Jacob Mchangama, Director of Justitia
The Scottish Government’s Hate Crime Bill flouts international human rights law and poses a “dire risk” to freedom of expression”, according to Danish legal experts.
Justitia, an international judicial think tank based in Copenhagen, warns that draft ‘stirring up hatred’ offences in Part 2 of the Hate Crime and Public Order (Scotland) Bill breach the terms of the International Covenant on Civil and Political Rights (ICCPR).
In written evidence to the Scottish Parliament’s Justice Committee, Justitia explains that UN member states can legislate against ‘incitement to hatred’ under the terms of the ICCPR. The treaty, agreed by UN member states in 1966 and adopted in 1976, states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.
However, the UN also stresses that the threshold for the types of expression that fall under incitement to hatred laws must be “high and solid”. Criticising the Scottish Government’s plans, Justitia states: “in terms of stirring up hatred, the present Bill endorses a much lower threshold than what is set out at an international and European level”.
Underlining this point, Justitia notes that under the UN’s ‘Rabat Plan of Action’, states are encouraged to adopt a six-point threshold test for stirring up hatred offences that takes into account: the social and political context; the status of the speaker; intent to incite the audience against a target group; the content and form of the speech; the extent of its dissemination; and the likelihood of harm, including imminence.
The Scottish Government’s ‘stirring up’ provisions only encompass two of these six points: the content and form of the speech (“threatening or abusive” speech will be caught); and intent to incite the audience against a target group (“intent” is to be required).
‘Disproportionate’ 7-year sentence
Justitia describes the maximum seven year sentence attached to the ‘stirring up hatred’ provisions as “disproportionate”. It notes that under human rights law: “States must avoid resorting to criminal proceedings”. If criminal measures are to be adopted, they must “respond to the impugned speech ‘appropriately and without excess to such remarks’”.
The group also questions whether criminalisation is an effective tool for countering prejudicial attitudes in society at all; “does silencing expression and enhancing punishment due to ‘ill-will’ contribute to social cohesion and the empowerment of minorities?
“We believe that there is no substantial evidence that points to this… in addition to the real possibility of the law’s use in majoritarian terms, render the Bill, in part and in whole, a step backwards in terms of the liberalization of democracy and the sincere and real participation of all members of society in society.”
The group concludes that the Scottish Government should adopt other, non-punitive approaches to tackling hatred in society: “the government should invest in tackling conscious and unconscious biases and power structures which are subsequently manifested in speech and acts. Such measures could include awareness raising, education, inter-group dialogue and positive measures for the empowerment of minorities”.
Jacob Mchgangama, Director of Justitia, told Free to Disagree:
“The bill is overly broad, placing freedom of expression at dire risk without due regard to the ramifications on the functioning of a liberal democracy.”
He added: “We also worry about the impact such a law would have on minorities who may, in fact, be silenced by the laws that are trying to protect them. This results from the broadness of the Bill, which makes things very unclear in terms of what one can or cannot say.”
“Instead of focusing on creating very low thresholds for forbidden speech, the Scottish Government should revisit the problem of hatred in society through means such as education, counter-narrative and social development. “
Free to Disagree comment
Spokesman for the Free to Disagree campaign Jamie Gillies commented:
“This critique of the government’s hate crime plans by human rights experts should be a major concern for Ministers. If they fail to address remaining problems with the Hate Crime Bill, we will see civil rights undermined in Scotland in a manner proscribed by international conventions.
“It’s vital that Ministers listen to remaining concerns on the ‘stirring up’ provisions and act to address them. As we’ve said previously, the simplest way to avoid an erosion of free speech is to remove Part 2 of the Hate Crime Bill altogether. Tackling hatred can be achieved in other ways that don’t threaten the civil liberties of all Scottish citizens.”