Crime and Policing Bill

Baroness Brinton Excerpts

Thursday 15th January 2026 Lords Chamber

[Lord Strasburger (LD)]

My Lords, I congratulate the noble Lord, Lord Moynihan, on his courage in raising these issues. I am going to say little more than that, other than that I was instrumental in getting a sentence added to the code of conduct for members of the Liberal Democrats, which says that no one has the right to not be offended.

[Baroness Brinton (LD)]

My Lords, the noble Lord, Lord Moynihan of Chelsea, set out the principles that he believes are important to secure freedom of speech by removing the words “abusive or insulting” from a number of pieces of legislation. From these Benches, we absolutely accept freedom of speech. But I want to pick up on the point that the noble Lord, Lord Young, made when he quoted John Stuart Mill. There is a second half to the sentence about the right to free speech. Mill says that

“the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”.

It is on preventing harm to others that this entire debate is balanced.

I am sure that there are many justifications for feeling that freedom of speech is being curtailed for people who just want to express their opinion. But the reason that we have the laws we do at the moment, particularly since the 1950s, is due to the harm that has been done to others. I think there was reference made earlier to the Race Relations Act of 60 years ago; that was in the consequence of very overt racial harm done to entire communities in our society. John Stuart Mill would have absolutely supported that legislation to protect. That is what the balance is between our freedom of speech and our responsibility as parliamentarians to protect those, particularly the most vulnerable, in our society.

That is why I want to go back briefly—not quite as far back as the Race Relations Act 1965—to when the original provisions on hate crimes were first introduced by the Blair Government in 1998. There is no doubt that this was partly in response to growing concerns relating to the ineffective policing of and legal responses to racist violence, which, again, was then very evident on our streets. The noble Baroness, Lady Lawrence, and her family had campaigned for this more robust legislative framework, and not just because it was much clearer that, as a society, we did not and should not accept hate-motivated crimes, especially towards particular communities and those with protected characteristics.

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[Baroness Fox of Buckley (Non-Afl)]

I will ask this very briefly, then. Is there a problem that young people and the police do not appear to be able to distinguish between microaggressions and genocide? Is it one line?

[Baroness Brinton (LD)]

I am very grateful to the noble Baroness for her intervention and her questions. I say, with great courtesy to the Government Whip, that her first question does not relate to the amendment because it is not about an offence. She was talking about the pre-banning of people and asking whether harm is so broad. However, that is a debate we need to have as society.

That leads into the noble Baroness’s second question about whether young people can distinguish. I think young people can distinguish. Part of the issue is that we as an older generation do not understand that a lot of them take a great deal of care about their colleagues because they have been brought up in a society with the rules, as opposed to having to introduce them, and they have seen exactly the concerns that I was raising. We need to continue to debate this but, bringing it back to this amendment, the point is that none of those issues is about offences.

[Lord Davies of Gower (Con)]

My Lords, I am grateful to noble Lords for this interesting debate. I am also grateful to my noble friend Lord Moynihan of Chelsea for moving Amendment 382F, which I support. Although it ranges across several statutes, it is in truth a coherent proposal with a clear constitutional purpose: to restore the proper limits of the criminal law so that freedom of speech is protected, while of course ensuring that genuinely threatening conduct remains criminal.

At the outset, I recognise the political sensitivity of this area. Any proposal to amend or repeal so-called hate speech provisions risks being misrepresented as indifference to racism, misogyny, homophobia or other forms of discrimination. Let me be absolutely clear: that is not the motivation behind this amendment. As my noble friend said, we on this side of the House oppose racism and discrimination in all their forms. The case for this amendment is not moral indifference but legal realism. The current framework has proved incoherent, ineffective and, in some respects, actively counterproductive.

As my noble friend Lord Moynihan of Chelsea most ably set out, the current legislative framework dealing with offensive language, hate speech and the like is a messy, tangled web of patchwork offences. We have the Malicious Communications Act 1988, Sections 4A and 5 and Parts III and 3A of the Public Order Act 1986, and Section 127 of the Communications Act 2003. These provisions criminalise speech not because it threatens direct harm but because it is deemed “abusive” or “insulting” or said to cause a person “needless anxiety”.

I am not ignorant to the fact that we have had laws in this country prohibiting the usage of threatening, abusive or insulting words or behaviour for almost a century. Section 5 of the Public Order Act 1936, now repealed, stated:

“Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence”.


