aware of the inner life of not-me; but it’s possible to try. It’s always better to try. It is absolutely vital to try. See the beauty in the difference but do not derive a law of political consequence from it.

[Sean Fear]

"The Left has made extraordinary progress on homosexuality, against racism, on the toleration of other people's beliefs"

You're having a laugh if you think the Left (your variety of it anyway) is tolerant of other peoples' beliefs.

WRT police officers (or judges, prison officers etc.) the point you're missing is that crimes against them are only treated as especially serious when they are committed against them *in the performance of their duties*, not off duty. That's because an attempt to, say, intimidate a judge trying a case is an attack on a whole system, not just an attack on an individual.

[Graeme Archer]

Ps to resident leftie: it was john Major's government which started the modern move to homosexual law reform: reducing the age of consent and decriminalizing it in the armed services. Neither reform went as far as I wanted, but that's not the point. Your claim that the Labour party has some sort of special antenna for gays, or that law reform happens only under Labour, isn't correct.

[resident leftie]

I find myself in the peculiar position of supporting Tory policy when the rest of you don't. I note that even the editor passes this speech on without comment.

Hate crime legislation has not been widely misused. Please do let me have some examples of succesful prosecutions of which you disapprove if you can find any.

I think there are some issues with hate crime legislation as it is currently drawn up - I don't think that distinguishing people by religious affiliation is a good idea.

Posted by: Graeme Archer | November 04, 2008 at 21:16
As for the proportion of the population who would recriminalise homosexuality ... do you really think that all who hold that view fit comfortably into the box you mark "Daily Mail reader"?

Of course not - but I bet you there are a disproportionate number of Tories and Daily Mail readers who fit that category, as well as religious extremists of all types.

How many Guardian readers do you think would say homosexuality should be illegal?

If you think the Tories were in favour of equal age of consent I suggest you take a look at their voting record in 1998 on http://www.publicwhip.org.uk.

Posted by: Simon Denis | November 04, 2008 at 20:05
Would the BRITB (Bolshevik Rat in the Basement) have a poor immigrant given extra penalties were he to have vented himself of communist slogans when butchering his wealthier victim?

Bolshevik Rat? Oh, thank you! Another for the list. Yes, what would happen if we took motives into account when we prosecuted crimes? We'd have to have a distinction between manslaughter and murder, oh wait, we do!

Worse, you tie the police and the courts up in red tape relating to sinister totalitarian presumptions so that violence rises unchecked. You should hang your head in shame - but you are a rat, aren't you, so no likelihood of that.

I think you might be correct that rats are anatomically incapable of bowing there heads, but in every other respect you are mistaken. Perhaps you should stick to your best subject? You seem intimately familiar with vermin.

[Simon Denis]

The only motive of concern to a trial in an open society is the intention which may or may not have prompted the transgression. The rest of the defendant's motivation - unless it offers evidence that he is deranged - is a not the court's business. It has only ever been the court's business in totalitarian states - the sort of societies so egregiously supported by the Bolshevik rat's intellectual progenitors. Not so clever after all, little rodent.

[Graeme Archer]

Simon, I don't think calling resident leftie a 'rat' is in the column marked 'acceptable mode of communication'. I don't know why we can't all be pleasant to one another.

resident leftie, I think really it (do you support hate crime legislation) may boil down to whether or not you're a logical positivist. The unknowable psychological intentions of a perpetrator shouldn't be pathologised, still less taken into account, when determining his or her guilt with respect to an observed outcome; only that outcome (and other observable evidence) should be used to weigh guilt. Analogy with inductive logic in the experimental sciences. So - I'm not calling this a compromise - perhaps here is a role for hate crime law - if there is observable evidence of hatred, this could be viewed as supportive of guilt. Supportive but not conclusive and as the outcome (attack) is the same regardless of the presence/absence of hate, it should not be used to ramp up the penalty for the attack.

[resident leftie]

Posted by: Simon Denis | November 05, 2008 at 11:06

The only motive of concern to a trial in an open society is the intention which may or may not have prompted the transgression. The rest of the defendant's motivation - unless it offers evidence that he is deranged - is a not the court's business. It has only ever been the court's business in totalitarian states - the sort of societies so egregiously supported by the Bolshevik rat's intellectual progenitors. Not so clever after all, little rodent.

Have you heard of self defense or necessity? Of course motive plays its part, but this legislation does not address motive, so your point isn't even relevant.
You can add the Tory party to your list of Bolsheviks, and the following to your list of totalitarian states. Beginning to feel you've overreacted a little? To be honest, I'm not sure you are worth bothering with.

Andorra
Armenia
Austria
Belgium
Bosnia
Bulgaria
Croatia
Czech Republic
Denmark
England
Finland
France
Germany
Greece
Hungary
Iceland
Ireland
Italy
Scotland
Spain
Sweden
USA
Canada

Graham, there are very good public policy reasons for hate crime legislation.

