Jamie Gillies
After a significant public backlash, the Scottish Government has promised to make “significant changes” to controversial ‘stirring up’ offences in its Hate Crime Bill. Critics now eagerly await the substance of these changes which will determine whether or not the furore over the bill continues into the coming months, or dissipates entirely. ‘Stirring up’ offences in part two of the bill are the main cause of controversy. These vague and subjective provisions are considered a threat to freedom of speech and expression. Other parts of the bill that consolidate existing laws and repeal an offence of blasphemy command broad support.
The government may well opt for specific changes to the ‘stirring up’ provisions that go some way to answering criticisms without causing them to lose too much face. Justice Secretary Humza Yousaf has already hinted at changing the wording around ‘intent’ – one of the main problems identified by critics. Whilst this would be a step in the right direction, it would fail to resolve other seismic issues in part two of the bill: the low threshold for offending; inadequate free speech provisions; the lack of a ‘dwelling defence’; vague ‘inflammatory material’ provisions; and the liability of publishers outside Scotland, to name just a few.
“‘Stirring up’ offences in part two of the bill are the main cause of controversy”
Many experts argue that withdrawing part two and the draft ‘stirring up’ offences altogether is the only way to resolve these complex issues and ensure that other, vital civil liberties are upheld. People on both sides of the Hate Crime Bill debate agree that crimes motivated by hatred and prejudice should be strongly condemned. These odious actions have no place in Scottish society. However, inadvertently undermining freedom of speech and expression in an attempt to tackle hate crime would be hugely detrimental to society as a whole.
Protecting free speech is not the only argument for ditching the ‘stirring up’ proposals. Crucially, the government and other proponents have not demonstrated how these specific proposals would reduce hate-related crimes, or lend greater protection to citizens. 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…has not demonstrated how these specific proposals would reduce hate-related crimes, or lend greater protection to citizens”
A perusal of evidence submitted on the Hate Crime Bill suggests that the new stirring up of hatred offences are not, in fact, widely supported. Summarising its stance on the proposals, policy analysis collective Murray Blackburn MacKenzie argued that Ministers have failed to demonstrate how “expanding stirring up offences will fill a legislative gap on paper, or reduce in practice the number of hate-related attacks on individuals in particular groups”. The Scottish Police Federation, which represents frontline officers in Scotland, described the ‘stirring up’ proposals as “unnecessary” and “confusing”. And Community Justice Scotland, which lobbies for improvements to the criminal justice system, questioned “whether creating additional legislation is proportionate or the most appropriate route to follow”.
Given these statements, it’s worth asking why the government is pursuing this course of action at all. In setting out his hate crime proposals, Justice Secretary Humza Yousaf said extending hate crime laws is about “sending a message” that hatred and prejudice will not be tolerated. This appears to be the bill’s raison d’être. Commandeering the criminal law in this way – for the sole purpose of ‘sending a message’ – is bound to end in tears. For evidence of this, the government need only look to the (now repealed) Offensive Behaviour at Football Act. This sought to ‘send a message’ that sectarianism will not be tolerated at football grounds, or anywhere in the vicinity of football grounds. But it failed to work in practice and caused serious disruption in the lives of ordinary Scots before being withdrawn.
“Commandeering the criminal law in this way – for the sole purpose of ‘sending a message’ – is bound to end in tears”
Tackling hatred and prejudice can be achieved by other means – good education and support for families and communities, training for public bodies and reformative rather than punitive measures. In championing these things, the Scottish Government can help to engender an atmosphere of kindness, tolerance and respect in Scotland, without undermining other important rights. There are clearly good motives behind the Hate Crime Bill. All of us agree that tackling hatred and prejudice is vitally important. But the government is applying the wrong method. Ministers should withdraw the ‘stirring up’ proposals altogether and reconsider their approach. If they don’t, the stooshie over the Hate Crime Bill will only continue.