But there are two crucial differences between that legislation and this. The 1936 Act was set against the background of rising fascist paramilitaries, first in Italy and then in Germany and, indeed, in Britain. Secondly, use of the language

“with intent to provoke a breach of the peace”

is very different from outlawing insulting language likely to cause a person “needless anxiety”. I think even a child could understand the difference between inciting a riot and causing a person mild offence.

Yet this is where we are. A person can claim to have been caused “annoyance” or even “inconvenience”, complain to the police and have another individual investigated and potentially arrested. That is not hyperbole; it is the truth. There is a litany of recent examples that we could trawl through, but many have been mentioned by noble Lords today so I will mention only a few, as briefly as I can.

As we have heard, the Malicious Communications Act 1988 was used to arrest Maxie Allen and Rosalind Levine, the two parents who have been referred to. The same Act was used to arrest a 17 year-old boy for comments he posted on Tom Daley’s Twitter account:

“You let your dad down i hope you know that”.


While this is obviously poor behaviour, to claim it should be a matter for the law and constitutes criminality is deeply concerning. Section 127 of the Communications Act 2003 was used to prosecute a person who posted a picture online with a phallus drawn on it; Jordan Barrack was ordered to pay £400 in compensation for a post that did not cause any harm to anyone. Again, how this case ended up as a matter for the authorities is beyond me.

Of fundamental importance is the fact that the terms we are dealing with here are not precise legal concepts. They are elastic, subjective and dependent on perception rather than consequence. The result is uncertainty for the public, inconsistency in enforcement and an unhealthy transfer of quasi-judicial discretion to individual police officers who have recently taken to very liberal and, indeed, unequal enforcement of these laws.

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[Baroness Brinton (LD)]

The issue we are trying to get to is where the boundary is between free speech and abusive behaviour. The police would have had problems saying that it was threatening if she said, “Oh, I was just dancing around the chair”. This is what they explained to me at the time. The issue that protected me was that she was abusive and insulting, and they could record it. Had they been able to find her, they could have checked to see whether it had happened elsewhere, which they thought would have been likely. That moves into the area of the next group, so I will not talk any further, but I am very grateful to the noble Lord for raising that.

[Lord Moynihan of Chelsea (Con)]

I thank the noble Baroness for that explanation. She clearly demarcated our difference in view as to where the line should be drawn. I suggest to noble Lords that it is important to draw the line at the threat of imminent violence. That has been a principle in the past, but it has been breached by recent laws and actions by the police.

The noble Lord, Lord Davies, kindly supported this amendment—

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[Lord Young of Acton (Con)]

My Lords, I rise to support the amendment of my noble friend and the noble Baroness, Lady Fox of Buckley. I also declare my interest as a director of the Free Speech Union. I will make three arguments against the statutory hate crime regime, and against embedding the concept of hate crime in British law. As we have heard, and as we are all aware, the concept of hate crime is inextricably bound up with protected characteristics. A hate crime is either the stirring up of hatred against the bearers of certain protected characteristics, or it is a crime that becomes a hate crime because the perpetrator is motivated by hostility towards one or more of the protected characteristics of the victim.

The number of protected characteristics in this statutory framework, however, varies from law to law. Hate crime law, on the face of it, is for that reason slightly confusing and incoherent. There are three protected characteristics in the stirring-up offences in the Public Order Act, five are referenced in the aggravated offences regime, seven in the Hate Crime and Public Order (Scotland) Act, and nine in the Equality Act. How can we rationalise this anomaly? The solution of successive Governments has been constantly to add new protected characteristics to the statute book. I dare say it is possible that, in due course, amendments will be made to the Crime and Policing Bill to add yet more protected characteristics to the criminal law.

The direction of travel is clear: the number of protected characteristics is constantly expanding, and various lobby groups are constantly petitioning parliamentarians to add ever more protected characteristics to the statute book. The end point of this process will be that every characteristic is protected; but if every characteristic is protected, then no particular characteristic will enjoy special protection and we will, in effect, be back to where we started pre-1965, before the concept of hate crime raised its head in British law.

My first argument is that, in the interests of saving us all a great deal of time and effort, can we not just short-circuit the process of getting to the point where every characteristic is protected by stripping out the concept of hate crime and protected characteristics from British law and returning to the pre-1965 status quo?

