Crime and Policing Bill

Lord Pannick Excerpts

Wednesday 4th March 2026 Lords Chamber

[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.

[Lord Young of Acton (Con)]

The court can already take all the aggravating factors into account, save for hostility to sex. If a crime is aggravated by one of three of the four aggravators that the Bill would introduce into the charging regime, the CPS can flag those as aggravating factors and they can be taken into account at the sentencing stage, so what material difference would the government amendments make?

[Lord Pannick (CB)]

I am grateful to the noble Lord, but he is running two inconsistent arguments. He is saying first that the law already allows this, and secondly that this amendment to make the position clear is fundamentally objectionable on grounds of principle. He cannot run both arguments, nor say that it is objectionable for one of the factors that the court should take into account to be whether the hostility is based on sex. Why should we exclude sex? Why does the law currently allow the victim’s membership, or presumed membership, of a racial or religious group to be a factor that the court can take into account, but not sex or transgender status? That makes no sense whatever when the Equality Act deals with all these protected characteristics.

I emphasise that whether it is right or appropriate for the judge to take these factors into account in the circumstances of a particular case, and to what extent, will depend on the discretion of the sentencing judge, which will inevitably depend on the circumstances of the crime. Therefore, to exclude entirely the factor of the victim being, or being presumed to be, transgender, as the amendment from the noble Lord, Lord Young of Acton, seeks to do, seems arbitrary.

Of course, I agree with the noble Lord, Lord Young of Acton, that we must be very careful indeed to ensure that people are not punished for the exercise of free speech, but the law protects that exercise. It protects it by reference to Article 10 of the European Convention on Human Rights, which the sentencing judge must take into account in all cases. I do not know the circumstances of the case that the noble Lord referred to, where there was an acquittal at the appeal stage, but I strongly suspect that Article 10 had something to do with it. I support the Government’s amendment.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have serious reservations about the Government’s amendments on aggravated offences. I appreciate that this puts me at odds with the Minister, but I knew that long before today, because in Committee he made a passionate speech, as he has today, telling us how proud he would be to move these amendments and claiming that they show a Government prepared to protect LGBT and disabled people.

If this is such an important change in the law for the Government, and a principled flagship for progressive Labour that appeared in its manifesto, we have to ask why the Government waited until Report in the Lords—so late in the Bill’s passage—to table the amendments. They must have thought that they were principled and important before, so why are we seeing them only now? I am afraid that, as the noble Baroness, Lady Cash, explained, this denies this House the constitutional right to properly scrutinise and mull over the complex details of the amendments—let alone the fact that that was denied to the elected Chamber.

In the limited space that we have here, I will start by raising some general concerns I have with aggravated offences. Some people might say that this is a Second Reading speech; if it is, it is because the Government did not bring the amendments forward until now, so I will say it anyway. In my view, the state’s job, via criminal justice, is to prosecute material, clearly defined offences. When the authorities attempt to either infer or impute motivation for a crime, seemingly to signal its particular gravity, that is a dangerous move towards punishing ideas, beliefs or attitudes. Some of those ideas, of course, might be bigoted or abhorrent, but they are none the less ideas and opinions. We need to be wary of inadvertently stepping towards thought-crime solutions just to signal our moral virtue, and I am worried about expanding that regime.

This has consequences. Offences such as these carry higher maximum penalties when offenders demonstrate hostility, and this can mean prison. But hostility can be interpreted broadly in the law as ill will, antagonism or prejudice. Let me be clear: violence, harassment, assault or whatever against a disabled person, a trans person, a woman or anyone should be punished appropriately—severely, if that is your take—and certainly uniformly, regardless of motive. But aggravated sentencing can lead to some perverse outcomes.

On hate crime aggravators, in Committee I used an example from the CPS report Our Recent Hate Crime Prosecutions. A man was put in jail for 20 weeks for

“assaulting his father, sister and a police officer, and using racist slurs against his sister’s partner”.

