It’s rare for a piece of legislation to unite disparate groups and individuals in mutual concern, but we’ve seen exactly this with the Hate Crime bill.
Over the last few weeks lawyers, police officers, academics, commentators on the left and the right, feminists, Atheists, Christians, Humanists and civil liberty groups have warned that the draft ‘stirring up of hatred’ offences pose a threat to free speech.
Scroll down to read what’s been said.
Law Society Scotland
In its submission to the Justice Committee call for views, the Law Society Scotland said there are “major flaws” with the proposals.
It criticised the ‘vagueness’ of the stirring up offences in Part 2 of the bill which “could result in a lack of certainty for the public in understanding what constituted criminal behaviour”, adding that this would “impact on solicitors, whether prosecuting or defending those accused of offences”.
The Society added that “the Bill presents a significant threat to freedom of expression, with the potential for what may be abusive or insulting to become criminalised. These terms are highly subjective, requiring judicial clarification on a case by case basis.”
It also said that the ‘stirring up of hatred’ offences “set too low a standard as an offence can be committed if it is ‘likely’ to stir up hatred. That is not the threshold required for criminal law which depends on guilty intention.”
Thomas Ross QC
A past president of the Scottish Criminal Bar Association, Thomas Ross QC said the language used in the bill is difficult to understand for lay people, making it unlikely that most people would know when they had crossed the line into criminality.
Ross told the Daily Mail: “If the Scottish Government is going to create an offence that can be committed unintentionally, drafters of the legislation have to make the essentials of the offence crystal clear. They’ve failed to do that.”
“The language used in the Bill is so difficult to understand that it will be impossible for the man or woman in the street to know when the line is likely to be crossed. A person might think, ‘I don’t intend to be offensive and I don’t think this comment is abusive, but what might a mythical sheriff think about it if the procurator fiscal is persuaded to prosecute? Why take the chance’. As a result a lot of interesting debate simply will never take place.”
Fred Mackintosh QC
Commenting on the Hate Crime bill Fred mackintosh QC, of Terra Firma Chambers, warned that there is a “real risk of unintended consequences”. He noted that the ‘stirring up’ offences lack important detail found in existing legislation:
“…the problem with consolidating the four offences into one is that some of the specific detail and defences which are an important part of the existing separate offences have been lost.
“All five of the existing defences have a defence which enables the argument to be made by an accused, who did not intend to stir up racial hatred, to prove he did not intend, and had no reason to suspect, that his conduct was threatening, abusive or insulting. It is proposed that this defence now be replaced by an objective ‘reasonableness’ defence which is set out in sub clause 3(4) and (5).
“It is possible that persons who might have succeeded with the old defence – which turned on their knowledge and understanding – will fail to meet a prosecution and shrieval assessment of whether their conduct was objectively reasonable. Sheriffs will have to decide, for example, whether conduct by stand-up comics, preachers, journalists, writers, tweeters and indeed the merely angry is ‘reasonable in the circumstances’ in order to engage the new defence of reasonable conduct.”
The QC also noted that, unlike other criminal legislation, the Hate Crime bill covers words spoken in the privacy of the home:
“Are Scottish Ministers clear that, as currently drafted, the bill will criminalise conduct even when the accused had no reason to believe that what they have said or written would be heard or seen outside their home?”
He concluded: “Without greater clarity regarding the sort of conduct which is currently not criminal but which the Scottish Ministers wish to criminalise, the concerns of those who fear the effects of these proposed new offences are unlikely to go away.”
The Scottish Police Federation launched a scathing attack on the hate crime proposals in its response to the Justice Committee call for views. Calum Steele, general secretary of the Scottish Police Federation, commented:
“We are firmly of the view this proposed legislation would see officers policing speech and would devastate the legitimacy of the police in the eyes of the public. That can never be an acceptable outcome – and we should never forget that the police in Scotland police only with the consent of the people.
“Police officers are all too aware that there are individuals in society who believe that to feel insulted or offended is a police matter. The Bill would move even further from policing and criminalising of deeds and acts to the potential policing of what people think or feel, as well as the criminalisation of what is said in private.
