Last week saw a climbdown by the Scottish Government on one of the most controversial aspects of its hate crime plans. After a huge public backlash, Justice Secretary Humza Yousaf announced that draft stirring up of hatred offences will be amended to ensure that no citizen can commit an offence unless ‘intent’ to stir up hatred can be proven by the court.
This is a welcome change. It diminishes the chance of specious convictions should the new ‘stirring up’ laws reach the statute book. It is not, however, the end of the hate crime saga. Whilst the move by Mr Yousaf was a step in the right direction, he still has a long way to go if he is to allay free speech fears.
Expert groups including the Faculty of Advocates and the Law Society of Scotland have stressed that other, remaining aspects of the ‘stirring up’ offences threaten to undermine freedom of speech and expression, obfuscate the criminal law and place an unmanageable burden on police officers and prosecutors.
The Police Federation, which represents frontline officers in Scotland, describes the ‘stirring up’ proposals as “confusing”. And Community Justice Scotland, which lobbies for improvements to the criminal justice system, questions “whether creating additional legislation is proportionate or the most appropriate route to follow”.
“Humza Yousaf still has a long way to go if he is to allay free speech fears”
Critics also argue that the proposals are unnecessary. Existing laws already catch violence, harassment and abuse. The Criminal Justice and Licensing Act criminalises those who intentionally or recklessly cause fear or alarm. And there are aggravated offences for crimes motivated by hatred and prejudice. The government and other proponents have not demonstrated how these specific proposals would reduce hate-related crimes, or lend greater protection to citizens.
There are still serious issues with the ‘stirring up’ proposals: the language is hopelessly vague – the term “abusive” could create a distressingly low threshold for offending; free speech clauses are sorely lacking; there is no ‘dwelling defence’; and prosecutions would not be limited by referral to the chief prosecutor, as in other parts of the United Kingdom.
As a former SNP politician and party member, I see no logical reason why the government should refuse further amendments to its plans. In fact, in order to remain consistent in its approach to freedom of speech and expression, the government should be prepared to go further.
The votes of SNP MPs were crucial to securing various free speech protections in previous stirring up of hatred offences passed at Westminster in 2006. The Racial and Religious Hatred Bill would have criminalised ‘threatening, abusive or insulting’ behaviour ‘intended’ or ‘likely’ to stir up racial or religious hatred – very similar to the current Holyrood proposals.
“In order to remain consistent in its approach to freedom of speech and expression, the government should be prepared to go further”
On the day of the key House of Commons vote, five SNP MPs, – Alex Salmond, Angus Robertson, Stuart Hosie, Angus MacNeil and Michael Weir – backed a successful amendment to ensure that; the threshold was “threatening” – not “threatening, abusive or insulting”. They also backed a robust free speech clause stating that nothing in the offences “prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse”.
In order to see these amendments passed, they broke with the usual convention of abstaining on England-only legislation. And quite rightly, as a legal opinion had warned that Scottish citizens could be caught by the English provisions.
All of this raises questions in my mind. Why is the term “abusive” in the ‘stirring up’ proposals when it was considered too ‘subjective’ by the SNP previously? And why do free speech provisions in the Hate Crime Bill only permit “discussion and criticism” when the SNP previously voted to allow “expressions of antipathy, dislike, ridicule, insult or abuse”?
To avoid a charge of hypocrisy, the SNP must limit the ‘stirring up’ offences to “threatening” behaviour and ensure that much more robust free speech provisions are included in the ‘stirring up’ proposals. If these changes are not made, citizens south of the border will arguably have more free speech rights than citizens in Scotland. That is not something any SNP politician should countenance.
“If these changes are not made, citizens south of the border will arguably have more free speech rights than citizens in Scotland”
There’s still a lot of scrutiny to come on the Hate Crime Bill. Next month, the Justice Committee will begin line-by-line analysis of the ‘stirring up’ proposals. The government could save itself a fearful headache by backing these additional changes to the offences at an early stage.
The most important amendment needed – seemingly not in the Minister’s mind, but hopefully in the minds of the Justice Committee members – is that Clause 1, line 1 of the Bill should read “All of the offences alleged and prosecuted in any court proceedings should be judged against the following standard: that pre-eminence is given to the presumption of free thought and free speech in a free society.”
Jim Sillars is former Depute Leader of the SNP and an ally of Free to Disagree