Crime and Policing Bill

Baroness Cash Excerpts

Wednesday 4th March 2026 Lords Chamber

My amendments do not resolve every difficulty in what the Government are proposing to do with their amendments or have said they will do with respect to creating a new offence under the Public Order Act, but they would send a clear signal to the police—and to the trans activists who have discovered that the police are all too happy to do their bidding—that misgendering is not a criminal offence and should not be treated as one or as an aggravator. As I say, I do not believe it is the Government’s intention to bring about this effect, and, if the Minister will reassure me on that score, I will be happy not to press my amendments.

[Baroness Cash (Con)]

My Lords, I support the amendments of my noble friend Lord Young of Acton and oppose the Government’s amendments in their entirety, on principle.

I did not expect to be beginning in the way I am about to begin, but I want to say this because the quality of debates around hate crime have become increasingly polarising. In my first year in this House, which has been a great privilege, I have grown to deeply admire the Minister, the noble Lord, Lord Hanson of Flint, in particular for the way he has conducted the passage of this Bill and the many late nights and long hours he has put in. Indeed, I have grown slightly fond—if that is okay to say—of him and our exchanges in the corridors. Therefore, it is with some trepidation and fear that I get to my feet to say that I hope we can engage in a respectful debate. I do not agree that this is the right vehicle for the objectives but I do agree with the objectives.

The Minister used these words—I hope I have taken them down correctly; I think it is verbatim. He happens to believe that trans and disabled people “should be able to live without hostility”. I 100% agree with that, but I do not believe that this is the right vehicle. My noble friend Lord Young of Acton has already covered the existence, introduced in 2020, of the aggravating factors in sentencing which allow all those characteristics and categories to have increased sentencing as a result of hostility acted out on those people. I want to clarify that, because I do not believe there is a single person here, whether Peer or guest in the Gallery, who would disagree with anything that the Minister said. I hope we can have a debate on what the right vehicle is, which does not denigrate anything when it comes to what the principles should be.

Seeking to amend the Bill to add “aggravated factors”, alongside race and religion, introduced a quarter of a century ago, is a significant departure. It is an extension and expansion of the structure of our criminal law. The traditional structure is that conduct constitutes the offence: for example, he hit him and he meant to. The motive may aggravate the sentence; the law does not need to prove why. But once we subdivide offences by protected characteristic or identity, we depart from that principle. We know—because the Home Office itself says that only 7% of recorded hate crimes result in charging—that this becomes a complicated way of proceeding against this kind of conduct, particularly when we already have a vehicle for punishing it. The same conduct becomes a different offence depending on the identity of the victim and the alleged beliefs of the defendant. The motive for the crime moves from sentencing into the definition of the crime itself. It is, of course, more complex to establish, and harder to charge and then to prove. What better way to approach it than by the sentencing mechanism, where a judge has heard the evidence, and it has become quite clear and apparent during the course of the trial that this was an underlying motivation. He or she—I note, with deference, the noble Baroness, Lady Levitt, sitting opposite—can then increase the sentence accordingly.

This is not something I have just come up with today. Many respected academics and lawyers have questioned the aggravated defence regime. Professor Richard Taylor has argued that racially or religiously aggravated offences created by the 1998 Act are conceptually confused and duplicate what could be, and is now, more adequately addressed through sentencing law. The Law Commission of England and Wales has recognised this structural tension. In fact, the Law Commission goes so far as to comment on sex not becoming a characteristic at all. There have also been a number of reports by Policy Exchange, and I declare my interest as a senior fellow. These reports warn against the steady multiplication of identity-based criminal categories, and emphasise that the criminal law should focus on the conduct, rather than proliferating protected characteristic variants of an offence.

Others, including Lord Sumption, have cautioned that we should not push the criminal law from punishing harmful conduct towards adjudicating belief and motive. We do not need any reminder of the risks, because we are currently dealing with the failure of the non-crime hate incident reporting regime. Why, at the very moment that Parliament is moving to curtail the recording of non-crime hate incidents—recognising the problems created when policing becomes entangled in the recording of perceived hostility—are the Government proposing to expand hostility-based criminal offences themselves? I noted that the Minister said that this was a manifesto pledge, but it makes me very uneasy that we are coming to it only on Report. It is such a significant structural change in the criminal law and an expansion of the regime that I would have appreciated the opportunity to speak to it at Second Reading and to challenge and scrutinise it in detail in Committee.

We need to have an honest and evidence-led debate. It is too easy to reflexively say that this is the kind thing and the right thing. It will not produce change or the results that we want it to. The aggravated offence model has been operating for more than a quarter of a century as a large-scale behavioural and sociological experiment in using identity-based categories to address prejudice. It is taboo to question it and to question whether it has worked, but we must. If it had reduced hostility or strengthened social cohesion then there might be a case for expansion, but it has not, and no evidence of that has been produced.

Hate-crime legislation is not a demonstrably effective enforcement tool. It is wholly wrong to divert resources in this way, in an already overstretched criminal justice system, where we are challenging the very existence of the jury trial without a solid evidential base for doing so. I oppose the amendment.

[Lord Pannick (CB)]

My Lords, I support the Government’s amendments. As I understand them, they do not create any new criminal offences; they are concerned only with sentencing for criminal offences that are proved and on the statute book. It is elementary that the sentence the court imposes for any criminal offence must depend on the circumstances of that particular offence. I cannot see the objection to the court being told that one of the things it should take into account is whether the defendant, who has been convicted of a particular offence, has acted by reason of hostility based on the victim being, or being presumed to be, transgender.