Scottish Newspaper Society
The Scottish Newspaper Society (SNS) has strongly criticised the draft ‘stirring up’ offences in Part 2 of the bill. SNS Director John McLellan has said:
“While the abolition of blasphemy is long overdue, much of the legislation poses considerable threats to freedom of expression.
“In these times of increasingly bitter division over Brexit, Scottish independence and the environment, as well as gender politics, it is not too far-fetched to see the possibility of the police being drawn into political disputes because they would have to investigate complaints and be used as a tool to attack media organisations and close down debate.
“It could be used by those who attacked JK Rowling for her views on gender to instigate a police investigation which could lead to conviction and it’s clear that plenty of her critics would like to see that happen. It might not be the purpose of this legislation to put someone like JK Rowling in the dock, but that could easily be the consequence.
“Social media is awash with people bearing extreme grudges against those with whom they disagree and this legislation has the potential to give them a legal means to silence their opponents.”
Society of Editors
The UK-wide Society of Editors was one of the first groups to warn about the potential consequences of the Hate Crime bill – including for journalists outside Scotland. Executive Director Ian Murray commented:
“These proposals, while on the surface designed to protect vulnerable people, have the potential to usher in draconian measures where a host of pressure groups will be able to stifle or close down debate on important issues.
“And although these are designed for Scotland, any media organisation that publishes or broadcasts north of the border could find themselves caught up or at the very least there will be a chill placed on their work.
“Looking to the future, there is also the risk that any draconian measures adopted by the Scottish government will be taken up in other parts of the UK, particularly in England and Wales where The Law Commission is currently consulting on a possible expansion in English hate-crime law.”
In an editorial published on 29 July 2020, under the headline ‘Act of Folly’ The Times Scotland stated:
“The threats posed by this legislation to key tenets of a free society are significantly greater than any benefit likely to come from passing the act, as written, unamended.
“Good intentions are not enough unless they are backed by legislation that is both clear and enforceable. The proposed hate crime bill fails on both counts.”
In an editorial published on 29 July 2020 the Scottish Sun stated:
“The Police Federation makes the point there are plenty of people who are all too ready to make hurt feelings a police matter. It’s ludicrous.
“Of course we all deserve equal treatment. Of course we all deserve to be treated with courtesy and respect. Of course it’s wrong that anybody should be made to suffer because of their physical disability or their religion or their sexual orientation.
“But is it really acceptable to dial 999 because somebody has been rude?
“There is still time for ministers to take a step back from this, still time to amend this legislation so the protections we all deserve can be secured in law.
“But without a proper definition the courts can recognise and understand, it is bound to fail in its present form.
“And the price of that, as the lawyers are already warning, could be an uncomfortable gag on the free speech rights which the law is meant to protect.”
The Scottish Daily Mail
The Mail has issued several editorials in recent months. On Tuesday 28 July 2020, it called for the Scottish Government to “see sense and drop the sinister Bill”:
“The right to free speech is an integral part of any modern democratic state. Any attempt to place curbs upon it must be viewed with the deepest of suspicion.
“The SNP’s Hate Crime Bill is a bid to impose further restrictions on what can and cannot be said in a public forum. But the scope of the proposed law is so great, and its wording so vague that, if passed, it could lead to unpalatable consequences.”
“This is an ill-conceived and sinister Bill – and it must be dropped now before it causes irrevocable damage to one of the key pillars of our democracy.”
The Daily Record
On 25 July 2020, the Daily Record published an editorial calling for caution with the Hate Crime bill:
“The Record welcomes moves to bring hate-mongers to justice – but the Scottish Government must tread carefully when it proceeds with its new Hate Crime Bill.
“You don’t have to look far to find critics who say certain aspects of the bill need significant tightening.”
“Ministers insist the bill will not prevent people expressing controversial, challenging or even offensive views. But when it comes to protecting freedom of speech, the Government must ensure it gets this piece of legislation right.
“No one wants a repeat of the Offensive Behaviour at Football Act – a bill so bad it united the legal community, football fans and opposition MSPs against it. Protecting our minority communities is vital – but so is protecting long-cherished rights to express controversial views.”
An Express editorial posted on 29 July 2020 stated:
“IN the novel 1984, theThought Police punish personal and political thoughts unapproved by the government. Nobody is suggesting that Nicola Sturgeon’s Scotland is the equivalent of the dystopian nightmare portrayed so vividly by George Orwell, but the new Hate Crime and Public Order (Scotland) Bill would certainly push the country in that general direction.
