Lord Moynihan of Chelsea (Con)

My Lords, the amendments in this and the next group set out to remove criminalisation of elements of so-called hate crime on grounds that include incoherence, ineffectiveness and divisiveness. Anyone proposing an amendment of this sort risks being seen as favouring hate crime and hate speech, or of being careless or reckless about the real hurt that individuals at the receiving end of hate speech or hate crime might feel. The opposite is the case here. I vigorously oppose racism and any other form of discrimination, but I believe that the concept and the implementation of hate crime law are not just ineffective but counterproductive. There are three types of hate crime law that I seek to amend in this and the following amendment: first, direct criminalisation of certain offensive words; secondly, an enhanced sentence when a crime is aggravated by directing certain offensive words towards individuals with certain protected characteristics; and thirdly, stirring up offences based on use of offensive words, behaviour or material so as to arouse hatred against an individual with certain protected characteristics. My first amendment would abolish the criminalisation of particular offensive words that are merely grossly offensive, while still leaving in place the sanctioning of any words that would cause or provoke actual violence or fear of violence. In our national history, hate crime law is new. We got along perfectly well without it for many centuries until the Race Relations Act 1965 was passed to prevent race violence and discrimination. We have now gone a long way further than that first law, with hate crime legislation embedded in a number of different Acts, covering both deeds and thoughts, and going beyond race into a number of different protected characteristics, the most recent of these being transgender. Sometimes all that is needed for a conviction is if the victim or, indeed, any person takes offence, sometimes with no test of reasonableness. Many see this as having divided society into warring grievance groups. These laws are not working. Unintended consequences roll in. Hard cases make bad law. Criminalise one obviously appalling thing and, by doing that, it is hard not to criminalise other not so appalling things—so Graham Linehan is arrested by five armed police at the airport. You get police incentivised to pursue soft targets for soft crimes. You get police encouraged into a Stasi mindset, telling ordinary citizens, “I need to check your thinking”. Have these laws created social cohesion? No. Antisemitism, for example, has suddenly become widespread in our country. These laws are confusing. Late last year, the College of Policing issued guidance on female genital mutilation stating that trans women—which is to say men—whether holding a gender recognition certificate or not, are just as threatened by female genital mutilation as are women and girls. This was utterly absurd—but if you say it is wrong, you have to be prepared for possible investigation by well-meaning but improperly informed police. These laws are cluttering up the justice system. I think noble Lords understand this, but I will talk about it in greater detail when I get to my second amendment later. These laws are onerous on the innocent. It is difficult to exaggerate the devastating effect that an arrest and a subsequent multi-month legal process can have on a law-abiding citizen, even when, at the end of it, they are exonerated. An overall hate narrative has spread across politics and society, with so many random accusations of hate speech or hate crime leading to controversy, or worse. Charlie Kirk was shot dead in America by someone who had been persuaded that Kirk had been hateful against the trans community. Last month, a teacher was referred to the national counterterror programme and forced out of his job after showing videos of Donald Trump to his sixth-form politics students. These laws are crushing our country’s free speech tradition—the heartland of our national character and the driver of our national success over the centuries. In America, the First Amendment is: “Congress shall make no law … abridging the freedom of speech”. In our history, George Orwell is venerated for saying that free speech is worthless unless it extends to things that people do not want to hear. Lord Justice Sedley is venerated for saying: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to promote violence. Freedom only to speak only inoffensively is not worth having”. We revere Queen Elizabeth I for saying that she had no desire to look into a man’s soul, but now we have judges looking into men’s souls on a regular basis. Along with the suppression of free speech, cancel culture has flourished. A woman in a Stoke-on-Trent focus group that I observed shocked me when she said to general agreement in the group, “Of course, none of us can say what we’re really thinking”. Freedom in the Arts ran a large UK survey in 2024-25 that found that 84% of artists said that they never, rarely, or only sometimes feel free to speak about their social or political opinions for fear of ostracism, bullying or loss of work. Until people can say what they are thinking—so long as, of course, they do not incite imminent violence—we do not have our traditionally free country. Turning to the key provisions in my amendment, proposed new subsections (1), (2), (5), (6) and (8) to (12) would remove the criminalisation of specific offensive words. Proposed new subsection (1) would repeal the Malicious Communications Act 1988. A person can currently be sentenced under that Act to up to two years if they send a letter or electronic message that is either intended to “cause distress or anxiety” or employs “indecent or grossly offensive” words. A well-known report from Big Brother Watch found that, over a three-year period, there were more than 1,000 charges and more than 600 cautions under that Act. Proposed new subsection (2) would omit Section 127 of the Communications Act 2003, which provides for jail for up to six months for sending a “grossly offensive” message, or a message that is “of an indecent, obscene or menacing character”, or knowingly sending a false message to cause “annoyance, inconvenience or needless anxiety”. The Big Brother Watch report showed nearly 3,000 charges and more than 1,000 cautions under Section 127. These various numbers have probably increased, not declined, since that report. A lad stupidly joked on Twitter that if Robin Hood Airport was not going to be open next week, he would blow it up. He was convicted under Section 127, and it took three appeals before that was overturned. The process was his punishment, for someone who was innocent. The Big Brother Watch report found at least 355 cases under these two Acts involving social media, with the rate increasing, not declining. Proposed new subsection (5) would amend Section 4 of the Public Order Act 1986, which provides for up to six months for intending to make likely or cause someone to believe that “immediate unlawful violence” will take place when using “threatening, abusive or insulting words or behaviour” or distributing or displaying “threatening, abusive or insulting” signs. My amendment would leave “threatening” in place, but remove “abusive” and “insulting”. Threatening behaviour involving imminent unlawful violence should clearly be illegal, but surely that is enough.