Beware the chilling effect of the Hate Crime Bill – Stephen Evans

Stephen Evans, Chief Executive, National Secular Society

Scotland’s Hate Crime bill is back before MSPs today for a final vote.

Wednesday’s stage three proceedings will mark the end of torrid legislative path through parliament. The bill has faced an almost unprecedented level of criticism from a disparate and diverse range of civil society groups. As often remarked through the passage of this bill, it’s no mean feat to unite the National Secular Society and Catholic Church in opposition. But that’s what this bill has done.

We feared this bill would at long last abolish Scotland’s blasphemy law, only to reintroduce it through the back door. As originally drafted, the bill was an absolute menace to free speech around religion.

It would have criminalised words and actions merely deemed ‘likely’ to stir up hatred – whether or not that the intention behind them. Perceived insults and subjectively offensive remarks – which account for a great deal of speech in these febrile times – would have been criminalised. Spurious prosecutions on the vaguest of grounds would have surely followed. From a human rights perspective, and free speech is a human right, this was a dreadfully drafted piece of legislation.

And what’s worse, it was wholly unnecessary. To this day the Scottish government hasn’t identified any gaps in the legislation that the new stirring up of hatred offences in this bill will addresses.

So, from the outset, the Scottish government has shown a negligent and reckless disregard for the right to freedom of expression.

It took the work of organisations such as the NSS and others in the Free to Disagree Campaign to raise awareness of the fundamental flaws within this bill. We have successfully lobbied and shaped this legislation in positive ways, removing some of its most egregious aspects.

In recent weeks the justice secretary Humza Yousaf has introduced significant amendments to the bill that will ensure the prosecution will need to demonstrate intent to secure a conviction for ‘stirring up hatred’. An objective reasonableness test for ‘abusive’ language has been added. And importantly, we have succeeded in securing amendments to protect discussion around religion or belief, including expressions of antipathy, dislike, ridicule and insult. This is all very welcome and vitally important.  But issues still remain.

If this bill passes Scotland will have the most regulated speech laws in the UK. The protection of freedom of expression clauses are substantially weaker than the more robust equivalent in England and Wales. Despite all of the amendments, this bill still has the capacity to chill free speech. We can expect vexatious complaints which create unnecessary bureaucracy. We can expect ordinary Scots to feel a little less willing to engage in public debate on contentious issues.

As citizens we have to be free to disagree. To discuss and criticise ideas and beliefs – and the actions that stem from those beliefs. Of course, people should be protected from harassment and harm. But beliefs and ideas can’t be protected, however much people feel they’re a fundamental part of their identity. Speech laws that stifle debate are inconsistent with a commitment to free expression.

The free speech provisions in this bill have been cobbled together at the very last minute, with little time for careful consideration and scrutiny. Laws made in haste seldom work out well. The Offensive Behaviour at Football Act was railroaded through parliament in 2012, only to be repealed just a few years later.

Perhaps history is repeating itself. Legislators should be mindful not to make the same mistake twice.

We need to find ways to combat prejudice, bigotry and hatred whilst still promoting free speech as a positive value. The aspiration to build a more equal and inclusive Scotland is a good one. But criminalising speech is an ultimately counterproductive way of achieving that aim.

For all its good intentions, the Hate Crime Bill runs the very real risk of chilling free speech by stifling debate around contentious issues. This is more likely to harm social harmony than promote it.

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