Exposed! How the Labour government vetoed a crack down on hate crimes.
In George Orwell’s Animal Farm, all the animals were equal but some were more equal than others. The pigs received special privileges denied to other farmyard creatures.
More than half a century after Orwell wrote his dystopian satire, the government proclaims equality for all, but legislates greater equality for a few.
We see this two-tiered system of citizenship and civil rights in the laws prohibiting discrimination, where only discrimination based on race, sex and disability is illegal. This leaves other forms of discrimination lawful by default, including discrimination on the grounds of age, religion, sexual orientation, political opinion, HIV status, language and genetic inheritance.
Under the laws on blasphemy and incitement to hatred, there are also special rights for certain communities and not others
Even in cases of serious violent crime, not everyone is entitled to equal protection. Many crimes involving violence, or threats of violence, are motivated by prejudice and hostility towards the victim because of their racial, sexual or religious background. The perpetrators of these hate crimes go out of their way to deliberately target members of minority communities they despise. As well as victimising Jewish, black, Asian and gay people, they also often vent their hatred on travellers, communists, transsexuals, refugees and people with HIV.
Instead of cracking down on all prejudice-inspired attacks, the official government policy on hate crimes seems to be that some victims should be granted privileged legal protection and that all other victims should be ignored.
It was not always like this. When he was in opposition as Labour’s Shadow Home Secretary, Jack Straw recognised the many different manifestations of hate crimes: violence, threats, abuse, intimidation and harassment. He also acknowledged the diverse communities affected, and the need for comprehensive legislation to protect all vulnerable peoples.
Indeed, on 19 February 1997, just a few months before the general election that bought Labour to power, Straw addressed a lesbian and gay human rights meeting in the Grand Committee Room at the House of Commons.
He quoted from the Stonewall group’s national survey of homophobic hate crimes, Queer Bashing (1996), which found that a quarter of lesbians and a third of gay men had been violently attacked because of their homosexuality. One-in-three had suffered homophobic harassment, including threats, blackmail, vandalism, hate letters and graffiti. Three-quarters had been subjected to anti-gay verbal abuse.
Arguing that “the violence and fear to which gay people are subject is something which diminishes us all”, Straw concluded by endorsing “the need for more effective action to prevent and detect crimes in which there is a homophobic motive”.
After Labour’s election in 1997, however, nothing more was heard about this concern for the victims of queer-bashing violence. Homophobic hate crimes were eased off the government’s agenda, together with Labour’s other pre-election promises to the lesbian and gay community. Instead of honouring its pledge to end the ban on gays in the military, the new government fought in the European Court of Human Rights (ECHR) to maintain the exclusion of homosexual personnel from the armed forces. It only relented when the ECHR compelled it to do so. The promised equalisation of the age of consent was quietly shelved until the ECHR ruled that the discriminatory gay of consent of 18 was illegal; which required the government to eventually equalise the consent laws three years later.
The unwillingness of the government to pursue its pre-election pledge to crackdown on homophobic hate crime was particularly odd. Even people who are normally unsympathetic towards homosexual issues tend to regard assaults on lesbians and gay men as unacceptable. Action against anti-gay attacks would have provoked little hostility and probably garnered considerable public sympathy – especially if it was part of a comprehensive measure to tackle all attacks motivated by bigotry.
Timid and conservative as ever, the Labour government preferred to appease homophobic “Middle England”, rather than take a stand against queer-bashing violence. Ministers assumed, probably mistakenly, that ex-Tory voters who switched to Labour in 1997 would be alienated by action against homophobic hate crimes. The suffering of queers therefore had to be subordinated to Labour’s election strategy for a second term.
Nothing changed until a chance encounter in December 1997. The government had just announced that its forthcoming Crime & Disorder Bill (CDB) would create a new offence of “racially aggravated” crime. Hostility towards a crime victim because of their race would be treated as an “aggravating factor” in incidents of violence, harassment and public disorder.
The courts would be required to treat racial aggravation as increasing the seriousness of the offence and to therefore pass tougher sentences on the perpetrators.
