SNP hate crime proposals must be ditched or significantly amended to avoid a serious erosion of free speech, campaigners warn, as MSPs are set to vote on them for the first time.
The Free to Disagree campaign, a coalition of civil liberties groups and free speech activists, is calling on MSPs to oppose “stirring up hatred” offences in the Hate Crime Bill during a Stage 1 debate this afternoon.
The group argues that “vital questions” about the scope of the offences “remain unanswered”, and cautions that they could bring people “into contact with the criminal justice system” for expressing controversial opinions.
Free to Disagree comment
A statement by campaign spokesman Jamie Gillies, circulated to MSPs ahead of the debate, reads: “The Free to Disagree campaign believes the stirring up hatred offences in Part 2 of the Hate Crime Bill should be dropped or significantly amended in order to avoid an unintended erosion of freedom of speech and expression.
“We all recognise the laudable aims behind these proposals. Protecting vulnerable groups from crimes motivated by hatred is vitally important. However, the need for new ‘stirring up’ offences has not been demonstrated, and their intended scope has not been explained. This is why such a significant number of people have warned of a threat to civil liberties.
“The Scottish Government has pledged amendments to limit the offences to ‘intent’, remove a provision on theatre performances and broaden a free speech clause on religion. Whilst these commitments go some way towards addressing concerns, other vital questions remain unanswered.
“The offences lack definition and the concepts they deal with – most notably hatred itself – are difficult to express precisely in law. In the current political climate, the offences could be applied too broadly, bringing citizens into contact with the criminal justice system for expressing unorthodox, controversial or offensive views.
“If this happens, Scotland would be divorced from its proud free speech tradition – the tradition of Burns, Hume and Adam Smith. As Lord Justice Sedley famously said, free speech includes “not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative… Freedom only to speak inoffensively is not worth having”. Free speech is a vital right for all citizens, and especially for marginalised groups.
“Of course, the experience of victims must not be overlooked. Current legislation catches threatening and abusive behaviour and statutory aggravators exist to punish crimes motivated by prejudice. By consolidating existing provisions and investing in the current framework, the government can aid the police and prosecutors in tackling truly hateful behaviour.”
The stirring up hatred offences would make “threatening or abusive behaviour” intended to “stir up hatred” on the grounds of “age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics” a crime, punishable by up to seven years in prison.
Numerous groups including legal experts, police officers, academics, journalists and churches have cautioned that the “vague” and “subjective” proposals could undermine freedom of expression.
Dropping the ‘stirring up’ offences
A parliamentary briefing published by the Free to Disagree campaign gives five reasons why the stirring up offences should be dropped:
1. No gap in the law
Several groups have highlighted a lack of evidence that the stirring up offences are necessary. In evidence to the Justice Committee, policy analysis collective Murray Blackburn Mackenzie said the Scottish Government has failed to demonstrate how “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 Scottish Police Federation, which represents frontline officers in Scotland, described the offences as “unnecessary”. And Community Justice Scotland, which lobbies for improvements to the criminal justice system, questioned “whether creating additional legislation is proportionate or the most appropriate route to follow”.
The government’s statements on the draft proposals appear contradictory. On the one hand, the government has said that behaviour caught by the offences “would already constitute existing criminal offences”. On the other, it says the offences will extend the law to ensure that “sufficient protection is provided”. No detail has been given on what behaviour they will catch in practice.
2. Lack of definition
The government has not explained what is meant by the term ‘hatred’. The meaning of this word is complex and highly subjective. In the culture we live in, many opinions on issues covered by the offences – religion, sexual orientation and transgender identity – would quickly be described as ‘hateful’. Expressing merely offensive or controversial opinions should not be a hate crime.
Other terms in the draft legislation also lack clear definition. The offences catch ‘threatening or abusive’ behaviour. Whilst the meaning of threatening is clearly understood, ‘abusive’ is not. Cabinet Secretary for Justice Humza Yousaf suggests that the dictionary definition of the word will suffice. However, this definition – ‘using rude of offensive words’ – is much too low a threshold.
The term ‘inflammatory’ is vague. The Roman Catholic Church has questioned whether certain passages in the Bible could be deemed ‘inflammatory’ under the stirring up offences. It has also been suggested that the works of gender critical feminists like Germaine Greer could be caught.
All of these terms need to be much more clearly defined. It will, however, be hard to reach a consensus on definitions. To some extent, it means agreeing on the parameters of free speech itself – a seismic task for any legislature and especially for MSPs as they approach the election in 2021.
3. Fostering division
The societal debate over transgender rights and women’s rights has been highly emotive in recent years. There are many examples of individuals alleging ‘hatred’ and ‘abuse’ when certain views are expressed – even when such views are expressed with the greatest civility.
