Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
Reforms to hate crime laws to make them fairer, while also protecting freedom of expression
Hate crimes are acts of violence or hostility directed at people because of who they are. Hate crime laws in England and Wales have developed in various phases over the past two decades, and the law currently recognises five protected characteristics:
- sexual orientation
- transgender identity.
But the criminal law does not treat all of those protected characteristics equally. This means that someone who is assaulted based on disability is not afforded the same protection as someone who is assaulted because of their race.
Other major concerns include:
- The complexity and lack of clarity in the current laws which can make them hard to understand.
- Concerns about the particular challenges in prosecuting disability hate crimes
The Consultation paper
We published our consultation paper on 23 September 2020. We received nearly 2500 consultation responses, which have helped shape the final recommendations we have made.
In our final report published on 7 December 2021, we have made a number of recommendations for reform of hate crime laws. These include:
Levelling up the protection for disability and LGBT+ victims
Hate crime laws don’t protect all five protected characteristics to the same degree. For example, aggravated offences only apply in respect of racial and religious hostility whilst the stirring up offences don’t cover disability or transgender identity.
This current hierarchy of protection is widely seen as unfair and sends a distinctly negative message to victims of hate crimes on the basis of disability, sexual orientation and transgender identity. It also makes the laws needlessly complicated and is a cause of confusion.
The Law Commission has recommended that across the various hate crime laws (including aggravated offences and stirring up offences) all protected characteristics should be treated equally. This would provide much greater protection for victims of disability and LGBT+ hate crime in particular.
We have also recommended legal reforms to assist with prosecutions for exploitative forms of disability hate crime that lack obviously “hostile” features.
Tackling sex and gender abuse
The Law Commission has recommended that “sex or gender” should not be added to the protected characteristics for aggravated offences and enhanced sentencing as it would be ineffective at protecting women and girls and in some cases, counterproductive.
For example, if applied in the context of rape and domestic abuse it could make it more difficult to secure prosecutions and create unhelpful hierarchies of victims. However, if these contexts are excluded, it would make sex or gender very much the poor relation of hate crime characteristics, applicable only in certain, limited contexts.
However, the Commission has made a number of recommendations to provide greater protection:
- Extending the offence of stirring up hatred to cover stirring up hatred on the grounds of sex or gender. This would help to tackle the growing threat of extremist misogynist “incel” ideology, and its potential to lead to serious criminal offending.
- A government review of the need for a specific offence to tackle public sexual harassment, which would likely be more effective than adding sex or gender to hate crime laws.
Protecting freedom of expression
Whilst the Commission has recommended some extensions to hate crime legislation, we have coupled these with reforms to hate speech laws and new protections for freedom of expression to ensure that only the most egregious hate speech is criminalised.
In relation to the stirring up hatred offences, the Commission has recommended:
- Replacing the dwelling exemption with protection for private conversations to ensure they are exempted regardless of where they take place
- Explicit protection for “gender critical” views, criticism of foreign governments, and discussion of cultural practices, and immigration, asylum and citizenship policy
- A new protection for “neutral reporting” of inflammatory hate speech by third parties
Key questions about our final recommendations
We have produced answers to the key questions that we anticipate people may have about our final report. These are available here.
On 25 April 2023 the Government published a response to one of our recommendations. In it they accepted our view that sex or gender should not be added as a protected characteristic for the purposes of aggravated offences and enhanced sentencing. We continue to wait for the government’s response to our remaining recommendations.
If you have a question about the report, please email: email@example.com
Area of law
Professor Penney Lewis