The then Home Office Minister, Mike O’Brien, was invited to outline the government’s CDB proposals on the BBC’s late night current affairs programme, Newsnight. As someone with expert knowledge of hate crimes against a minority community, I was invited to join the panel, together with Barbara Cohen of the Commission for Racial Equality (CRE).
Welcoming the new legislation, Cohen highlighted the huge number of racist attacks on the black and Asian communities and the inadequacy of the existing legal framework to deal with them.
Although I understood and supported her argument, I felt some unease about the government’s plan to create a special category of racial offences, and to punish an offence more severely because it had a racial motivation. Shouldn’t all crimes of violence be treated the same? Why should one criminal be dealt with more harshly than another, when both have committed a similar offence? Is it ever legitimate to judge crimes based on motivations rather than consequences?
Despite these concerns, on balance, I concurred with the CRE view that the CDB’s new offence of racial aggravation was justified and necessary as a way of signalling society’s abhorrence of race hate crimes and its determination to stamp them out.
Moreover, there is an ethical and legal justification for treating hate-motivated violence differently. It is not the same as other acts of violence. Hate attacks are often organised and systematic, targeting people and subjecting them to continuous attacks over many weeks, months or even years. The consequences for the victims are uniquely harrowing. In this sense, hate crimes are qualitatively different from the usually random, opportunistic nature of non-hate crimes.
There is also a credible argument that although crimes motivated by greed or jealousy are deplorable, there is something particularly repugnant about those motivated by prejudice and intolerance. Targeting people for who and what they are – on the basis of personal characteristics such as their race or sexuality – is quite distinct from other offences. Such crimes not only damage the victims, they also threaten social cohesion and solidarity by stirring division and animosity. To preserve harmonious community relations, it is therefore right that hate crimes should attract more severe penalties.
My main intervention in the Newsnight debate was, however, to question why race hate crimes were being singled out for special attention. Shouldn’t the legislation be broadened, I asked, to encompass all hate crimes affecting all vulnerable communities? As well as covering attacks on Jewish, black and Asian people, the tougher penalties should, I argued, apply to everyone subjected to hate-motivated assaults, including travellers, religious minorities, people with HIV, lesbians and gay men, and those targeted because of their political beliefs or opinions. What I wanted was comprehensive, all-inclusive, hate crimes legislation.
Mike O’Brien was evidently concerned that his new offence of racial aggravation had come across as privileging one form of hate crime over another. Admitting that I had a legitimate concern, he invited me meet him at the Home Office to discuss the possibility of broadening the hate crime element of the CDB to cover all crimes motivated by prejudice.
The case for including lesbians and gay men within hate crimes legislation is overwhelming. A series of major surveys over the last 10-plus years has revealed the massive scale of homophobic violence.
Questionnaires distributed by the Gay London Policing Group (Galop) at Lesbian & Gay Pride Festivals, from the late 1980s to the early 1990s, consistently found that a third of lesbians and gay men had been violently assaulted by attackers who were motivated by anti-gay hate. Similar findings were reported by the Home Office-funded Safer Cities project in south-east London during the 1990s.
A more recent and comprehensive nation-wide survey was conducted in 1999. It was by the National Advisory Group on Policing the Lesbian & Gay Communities, which works with police services throughout the country.
Published as Breaking The Chain of Hate (1999), it found that 65.9 per cent of lesbian, gay and bisexual people had been the victim of at least one (and often more) homophobic hate crime. Of the most recent homophobic incidents, 29.4 per cent were verbal abuse, 13.2 per cent were threats and intimidation, and 22.7 per cent were violent assaults.
The most up-to-date statistics come from the Lesbian & Gay Census 2001, conducted by ID Research. Its survey of over 10,000 lesbians, gays and bisexuals in all parts of the UK found that in the last five years 25 per cent have been a victim of serious homophobic crime, including physical assault, hate mail, rape or sexual assault, blackmail and arson. Sixty-five per cent of the victims did not report the crime to the police; mostly because they feared police harassment or had no confidence that the police would be sympathetic or understanding.
