We need to fight for legal equality
Assumptions we have long taken for granted no longer stand
Equality before the law is an important, longstanding and hard-won right. This principle demands all citizens be treated equally irrespective of their sex, skin colour or sexuality. Of course, equality before the law does not take account of historic or present disadvantage or discrimination. Nor does it imply equality of outcome. It does mean that the law will not treat people differently on the basis of who they are.
Yet it seems that a cabal of lawyers want to end this hard-won right. Yesterday, the Sentencing Council published new guidelines requiring ‘pre-sentence reports’ to be compiled for people who have been convicted of a crime. These reports provide context to a criminal act and can be used to make a case for non-custodial punishments. People with a detailed pre-sentencing report are less likely to go to prison. The rub is that the Sentencing Council only expects reports to be routinely compiled for people in selected groups such as those under 25, women, those from an ethnic, cultural or faith minority and single parents. This means that two people can commit the exact same crime in the exact same circumstances, but one is far more likely to go to prison than the other - entirely because of their skin colour or religion. Inequality will be enshrined within the law. White men, to be blunt, will be disriminated against in the name of justice.
There has understandably been an angry response to the Sentencing Council’s proposals with both Robert Jenrick for the Conservatives and Labour’s Shabana Mahmood calling for a rethink. What they miss is the extent to which inequality is already enshrined within our legal system thanks to the Equality Act (2010) which offers increased legal protections to some people over others. This is compounded by hate crime legislation.
Rather than treating people equally, irrespective of race, sex or sexuality, hate crime legislation insists that these characteristics of a person’s identity are made central to any legal dispute by acting as the basis for determining whether a crime has or has not been committed. Comparable crimes are no longer treated similarly based on the objective facts surrounding the offence, but are instead treated differently depending upon the identity of the victim.
Both Labour and Conservative governments have overseen these changes that have taken place over several decades. As I made in a 2020 report for Civitas, elite lawyers have long argued for legal inequality. A 2020 Law Commission Consultation Paper on Hate Crime offered insight into the legal establishment’s thinking in this area.
The paper notes that, ‘Differential treatment of the characteristics currently protected under hate crime laws has been a persistent criticism in our consultation meetings.’ But rather than removing inequalities, the Law Commission wanted to introduce more.
It was particularly concerned that disability and LGBT status were not afforded the same protection as race and religion. It wanted all five characteristics protected by the Equality Act to be put on a similar legal footing in relation to hate crime. The Law Commission noted concerns with the demise of the principle of equality before the law:
While we understand the genuinely held concerns of those who subscribe to this view, we do not accept this conclusion. The law recognises that the same base offence may be more or less serious in different circumstances. The only crime for which the penalty is fixed by law is murder, and even for murder judges are expected to take into account the particular circumstances when setting the minimum term to be served before the offender is eligible to apply for parole. Moreover, hate crime laws in England and Wales turn on the motivation for the offence, or the demonstration of hostility, not the identity of the victim: the law does not, for instance, treat a black victim differently from a white victim, or a gay offender differently from a heterosexual offender.
There are a number of problems with this response. Taking into account the particular circumstances of a crime does not call equality before the law into question if the process is applied objectively to all crimes of the same type irrespective of the identity of victim or perpetrator. While hate crime turns on the demonstration of hostility, it is disingenuous to say all victims are treated alike. It would be far harder for a white victim, for example, to prove race-based hostility than a black victim. In justifying extending hate crime law on account of the historical disadvantage experienced by different groups, the Law Commission goes further down this path.
Indeed, the Law Commission acknowledges that, in some instances, ‘protection is afforded to only a subset of a wider category (in these cases the wider groups might be framed as “ability” and “gender identity”) and there is a clear distinction with those who are not protected: ie ‘non-disabled’ and ‘cisgender’ people. They argue for a broader approach to offer greater protection to more people, for example, ‘to remove the disparity between each of the protected characteristics, so that Muslims, Jews, Sikhs, Christians and other religious groups enjoy equivalent protection, regardless of whether they are classified as a racial group, religious group, or both.’ However, the ‘need for a broad approach’ is clearly a practical, rather than principled position:
The need for a broad approach is somewhat less apparent in respect of sexual orientation, where it might be possible to exclude “heterosexual” people from protection on the basis that there is little evidence that this group is targeted for hate crime. However, the increasing recognition of the complexity of human sexuality, and the emergence of new identities such as pansexuality would likely render a stark binary distinction somewhat difficult in practice.
And not one that will be extended to all groups:
to extend the protected characteristic to “a disability (or presumed disability, or presumed lack of disability)”. The intention would not be to provide protection to ablebodied persons, but rather to ensure the inclusion of disabled persons who are perceived by the perpetrator either not to be disabled, or not “disabled enough”.
Instead, the Consultation recommended, ‘that the protection offered by aggravated offences should extend equally across all the protected hate crime characteristics’ (that is, not additional characteristics) with the aim of achieving, ‘greater parity of protection, beginning with a consistent approach to the characteristics protected by aggravated offences.’
Equality is redefined as an equality of victimhood (for some) when the law comes to relate to vast swathes of the population as citizens in need of protection.
This view of equality is in keeping with the theoretical underpinnings of the consultation and draws heavily upon critical legal theory (CLT). CLT has been defined as:
a theory which states that the law is necessarily intertwined with social issues, particularly stating that the law has inherent social biases. Proponents of CLS believe that the law supports the interests of those who create the law. As such, CLS states that the law supports a power dynamic which favors the historically privileged and disadvantages the historically underprivileged.
Critical legal theorists argue that abandoning equality before the law, and treating people differently, is necessary to create equality in a social context in which some groups are more likely to suffer discrimination and disadvantage. The Law Commission make this point explicitly:
hate crime can cause harm to wider society – for example by damaging the principle of equality. For the purposes of measuring this, we establish two ways that this damage might occur. Firstly, criminal targeting might decrease social cohesion – leading to the isolation or withdrawal of vulnerable communities, reinforcing outsider status for certain groups or deepening tensions and divisions between different groups. Secondly, this criminal targeting might undermine a group’s equal participation in economic, social, political and cultural life.
In this way, legal inequality is thought necessary to promote social equality. However, this fundamentally alters the role of the law from neutral arbiter to an active and explicitly biased participant in disputes.
It is great that Robert Jenrick and Shabana Mahmood are paying lip-service to the importance of equality before the law now. But both Labour and Conservative governments have worked with a legal establishment that is determined to implement the exact opposite.