Nick Herbert, the Tory’s Shadow Secretary of State for Justice has delivered a magisterial speech on the proper governmental approach to hate crime legislation. Read it in full; but here’s a snippet:
I believe that hate crimes, where the perpetrator’s values strike at the core of the victim’s identity, are deserving of a response which targets those very values. Moreover, hate crime legislation no more punishes offenders for their values than does the rest of criminal law.
Those who steal, assault, rape or murder – for whatever reason – make value judgements before committing those crimes. These judgements may be subconscious, and will likely be coloured by many other factors, for example, conditioning borne of childhood experience, the influence of addiction, or mental health problems, but there will be a value judgement made nonetheless. Just because the punishment of ‘bad values’ in hate crime legislation is more explicit does not mean that the rest of criminal law ignores or downplays these judgements. In fact, in almost all crime the major aggravating factor in determining the punishment is motivation; indeed, the presence of a guilty mind is of course an essential component of criminality. The idea that an offender’s thoughts are irrelevant to the offence that has been committed simply does not accord with the fundamentals of our criminal law.
Legislation alone cannot create a civilised society
But as well as things which legislation should not do, that is, infringe free speech without very good reason, there are also things it cannot do.
Hate crime legislation is designed to tackle the outward expression of values, but it also has a purpose in sending out a signal that certain views and values are anathema to civilised society, and that harmful actions emerging from those views will not be tolerated.
All criminal justice legislation must, by its nature, have some element of deterrence in it, and so when Parliament sets out in Statute that incitement to hatred on the grounds of race, religion or sexuality is to be outlawed, we intend that people sit up and take notice. Whether you are a white supremacist encouraging hatred of blacks, or an Imam preaching hatred of gay people, the message from Parliament is clear.
In fact, it is not only criminal justice legislation which seeks to change behaviour, or send a signal about what society considers acceptable. The legal status of marriage, for example, originally authored by the Established Church, clearly demonstrates that this is behaviour which society endorses and, indeed, actively promotes.
However, it would be wrong for politicians to assume that legislation is the only, or even the primary, means to govern public morality. Law making, however much it may send a signal or set a framework for dealing with events, cannot be the sole driver of social change. Whilst we in Parliament can plant a flag on an issue, declaring our intention, we cannot fundamentally alter people’s views. Legislation cannot make windows into men’s souls.
Let me give you one striking example. Despite all the laws and much progress over recent years, a poll in the Observer last weekend found that 24 per cent of the public think that gay sex should be made illegal. Eight years after the age of consent was equalised, and three years after civil partnerships were introduced, a quarter of the British public want to reverse these changes and take us back to the situation that existed before the 1967 Sexual Offences Act. Some might say that this argues for more laws. I am not so certain.
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.
This is a small extract from a long, and densely argued piece. There are a number of points I’d like to make in relation to its subject matter, but sadly I don’t have time at the moment to do it justice. One point worth making, in particular, is that although there’s no shame in opposing hate crime legislation on the grounds of principle, it is pretty galling when the opposition to such laws comes from outspoken bigots. The Tories have done a fairly good job of purging their party of the worst of those.
Nevertheless, this is one of the most intelligent pieces of analysis I’ve read on the subject, and to find it eminating from the mouth of a politician is … a pleasant surprise.
Were I not a Labour partisan, I might admit to being a little impressed.