Around one in ten of the adult population is lesbian, gay or bisexual for significant periods of their lives. This figure is broadly confirmed by major research projects in the US and Britain. These include Dr Alfred Kinsey’s Sexual Behaviour in the Human Male (1948), the British Marketing Research Bureau study for the Health Education Authority in Britain (1989), and the US National Health and Social Life Survey (1994).
Of this 10 per cent of the population that is homosexual or bisexual, around a quarter have suffered serious homophobic hate crimes. This would suggest that approximately one million lesbians, gays and bisexuals in the UK have been queer-bashed, sexually assaulted, or subjected to blackmail, arson or menacing mail threats. The huge volume of these homophobic hate crimes is at least as great as the level of comparable racist offences.
I presented Mike O’Brien with the evidence of widespread homophobic violence and harassment, and outlined to him the inadequacy of existing legislation. He seemed to accept that there was a credible case for including homophobic hate crimes within the CDB, and arranged for me to meet him at the Home Office.
Prior to our meeting, it was agreed that I should draft an amendment to the CDB covering all forms of hate offences. My amendment to Section 68 of the CDB extended the tough new penalties for racist crimes to all crimes motivated by “prejudice or hostility to the victim of the offence based on the victim’s actual or presumed religious affiliation or belief, sexual orientation, political or other opinion, disability, sex, medical condition, national or social origin, gender identity or physical appearance”.
The aim was to offer protection to all vulnerable individuals and communities. Based on existing evidence of hate crimes, my amendment focused on nine forms of prejudice-motivated attacks:
- Religion (vandalism of synagogues and mosques, harassment of Catholics in Scotland, threats against Sikh shops and Hindu temples)
- Sexual orientation (queer-bashing of lesbians, gays and bisexuals)
- Political opinion (targeting of liberals and left-wingers by the BNP and Combat 18)
- Disability (attacks on people with physical and learning difficulties)
- Sex (crimes motivated by a hatred of women)
- Medical condition (violence against people with HIV)
- National or social origin (anti-traveller, anti-refugee and anti-Irish offences)
- Gender identity (abuse and intimidation of transgender people)
- Physical appearance (bullying those who are overweight or disfigured)
As I pointed out to Mike O’Brien, and later wrote to the then Home Secretary, Jack Straw, my amendment was simple, no-cost, comprehensive, practical and effective. Home Office officials confirmed that it conformed to parliamentary rules, and was well drafted and workable. After three months of consultation and negotiation, I was hopeful.
On 11 March 1998, I had my long awaited meeting with Mike O’Brien at the Home Office. It was not the friendly, intimate, open-minded discussion that I had expected. The Minister was accompanied by half a dozen advisers. Very quickly, it became apparent that they had already decided, in advance of the meeting, to reject my amendment. Their mood was defensive and Mike O’Brien and his team went to great lengths to justify why the amendment was “unacceptable”. There was no interest whatsoever in discussing how it might be reformulated in a more acceptable form.
In contrast to his sympathy for comprehensive hate crimes laws when we had debated the issue on Newsnight three months earlier, Mike O’Brien was adamant: the CDB should focus exclusively on race hate crimes and my amendment could not be accepted because it would “dilute” this focus on racism.
The Minister’s reasoning in rejecting my amendment was later spelt out to me in a letter dated 3 April 1998. It was written by Mike O’Brien’s private secretary, Jon Payne, presumably with his boss’s approval. The arguments in this letter reflect the views expressed by the Minister during his meeting with me, and in subsequent parliamentary debates.
According to Jon Payne’s letter, the Home Office could not accept my amendment because: “Racist crime poses a particular threat to the development of a stable society. Too many of our citizens suffer daily fear they will be attacked or harassed because of their racial background. This is totally unacceptable and poses a serious threat to good relations between communities”.
My rejoinder was that too many of our citizens also suffer unacceptable victimisation because of their religion, politics, HIV status and sexuality. This is also a threat to social stability and good community relations. Singling out one form of hate crime for privileged legal protection is divisive and discriminatory, and a sure-fire way to create social resentment and disharmony. Those excluded from the legislation will feel that others are getting special rights and that they are being treated as second class citizens; making them vulnerable to manipulation by far-right extremists. Racism won’t be alleviated; it will be exacerbated.