The US Supreme Court found that "bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.... The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases."

I think that this is as good an explanation as any for why most Western democracies have introduced these laws. It's one of the most important weapons in dealing with the BNP and their ilk.

The law as it stands is not concerned with the motives of the perpetrator. It states that:

"Any incident, which constitutes a criminal offence, which is perceived by the victim or any other person as being motivated by prejudice or hate."

My problem is the "any other person" and "perceived". The "reasonable person" is pretty unpopular in the law at the moment, but I would have much rather seen it framed in those terms. For example:

"Any incident, which constitutes a criminal offence, which would be percieved by a reasonblae as being motivated by prejudice or hate."

Then the jury can decide if it was a hate crime on top of whatever other crime has been committed.

If the Tories redrafted this law in those terms, I'd have no problem with it.

[Simon Denis]

No, I shall not treat my opponent with respect. As Dr Johnson said that is handing him an advantage to which he is not entitled.

Turning now to our verminous pinko. Strange that he should hurl a pile of countries - half a continent - at one he declares "not worth bothering with". His point? To show that as all these countries have "hate crime" - how close to "thought crime" - we should have it too.

It's a typical totalitarian manoeuvre, though. More than one party, Comrade? You would go against Poland, Ethiopa, Hungary... and our beloved USSR? That argument was used throughout the Eastern bloc for more than forty miserable years.

He asks me about "self defence and necessity" as though these are somehow not covered by traditional notions of the immediate motive. Incredibly, he declares that the "hate" which supposedly inspired the transgression has nothing to do with the motive - so why is it used to "ramp up" - I quote the milkily benevolent Mr Archer - the length of the sentence?

The last of our sharp toothed, hairy little chum's points is the smelliest. He quotes the law as it stands - a wretched law - as though the pedantic quotation of iniquity were the be all and end all of argument. So it's a crime if a self-declared "victim" says it's a crime, eh?

May I recommend to this ignorant, dated, lower life form a crash course in the works of the late Sir Karl Popper?

[Norm Brainer]

Surely taking the time to make up all manor of names for your opponent is a credit to them - certainly makes it harder to read!

[snegchui]

A manor of names? It is like the automated Shakespearean insult-generator http://www.dnlcc.com/si.asp

Today's offering was

Thou art a beslubbering, fen-sucked bugbear.

However, such niceties aside, the law as stands serves nobody well and should be rethought.
I, along with maybe , some posters, may be conflating two issies:
(1) Actual assaults and damages where the sentence is increased if the motivation for assault or damage is ascribed to personal/religious/racial prejudices.
(2) Cases of verbal bullying where no assault or physical damage takes place.
In the first case, I would hazard that extra sentencing would have to be justified on the likelihood of re-offending again on the same motivation. It is a judgement call, but it is what judges do.
In the second, we come back to "What is fighting talk?" It could be handy if a qualified lawyer set out in layman's term what "behaviour likely to constitute a brteach of the peace" actually entails.
And how does it dovetail, if at all, with hate-crime legislation?

[Simon Denis]

But snegchui, how can we be sure that all who have ever acted as bigots are equally violent? A man may lash out on a sudden whim of hostility. The whole model of the mind on which the "anti-hate" campaigners predicate their policies is questionable to say the least. Are we really so sure that prejudices lie around like traps in a lucky dip, awaiting their moment? Is it not more a matter of all sorts of ideas - mean or generous, peaceful or violent - breezing in and out of the mind at all times? Moreover, if a man is once condemned as a perpetrator of a "hate" crime, his reputation - and with it, his prospects - are finished for good. Worse, he is bracketed, labelled and sadled with the identity of a hater - in some ways, the equivalent of a heretic in the middle ages. Is this likely to lead to his reclamation from such ideas? Won't it simply box him forever into that identity - and - here's a crucial point - with him a number of cannier souls who feel a queasy sympathy for his views? Crime should be punished, but it should be punished once, not forever through some lasting stigma. Secondly, crime should not embrace motive beyond the matter of intent. These are the crucial props of a genuinely open society. When Mill justified the freedom of the individual with reference to experiments in living, it was not obvious that such attitudes as racial arrogance, a contempt for women, a belief in the virtues of war would ever form part of such an experiment because they were commonplace. Now that they are rare; now that they are indeed officially disapproved of it is vitally important that they should have the same opportunity for private expression that the once unpopular beliefs of the avant garde gained in the nineteenth century. The left, dominated in its thinking by time's arrow, cannot even begin to imagine that the whole spectrum of opinions can be found in any modern society. For them, the freedom Mill claimed was a step along a one way street towards a secular nirvana, in which we all tolerate one another's views - except that we are obliged to be so tolerant that we have no views. Where in such a state would be the pious Muslim or Christian or Jew for whom homosexual acts are an abomination in the sight of the Lord? Where, on the other hand, would be the militant atheist for whom the various prophets and holy men were tyrannical frauds? They would live in a miserable state of silence, as would we all. Where there is liberty there is opinion and opinion means a measure of permissible conflict.

