Nick Herbert on "Hate Crimes" and "Free Speech"
Nick Herbert, the shadow Justice secretary, made an interesting speech to the Bar Council at the weekend about hate crime legislation and how it should be operated.
He put a case for the retention of these laws provided they are used to reinforce the legal prohibition of violence and promotion of violence and not as a means to deny free speech to those who are merely putting forward offensive opinions.
Nick said that “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,”
and he went on to outline 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 added that passing laws must not be seen as the main way, let along the only way, to change behaviour:
“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.”