OPINION: Scotland’s Hate Crime Act is bad law when we can least afford it

Free to Disagree’s Jamie Gillies gives his thoughts on the Hate Crime Act as it comes into force, and urges a governmental change in direction

The Scottish Government’s deeply unpopular Hate Crime and Public Order (Scotland) Act came into force on April Fools’ Day, following a frenzy of speculation. Its fair to say it has not been well-received by the public thus far. I’ve seen a wide range of takes on the new law, across the political spectrum. Some claim it is uncontroversial. Others that it heralds the end of freedom itself. A few commentators land somewhere in the middle. Here are some thoughts on the law from someone who campaigned against it — and who remains concerned about it today.

When this legislation was first introduced, it was truly Kafkaesque. Vague new ‘stirring up hatred’ offences covering age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics sought to criminalise “abusive” speech thought to be “likely” to “stir up hatred”. Hatred was, and still is, undefined in the legislation. Other ill-defined provisions targeted “inflammatory materials” and theatre performances. These highly illiberal plans received an almighty backlash from civic Scotland: police officers, lawyers, academics, faith groups, feminists, authors, and others.

I compiled a glossary of those savaging the Hate Crime Bill, as it was then, for the Free to Disagree campaign. In the face of public opprobrium, the Scottish Government made some concessions. Ministers accepted that mens rea (intention) should be required for a crime to be committed. And in December 2020, then Justice Secretary Humza Yousaf agreed to strengthen free speech provisions, add an objective test to the term ‘abusive’ and remove the clauses on inflammatory materials and plays. These changes were welcomed as a step in the right direction, though not felt to be enough by Free to Disagree and other critics.

As the bill progressed through Stage Two scrutiny from Holyrood’s Justice Committee there were further battles. Free to Disagree called for a dwelling defence — as is the case in parallel English legislation — to prevent a person being prosecuted for statements made in their own home. The government and its allies opposed this. A promise to “broaden and deepen” the free speech clause was also reneged on by Yousaf, after a backlash from trans activists. The “catch-all” clause eventually agreed upon is thought to be too limited by some critics.

So where does all that leave us today? In order for a person to be convicted of a crime under the Hate Crime Act, they would have to: behave in a “threatening” or “abusive” manner (well-established in other criminal legislation) with the “intention” of “stirring up hatred” on the grounds of age, disability, sexual orientation, religion, transgender identity, or variations in sexual characteristics (for race, the offence is at a lower threshold).

I think this means there is a fairly high threshold for offending — especially given that separate human rights legislation would come into play in court proceedings, ensuring that a defendant’s free speech rights are considered. It’s also worth noting that ‘gender critical’ views are a protected philosophical belief, following the Forstater case. Convictions for the ‘stirring up of hatred’ will be rare.

Does this mean I’m happy with the Hate Crime Act? Far from it. ‘Hate speech’ laws are a can of worms, and there are many who believe they should have no place in a liberal, democratic society. They’re inherently subjective, and can become a tool for censorship. In Finland, a politician has been dragged through he courts for quoting from the Bible. It’s not inconceivable that wrongful prosecutions will occur in Scotland. However, I think the main danger with this law has always been its impact on policing — its potential to overwhelm our beleaguered police service and undermine its impartiality. Public trust in the police will be undermined. Indeed, it has been already.

The vague concepts at play in the Hate Crime Act, and the bizarre awareness-raising campaign that has accompanied it, make it a clype’s charter. Police Scotland has already been deluged with complaints. The new ‘stirring up’ offences also drag officers into highly political areas and require them to act as arbiters of speech on contentious issues. This raises the spectre of our police “service” becoming a police “force”.

I suspect that most reporting will lead to no further action being taken, other than interactions being logged separately as ‘hate incidents’, if this separate, Orwelllian policy continues. Cops will have been briefed on scenarios that do not constitute the ‘stirring up of hatred’. But in some situations, given police uncertainty about where red lines in the Hate Crime Act are drawn, in a context where officers are already recording ‘hate incidents’ at a low threshold, Scots will be improperly pursued. People will be subjected to stressful police investigations and even court proceedings before their names are cleared. For these individuals, the process will be the punishment. It will wreak havoc in their home lives, work lives, and on their mental health.

Public debates will also, inevitably, be affected. Bad actors will seek to weaponise it to hurt political opponents. Think activists inundating the police with complaints about an individual who has expressed concerns about gender transitioning, or bad actors alleging ‘hate’ by a Christian street preacher because they dislike his beliefs. Police Scotland does, after all, encourage people to report “hate crime” with scant explanation as to what it is: “if it feels wrong, report it”. The wider public, nervous about landing themselves in hot water, may choose to speak out less on certain issues. ‘This ‘self-censorship’ will undermine free speech and impoverish public debates.

There’s another point to make, though, which doesn’t seem to have featured in critiques of the new law. The Scottish Government never actually explained what gap in the law it was seeking to plug with the new ‘stirring up’ offences — what ‘hateful’ and odious conduct was being missed under the tapestry of criminal legislation that predated it. Other than merely offensive speech, which should not be proscribed in a liberal democracy. ‘Threatening’ and ‘abusive’ behaviour was already criminal before the Hate Crime Act. And aggravators are applied for crimes motivated by prejudice. The lack of evidential basis for the new offences makes the government’s pursuit of them – with the consent of a majority of Scottish parliamentarians – even worse.

The government expended precious time, energy and public money on this problem law — one in a growing line of bad laws — at a time when Scotland is facing huge social justice issues: child poverty, drug deaths, homelessness and many other issues. Not to mention the huge pressures in the NHS, public services, and education. This needless policy has inhibited truly needful political action, distracting from big issues that are crying out for attention in Scotland.

If I had to sum up the Hate Crime Act in two words, I’d say it’s “a bùrach”. I suspect it will go the same way as the ill-fated Offensive Behaviour at Football Act and the Named Person scheme — controversy, problems in implementation and, if we are fortunate, repeal down the line. Before it does, the Scottish state needs to call a halt to its woeful social policy agenda. The government’s apparently insatiable appetite for unpopular, unworkable, and unnecessary legislation is hindering good public outcomes. Scots won’t always stand for this.

Jamie Gillies is commentator on politics and culture and spokesman for the Free to Disagree campaign

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