The Law Commission consultation on Hate Crime

(Last Updated: 23 December 2020)

The Law Commission is carrying out a consultation on reforming the Hate Crime legislation in England and Wales. There are two ways to respond to the consultation – one based on the summary of the consultation paper, and another based on the full consultation paper. The public are invited to respond to either one of them by Thursday, 24 December 2020.

Consultation – SummaryConsultation – Full
Summary Paper
(24 pages)
Full Paper
(544 pages)
Respond to summary consultation
(20 questions)
Respond to full consultation
(62 questions)
PDF of 20 questionsPDF of 62 questions

We recommend that you respond to the full consultation if you can as there are some further questions related to transgender identity that are not covered by the summary version. Although most of the questions are quite technical, you do not have to answer every question in either version of the consultation. You can focus on the areas that concern you the most. The online consultation response page allows you to save your progress and return to the form later to continue filling it in.

Questions worth focusing on

This is based on the full consultation paper. Concentrate on the ones that are likely to be used to silence gender critical campaigners and women in general.

The concept of ‘serious emotional harm’ is subjective and open to misuse / abuse (as has already happened – Maya Forstater, Harry Miller, Kate Scottow, J. K. Rowling etc). Provide examples from gender critical contexts and in relation to free speech generally.

Lord Justice Sedley in Redmond-Bate v DPP, for example, stated:
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative… Freedom only to speak inoffensively is not worth having.

The Scottow v CPS case is also helpful. “The Prosecution argument failed entirely to acknowledge the well-established proposition that free speech encompasses the right to offend, and indeed to abuse another.
From Maya Forstater’s blog post reviewing the year 2020 (which also lists other cases) – Finally in mid-December, Kate Scottow’s criminal conviction was quashed. The judges declared that the case should never have been prosecuted and the judges reasoning in finding Kate guilty was deficient. They said it would be a “serious interference” with the right of free speech if “those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that felt offended or insulted”.

Question 7 – including asexuality in definition of sexual orientation.
See WhatIsAsexuality.com and Asexuality.org for information to help write response.

Question 8 – expanding definition of transgender identity from gender reassignment to explicitly include non-binary, cross-dressing and intersex.

Questions 11 to 14 – in relation to gender or sex. You can use the example of the recent amendment to the Scottish Forensic Medical Services Bill to highlight the importance of ensuring the word ‘sex’ is used.
Dear MSPs…from survivors
FWS Statement on the Vote for Lamont Amendment
Gender in practice can refer to trans identity, “genderfluidity” or a plethora of “non-binary” identities like “maverique” which cannot be easily defined in law. See “The big list of gender identities“.

Question 17 – whether sex workers should be recognised as a hate crime category.

Question 20 – whether philosophical beliefs should be recognised as a hate crime category.

Question 25 – extending the characteristics protected by aggravated offences.

Questions 31 and 32 – proposals that aggravated versions of sexual offences should not be introduced and whether legal test in the context of aggravated offences should cover more than one protected characteristic.

Questions 47 to 52, 54, 55 – related to the offences of ‘stirring up hatred’.

Notes

Q: Why is the list of protected characteristics in Equality Act and Hate Crime legislation different?
Equality Act deals with civil law while Hate Crime legislation deals with criminal law. It is Parliament that determines what the protected characteristics are, and it appears that different sets of characteristics formed the basis of the two types of legislation as they evolved over time (for example, gender reassignment in Equality Act and transgender status/identity in England & Wales Hate Crime legislation.)

Transgender identity was added to the enhanced sentencing regime in 2012.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 – Part 3, CHAPTER 1, General, Section 65
The Law Commission wants to revise the definition of transgender identity to make explicit reference to people who are transgender, non-binary, cross-dressing or intersex.

Resources

CIVITAS – Policing Hate: Have we abandoned freedom and equality?
This report can be used to help answer some of the questions in the consultations. Part 1 describes recent examples of the impact of hate crime legislation on people/groups such as Harry Miller, Safe Schools Alliance and Posie Parker. Part 2 is a detailed analysis of the Law Commission Consultation Paper with a focus on two points in particular: the notion of equality before the law and the challenge to free expression. See also section on Hate Crime Entrepreneurs.

Nordic Model Now! Response to the Law Commission’s hate crime consultation
The NMN response focuses on specific areas of the Summary version of the consultation, but their answers can help guide either the full or summary versions of responses. One of the areas of concern is the proposal to extend the hate crime legislation to cover “sex workers” as a protected characteristic.

MBM Briefing for Stage 1 debate: Hate Crime and Public Order (Scotland) Bill
Although written for the Scottish Hate Crime Bill, this report might be useful in formulating some answers as it focuses on two areas: the exclusion of sex from the hate crime protected characteristics, and aspects of the extension of the offence of stirring up hatred.

MBM Protecting Speech that Offends: Theory and Practice
Analysis of the cases of Kate Scottow, Miranda Yardley, Harry Miller and Maria MacLachlan to demonstrate how the legal system fails to protect free speech in practice.

