A piece in today’s Times:
Extending laws covering hate speech to private homes would be a “completely crazy” move that would trample over freedom of speech, a Conservative MP claimed this morning.
The Law Commission has proposed removing the “dwelling exemption” from 34-year-old legislation covering “stirring up” offences in a move that its experts argue would clarify the law.
However, critics have claimed the proposed reform would criminalise dinner-table conversations in which casual comments were made about other nationalities or groups such as transgender people.
Until 1986, the offence of using words or behaviour intended or likely to incite racial hatred could only be committed in a public place.
But the Public Order Act of that year extended offences to private areas such as people’s homes.
However, parliament included an exception in the legislation to cover abusive and insulting words or behaviour within a private dwelling — provided that they cannot be seen or heard by people outside that home.
Now the commission, which advises the government on possible law reform in England and Wales, has argued that the legislation is confusing.
“To the extent that the aim is to ensure that the criminal law does not intrude on purely private matters, the exception is poorly targeted,” claimed the commission in a 500-page report published in September.
The report went on to say that the existing exemption “would include a meeting held in a large private house, for instance, but would exclude a private conversation conducted in an office”.
Commissioners also argued that it is “anomalous that the parallel offence of showing video or sound recordings” that constitute hate crimes does not have a dwelling exemption.
The commissioners have told the government in the consultation paper that other common law jurisdictions deal with the issue better and point to the Canadian criminal code, which it says excludes a “private conversation” from the offence of “wilful promotion of hatred”.
The commission’s proposal would therefore amend the law to target the context of speech and the number of people being addressed — and to move the exception to cover what would be considered private discussions.
Tim Loughton, a Conservative MP on the home affairs select committee, told The Times this morning that “this politically correct nonsense has got to stop”.
Mr Loughton continued: “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 completely crazy incursion on people’s civil liberties, but also entirely unenforceable.”
The issue is equally contentious in Scotland, where the devolved parliament is at present debating a hate crime bill.
One senior Scottish police figure claimed that under the proposed legislation children risk exposing their parents to hate crime charges if private banter from home is repeated in the playground.
Some interpret the draft legislation in Scotland as meaning that domestic conversations could be criminalised if they were deemed to deliberately incite abuse of minority groups.
In common with the Law Commission’s proposals south of the border, Humza Yousaf, Scotland’s justice secretary, has said that there should be no dwelling defence for conversations in the home that incite hate crimes.
But Calum Steele, general secretary of the Scottish Police Federation, said that dropping the exemption would mean that children could unwittingly inform on their parents if “insulting” remarks about transgender rights, immigration or refugees were repeated in the playground.
The commission pointed out that in 2018-19, just 13 stirring-up offences were prosecuted out of a total of 13,000 hate crime prosecutions.
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