Should we be free to stir up racial hatred in the privacy of our own homes?

This politically correct nonsense has to stop,” says Tim Loughton, Conservative MP for East Worthing & Shoreham. Mr Loughton has been a vocal opponent of “political correctness” for years, whether manifested in local authority adoption policies, bans on employees wearing religious symbols, gender questionnaires for primary schoolchildren or gender neutral school uniform.

The particular “nonsense” to which he is referring is the provisional recommendation in a consultation document from the Law Commission that the offences of “stirring up” racial or religious hatred, or hatred on the grounds of sexual orientation, should not be exempt from the criminal law when they take place inside a dwelling.

Even if he has a point it is a little early to panic. The Law Commission is a statutory body charged with making recommendations for law reform, but it is not especially known for political correctness or indeed for pushing any particular political view. Its Chair and four Commissioners – three Professors a QC with an interest in tax and EU law and a Court of Appeal judge are hardly household names, unless your household is full of academic lawyers, and nor are they in any sense political apparatchiks or wannabe commissars. They cannot make law – that responsibility these days usually falls on Matt Hancock or, very occasionally Parliament – they simply make recommendations. Often the Government says “thank you very much” and files their reports in an oubliette where they are duly forgotten.

So what has upset Mr Loughton is a tentative, provisional recommendation in a consultation, which might, or very well might not, lead in a year or two to a firm recommendation, in a report which the government of the day will quite likely ignore, and which in any event would require an Act of Parliament to implement. For the foreseeable future we will remain free to foment racial hatred in the privacy of our own homes, although confusingly, not if we do so by playing “a recording of visual images or sounds” which have the same effect: they are covered by a different section of the Public Order Act 1986 which does not have the “private dwelling” defence. Legal anomalies are heartily disliked by the tidy-minded Law Commissioners.

The extent to which the criminal law should be involved in regulating freedom of speech is a very live issue.

But it is not true that that Law Commission is especially in favour of restricting free speech. Indeed, it has at present another important consultation open on “Harmful Online Communications” which – albeit in cautious terms – recommends reform of S.127 (1) of the Communications Act 2003. That somewhat notorious subsection – which has its origins in legislation introduced in the 1930s to protect telephonists from obscene telephone calls – prohibits the posting of “grossly offensive” or “menacing” material online. Its vague terms have been used to prosecute, for example a joke tweet about blowing up Doncaster airport (albeit in the end unsuccessfully) and a man who posted footage of his dog performing a Hitler salute in answer to the command “Gas the Jews” (successfully). The Law Commission’s suggestion is that the scope of the offence should be reduced by restricting it to communications “likely to cause harm.”

However, the specific proposal that has exercised Mr Loughton is in the separate Hate Crime consultation document.

According to Mr Loughton:

What has the world come to when the principles of freedom of speech are now being trampled upon in conversations within your own home. There is a place to clamp down on hate crime, but within a family home it’s up to individuals to regulate how they converse.”

It’s a legitimate point of view, but I think Mr Loughton’s worry may be based on a misunderstanding of what the Law Commission is suggesting.

The crimes in question, the “stirring-up” crimes as they are termed, are not committed by expressing politically incorrect truths in family conversations. They are serious offences requiring either an intent to stir up racial (etc) hatred, or at least the likelihood that such hatred will be stirred up. They cannot be committed without (in the case of the racial hatred offence) the use of “threatening, abusive or insulting words or behaviour.” The “religious hate” limb of the offence requires threatening words or behaviour and it expressly excludes “discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of its adherents ….”  The “sexual orientation” limb contains equivalent exclusions. Prosecutions require the consent of the Attorney General and they are rare.

In Saki’s brilliant and deeply unsettling story The Unrest Cure, the local Bishop has visited a country house. The story is that he has done so in order to plan a Jewish pogrom.

Concerned that the Bishop is spending too long in the library another guest asks:

Isn’t the Bishop going to have tea?”

The Bishop is out for blood not tea” is the sombre reply.

It is revealed that he is planning to kill all the Jews in the neighbourhood (Saki, it should be noted, died while Hitler was still an unknown Lance Corporal).