The Home Office also stressed: “The new offences in the Bill are designed to give a clear message that racial violence and prejudice is a particular social evil which cannot be tolerated. We should not confuse that message by adding others to the Bill, even though we acknowledge that others may face difficulties too. Any addition to include, for example, homophobic violence would soften the message that we want to send. We have decided that we want to focus solely on racist cases. We need to highlight the issue of racism”.
My counter-argument was that protecting other vulnerable communities does not diminish protection for racial minorities one iota. Action on hate violence against Muslims or queers does not imply any lesser concern about attacks on black and Asian people. As I later wrote to the Home Office Minister: “All hate crimes are a serious menace. All vulnerable social groups deserve equal protection. All perpetrators of all crimes of prejudice should be punished with equal severity”.
In order to meet the government’s concern not to dilute the focus on racially aggravated crimes in Sections 22 to 26 of the CDB, I deliberately proposed that my amendment should be to Section 68. This separation of race and non-race hate crimes was, in my view, a regrettable but acceptable compromise to meet the government’s desire not to detract from the strong signal it wanted to send to the perpetrators of race hate offences. Precisely where in the Bill the amendment was inserted was not really important. What was vital was that it was inserted somewhere in the CDB.
Mike O’Brien was unmoved by this attempt to meet him half way. He then raised practical objections to my amendment, which were reiterated by Jon Payne in his subsequent letter: “A broad-based anti-prejudice crime would be enormously difficult to interpret”. Why?, I asked. If the Home Office can find a way of interpreting and enforcing new legislation on racial crimes, why can’t it do the same for other prejudice-motivated offences? Several European countries and US states already have workable, comprehensive hate crime laws. If they can do it, why can’t the UK?
The Minister’s response was irrational, illogical and downright insensitive. What had motivated his sudden, implacable opposition? Who knows? Was it pressure from his boss, Jack Straw? The Home Secretary had earlier ditched his pre-election pledge of action against homophobic violence – an ominous omen. As political insiders well know, once Jack Straw makes up his mind, his Ministers – mindful of their political and personal loyalties, and on the lookout for career advancement – tend to follow.
Undeterred by Mike O’Brien’s brush-off, I remained determined to get a backbench MP to sponsor my amendment. It was circulated to several supportive Labour and Liberal Democrat members. The Lib Dems responded immediately. Encouraged by their enthusiasm, I met with MPs Richard Allan and Evan Harris. Both were sympathetic to my idea of comprehensive hate crime protection, but cautioned against covering all the many different forms of hate crimes in a single amendment. They feared the parliamentary debate would get bogged down in the technical minutiae of the nine different hate crime categories. MPs who objected to one or two of these categories might feel compelled to vote against the whole amendment. In Richard Allan’s view, it would be better to narrow down the amendment to the two most serious and commonplace forms of hate attacks: those against religious and sexual minorities. I could see the practical argument: it is best to win something rather than nothing. Somewhat reluctantly, I agreed and redrafted the amendment accordingly.
Ironically, at the very moment that I was rewriting my amendment to crack down on hate crimes against gay people and people of faith, religious supporters in the House of Lords were lobbying to amend the Human Rights Bill to preserve the right of religious institutions to discriminate against homosexuals. Shortly afterwards, they fought tooth and nail to block the equalisation of the age of consent, and two years later they fought with equal ruthlessness to maintain the discriminatory Section 28.
Rising to the challenge, the queer human rights group OutRage! issued a news release taking the moral high ground: “We argue that all forms of prejudice are wrong, but religious leaders insist that denying equal treatment to gay people is right. Despite Christian, Muslim and Jewish opposition to homosexual human rights, OutRage! will continue to support equality for people of all faiths and sexualities”.
In the light of the religious crusade against queer equality in the House of Lords, Richard Allan decided that including religion within the amendment, alongside sexuality, might be a red rag to the fundamentalists of all faiths. He feared it would attract their attention and provoke a religious-inspired campaign that could scupper the entire amendment.
