The saga of the SNP’s Hate Crime Bill is drawing to a conclusion. This week, Holyrood will cast a decisive vote on the embattled bill. Introduced just ten months ago, it seeks to consolidate existing hate crime laws and create new offences on the ‘stirring up of hatred’ against certain groups. These proposals would make ‘threatening or abusive’ behaviour which ‘stirs up hatred’ on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics a criminal offence, punishable by up to seven years in prison, an unlimited fine or, for the extremely unfortunate, both.
The proposals have proved highly controversial and understandably so. In our society, the term ‘hatred’ is malleable. It means very different things to different people. Many accusations of ‘hatred’ don’t exactly chime with the dictionary definition of the word which, by the way, is ‘an extremely strong feeling of dislike’. Not merely ‘dislike’, not ‘disagreement’ and not ‘dismissal’ of one’s views.
Soon after the SNP’s proposals were published, a diverse and somewhat unlikely array of critics emerged: the police, lawyers, academics, journalists, actors, authors, comedians, churches, secularists, civil liberties groups and feminists. These groups warned that the ‘stirring up’ offences were vague and far-reaching. They risked casting the net too widely and eroding freedom of expression.
In response to this initial firestorm of criticism, which even encompassed the likes of Rowan Atkinson, John Cleese, and author and pal of Nicola Sturgeon Val McDermid, the government made several concessions.
In September, Scottish justice secretary Humza Yousaf announced that committing a stirring up offence should require ‘intent’ on the part of an offender. As originally drafted, mere ‘likelihood’ of stirring up hatred was all that was required for a prosecution – an alarmingly low threshold.
Two months later, after the publication of a critical parliamentary report on the plans, Yousaf conceded more changes. Provisions covering theatre performances – a platform for the provocative and the heretical – would be scrapped. The luvvies were not amused. So too would provisions covering ‘inflammatory material’, thought to place holy books in the cross-hairs. A ‘reasonable person’ test would be adopted to better-define what behaviour meets the threshold for criminality.For many critics, this wording is seen as a betrayal
By the end of 2020, some of the most controversial aspects of the stirring up offences had been shorn off. Critics had piped down somewhat. However, this positive momentum wasn’t to last.
In 2021, parliamentary scrutiny has veered off course. Since day one, the provisions for freedom of expression protections in the bill were considered far too narrow. They merely allowed ‘discussion’ and ‘criticism’ of religion and afforded no protection whatsoever to speech and writing referencing transgender identity – a highly divisive topic. The government and opposition MSPs seemed to accept this.
In January, the Scottish government made positive noises about the need to ‘broaden and deepen’ free speech protections. At the end of the month, a series of amendments were lodged to widen the free speech clause covering religion and introduce new clauses on transgender identity and age.
This might have satisfied some critics, but days before a vote on these amendments, they were withdrawn. It soon became obvious why. A small but vocal minority of activists – mostly within the SNP itself – had complained that the amendments were ‘transphobic’. They claimed that trans people were being ‘singled out’ and expressed outrage at the idea that anything relating to trans issues should be ‘criticised’.
These fulminating activists seemed oblivious to the other free speech protections covering religion, sexual orientation and age. Protections that, tellingly, were accepted by people in those groups. In a blind panic, the government u-turned and signalled that a new ‘catch-all’ free speech clause would be produced, covering age, disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics.
The content of this new ‘free’ expression provision became clear this week when the government officially lodged it. It will allow ‘discussion or criticism’ of all the characteristics listed in the bill apart from religion, where the free speech protection will be stronger, specifically allowing expressions of ‘antipathy, dislike, ridicule or insult’.
For many critics, this wording is seen as a betrayal. If religion is to be subject to ‘antipathy, dislike or ridicule’, why not also other beliefs and ideas related to the categories listed under the bill? Surely free speech includes offensive, controversial and unwelcome statements on every ideological position?
Critics also ask what limiting free speech to mere ‘discussion or criticism’ will mean for professional provocateurs in the arts and comedy – people who make a living out of mocking various aspects of the human condition. In Scotland, will they need to worry that someone will persuade a police officer that their jokes are ‘abusive’? That is precisely all that would be needed to trigger an investigation into whether they intended to stir up hate.
The issue of free speech protections remains highly fraught. With just a few days before a final vote on the bill, this presents the alarming prospect of legislation that is not properly drafted becoming law. Without adequate free speech protections, the stirring up offences could undermine free expression and cause an immense headache to the police and the courts – the new arbiters of what opinions expressed by Scottish citizens should be considered ‘hatred’.
Police officers in Scotland will hardly be relishing the prospect of new complaints on the ‘stirring up of hatred’ from legions of offence-takers. The stirring up offences could so easily be weaponised in a wider, febrile culture that recently saw a police force in Merseyside proclaim that ‘being offensive is an offence’.
With recent criticism of the government’s proposals focusing on the detail of the free speech clauses, not much is being said about the bigger picture. Lest it is forgotten, the impetus for the stirring up hatred offences seems to be largely symbolic – a way to ‘send a message’ that hatred and prejudice will not be tolerated in modern Scotland.
Outlining its rationale for the offences last year, the Scottish Government said they will ‘more accurately define’ hate crime and suggested that ‘the conduct in question would already constitute existing criminal offences such as breach of the peace or threatening or abusive behaviour’. If the new offences are, indeed about sending a message, with little practical effect, what good reason is there for Holyrood to back them? Especially given the aforementioned avalanche of concern they have provoked. The criminal law should not be co-opted as a PR device.
The longer the debate about the Hate Crime Bill goes on, the more it is reminiscent of another discussion on controversial Scottish legislation concerned with ‘offensive’ behaviour. The Offensive Behaviour at Football and Threatening Communications Act 2012 (OBFA), introduced by Alex Salmond’s administration, made it an offence to ‘stir up hatred’ against ‘religious groups’, ‘groups with a perceived religious affiliation’ and also on the grounds of ‘colour, race, nationality, sexual orientation, transgender identity and disability’. It covered many of the same characteristics listed under the Hate Crime Bill. Again, it was seen as symbolic – a way to send a message that sectarian bigotry is unacceptable.