But the CPS notes that, without the racist slurs, he would have only received a community order. So for the assault he would have retained his freedom but, with the racist words, he got 20 weeks in jail. What is more problematic is that many of the offences we are talking about are not actually those kinds of aggressions but often speech that is promiscuously criminalised.

This sentencing anomaly really hits home when it comes to the much boasted-of addition of sex into the aggregation. “At last”, people will say; “misogyny taken seriously”. But, during the Sentencing Bill, the Government refused to accept a perfectly reasonable amendment exempting sexual assault offences and domestic violence offences from the early release scheme. Surely, a real, material commitment to women would be to have accepted that amendment, not increased sentences for offences deemed driven by hostility to women.

Instead, my view is that we should prosecute actual offences committed against any woman. When those offences involve, for example, sexual violence or domestic abuse, we should give appropriate sentences to perpetrators and then not let the offenders out early to free up prison places. That would help women far more than this amendment, the wording of which says that the aggravators must be announced in “open court” to declare an offence aggravated—if ever there were an indication of the performative nature of this, that is it.

One worry is that many of the offences to which “aggravated” will be attached will be the tangled plethora of hate speech crimes, already leading to the scandal of Britain’s declining free speech reputation internationally, with so many arrested for speech crimes, as we have heard about. So many of these offences are wholly subjective, because hostility can be defined by the victim. We have seen the recent weaponisation of speech against those who do not share the same views, the whole cancel culture and toxicity that has proliferated, and identity groups and those with protective characteristics pitched against each other in grievance complaints.

Although it was not in the criminal law, we saw a gross example of this when John Davidson, a man with Tourette’s and the subject of an award-winning sympathetic film, involuntarily ticked and shouted out the N-word. Subsequent commentary refused to accept that there was no intent to offend. Race and disability were put at odds, rather than empathetically understanding the issues, and that is one of the problems with playing the identity politics issue. Increasing aggravated offences will just add to this toxic mix, and that, combined with public order and communications arrests—if not prosecutions for speech crimes, as described by the noble Lord, Lord Young of Acton—will make this issue really difficult.

The issue of hostility to transgender identity is likely to stir up further tensions. I want to ask: what is transgender identity? At best, it is a subjective category. It is a self-defined description. That is not a criticism; it is just an observation. Transgender identity does not require a gender recognition certificate or surgery. By the way, the wording in the amendment is confusing here: it gives credence to the fact that surgery might be a key, but then it says “proposing to undergo” gender reassignment, which is a very odd phrase. That is why the amendments of the noble Lords, Lord Davies of Gower and Lord Cameron of Lochiel, are right to query and probe it, which is what we should be doing, even though it is so late in the day. How transgender people are defined will matter to how these amendments will be understood.

The clarification of the noble Lords from the Official Opposition, in Amendments 337, 350, 351 and 352, establishing what sex means in the Bill, is also helpful. Emphasising biological sex—sex at birth—is necessary to ensure that the cultural clash between gender identity and sex is not muddled up in this Bill or in these amendments. The noble Lord, Lord Young of Acton, in his Amendment 334A, also hopes to ensure that the proposed changes do not criminalise misgendering.

I just note that I hate the word “misgendering”. If a male identifies as a female, even if he has a certificate or has had surgery, he is still a man. Saying that is not misgendering; it is factually accurate. Asking me to call him a woman is compelled speech, asking me to repeat misinformation. But would that statement, which I am very nervous about making, be seen as evidence of hostility to someone based on their gender identity? Guess what: too often, those accused of, and punished for, so-called misgendering offences are women. Police criminalised Sex Matters’ Helen Joyce for some tweets referring to Freda Wallace by his former name Fred and using he/him pronouns, and the police recorded that as “criminal harassment” with “transgender aggravators”.

What about the young lesbian who says that she is not attracted to a male—a man who thinks that, by wearing stilettos and a dress, he is a woman and should be allowed into a lesbian-only group at a workplace—