Free speech campaigners have criticised Justice Secretary Humza Yousaf for insisting that Harry Potter author J.K. Rowling would not be caught by the Scottish Government’s contentious hate crime plans.
In an interview with Holyrood magazine published today, Mr Yousaf said Rowling’s recent remarks on transgender issues would not constitute an offence under the Hate Crime and Public Order (Scotland) bill, as long as they weren’t “threatening or abusive” and “intended or likely to stir up hatred”.
He told Holyrood: “If you were to say a trans man is not a real man or trans woman is not a real woman, you would not be prosecuted under the bill that I am intending to bring forward, so long as you didn’t do it in a threatening or abusive way that is intended or likely stir up hatred.”
Responding to the comments a spokesman for the Free to Disagree campaign said:
“Regrettably, Mr Yousaf’s comments imply that the Government is failing to engage with – or perhaps failing to understand – the arguments of Hate Crime Bill critics. It’s all very well saying ‘people won’t be caught if their behaviour isn’t threatening, abusive and likely to stir up hatred’ but what do these terms mean?
“Criminal legislation must be tightly defined. Yet the terms ‘abusive’ (synonymous with rude and insulting), ‘likely’, and ‘hatred’ are vague and open to interpretation. The Law Society Scotland highlighted this issue in its submission on the bill.
“Mr Yousaf may not feel that Rowling’s comments were ‘abusive’ or ‘likely’ to stir up hatred, but someone else might. Who’s to say that her loudest detractors won’t make use of the legislation and allege an offence? How would the police respond to such an allegation?
“The Scottish Police Federation has warned that the ‘vague’ stirring up provisions could be misused by individuals who ‘believe that to feel insulted or offended is a police matter’.
“Under the legislation no ‘intent’ is necessary for an offence to be committed. Rowling could conceivably be guilty of a ‘stirring up’ offence without intending to stir up hatred, or even being aware that her comments were unlawful. Mr Yousaf cannot simply magic away these concerns.”
Citing other potential offences under the bill, Mr Yousaf said:
“So if I went up to a trans man, put them up against the wall and said, ‘You’re not a real man,’ or burst into a meeting with 100 people, and it was a meeting of trans men, and said, ‘Trans men are not real men,’ then potentially, you know, if I was being threatening or abusive and likely to stir up hatred, then I would be committing a crime”.
The Free to Disagree spokesman continued:
“These examples could both be caught by current legislation. Pinning someone up against a wall is more than threatening and abusive – it’s assault. If this incident was prosecuted it may also be an ‘aggravated offence’ due to the comments about transgender identity.
“The scenario of a person bursting into a room full of trans men could also be an offence under the Criminal Justice and Licensing (Scotland) Act, which criminalises those who intentionally or recklessly cause fear or alarm.
“If the conduct Mr Yousaf cites is already covered by criminal legislation, it does beg the question ‘why do we need new offences at all?’ Especially given the significant risks to free speech outlined by experts.
The spokesman concluded:
“Doubtless the intentions behind the Hate Crime bill are good. It’s a terrible thing to be a victim of a crime – not least one motivated by hatred of you. In bringing forward the bill, we accept that Mr Yousaf does not intend to curb free speech. However, he cannot deny the serious problems with his proposals.
“An announcement from the Justice Secretary that there are problems with the Hate Crime bill would be heartily welcomed. Those of us who have raised concerns are more than willing to engage with the government in the weeks ahead.”
The Free to Disagree responded to the Justice Committee’s call for views on the Hate Crime Bill last month. Read the response here.
Notes for Editors
The Free to Disagree campaign is supported by:
- Jim Sillars, former Deputy Leader of the Scottish National Party;
- The National Secular Society;
- The Adam Smith Institute;
- The Christian Institute;
- Peter Tatchell;
- The Peter Tatchell Foundation;
- Dr Stuart Waiton, criminologist, Abertay University;
- Madeleine Kearns, journalist and commentator.
For further information contact: Jamie Gillies, Free to Disagree. Email email@example.com