My second argument has been touched upon by the noble Baroness, Lady Fox of Buckley, which is that the concept of hate crime is at odds with the sacrosanct principle of equality before the law. Why should bearers of protected characteristics enjoy more robust legal protections than non-bearers? Why is a criminal offence motivated by hostility towards a victim’s transgender identity punished more severely than exactly the same crime motivated by the victim’s sex? Sex is not a protected characteristic, apart from in the Equality Act. This two-tier justice—this sense that some people, because they happen to belong to protected groups, enjoy additional legal protections—fosters grievance, breeds resentment and undermines public trust in the law and in the police in particular. In 1981, around 87% of Britons reported having confidence in the police. By 2022, that had fallen to about 67%, a substantial long-term decline. I would suggest that one of the reasons for declining public trust in the police is this sense that some groups are better protected than others because of the hate crime, protected characteristic regime.

My third argument, which is probably the strongest argument, is that the aggravated offences regime introduces the concept of thought crime into British law. We need to distinguish between mens rea and the particular thought someone is having towards the victim while committing a particular crime. I do not think, when assessing the seriousness of an offence, you could exclude motive. It would be absurd not to take motive into account, but that is different from punishing a crime more severely if a person is experiencing a particular emotion—hostility, hatred—towards a particular group that the victim of the crime belongs to. Mens rea is universal and does not discriminate, but hate crime does. It says that if you are having particular thoughts about the victim when you commit the crime—importantly, not hatred in general, but hatred based on their possession of one or more protected characteristics—you should be punished more severely.

Not only is this criminalisation of certain thoughts a hallmark of a totalitarian society, but, as my noble friend Lord Moynihan pointed out, it is very hard to prove. It is very hard for a court to determine whether the person accused of the crime had the verboten thoughts while committing the crime. To paraphrase Queen Elizabeth I, we cannot open a window and see into men’s souls.

I am perfectly aware that an amendment stripping the concept of hate crime from British law has little chance of winning a Division in this House, so let me close with some more modest proposals. Do not add any more protected characteristics to the list of aggravators. Extend Section 29J of the Public Order Act, which protects various forms of criticism of religion and makes it more difficult for people to be prosecuted for stirring up religious hatred. You can criticise a religion, even quite robustly, thanks to Section 29J and not be prosecuted for stirring up religious hatred.

One useful improvement to the hate crime statutory regime would be to extend Section 29J to the other stirring-up offences. For example, the Free Speech Union paid for the legal defence of a former Royal Marine called Jamie Michael. He robustly criticised illegal immigrants in a Facebook video and, as a consequence, he was prosecuted for intending to stir up racial hatred. It took a jury in Merthyr Tydfil all of 17 minutes to unanimously acquit him of that offence. He should never have been prosecuted. We need a protection in the Public Order Act whereby, if you make robust criticisms, even of legal migration, you should not be vulnerable to a charge of stirring up racial hatred.

Finally, an anomaly in the stirring-up offences is that you can be prosecuted for stirring up racial hatred if the effect of your words or behaviour is likely to stir up racial hatred, even if that is not your intention—whereas you can be prosecuted for stirring up religious hatred or hatred on the basis of sexual orientation only if you intended to do that. That is an anomaly, and my recommendation would be that a two-limb test has to be satisfied before one of the stirring-up offences can be made out. To successfully prosecute someone, it should be incumbent on the Crown to show not only that what they said or did was likely to stir up hatred against the protected group in question but that they intended to as well. That would bring British law to a certain extent into line with the Brandenburg test in the US first amendment, whereby you can be prosecuted only if your words or actions are not only likely to but were intended to cause imminent lawless action.

So, accepting that this controversial proposal that my two colleagues have bravely made is unlikely to ever win enough support in this House as presently constituted to win a Division, I urge the Committee to consider those more modest reforms.

[Baroness Brinton (LD)]

My Lords, I am grateful to the noble Lord, Lord Moynihan of Chelsea, for setting out his arguments for abolishing hate crimes. He started with the issue of freedom of speech again—I absolutely understand that that is where he and those supporting him are coming from—and, interestingly, he cited the case of Lucy Connolly. I thought it might be helpful to remind the Committee of part of Article 10 in our Human Rights Act 1998, which says:

“Everyone has the right to freedom of expression”—


we are shorthanding that to “speech”—but it goes on to say:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.


I have carefully quoted all of it, but I will focus on the part that relates to what she was convicted for.