“To massacre the Jews!” … Do you mean to tell me there’s a general rising against them?”

“No, it’s the Bishop’s own idea. He’s in there arranging all the details now.”

No-one would suggest that the Bishop’s activity – were it ever to be carried out – should be lawful merely because it is carried on in a private house.

Of course there is an important difference between actively planning a pogrom and “merely” stirring up racial hatred.

So let us change the story just a little: if the Bishop – or let us change it a little further and make him a fanatical and anti-semitic Islamist imam – holds a meeting in the library in which he calls in threatening terms for vengeance to be wreaked on the neighbourhood’s Jews because a prominent Jewish magazine has published an offensive cartoon, is it right that he should have a defence to a charge of stirring up racial hatred simply because the stirring-up of hatred took place in a private dwelling rather than in a car-park or a mosque?

If you have any views on the issue, the Law Commission’s consultation is open until Christmas Eve.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

10 thoughts on “Should we be free to stir up racial hatred in the privacy of our own homes?”

  1. can nobody else see the bigger picture here….? how are they going to enforce? seems to me this is more about ‘justifying’ secretly installing cameras and microphones in people’s bedrooms and bathroom, listening in via web cams and your own mobile phone…as well as the 5000G/ smart arsed 3d holoporn network being erected around us….all legalised under RIPA, even they were doing these things before…..and if you talk about these simple facts you’re immediately ass raped and chemically labotomised in mental prison until you are cured of these ‘delusions’….no trail by kangaroo required!

    i keep thinking about those Dad’s who were supposedly going to try and abduct Tony Blair. Who was the inside man? what military training did they have? What weapons were they going to use….?

    These questions were never answered as the trail was dropped at last minute….What I think probably happened was a few guys having a few beers one night. Bit of bravado….all hypothetical/ bit of a joke…..they didn’t know they were being spied on and all recorded……but of course the PTB didn’t want joe public to know this is routinely being done all the time, hence need to drop the trial……

  2. Think it is a bit worrying cus ‘stir up’ not easy to define or identify plus what would count as ‘evidence’? A drunken selective ‘video’? Oral subjective testimony?

    However if, in the unlikely poss, went through would surely potentially implicate all sorts including ‘antifa’ ‘blm’ anti- ‘white’ rage.

    Maybe the point is that once given the ‘imprimatur’ of an (impotent) LC recommendation, it fuels the fears, ire, paranoia and self-righteousness of whomever creating the ‘monster’ it was intended to preclude?

    So, no. I’m not in favour of the LC wading into the treacle.

  3. Do I commit a “hate crime” when I make the mild observation that the surest way to unite the country is to hang Tony Blair?

  4. There is a positive, beyond the medical benefits of wearing my ‘Covid’ mask. When wearing it, I can barely be understood, so I do not have much discourse with other folk. The usual facial twitches and intenations do not show, and for someone who expresses everything through body language, like an excited mediterranean (dare I use such a racial slur? and become non-PC, because I am sure someone will be offended for suggesting that mediterranean folk become excitable).

    The English language has previously not changed at such pace as it does today. Every week there seems to be a word introduced to the ‘Colins Dictionary’ or street language to describe a group, sexual orientation, disability, race, religion, sub-culture, etc,. There is definately a need for a glosary sheet (constantly updated), carried by us all so that we cannot cause any offence to anyone. Maybe we could preface a sentence to describing a person of the opposite sex to me as ‘a person of the opposite sex to me’, rather than female, lady or a women. Maybe a homosexual as someone who ‘has diifferent proclivities to me’ and those persons who do not look like me, as a ‘person who does not look like me’.

    If a ‘person of difference’ was to hurt me, I would have to be very careful in my choice of language and become very vague in my description. Else, I might be banged up for being offensive and hateful. I must stick to the mantra of ‘Best be thought a fool, than open ones mouth and remove all doubt’.

  5. There was a headline in the Telegraph sports pages about an oik at the FA using antique, politically incorrect English. The complaint was that this proved he was racist and sexist.

    The headline described him as stale, male, and pale – so it was sexist, racist and ageist. No?

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