“Look at what Calum Steele, General Secretary of the Scottish Police Federation, has to say about the legislation. He warns against the “potential policing of what people think or feel”. How on earth does a police officer define when somebody is guilty of “stirring up” hatred against others? This vague and imprecise definition could be used in any number of scenarios, including against people who make legitimate criticism of the Scottish Government. Scotland already has tough hate crime laws, used to good effect to prosecute the man who taught his dog to perform a Nazi salute.This case garnered headlines around the world, yet Justice Secretary Humza Yousaf believes the law needs to be strengthened still further.
“Unfortunately, the SNP has previous when it comes to introducing laws that are seen by many as totalitarian. Indeed, the horrendous Named Person scheme to allocate a state guardian for every child was described as such in a ruling from the UK’s Supreme Court.The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was also perceived as an attack on free speech. It was overturned by MSPs at Holyrood in 2018, while the Named Person project limps on in a watered-down fashion after its landmark legal defeat.
“This latest example of over-zealous legislation must be stopped in its tracks as well.”
Dr Stuart Waiton, a lecturer in criminology and sociology at Abertay University, is a leading critic of the bill and an ally of Free to Disagree.
Writing in The Herald he said the Bill is “possibly be the most illiberal and intolerant piece of legislation in any liberal democracy, worldwide”, adding that the wording of the bill is “incredibly flexible and subjective”.
Dr Waiton said that the legislation encroaches so far into the private sphere that it is “opening up the possibility of comments at dinner parties becoming criminal offences”.
“Unlike the laws in the rest of the UK, where the crime of ‘stirring up’ hatred needs evidence that it is deliberate and also threatening, here we have a new law that potentially requires neither”.
Dr Andrew Tickell, a law lecturer at Glasgow Caledonian University and columnist for The National, has said:
“Some elements of these proposals are likely to prove hugely controversial once the viral mist surrounding us begins to clear – and rightly so. Holyrood hasn’t always demonstrated good judgement when it comes to the right of free expression. It is all very well to honk away about the criminal law ‘sending a message’. It certainly does.
“But in reality, in practice, when big, bold principles come to be applied to real people in the sheriff court – they have the real potential to do serious injustice and social harm. Our politicians have often been too reluctant to own the consequences of their press releases. Drawing ragged lines between permissible and impermissible speech is a tricky business at the best of times. We can’t afford to be vague about it when criminal consequences follow.”
For Women Scot
In its submission to the Justice Committee call for views, women’s group For Women Scot called for the ‘stirring up’ offences to be scrapped altogether:
“The Bill as it currently stands is fundamentally flawed and, unless amendments are made, is inevitably heading towards charges being brought against women for stating universal truths about sex, science and biology. We note, for example, the recent case where a woman was banned from a social media site for hateful conduct after stating ‘Only females get cervical cancer’.
“While the likelihood of successful prosecutions is unknown, and perhaps may be low, it is the threat of vexatious complaints made to the police that will impact on people’s ability to freely discuss women’s sex-based rights.
“From our experience we foresee significant problems with the proposed extension of stirring up offences to a larger group of characteristics, especially transgender identity. These risks might be somewhat reduced by removing the term ‘abusive’ which is open to wide interpretation and, as our examples have shown, is all too easily taken as an offence by a person or group, rather than a quite legitimate criticism of an unscientific belief.
“Including transgender identity in the freedom of expression protections may also mitigate the risks, although it is of concern that those already proposed for other characteristics offer significantly weaker protections than the equivalent in England and Wales.
“Overall, we do not think that such amendments will offer sufficient protection against the problems we have identified and call for Part 2 to be removed from the Bill.”
Secular & faith Groups
The National Secular Society
The National Secular Society is an ally of Free to Disagree. After submitting evidence to the Scottish parliament’s Justice Committee NSS head of policy and research Megan Manson said:
“Hatred and extremism are serious social problems that need to be challenged. But the hate crime bill as currently drafted will be counterproductive – it will open the door to prosecutions on vague grounds.
