Jamie Gillies, spokesman for the Free to Disagree campaign
Today marks 230 years since the death of Adam Smith, the great Scottish Enlightenment thinker whose book ‘The Wealth of Nations’ laid the groundwork for our modern economy. As well as championing new economic arrangements, Smith was a leading proponent of free speech. He argued that “free communication of settlements and opinion” – what we might now call freedom of expression – is an essential component of any free society.
Thanks to figures like Adam Smith, Scottish citizens today possess this fundamental right. Free speech underpins our free press, our artistic and cultural institutions, our politics, and allows citizens from all walks of life to participate in the marketplace of ideas, helping Scotland grow and flourish.
Western democracies generally accept that the speech rights of citizens should only be limited by the state when it has strong grounds for doing so. In most European states, the right to free speech is upheld by the police, the courts and the Government. But this isn’t always the case. In recent years, freedom of speech has increasingly come under threat from well-meaning people crusading against what they deem to be ‘hatred’.
Nowhere is this more evident than in the Scottish Government’s draft hate crime legislation, published in April this year. The Hate Crime bill is built on good intentions. It recognises that hatred and prejudice are wrong. However, if the last decade of Scottish politics teaches us anything, it’s that good intentions often make for bad laws.
“Western democracies generally accept that the speech rights of citizens should only be limited by the state when it has strong grounds for doing so”
The now-rescinded Named Person scheme and Offensive Behaviour at Football Act were motivated by noble aims – protecting children and stamping out sectarianism respectively. But bad drafting meant the reach of these policies extended far beyond their stated aims and undermined the liberty of Scottish citizens. The Hate Crime bill risks emulating these past mistakes.
The bill creates a range of new ‘stirring up of hatred’ offences. These vague and subjective proposals would make “abusive” words deemed “likely” to stir up hatred a criminal offence. The offences are punishable by up to seven years in prison, an unlimited fine, or both. Examining them in detail reveals numerous problems.
The first relates to definitions. The term ‘hatred’ is subjective and difficult to define, especially when it relates to hatred being ‘stirred up’ in other people. How can police, prosecutors and judges know what this means for the operation of hate crimes laws? They cannot make windows into people’s souls to know when hatred is present and whether it is the kind that should be illegal. The criminal law should focus on concepts that are clear, demonstrable and easily defined.
In the current, highly-charged political climate any debate around certain issues is often labelled hatred by people who are eager to close down opposition to their own point of view. In June, author of the Harry Potter series J.K. Rowling was labelled hateful for expressing concerns over changes to the Gender Recognition Act. Being accused of hatred on Twitter is one thing, but being reported to the police for ‘stirring up hatred’ would be far more serious.
“The criminal law should focus on concepts that are clear, demonstrable and easily defined”
The proposed offences would criminalise ‘threatening or abusive’ behaviour. While threatening behaviour is wrong and clearly understood in case law, the term ‘abusive’ – synonymous with ‘insulting’ – is vague and open to interpretation.
There are two free speech provisions on the topics of religion and sexual orientation. However, these only protect ‘discussion or criticism’ of these things. The terms ‘discussion’ and ‘criticism’ are academic. There is a risk that these provisions would not protect forthright speech and debate by ordinary people on contentious issues. And it is very striking that there is no free speech clause at all in relation to gender identity – the most contentious political issue in Scotland today.
Perhaps the most disturbing aspect of the proposals is that you can commit a stirring up hatred offence without intending to do so, and without having actually done so. The police and courts will require no evidence that any hatred was stirred up. Nor will they need any proof that you intended to do so, or that you had any idea that you might possibly do so. If the court feels your actions were ‘likely’ to stir up hatred – whatever that is – that will be enough. This lack of mens rea – mental culpability – widens the reach of the offence, and makes it vitally different from other similar offences already on the statute book. It’s chilling to think that citizens could commit a serious criminal offence without any knowledge or intent.
All of this creates great uncertainty. Would it be ‘abusive’ and ‘likely to stir up hatred’ if someone ridiculed religious people for their beliefs – or atheists for their lack of belief? What if a feminist robustly defended woman-only spaces? Or a comedian made jokes at the expense of certain protected groups?
“There is a risk that the bill would not protect forthright speech and debate by ordinary people on contentious issues”
With a lack of relevant case law, due to the unique wording of the offences, the only way to test them would be through prosecutions, placing ordinary Scots in the firing line. Police Scotland was keen to stress this danger in their response to the proposals. They said failing to include adequate free speech protections could “result in Police Scotland being burdened with vexatious reports of ‘crimes’ which are not in fact criminal in nature but which still require to be recorded and investigated to confirm if criminality is involved”.
The proposals pose a serious threat to free speech. Introducing the ‘stirring up hatred’ offences in their current form could criminalise speech that is merely deemed offensive to certain people. In doing so, free speech in Scotland would be chilled.
The right to free speech must include the ability for citizens to discuss, criticise, and refute ideas, beliefs and practices in robust terms. This may result in some people being offended but many people take offence as a means of shutting down debate.
In the months ahead MSPs will be invited to consider this legislation. The Free to Disagree campaign will be urging them to scrap – or at least radically amend – the proposed stirring up offences so that free speech is protected. Join the campaign by visiting www.freetodisagree.scot