Scot Right There: The haters of Scotland’s new Hate Crime Bill

September 19, 2020

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3 min read

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What's going on here?

The Hate Crime and Public Order (Scotland) Bill (2020) is a piece of legislation brought forward by the Scottish National Party (SNP) to make sure hate crime laws are “fit for the 21st Century”. It has drawn criticism from many sources for potentially limiting freedom of speech.

What does this mean?

The Hate Crime Bill was devised in response to recommendations from an independent review of the current law carried out by Lord Bracadale. The Bill has many purposes that are not controversial. For example, it aims to bring all hate crime protections under one piece of legislation and expands the list of groups protected by the law. It would also abolish the crime of blasphemy, a crime that hasn’t been prosecuted in Scotland for 175 years. 

The strife in this proposed legislation lies in its attempted expansion of intent for “stirring up” hate. While a crime for communicating hateful material to another person or behaving in a hateful way with the intent to stir up hate is relatively uncontroversial, the proposed act seems to go further. Under the Bill, someone could also be prosecuted if stirring up hate was a likely consequence of their actions, even if it was not the intent.

What's the big picture effect?

The SNP faces a difficult challenge in amending the current law. It is commendable that they are trying to advance legal protections in line with socially progressive views. That said, lawmakers have often been criticised as lagging behind developments in society. However, this law has drawn criticism from figures such as author Val McDermid and comedian Rowan Atkinson, stating in an open letter that the law could “frustrate rational debate” in society. The Scottish Police Federation (SPF) also expressed discomfort with how this Bill could police Scots’ private conversations and lead to defendants falling foul of the law due to some kind of accidental effect rather than having the intent to cause damage. The Faculty of Advocates, Scotland’s version of the Inns of Courts, have also written a 35-page response to the proposed Bill. They convey concerns that “an individual may be prosecuted and convicted of an offence of stirring up hatred in circumstances where there was no intent to do so but rather a single comment, picture, personal or political viewpoint is communicated to one or more people (for example in a WhatsApp group or similar)”.

Scotland’s Justice Secretary, Humza Yousef, has sought to defend the Bill. He took to Twitter to assert that “the Bill will not prevent you from expressing controversial or offensive views. Just don’t do it in a threatening or abusive way that is likely or intended to stir up hatred”. There are clearly problems with this proposal. It seems to suggest that Scots should evaluate first in their mind whether what they say is likely to stir up hatred, even if any real-world effect would be accidental. This could induce some hovering over the send button before shipping off a risky meme into a WhatsApp group. Some may think that regulation of this sphere is needed, but it is certainly a tricky thing to regulate effectively and fairly.

Much will depend on what approach the courts would take to such a law and particularly what interpretation of “likely” they adopt. There is a risk that courts could adopt an eggshell skull-esque rule as to whether a person is offended, which would certainly result in a stifling of free speech. That said, the protection of minorities and vulnerable groups is a worthy cause and there is surely a way in which this law can be sensibly applied without risk to the freedom of speech. The Scottish government has stated it is willing to make changes before passing the law, which is sensible given that the law in its current form carries too many risks.

Report written by Luke Hatch

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