‘Stirring up’ offences should be removed not rewritten


Free speech campaigners have issued a fresh call for Justice Secretary Humza Yousaf to scrap controversial stirring up hatred offences in the Hate Crime and Public Order (Scotland) Bill, listing ten problems with the Bill that need solving.

The Free to Disagree campaign, a coalition of civil liberties groups and free speech proponents, argues that “problems with the ‘stirring up’ provisions are too many and too complex to resolve”.

Mr Yousaf is expected to make a statement on potential changes to the proposals shortly, following stiff criticism from lawyers, police officers, judges, faith groups and others. Critics believe he may change the wording around ‘intent’ in the draft offences, as many have demanded, but this would leave other controversial aspects unchanged.

A statement issued by Free to Disagree today lists ten problems with the draft provisions and urges the Government to remove rather than rewrite them.

Free to Disagree statement

Over the last few months lawyers, academics, police officers, authors, actors, comics, civil liberties groups and others have underlined numerous problems with the ‘stirring up’ offences. There are at least ten major flaws that need to be addressed:

1There’s concern over the low threshold for offending, with ‘abusive’ (rude and insulting) words being caught.
2Citizens can commit an offence without intending to do so and without any proof that hatred has actually been stirred up, if it is deemed ‘likely’ that it could be stirred up.
3Free speech provisions are alarmingly vague. They only permit ‘discussion and criticism’ to do with religion and sexual orientation. This is the language of academics, not ordinary people discussing issues they feel strongly about.
4A trans free speech clause is conspicuously absent, despite the obvious need for one given the heated debate on trans issues in Scottish society. 
5Discussion about marriage is also excluded from the free speech protections, despite it being included in equivalent laws in Northern Ireland, England and Wales.
6People could be prosecuted for remarks made in the privacy of their own homes because there is no ‘dwelling defence’, unlike the rest of the UK.
7Actors and directors would commit an offence if a play includes ‘abusive’ language thought ‘likely’ to stir up hatred.
8Vague provisions on ‘possessing inflammatory material’ would punish those who possess ‘abusive’ material “with a view to communicating the material to another person”. An inexhaustible number of books, religious texts, leaflets, posters, articles, social media posts, emails and text messages could be caught.
9Publishers based in other parts of the UK whose material is read in Scotland could be investigated by Police Scotland.
10Stirring up’ prosecutions in England, Wales and Northern Ireland must be approved by the Attorney General and the Director of Public Prosecutions respectively. But there is no requirement for the Lord Advocate to sign off on prosecutions in Scotland, under the draft offences.

These problems with the ‘stirring up’ provisions are simply too many and too complex to resolve, especially given the limited parliamentary time remaining before next year’s election. MSPs are already under huge pressure and members of the Justice Committee particularly so.

It must also be said that these are not ordinary times. The Scottish Government and Holyrood as a whole faces a huge challenge in dealing with the coronavirus pandemic. This will demand much of their time and effort for months to come.

Rather than rewriting the ‘stirring up’ provisions in the Hate Crime Bill, the Government would be better to remove them and think again about their hate crime approach. Tackling hatred and prejudice in society can be achieved through other means that don’t threaten the basic civil liberties of all Scots.

Justice Committee pressure

Last week Adam Tomkins MSP, Convener of Holyrood’s Justice Committee, urged Humza Yousaf to announce any revisions to the bill before Stage 1 scrutiny begins in October.

Mr Tomkins said: “From the committee’s perspective it is really important that happens, and is all upfront and transparent, open and on the record before the committee starts its stage 1 inquiry.

“We absolutely want to have a stage 1 inquiry into legislation which the Government is proposing, not into legislation which the Government used to be proposing and has now changed its mind about.

He insisted: “We want all of that to be done and be as straightforward as possible before the committee starts work on its stage 1 inquiry which will be pretty much immediately after the October recess.”



Jamie Gillies, spokesman for Free to Disagree


07761 506 732

Issued on behalf of Free to Disagree by: Tom Hamilton Communications


07836 603 977