The Editor

With everything that’s transpiring just now it’s important to realise that the wheels of ordinary political life keep on turning. At Holyrood, MSPs are still meeting, debating and deliberating on business which doesn’t directly relate to COVID-19. Underlining this point just a few days ago, the Scottish Government introduced one of the most significant pieces of draft legislation in recent years.

The new Hate Crime and Public Order (Scotland) bill seeks to ‘modernise, consolidate and extend hate crime law to ensure that it is fit for the 21st Century’. Introducing the bill, Justice Secretary Humza Yousaf said: “By creating robust laws for the justice system, Parliament will send a strong message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated.”

‘So what?’ you might say. ’Hatred and prejudice are wrong and the Government want to make that clear.’ There’s undoubtedly truth in that. It’s obvious that Humza Yousaf wants to challenge hateful behaviour and for that, he should be commended. Hatred is wrong. However, all draft legislation needs careful scrutiny. And once you delve into the detail of this bill you’re left feeling more than a wee bit uneasy.

A contentious element of the bill is its provisions to ‘extend’ hate crime laws. The bill would introduce a raft of new offences for ‘stirring up hatred’ in relation to a person’s age, disability, race, religion, sexual orientation, or transgender identity. Exactly what ‘hatred’ means in the content of the draft legislation is unclear.

Under the new provisions, a person commits a crime if they behave in a “threatening or abusive manner”, or communicate “threatening or abusive material” to other people which either intends to stir up hatred, or where the court concludes it is “likely” such hatred would be stirred up – irrespective of what you intended. These new offences carry a maximum sentence of seven years in prison, or a fine, or both.

“Once you delve into the detail of the bill you’re left feeling more than a wee bit uneasy”

Consider how these new provisions might play out in the current climate.

Scotland, like the rest of the world, is a place of strong and entrenched views. Not just on big issues like Brexit and independence but on a whole range of social, political, philosophical and theological matters. Spend a moment scrolling down your Twitter feed and you’ll soon see just how strong people’s opinions are, and how eager people are to impress them upon others.

Under the Hate Crime bill, it would be an offence for a person to communicate ‘abusive’ information online, on paper, or on a mobile phone pertaining to age, disability, race, religion, sexuality, or transgender identity, if it results in ‘hatred’ against people in these protected groups. In existing legislation, ‘abusive’ behaviour is behaviour which is “likely to cause a reasonable person to suffer fear or alarm”. But culturally, it’s often understood more widely. Collins Dictionary states: ‘abusive language is extremely rude and insulting’.

Rude? Insulting? When you consider this meaning to the word it seems an extraordinarily low threshold for a criminal offence.

One of the first groups of people to fall foul of the new law would surely be comedians. A few clicks of the keyboard brings up a thousand examples of Billy Connolly or Frankie Boyle saying outrageously rude and insulting things about the elderly, the disabled, the English, religious groups and others in order to induce laughter from an audience. The legislation as it stands could conceivably land The Big Yin or Boyle in court for delivering a typically non-PC punch line during a live performance, or via the internet.

“The legislation as it stands could land The Big Yin, Bridges or Boyle in court”

Abusive behaviour in a public place could also be considered to have ‘stirred up hatred’. When you consider this, it’s clear that Christians and other conservative religious groups could be caught. Think of the street preachers who frequent Scotland’s city centres and shout emphatically that the ‘wages of sin is death’. A pointed sermon or a cardboard sign citing a verse on marriage or sexual activity could be considered ‘stirring up hatred’ against LGBT people. There have already been numerous instances of street preachers being reported and unlawfully detained for quoting the Bible in public. Such incidents would only increase were this legislation to come into force.

It may sound dystopian but ordinary church activity might also come under increased scrutiny. Every week, ministers across Scotland proclaim the whole counsel of God from the pulpit and sermons are published online. Were a sermon on the subject of marriage, sex, or transgenderism to be published and then reported, it could lead to a minister being investigated, and even charged with an offence. 

In 2016, Belfast pastor James McConnell was taken to court for exactly this reason under Northern Ireland’s not dissimilar ‘Communications Act’. McConnell had preached a sermon denouncing Islam and affirming Christianity as the one true religion that was later reported by a Muslim member of the public. Thankfully McConnell was cleared but what a chilling ordeal for a pastor to go through.

There are, thankfully, two free speech clauses in the bill. One allowing “discussion or criticism” of religion, and another allowing “discussion or criticism of sexual conduct or practices”, and “urging of persons to refrain from or modify sexual conduct or practices”. But whether or not these free speech clauses work depends on what the authorities decide is an acceptable level of ‘discussion or criticism’.

If a person from a protected group feels that discussion or criticism of their lifestyle choices was ‘rude and insulting’, is it not likely that the police will side with them? Police forces across the UK already encourage the reporting of ‘non-crime’ hate incidents and are compelled to believe and log reports without further assessment. With this already happening, and a wider atmosphere where the police and the political class champion socially liberal causes, can we really trust them to enforce the law fairly for all citizens?

“In a wider atmosphere where the police and the political class champion socially liberal causes, can we really trust them to enforce the law fairly?”

Alarmingly, there is no free speech clause for “discussion or criticism” of transgenderism. You’d have thought this obvious given the forthright debate on this topic that is playing out across society just now. Women’s groups in particular are often strident in their communications about trans policies, shouting slogans like ‘trans women aren’t women’. This could very easily be considered ‘stirring up hatred’ under the new law.

So where does this leave us? Thankfully, there is still time for the legislation to be debated and amended. It will have to be scrutinised by MSPs and many have already raised fears over its possible consequences. 

It would be preferable for the Government to scrap its new stirring up hatred offences altogether. Currently, persons can only commit an offence of ‘stirring up hatred’ on the basis of race. This offence works well in practice and is understandable given the poisonous effects of racial hatred throughout history. The new offences, as drafted, could catch legitimate debate on a range of issues at a much lower threshold.

If they won’t scrap the offences, Ministers must at least reform the language of the bill. The current drafting is vague for the criminal law. It would be better to stick with the more concise language of “threatening” words or behaviour, and to make offences dependent on intent to stir up hatred being proven. This would ensure a higher threshold for new offences which protects free speech. Similar legislation in England and Wales uses this language and appears to operate well in practice.

Finally, a free speech clause on transgenderism must be included, given the strident debate taking place.

Let’s pray that the Government and politicians of good faith will listen to concerns about the Hate Crime Bill and act to protect the free speech and religious liberty of everyone in Scotland in years to come.