Jamie Gillies, Free to Disagree spokesman
Buy a newspaper in Scotland today and you’ll soon happen upon the words ‘Hate Crime Bill’. Over the last five months, these three words have adorned more headlines, op-eds and letters pages than perhaps any others aside from ‘Coronavirus’, ‘Brexit’ and ‘Independence’.
The Hate Crime Bill is hugely contentious. At this point, five months on from its publication by Justice Secretary Humza Yousaf, a plethora of people including lawyers, police officers, academics and civil liberties groups have voiced strong objections. Today, yet another group – Scottish Councillors – adds its voice to the clamour. A survey of councillors by the Free to Disagree campaign suggests that 2 in 3 oppose the bill, 8 in 10 think it is “controversial” and 7 in 10 think it “threatens free speech”. The views of these public servants should not to be dismissed.
Why the controversy?
As other public engagement exercises have shown recently, concern is focused around controversial ‘stirring up’ offences in part two of the Hate Crime Bill. Other, less-contentious parts of the bill which consolidate existing provisions and repeal a centuries-old blasphemy offence enjoy support from people across the political spectrum.
Councillors and the public, lawyers, police officers, academics and others fear that that the ‘stirring up’ offences could undermine freedom of speech. These offences, as drafted, would criminalise ‘abusive’ – that is rude and insulting – speech and writing by citizens which is considered ‘likely’ to stir up hatred on the grounds of age, disability, religion, sexual orientation or transgender identity. The possession of ‘inflammatory material’ and public performances are also covered.
Given the vague and subjective terminology used in the draft provisions – terms like ‘abusive’, ‘likely’ and ‘hatred’ – there’s a real risk that speech and writing by citizens that’s merely offensive or controversial could be criminalised. There are two free speech provisions in the bill. However, these merely allow religion and sexual orientation to be ‘discussed’ and ‘criticised’ – again, vague and subjective terms. Notably, these provisions also exclude discussion and criticism of transgender identity.
Who could it catch?
Critics have asked what the offences could mean for feminists who speak out on transgender issues. Labour MSP Johann Lamont was labelled “hateful” and “transphobic” earlier this year for gently questioning changes to gender recognition laws. And Harry Potter author J.K Rowling was labelled a ‘bigot’ for expressing concern over the increasing number of teenage girls who are “de-transitioning”. Both Johann and J.K could conceivably be prosecuted for their comments under the proposed ‘stirring up’ offences.
Questions have also been asked about what the offences would mean for journalists writing about other contentious topics like religion. Might articles criticising Islam or Christianity be considered ‘inflammatory material’? What about a cartoon of the Prophet Muhammad? ‘Discussion and criticism’ of religion might not extend to the more robust expressions of antipathy, dislike and ridicule often seen in the media today.
The ‘stirring up’ provisions give police officers powers to enter private premises and seize computers and mobile phones if they are thought to contain ‘inflammatory’ material. This raises the spectre of members of the public posting Tweets or Facebook posts on one of the aforementioned subjects, being reported to the police and later facing a full criminal investigation. That’s hardly indicative of a free society where strong opinions may legitimately be expressed in public and online without fear of recrimination by the state.
What about victims of hate crime?
In recent days, proponents of the Hate Crime Bill have rightly highlighted that debate over the draft legislation should not detract from the experience of people in Scotland who are subjected to violence, harassment and abuse because of who they are or what they believe. Such pernicious behaviour is wrong and must be strongly condemned.
However, some have also sought to paint critics of the ‘stirring up’ proposals as callous or uncaring. As well as being unfair and untrue – members of Free to Disagree campaign care a great deal for the victims of hatred and prejudice and some have been the victims of hateful attacks themselves – this line of argument swerves the important question of how extending ‘stirring up’ laws will actually help victims.
Violence, harassment and abuse is already caught by existing laws. And there is scant evidence that new ‘stirring up’ offences would reduce this harmful behaviour. Policy analysis collective Murray Blackburn Mackenzie has said: “The argument is not convincingly made by the Bracadale Review or the Scottish Government that expanding stirring up offences will fill a legislative gap on paper, or reduce in practice the number of hate-related attacks on individuals in particular groups.”
The evidence that new ‘stirring up’ provisions are needed to help victims is not there. On the other hand, judges, sheriffs, lawyers, police officers and civil liberties groups have argued that these provisions would undermine other vital rights – free speech and freedom of expression. Most people would agree that these hard-won freedoms are not to be trifled with, even if the motives behind policy proposals are good.
What’s the solution to all this?
In a parliamentary debate last week, MSPs from every party noted the risks presented by part two of the Hate Crime Bill. To ensure that these are not realised and maintain clarity in the criminal law, there’s only one real option. Politicians must see the controversial ‘stirring up’ provisions scrapped.