In June this year, Harry Potter author J.K. Rowling was accused of ‘hatred’ and ‘bigotry’ for explaining her views on these subjects in a blog post, citing academic research. SNP MP Joanna Cherry has also recently cited the vitriol she receives online for expressing certain opinions on gender recognition reform.
The stirring up offences could add fuel to the fire of this debate by allowing individuals to allege the ‘stirring up of hatred’ and pursue political opponents through the courts.
Debates around contentious issues could see criminal legislation being weaponised for political gain, abusing the proper function of the courts and fostering further division and animosity between certain groups.
4. Danger of vexatious complaints
Representatives from the police force in Scotland have cautioned of the likelihood of “vexatious reports” if there is any uncertainty as to the scope of the stirring up offences.
Police Scotland said that failing to include adequate free speech protections could result in the force “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 Scottish Police Federation has said: “this proposed legislation would see officers policing speech and would devastate the legitimacy of the police in the eyes of the public… 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”.
If the police force in Scotland is required to waste time and resources pursuing complaints and investigations that will not result in prosecutions, this will affect their wider work in preventing crime. If public trust in the police is eroded, as the Police Federation suggests, it may result in the victims of hate crime being less willing to come forward.
5. Chilling effect
There is wide concern today that freedom of speech and expression are being undermined.
ComRes polling carried out for Free to Disagree in August found that 64 per cent of Scots think “people today are too quick to shut down debate”. 14 The effect of new stirring up offences could further undermine confidence in free speech, even if few prosecutions occur in practice.
The Faculty of Advocates has cautioned that the offences could have a potential, unintended “impact on freedom of expression” and cited a potential “chilling effect on legitimate, if controversial, debate and the performing arts.”
The UK-wide Society of Editors has also warned that, although the stirring up offences 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”.
Amending the ‘stirring up’ offences
The campaign also suggests several vital amendments to the offences if they are to be taken forward by MSPs:
Revised free speech clauses
The government has pledged to ‘broaden and deepen’ the free speech clause on religion to allow expressions of “antipathy, dislike, ridicule and insult” towards different beliefs. They also plan to amend it so that it treats religious and non-religious beliefs even-handedly.
These changes provide welcome clarity. However, the freedom to disagree on issues linked to the other protected characteristics must also be protected. We have two specific recommendations.
Firstly, it is crucial that a free speech provision on transgender issues is included. Legislating for new stirring up hatred offences without such a provision could be highly problematic given the forthright debate that occurs around transgender and women’s rights issues.
Secondly, the existing free speech clause on sexual orientation must be extended to protect criticism of same-sex marriage, as in parallel legislation in England and Wales. Religious groups may fall foul of the law if this is not included.
Drop ‘abusive’
The proposed stirring up hatred offences would criminalise ‘threatening or abusive’ behaviour.
In evidence to the Justice Committee on 24 November 2020, Cabinet Secretary for Justice Humza Yousaf stated: “I see no reason why the ordinary meaning of the word ‘abusive’ – its dictionary definition – cannot be used or would not be well understood.”
The dictionary definition of ‘abusive’ includes “using rude and offensive words”. This is far too low a threshold for a criminal offence and threatens to undermine freedom of speech.
We recommend removing the term ‘abusive’ and limiting the offences to ‘threatening’ behaviour intended to stir up hatred.
At the very least, the term ‘abusive’ needs to be more precisely defined. Incorporating an objective test, as in Section 38 of the Criminal Justice and Licensing Act, could be a solution.
This states that to be ‘abusive’, conduct must cause ‘fear or alarm’ to the reasonable person.
Prosecution lock
Both the Public Order Act 1986 and the Public Order (Northern Ireland) Order 1987 require the consent of a very senior public prosecutor before proceedings can be instituted.
This prosecution lock recognises the serious nature of stirring up hatred offences, which have a maximum seven-year sentence, and provides an added safeguard to help avoid miscarriages of justice.
The stirring up hatred provisions in the Hate Crime and Public Order (Scotland) Bill include no such safeguard. We believe this should be specified in the legislation.
At the very least, guidance by the Lord Advocate should specify that any decision to take proceedings in relation to stirring up hatred cases will have to be approved by Crown Counsel.
Dwelling defence
Public order laws normally include a ‘dwelling defence’ for words spoken in the privacy of your own home and not heard or seen by anyone outside.
The Hate Crime Bill contains no such defence, raising the prospect of people being prosecuted over remarks made at the dinner table. This is highly controversial.
It is also unnecessary. Lord Bracadale QC, who led the review of Scotland’s hate crime laws, told MSPs on 27 October 2020: “No suggestion has been made to me that the existence of the exception [has] inhibited the use of the [stirring up hatred provisions]” in England and Wales.
A PDF version of the briefing can be accessed here: https://freetodisagree.scot/wp-content/uploads/2020/12/msp-briefing_hate-crime-and-public-order-scotland-bill_stage-1.pdf