Coming back to our debate on the previous group, the problem is that there is a lot of concern about big figurehead cases when, actually, the law, the judge and the jury—actually there was no jury because Connolly pleaded guilty—were clear that she was inciting racial hatred. She pleaded guilty of saying threatening and abusive material, which is interesting given what we debated on the last group. She said:

“set fire to all the”—

effing—

“hotels full of the bastards”.

She said that at exactly the time that people were on the streets, some of whom were trying to set fire to the hotels. The tweet was viewed 310,000 times before it was deleted, and the judge specifically cited that in his summary at the end of the case.

[Lord Young of Acton (Con)]

I thank the noble Baroness for accepting my intervention. I just wanted to point out that the noble Baroness did not quote Lucy Connolly’s tweet in full. She added the caveat “for all I care”, which suggested not that she was intending to encourage people to burn down asylum hotels but that she was indifferent as to whether they did so.

[Baroness Brinton (LD)]

Fortunately, the judge took a different view. I think that we have to accept—and I was not the judge and do not know what his thoughts were—that the tweet was clearly seen enough times by the public at the moment when a small number of people were causing real concern outside hotels that had asylum seekers in them who had absolutely nothing to do with the Southport stabbing. That was the issue. Therefore, I believe that this is exactly where the balance lies between rights and responsibility, to go back to John Stuart Mill, where we started in the previous group.

[Lord Moynihan of Chelsea (Con)]

I thank the noble Baroness for letting me intervene. Will she agree that it is unfortunate that there is a general perception that this lady—on whose case I do not rest any of my argument, or place any reliance, as I discussed in my 40-page submission to the Macdonald review—was inveigled into pleading guilty by being kept on remand in a case where it would not have been usual to keep such a person with such an alleged crime on remand? She pled guilty because she thought that she would be released early—more fool her, it turns out—and as a result of her pleading guilty, the matter referred to by my noble friend Lord Young, that she said “for all I care”, which may have turned out to be an excuse that led to her exoneration in front of a jury, much like that 17-minute jury decision that he mentioned, was never litigated, so that we could have discovered what the law said as to whether her tweet reached the standards for criminal conviction. Does the noble Baroness not think that unfortunate?

[Baroness Brinton (LD)]

I do not think that it is unfortunate given that the judge said that 310,000 views of that tweet happened at a time when there was discord on the streets. My argument is not about Connolly’s case; it goes back to Article 10 in the Human Rights Act, which says that along with freedom of expression or freedom of speech there are rights and responsibilities, and it is the role of the state to have laws to protect people. It cannot have been right to think that even one person seeing that tweet could have started one of the arsons in the bins outside one of the asylum seeker hotels. I do not know whether that happened; the point is that 310,000 people saw it, and that is the difference with her last phrase, which probably most people did not see or did not take in the way that the noble Lord has indicated—he has raised his eyebrows at me, but there are different ways of taking it. I do not want to get into the detail of that; I am trying to make the argument that, for every instance of freedom of speech by an individual, there are quite often consequences that may or may not end up as a crime as well. That brings me back to the point that the noble Baroness, Lady Hunt, raised earlier—that the level of hate crimes is increasing. We also know that hate crimes are seriously underreported.

[Lord Moynihan of Chelsea (Con)]

I apologise for intervening again, but does the noble Baroness not accept that had that matter been litigated it would not have been before the judge? It would not have been for the judge to rule; it would have been before a jury, which is something that we in this country enjoy and that unfortunately there are moves to suppress. It would have been in front of a jury, and a jury would have been able to decide whether that final point justified her exoneration.

[Baroness Brinton (LD)]

The noble Lord said that he did not rely on Lucy Connolly in his earlier argument; he is now trying to rely on that case here. I am trying to make the point that it is more complex than he made out in his earlier contribution. I would like to make some progress, if I may.

The previous Government’s LGBT survey in 2018 showed that fewer than one in 10 LGBT people reported hate crimes or incidents. The noble Baroness, Lady Hunt, has explained one of the reasons for that. The other reason, I know from friends who have also experienced this sort of hate crime, is they do not believe that the police will do anything. I say to the noble Lord, Lord Young, that that is one of the reasons why there is concern about the police: too often, people who are targeted in this way feel that they do not get the help that they need.