In late May, the religious dimension was therefore dropped, leaving the amendment to focus solely on homophobic hate crimes. This was a mere shadow of my original comprehensive, all-inclusive intention. It was far from satisfactory and not a compromise I would have made myself had I been an MP and in a position to personally sponsor the amendment. Unable to do anything different, I deferred to the judgement of Richard Allan.
The amendment, known as New Clause 17, was in the names of the Lib Dem MPs Richard Allan and Sir Robert Smith. It was debated on 11 June 1998 in Standing Committee B on the Crime & Disorder Bill.
The most surprising contribution to the committee’s deliberations came from the openly gay MP, Stephen Twigg. While backing action on homophobic violence in principle, he obligingly echoed the reservations of Mike O’Brien and declined to support the amendment, claiming he was “not convinced” that it was the “most effective approach”. When later asked to come up with an alternative amendment, he failed to do so. To some observers, it looked like his status as a gay MP was being used – rather cynically and shamelessly – to undermine the amendment and to shore up support for the government’s hard-line opposition.
Home Office Minister Mike O’Brien began by rejecting the amendment with the argument that it was unfair to give homophobic hate crimes preferential treatment over attacks on women, religionists and the disabled. Yet only two months earlier I had offered an amendment to protect these and other victims of hate crimes, and he had turned it down.
He then continued: “We must use the Bill to send a sharply focused message on racial violence and harassment.We cannot afford to complicate it if it is to be understood by racist thugs”. In other words, Mike O’Brien was suggesting that one of the CDB’s main purposes was, in fact, pedagogic. But does anyone really believe that racist thugs read parliamentary Bills or listen to parliamentary debates? Do they give a damn about Minister’s intentions? If the CDB covered all hate crimes, would this encourage hate-mongers to conclude that the government was not serious about tackling racist offences?
Mike O’Brien went on to suggest that it was no big deal for the CDB to ignore attacks on the lesbian and gay community: “Not being included is not equivalent to exclusion”. Pardon? “Seeking to address one issue does not suggest a failure to recognise others”, he added.
Even more bizarrely, the Minister then claimed that the victims of anti-gay attacks were already receiving privileged treatment: “The penalties for homophobic attacks are the same as for attacks on anyone else but in practice the sentence is likely to be higher because of the aggravating feature of homophobia”.
Tell that to the loved ones of gay murder victims! Too often the killers literally get away with murder by claiming the defence of “homosexual panic”: that they suffer from an irrational, uncontrollable fear and loathing of “faggots”, which compels them to kill the “dirty queers”. Far from getting tougher sentences, as the ill-informed Minister boasted, queer-bashers often get sentences that are considerably lighter than other murderers.
The debate in committee then took the oddest turn of all. Mike O’Brien argued that opposing the homophobic hate crime amendment was an issue of equality: “Admittedly the sentences for racist offences will be raised, but if New Clause 17 is rejected the maximum penalties for homophobic attacks will remain in equality with those for the vast majority of the population. Gays will not regret achieving such equality: their case has always been to demand equality rather than special treatment”, he concluded.
Well, not quite. Supporters of New Clause 17 were never seeking “special treatment” in the first place. All we wanted was homophobic violence to be treated the same as racist violence and punished with equal severity. The rejection of New Clause 17 would mean that homophobic hate crimes, in common with other non-racist hate crimes, would be subject to lesser sentences than racial ones. This is a form of discrimination. Contrary to the Minister’s misguided belief, it was no consolation at all that the victims of queer-bashing attacks would be equally disadvantaged as other victims of non-racist hate attacks.
Facing the prospect of certain defeat in a Labour and Tory dominated committee, Richard Allan withdrew his amendment. But not before he received assurances from Mike O’Brien that the government was committed to further action to “tackle homophobic attacks” and that an amendment on queer-bashing violence “could well be considered at a later stage”.
Surprise, surprise! These assurances came to nothing. Moreover, the working of the Crime & Disorder Act 1998 has never been monitored to see whether extending its provisions to other forms of hate crime might be practical and useful. We were had!
* Published in The Hate Debate – Should Hate be Punished as a Crime?, Edited by Paul Iganski, Profile Books, London, April 2002.