To concluce, the freedom of the individual is not all one way; it is not a staging post on the road to this airless utopia. It is a good in itself - yes, even when it offers brutal, horrible attitudes the room at least to breathe. That is the measure of freedom - the freedom to be our partial, fallen selves and not the whited sepulchre's of the left's hypocritical imaginings.

[snegchui]

I think I said that once a crime is committed (an actual assault or damage) then one could look at the motivation, and depending on the judgement of that motivation make a decision on sentence in terms of re-offending. in which motivation would be one of a number of factors.
Making a judgement of the effect of words in the absence of any physical crime is something else. Can it be determined a hate crime, can it be determined a crime of any sort if there is no explicit incitement to encourage others or the self to carry out an actual assault or damage?
I would say no, the law as it stands says yes. My position is founded in Magna Carta, the law's position at present is more Napoleonic and thus less aligned to British culture.

[A. Allen]

Greetings from California.
I noted in Mr. Herbert's speech
that he classified "Holocaust Denial"
as a hate crime. I think that this is
a mistake.
I am a Revisionist and would like to
point out that major revisions in the
Holocaust story are taking place.

In December 2005 number of Majdanek victims
was dropped 400%. See posting on the Auschwitz State Museum Website. http://www.auschwitz-muzeum.oswiecim.pl/new/index.php?tryb=news_big&language=EN&id=879
This is the Auschwitz State Museum calling for "Changes in History Text Books"

The Nazi Persecution of the Gypsies, by Guenter Lewy (New York and Oxford: Oxford University Press. xii + 306 pp.) 2000
is another major "denial" of past history.

Lewy basic finding is announced on its cover, "Indeed, Lewy contradicts much existing scholarship in showing that, however much the Gypsies were persecuted, there was no general program of extermination analogous to the 'final solution' for the Jews."

I respectfully suggest that Mr. Herbert
may not be aware of such scholarly "denial" research.

Laws banning discussion and research
strike at the most important liberty
we have. Without Free Speech, all other
liberties are at risk.
I might add that it is my experience that discussions of long past historical events usually put people to sleep, not incite them to anything.
Since I love England and want to keep
visiting you, I hope that Mr. Herbert
will exclude history discussions from
any proposed ban. Thank you.

[Anon.]

Whilst Nick has certain ambiguities in his argument, and allows for obvious points of contradiction to appear, his speech is far from being contrary to the values of freedom of speech that many contributors on here see themselves as being entitled to. It is an unfortunate, and inevitable fact however, that hate crime legislation has significant life left in it. As a gay Christian, and Conservative, I feel satisfied enough that a shadow cabinet member, recognises and encourages hate crime legislation to be used with wisdom, in the most appropriate cases. Some argue, that hate crime legislation patronises and insinuates an inability to "cope" for the most vulnerable groups. The gay, black, Muslim, Christian, Asian, or even dare I say, woman, needs the protection that society's "normal" and most strong does not. It should not be a question of normality and strength, but it is important that we recognise that the focuses of hatred experienced today are targetted at what elements of society still consider to be "outsiders", namely black people, Muslims and gays. Whatever the discourse and debate on homosexuality is, and whether my parents "accept" it, and minority Christian groups condemn it, is irrelevant. What is relevant however, that if I walk through central London showing a sign of affection (a held hand) with somebody I love, my Indian boyfriend and I may experience sexual and racial taunts, and the horror at the two combined, but ultimately we are protected by legislation which may go a long way in changing the attitudes of certain communities, and preserving a sense of freedom (of speech and action) that so many people here are vocal in upholding. If legislation prevents just a handful of saved lives because of racism, religious intolerance and homophobia, then there is a purpose to it. Herbert captures this sentiment, I wish some people on this site did the same.

[snegchui]

Anon:
I think the question is at what point should it be considered a crime has been committed?
(a) At the usage of offensive language?
)b) At the usage of a threatening gesture, beyond arm's reach, combined with the offensive language?
(c) A threatening gesture WITHIN arm's reach is already assault and covered, no actual touching is required. This also covers an actual assault or damage to goods.
I am wary of (a) being a starting point, - I think it is too open to counter-abuse , but I see Police are able to arrest people for swearing at them, so the question is how to get a definition of offensive language (and its proofs) to cover the situation.
(b) I can accept, throat slitting etc etc ar e threats to murder.
As I undrestand it, (a) is the current starting point, but the legislation is loose and the scope for argument too broad to be truly workable ie you get a high conviction rate for prosecutions proceeded with. What you get instead is the Police placed in an unenviable position of having to proceed on a basis of avoiding being sued for ignoring a crime, and judges and magistrates making it up as they go along. Truly a random act of Govt that we should not accept.