As has been described, there is no single piece of hate crime legislation. It includes aggravated assault, which the noble Lord, Lord Young, was particularly concerned about. The point about hate crime is that it is not just the individual; the protected characteristic means that they and their community are also affected by it. We have spent many hours on previous groups on this Bill discussing the absolute abhorrence of antisemitism. If actions in Israel can cause people in the UK to start attacking members of our Jewish community, either verbally or against a person or their property, then that is absolutely unacceptable. That is one of the reasons why I would never want hate crimes to be removed.

Research by Professor Mark Walters of Sussex University shows that hate crimes do not affect just those individuals targeted; he describes them as having a “ripple effect” through their wider communities. Some people will avoid certain routes and places, and others will not leave home at all, particularly in our Jewish communities at the moment, but the same is true in certain areas for our Muslim communities. If laws about hate crime are weakened or repealed, it would send an appalling message to these communities of faith, as well as to LGBT and disabled people. Do the supporters of the amendment really no longer regard it as important that the state recognises the communities that have protected characteristics—their vulnerability—as warranting distinct legal recognition and criminalisation?

[Lord Davies of Gower (Con)]

My Lords, once again, this has been a very interesting debate and I thank all noble Lords who have taken part. I particularly thank my noble friend Lord Moynihan of Chelsea for tabling Amendment 382G. This amendment contains a line of argument that the Committee began to consider in the previous group: namely, whether the criminal law should concern itself with what people do or whether it should also punish what people are thought to feel or believe.

The provisions targeted by this amendment fall broadly into two categories. First, there are ordinary criminal offences—assault, criminal damage, harassment and public order offences—where existing penalties are increased if the court concludes that the offender was motivated by hostility towards a protected characteristic. Secondly, there are freestanding offences, particularly under the Public Order Act 1986 and the Crime and Disorder Act 1998, which criminalised the stirring up of hatred, even where no violence or other recognised criminal harm has occurred.

The crux of the debate comes down to this: two identical acts can result in radically different sentences depending not on the harm caused but on an inferred state of mind. That inference might be drawn from sparse or ambiguous evidence, yet it carries profound consequences for liberty. This could make prosecutions more complex, investigations longer and outcomes less predictable—hardly a recipe for clarity or fairness. These laws have grown incrementally and unevenly; they overlap, diverge, and sometimes contradict one another. The result is a body of legislation that is difficult to understand, inconsistently applied and increasingly divorced from public confidence.

This amendment offers the Committee an opportunity to step back and ask whether this approach has genuinely improved justice or whether it has instead distracted our criminal justice system from its core task of tackling real and harmful crime. This is a point that I would particularly like to emphasise. As a former police officer myself, I understand the difficulties in enforcing laws that are passed by a well-meaning Parliament but are incoherent and ill thought through. Part of this problem does indeed lie with us, the lawmakers. Successive Governments and Parliaments have not taken a coherent approach to public order and speech legislation. They have passed statute after statute, simply adding to the already long list of different defences, not thinking to consolidate or repeal existing laws.

When the Public Order Act 1986 passed, it contained seven offences of this nature. The previous Labour Government passed the Crime and Disorder Act 1998, Sections 28 to 33 of which created racially aggravated offences. They then passed the Racial and Religious Hatred Act 2006, which added a new Part 3A to the 1986 Act, and the Criminal Justice and Immigration Act 2008 added hatred on the grounds of sexual orientation to the list of hate crimes. The Sentencing Act 2020 also permits for any offence to be aggravated by hostility expressed towards any of five characteristics.

This Government are going down the same path, as we have already discussed in Committee. Clauses 107 and 108 of this very Bill contain further provisions criminalising the use of offensive language based on racial hatred aimed towards an emergency worker. If the Government think it is coherent to simply bolt new offences on to the already vast array of legislation, then I respectfully suggest that they are somewhat misguided.

Furthermore, far from promoting cohesion, these provisions have too often deepened division. They have encouraged grievance politics and fostered public mistrust. They have also placed the police in an impossible position, asking them to arbitrate not just behaviour but belief and expression.

There is a further concern about effectiveness. These laws, as my noble friend Lord Moynihan of Chelsea mentioned, are clogging the justice system with cases that pose no real threat to public safety, while doing little to address genuine hatred or violence. At the same time, they have fed a broader culture in which accusations of hate are used to silence debate, discourage inquiry and deter people—artists, teachers, academics and ordinary citizens—from speaking openly.

Freedom of speech is not an abstract luxury; it is a defining feature of our national character and a cornerstone of democratic legitimacy. I thank my noble friend for enabling this fruitful debate and hope that the Government will consider it carefully.