MBM The limits of precedent and the special case of racial hatred
Analysis of why ‘stirring up hatred’ in the context of race should remain unique and not be expanded wholesale to other protected characteristics.

MBM Supplementary evidence on the Hate Crime and Public Order (Scotland) Bill
Some examples of free speech potentially being framed as ‘stirring up hatred’ in the context of women’s rights and disagreements against transgender ideology.

People must have the ‘right to offend’ without facing a police investigation
The Telegraph – 17/12/2020

Cancel Culture Claims Gender Critical Reddit Forum
Women are Human – 03/07/2020

Why I Am Permanently Banned From Twitter And Why This Should Make You Worry
Miranda Yardley – 24/05/2018

Further resources and useful examples for submission can be found at the blog post for the Scottish Hate Crime Bill.

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Consultations

List of public consultations, calls for evidence, calls for views and surveys that impact on areas such as the rights of women and girls, the rights of children in general, freedom of speech, and so on. Please get in touch if there are any errors or relevant consultations that haven’t been included in the list.

(Last Updated: 18 January 2021)

January 2021

Toilet provision for men and women: Call for Evidence
Caroline Criado Perez has some notes on this in her newsletter.
Keep Toilets Single Sex is a short but informative YouTube video that explains the problems with mixed-sex toilets and why it is important that we preserve single-sex facilities everywhere, including in the UK.
Caroline Ffiske has written an article on the issue that can be used for inspiration.
Area: England
Deadline: 11:45 PM 29 January 2021

Standards Matter 2: Public Sector Survey
The Committee on Standards in Public Life wants to hear from those working in the public sector. We want to know what you think about the culture, policy and practice in your organisation towards standards.
Area: UK
Deadline: 5pm 29 January 2021

Standards Matter 2: Public Consultation
The Committee on Standards in Public Life is running a public consultation to ask for respondents’ views on current principles, institutions, and arrangements for upholding standards.
Area: UK
Deadline: 5pm 29 January 2021

Call for Evidence: Freedom of Expression
Area: UK
Deadline: 31 January 2021

February 2021

Independent Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing
The Justice Sub Committee has launched a public call for evidence on the final report of the Independent Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing.
Area: Scotland
Deadline: 5 February 2021

The role of the GEO: embedding equalities across Government
The Women and Equalities Committee will examine how the Government Equalities Office (GEO) is delivering on its responsibilities. The inquiry will explore cross-cutting Government equalities strategies and consider recommendations for change to embed equalities across Government.
Area: UK
Deadline: 17 February 2021

Violence Against Women and Girls (VAWG) Call for Evidence
This call for evidence is seeking to collect views from those with lived experience of, or views on, crimes considered as violence against women and girls.
Area: England & Wales
Deadline: 11:45 PM 19 February 2021

Home use of both pills for early medical abortion
We want your views on whether or not the temporary measure introduced during the COVID-19 pandemic allowing women and girls to take both pills for an early medical abortion at home should be made permanent.
Area: England
Deadline: 11:59 PM 26 February 2021

March 2021

Keeping children safe in education
The consultation will seek views on revisions to ‘Keeping children safe in education’, the statutory guidance that sets out what schools and colleges should do and the legal duties with which they must comply to keep children safe.
Area: England
Deadline: 4 March 2021


December 2020

The Law Commission: Reform of the Communications Offences
Reform of the law is needed to protect victims from harmful online behaviour including abusive messages, cyber-flashing, pile-on harassment, and the malicious sharing of information known to be false. The Law Commission is consulting on proposals to improve the protection afforded to victims by the criminal law, while at the same time provide better safeguards for freedom of expression.
Area: England & Wales
Deadline: 18 December 2020

Equality Outcomes 2021-2025
This survey relates to Edinburgh, West Lothian and Midlothian Councils (including their education authorities and Midlothian’s licensing board), NHS Lothian, Midlothian Health and Social Care Partnership and East Lothian Integrated Joint Board.
Area: Scotland (Edinburgh & Lothians)
Deadline: 22 December 2020

The Law Commission: Consultation on Hate Crime
You can use the information here to help you write a submission.
Area: England & Wales
Deadline: 24 December 2020

January 2021

The Law Commission: Weddings
If you – or someone you know – has faced coercion, deception and control in having only a religious marriage but not a civil one, please take the time to submit a response. Southall Black Sisters and One Law for All will be happy to help with the submission if you are unable to do this on your own. Or if you think the law discriminates between religions and against minority women, please also respondPlease also send them a copy of any submission made. More information here.
Area: England & Wales
Deadline: 4 January 2021

Consultation on Future Arrangements for Early Medical Abortion at Home
Engender’s response for the continuation of telemedical appointments for Early Medical Abortion at Home
Area: Scotland
Deadline: 5 January 2021

Call for Evidence: Freedom of Expression Online
The House of Lords Communications and Digital Committee is to hold an inquiry to investigate how the right to freedom of expression should be protected online and how it should be balanced with other rights.
Area: UK
Deadline: 11:59 PM 15 January 2021

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