“It will undermine freedom of expression and Scotland’s wider commitment to civil liberties, while wasting the time of police and courts. It will encourage demands for censorship and a narrowing of public debate. And this in turn will undermine social harmony rather than promoting it. The justice committee should pressurise ministers to rethink.”
The Free Church of Scotland
In its submission to the Justice Committee call for views, the Free Church said it was “very concerned about the Bill’s significant detrimental effect on free speech within our society”, and argued the current laws were already sufficient to protect against threatening or abusive behaviour:
“We recognise that there are issues in our society of genuine hatred which are wrong and should be addressed. However, we are also concerned by the tendency of some to see any criticism of their beliefs and opinions as amounting to hatred”.
“We believe it is possible to disagree with someone while loving and respecting them as a person. Indeed, we believe that an understanding that people hold a wide range of opinions and beliefs on a wide range of issues, and acceptance (even encouragement) of free debate about such opinions and beliefs is an essential feature of a mature democratic society.
“The issue we have with this particular Bill is that it encourages a recourse to law where there is a legitimate disagreement. This silences debate and prevents reconciliation between people. It undermines any efforts to understand those you disagree with.”
The Roman Catholic Church
Responding to a previous consultation on the hate crime bill the Catholic Parliamentary Office of the Bishop’s Conference of Scotland warned that the vague language of the bill is open to abuse and stressed that free speech must be protected:
“Clarity is required with regard to the definition of abusive. To be abusive something needs to be ‘extremely offensive’. Any test of this threshold should be objective in nature and not based on the subjective response of those who may feel offended against. We live in an age of heightened sensitivity and we must guard against criminalising people for simply expressing disagreement or holding a different point of view.
“The fundamental right to freedom of expression, as detailed in Article 10 of the European Convention on Human Rights, must be upheld. Supressing this freedom will create divisions and foster grievances across society.
“There is a climate of heightened sensitivity in the present culture and there is a very real danger that expressing or even holding individual or collective opinions or beliefs will become a hate crime. We must guard against this and ensure basic freedoms, including freedom of expression and freedom of thought, conscience and religion (Article 9 of ECHR), are protected.
“Some people might suggest that expressing the Catholic Church’s position on marriage or human sexuality could be an attempt to stir up hatred. This would obviously be wrong. There must be room for robust debate and exchange of views. Otherwise we become an intolerant, illiberal society.”
The Christian Institute
Another ally of Free to Disagree, The Christian Institute warns that the ‘stirring up’ offences could catch speech and writing by citizens that is merely controversial, undermining free speech:
“The Christian Institute has serious concerns about Part 2 of the Bill. The Bill would be better without it. It is not clear what behaviour the Scottish Government is seeking to criminalise that both a) deserves it and b) is not already covered by other laws.
“The existing stirring up hatred offence in Scotland only applies to race. The proposed new grounds include religion, sexual orientation and transgender identity. These involve debatable matters of belief, practice and morality in a way that race does not. There must be freedom to disagree on and debate such issues without the threat of censure through the criminal law. The stirring up hatred offence under section 3 and the inflammatory material offence under section 5 jeopardise free speech”.
The Evangelical Alliance
The Evangelical Alliance represents churches across Scotland. Commenting on the draft ‘stirring up of hatred’ offences, it said:
“Our concerns about the present proposals include the level of the criminal threshold, the lack of need to prove intent to meet the threshold for part of the two part criminal test and the point at which the criminal law can be engaged with material and communications which can be deemed illegal before ever being distributed.
“Taken together we believe there is a real danger that what might be deemed objectionable and offensive behaviour could now be criminalised without any intent or even knowledge of the individual exhibiting that behaviour. The introduction of this new offence would have profound implications for liberal democracy.”
Humanists Society Scotland
The Humanist Society Scotland has said it is not clear why new ‘stirring up’ offences are needed given the efficacy of existing laws and warned of a threat to free expression:
“The Government has provided little in the way of evidence that there is a significant gap in the law that requires for a new ‘stirring up’ offence to be introduced for other characteristics. Bracadale sets out ‘every case which could be prosecuted as a stirring up offence could also be prosecuted using a baseline offence and an aggravation.’
“We believe that the addition of stirring up offences does have the potential to restrict article 10 rights. Free speech, free expression.”
