Jamie Gillies, Free to Disagree spokesman
Later today MSPs will debate the Hate Crime Bill for the last time. It’s fair to say this legislation has proved highly controversial. It’s managed to unite groups as disparate as the Roman Catholic Church and the National Secular Society in mutual opprobrium. These groups are fundamentally opposed on many issues but are united in the belief that freedom of speech and expression are fundamental democratic rights that must be upheld and protected.
Problems with this legislation have been addressed by the government and they deserve credit for that. The move to intent raised the threshold for offending. Deeply controversial provisions covering inflammatory material and theatre performances were scrapped. And other changes helped to clarify some of the key terminology in the bill. However, there are still concerns. We all agree that hatred and prejudice exists in society and should be confronted. However, as laudable as the government’s intentions are here, the bill threatens to undermine other civil liberties in the process.
The government’s free speech clause, which was brought forward only last month, is not felt to be adequate. It does not put beyond doubt that language which is merely insulting, controversial or offensive will not be caught by the new stirring up hatred offences. At present, the free speech clause outlines that ‘discussion and criticism’ of various characteristics can take place. But mere ‘discussion’ and ‘criticism’ sounds too academic. Surely free speech also includes the offensive, the provocative, the unorthodox and the disturbing? As Lord Justice Sedley famously said: “Freedom only to speak inoffensively is not worth having”.
There’s also concern about the capacity the offences have to allow malicious reporting to take place. People could report others who they disagree with and accuse them of ‘stirring up hatred’ when they should never be accused of that in the first place. Vexatious reports would waste the time of the police who would be required to carry out investigations even if no prosecution is taken forward. And they would be incredibly stressful to those who are investigated. Their lives would be put on hold until the ordeal is concluded.
Women’s groups in particular are worried about this. They recognise that simple statements on biological sex and gender are described as ‘abusive’ and ‘transphobic’ already. What will happen to critics of transgender ideology or controversial policy proposals like gender self-identification if the new offences come into force? Will stating that ‘trans women are not women’ be considered ‘abusive’ under the new law? There’s a good chance that it would be. And ‘abusive’ behaviour is all that would be required to trigger a stirring up hatred investigation.
Another concern is to do with the language of the offences themselves. They’re reminiscent of offences introduced by the Offensive Behaviour at Football Act which also focused on the ‘stirring up of hatred’. Rushed through in 2012 amidst many of the same concerns about freedom of speech being undermined, the Football Act failed to work in practice and was repealed six years later. Before it was, it resulted in many working class fitba fans being dragged before the courts before having their cases thrown out. It was not a victimless law.
Finally, there is concern that the stirring up hatred offences, essentially public order offences, would apply to the private family home. In England and Wales, similar laws include a ‘dwelling defence’. This states that conversations between people at home that are not heard outside the home should not be liable to prosecution. The Scottish Government has so far opposed the inclusion of such a provision in the bill. Despite the fact that English lawmakers support it and Lord Bracadale EC, the retired High Court judge who conducted a review of Scotland’s hate crime laws, backed it whilst giving evidence to the Scottish Parliament.
MSPs should have all of these concerns at the forefront of their minds as they decide how to cast their votes this afternoon. If there’s any chance that the stirring up offences are not fit for purpose, that they will lead to freedom of expression being undermined and the work of the police and prosecutors frustrated, that they will lead to the privacy of ordinary, decent citizens being infringed upon illegitimately, they must vote against the proposals.
Of course, the stirring up offences could be re-introduced after the May election. This would give the next government a chance to make a new case for them. They could meet again with various stakeholders and ensure that the offences strike an appropriate balance between tackling hate crimes and respecting freedom of speech and expression. I sincerely hope that MSPs will pursue this sensible course of action.