Scottish politicians voted through illiberal legislation on 11 March that will deal a hammer blow to freedom of expression. A majority of MSPs backed the Scottish Government’s controversial Hate Crime and Public Order Bill which will create broad new offences on the “stirring up of hatred”.
Cabinet Secretary for Justice Humza Yousaf hailed the bill’s passing as an important milestone. The new offences, he claimed, will help stamp out hatred and bigotry and send a message to the public that these things are not tolerated in modern Scotland. Tackling hatred and prejudice is a laudable aim. And some vital revisions were made to the bill at an early stage; changes that make the legislation less of a menace to free speech than it might have been. However, Yousaf’s glowing assessment of the new “stirring up” offences neglects their many pitfalls.
Over the last ten months, concerns about the threat to free speech have united groups as disparate as the Catholic Church, the Free Church of Scotland and the National Secular Society in mutual opprobrium. Many critics of the legislation are not satisfied the changes were enough to protect civil liberties — the right to freedom of speech and expression and a private family life — as set out in seminal documents like the European Convention on Human Rights. Amendments to broaden free speech protections and provide a dwelling defence shielding conversations in the home were rejected.
The new hate crime legislation is out of step with Scotland’s proud tradition
The stirring up hatred offences will make “threatening” and “abusive” behaviour that “stirs up hatred” on the grounds of age, disability, religion, sexual orientation and transgender identity an offence, punishable by up to seven years in prison. They massively extend the reach of stirring up legislation in Scotland which historically only applied to race. When the new offences come into force, they will cover the expression of views on all manner of subjective beliefs: beliefs on contentious issues like transgenderism, religion, sexual orientation and same-sex marriage. With a stroke of the legislative pen, Holyrood has made Scotland the most stringent regulator of speech in the United Kingdom.
Legislation concerned with speech needs to be very carefully drafted indeed. Freedom of expression is a historic right — a human right — which has been hard won throughout history. It is not a limitless entitlement, of course. We cannot allow threats of violence and harassment. However, the liberal tradition that formed our democracy in Scotland has always interpreted the right to freedom of speech and expression generously. The new hate crime legislation is out of step with this proud tradition. It risks narrowing the parameters of acceptable opinion.
Many critics feel that the safeguards necessary to prevent civil liberties being eroded by the stirring up offences are lacking. The free speech clause in the bill allows “discussion and criticism” of most characteristics. It is not at all clear how this will carve out space for freedom of speech as it has, for centuries, been understood. Critics ask, quite rightly, what the terms “abusive” and “hatred” will be taken to mean. What counts as “abuse” and “hatred” today largely depends on who you ask. A “reasonable person” test is included in the legislation to try and provide more clarity. In a court setting, Sheriffs will be asked to consider if the behaviour in question would be considered “abusive” by the “reasonable person”. But who is this reasonable person? And how can the courts ensure consistency across the board?
The government of Scotland has acted wholly against the views and priorities of the public at large
There is a real risk that speech which is merely offensive to some people but which would not ordinarily meet the threshold for criminality will be reported and investigated as an offence under the new law. Even if no prosecution occurs, citizens will still experience the trauma of police investigations. And the police could potentially be dragged into ideological disputes that should never be part of their remit. Defending “offensive” speech may not be a popular position these days. However, those of us who cherish free speech accept that it includes both the offensive, the unorthodox, the controversial and the provocative. As a Christian believer, I accept that my beliefs will be ridiculed and attacked. That is the price of living in a free society.
The Hate Crime Bill saga points to a disturbing disconnect. The government of Scotland has, not for the first time, acted wholly against the views and priorities of the public at large. Polling and public consultations found that the vast majority of Scots oppose the stirring up hatred offences. Of course we condemn hate and prejudice. But we’re alarmed at the threat to free speech and family privacy. And women across Scotland have expressed fear that their ability to agitate for sex-based rights will be curbed. Social harmony could, ironically, be further undermined by this new law. But the public’s protestations were dismissed.
It’s evident that our political leaders see citizens outside the parameters of the Holyrood Bubble as a sinister bunch. We are perpetually in need of nannying and educating. Why else have we seen a litany of patronising, illiberal and mistrustful policies in recent years — the Offensive Behaviour at Football Act, the Named Person Scheme, the smacking ban and now the Hate Crime Bill? The public did not ask for these policies. The passing of the Hate Crime Bill is a reminder that the Scottish Government is aloof from the people who put them in power. Scotland deserves more respect.