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

“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

“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

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