Scot Gov failing to explain what will be caught by hate crime law, critics warn

Scottish Ministers are failing to explain what kind of speech will be caught by its controversial hate crime law before it is implemented, free speech campaigners warn.

Today, it emerged that Ministers have finalised explanatory notes to accompany freedom of expression provisions in the Hate Crime and Public Order (Scotland) Act.

The free speech clauses protect “discussion or criticism” of matters relating to age, disability, sexual orientation, and gender identity.

The notes were supposed to include concrete examples of what “discussion or criticism” means in relation to these characteristics.

Critics had expressed concern that the meaning is unclear and could set a low threshold, especially when it comes to debates on contentious issues like gender recognition reform.

The notes published today provide no such examples and are described by policy experts Murray Blackburn MacKenzie as merely ‘restating provisions’ whilst providing ‘no detail’.

Jamie Gillies, spokesman for the Free to Disagree campaign, which spearheaded opposition to the Hate Crime Bill when it was introduced in April last year, commented:

“Free to Disagree and other groups who engaged with the Scottish Government during scrutiny of the Hate Crime Bill have waited months for explanatory notes that clarify what will not be caught by this controversial speech law. Explanatory notes are particularly key in aiding public understanding of legislation, and it is therefore regrettable that Ministers have provided no such clarity through the document published today.

“The Scottish Government is clearly struggling to explain its hate crime law and how it relates to free expression. They have no answer to concerns the legislation could chill free expression in Scotland and trigger police investigations at an inappropriate threshold. At this very late stage, when implementation of the law is long-overdue, this is alarming. It is wholly inappropriate to introduce laws and figure out the details later. Lives and livelihoods can be ruined.

“In our minds, we believe it would be better to pause this flawed legislation before it comes into force and avoid real damage being done. The Hate Crime Bill was rushed through at a time when parliament was rightly focused on the coronavirus pandemic. Previous, failed speech laws like the Offensive Behaviour at Football Act show the costs of getting these kinds of policies wrong.

Mr Gillies added:

“The government has said it is working with Police Scotland to provide training on its Hate Crime Act ahead of implementation. With police officers and others raising concerns about the potential disbenefits of this law in terms of free expression, it is essential that we see the details of this training, including any non-government groups involved. We hope Ministers will publish details of this in time to allow for full public scrutiny.”