Politicians on the left and the right have been critical of the hate crime proposals.
Jim Sillars, former Deputy Leader of the SNP and an ally of Free to Disagree, has strongly criticised the bill In a submission to the Justice Committee call for views he said:
“I believe that any legislation that seeks to criminalise thought and its expression should be subject to three tests: First, there should be a presumption of free speech; second, the language in an Act should be narrowly prescribed so that police and judicial interpretation does not catch in the criminal net, thought and language not intended to be in it; and third that whether for society as a whole, it widens or restricts the value of liberty.
“When those three tests are applied to this Bill, it fails them. The references to a defence against accusations comes nowhere near the free speech presumption required. The language of the Bill is riddled with subjective terms. It extension beyond consolidation to “stirring up hatred,” “possession of material,” and the embrace of playwrights, actors, promoters and producers of plays in criminal law, is an attack on creative work, which can do no other than damage the value of liberty.”
James Kelly MSP
Scottish Labour Justice spokesperson James Kelly MSP has expressed ‘serious reservations’ about the Hate Crime bill:
“I have made clear my reservations around part two of the legislation, in particular the introduction of ‘stirring up hatred’ offences.
“I fear the government has not learned any lessons from the failures of the Offensive Behaviour at Football Act. The current drafting lacks legal clarity and could lead to a misguided revival of the unworkable 2012 Act.”
He added: “There is a significant divergence from similar law in England and Wales – where intent is required for a person to be criminalised for behaviour which another finds insulting.
“Under the current proposals, the law here would not require this intent to be present – which sets an alarming legal precedent and could result in the criminalisation of expressions of religious views.
“Even the terminology within these proposals is concerning, especially around the use of ‘insulting’ which is subjective and could cause serious legal confusion. The vague language used evokes memories of the now-repealed Football Act, where the ambiguity of provisions could have led to the criminalisation of legitimate expressions of culture and opinion.”
Murdo Fraser MSP
Murdo Fraser, one of the longest serving Scottish Conservative MSPs, has said the hate crime plans would be an ‘assault on free speech’:
“The SNP’s proposed offence of stirring up hatred currently included within their hate crimes bill is a full-frontal attack on free speech.
“There is no place in modern Scotland for prejudice and hate speech, but this bill will simply sweep up well intentioned individuals promoting pretty mainstream views alongside those who genuinely want to target minorities.
“Humza Yousaf must rethink these proposals for he may well find members of his party on the wrong side of them.”
Murray Blackburn MacKenzie
Murray Blackburn MacKenzie, a policy analysis collective, highlighted several problems with the Hate Crime bill amidst wider challenge MSPs face. In an article for Holyrood magazine, the group stated:
“Law-making and scrutiny are both essential parliamentary functions and it follows that time spent on one will invariably displace the time available for the other. Faced with the biggest crisis faced by our societies in the post-war era, by necessity governments are making a torrent of literal life and death decisions on a daily, if not hourly basis.
“Meantime, the usual checks and balances have been hampered. The wheels of the justice system have all but ground to a halt. The pandemic has eaten away at the already emaciated financial model underpinning our fourth estate. The Scottish Government used its first piece of emergency legislation to curtail the use of freedom of information, exploiting the Presiding Officer’s casting vote, with confusion and disagreement over how the parliamentary arithmetic on the day made that possible.
“It is clear the draft bill raises a raft of questions that will deserve thorough, forensic scrutiny by the Scottish Parliament’s Justice Committee. As well as the potential impact on freedom of expression, there are questions about the evidence base for the selection and definition of certain characteristics and omission of others, and the justification for extending ‘stirring up’ offences to other characteristics, when the existing provision for stirring up racial hatred is barely used, with only nine cases between 2006 and 2016.
They added: “It is perfectly possible to ask in good faith why the novel and difficult provisions on stirring up hate in the bill are regarded as being so urgent that they must be pushed through the Scottish Parliament in the middle of the largest challenge faced by any recent generation of politicians in Scotland. The bill would raise difficult and sensitive questions at any time.
“But the first and most immediate question for the Scottish Parliament is whether the time required to robustly scrutinize what is already a controversial bill can be justified or is even achievable in this exceptional period. “