When the Scottish government published its Hate Crime and Public Order Bill last April, a major backlash followed.
The claims came thick and fast. JK Rowling would end up in jail. Comedians would be forced to clam up. Plays could be shut down. Libraries could be prosecuted for having books on the shelves.
Veteran journalist Kevin McKenna deemed the plans “deranged,” and warned that the latest stage of “the Scottish Government’s wokey horror picture show” would “punish more people and bring them into line with a narrow, state-approved orthodoxy.” Even the former SNP deputy leader Jim Sillars denounced the bill as the “suppression of free speech.”
Justice secretary Humza Yousaf did nothing to allay fears when he told MSPs last autumn that people could even be prosecuted for words spoken in their own homes.
“It is quite an achievement for the government to have united the Catholic Church and the National Secular Society in opposition,” the BBC’s Scotland editor Sarah Smith wrote at the end of the consultation period last summer.
There’s nothing new about free speech rows over hate crimes legislation. But usually these occur when a government tries to extend the reach of the laws. Scotland’s Hate Crime Bill was meant to be a tidying up exercise that consolidated existing laws, the result of an independent advisory group report in 2016 and Scottish former judge Alastair Campbell’s hate crime legislation.
Part of the problem is that despite the stated intentions, the Scottish government actually is extending the law’s reach. Much of the old legislation was drawn from the Public Order Act 1986. But that law included an exemption for words and actions inside a “dwelling”—someone’s home—that is not witnessed in public.
This exemption disappeared under the Scottish government’s new plans, leading to the current row over people being prosecuted for talking out of turn around the dining table. Tory attempts to reintroduce a “dwelling defence” failed this month, with Yousaf insisting such a defence would draw an “entirely artificial distinction” that would allow threatening and abusive bigotry simply because it was inside the home.
Another example was the theatre row. Campbell’s report barely mentioned theatrical performances, and yet last April’s Bill applied to them, provoking immediate outrage.
In part, it was because section 20 of the 1986 Act applied to the directors of plays that transgressed hate crime laws—albeit with hardly any prosecutions in recent years.
But the Hate Crime Bill went even further, extending the law from the directors of plays to the actors who appeared in them—despite actors being specifically protected from prosecution under the 1986 Act.
In the wake of the backlash, the Scottish government agreed to drop theatrical performances from the Hate Crime Bill in November. In addition, the Bill repeals section 20 of the 1986 Act in Scotland.
In fact, many of the most controversial measures have now been dropped from the Bill—in some cases only this month, as it staggers through a gauntlet of opposition amendments in Holyrood.
Stirring the pot
Hate crimes are usually “aggravated offences”—a standard criminal offence that is motivated by hatred of a particular demographic, and draws added punishment as a result.
But most of the current controversy surrounds “stirring up” offences, where the perpetrator encourages others to hate a particular group. Until now, the only stirring up offence in Scotland has been the stirring up of racial hatred, via the 1986 Act. Adopting Campbell’s recommendation, the Hate Crime Bill extends this to all the other protected characteristics, such as disability, religion and sexual orientation.
Under these plans, behaviour or communication that was threatening, abusive or—in the case of racial hatred—insulting, and stirs up hatred against a protected group, would constitute a hate crime.
This had broad support in principle. In practice however, the plans sparked opposition based less on what was changing, but on what was staying the same.
One of the most controversial concepts in criminal law is that of “intent.”
The 1986 Act makes it an offence to stir up racial hatred, where that was either the specific intention or the likely outcome. Campbell recommended extending this across all protected characteristics, and the Scottish government followed suit.
However, this “likelihood” test became a flashpoint in the new Bill. Critics warned it made the proposed laws too open to interpretation. “Does this mean that there is more than just a chance that it will stir up hatred, or more probable than not?” the Law Society of Scotland asked in its response to the original Bill last summer. The Scottish Police Federation said it would “paralyse freedom of speech.”
Under pressure from all sides, the government backed down this month by making the likelihood test dependent on whether a “reasonable person” would think the accused person’s actions were likely to stir up hatred. In fact, the “reasonable person” test will apply not just to stirring up racial hatred, but to whether the accused person’s behaviour was threatening, abusive or insulting in the first place.
Gender critical
The Hate Crime Bill was launched just as the Scottish government finished its consultation on reforming gender recognition laws. The controversy over the latter has bled into the former.
The potential interaction of the “stirring up” offence with the fierce disputes over trans rights has sparked demands for enhanced protections for freedom of speech.
“There was no recognition that there was a sensitivity around freedom of expression for four of the categories, including the one—transgender identity—where there was a huge, painful public debate on the go and people were throwing around accusations of hatred all over the place,” says Lucy Hunter Blackburn, a policy researcher and critic of some of the aims of trans rights activism.
Article 10 of the European Convention on Human Rights already includes a broad legal right to freedom of expression, but concerns have persisted that more specific protections are required when legislating for hate crimes.
The Hate Crime Bill contains clauses specifically protecting freedom to express and criticise religious beliefs, and freedom to discuss and criticise “sexual conduct or practices” (a reference to sexual orientation) and to urge people to change their sexual behaviour.
Yousaf proposed two free speech amendments in January: one covering ageism, the other protecting “discussion or criticism of matters relating to transgender identity.”
But the SNP is increasingly divided on trans rights. While Joanna Cherry, a Westminster SNP MP and critic of trans rights activism, publicly welcomed the trans free speech amendment, many SNP supporters were aghast. The Times reported a furious row among MPs at the SNP’s weekly meeting in Westminster.
The question is not whether to have a free speech clause. The question is how to go about it. The Equality Network and Scottish Trans Alliance warn against creating a hierarchy of hate, whereby free speech clauses apply to transphobia and ageism but not to racism.
“Singling out some groups for specific freedom of expression provisions will be interpreted by some as indicating that it is more acceptable to behave badly towards those groups,” they wrote in a briefing for the second stage of the Bill’s passage through parliament. “This will have a chilling effect on the confidence of LGBTI people in the Scottish Parliament’s intention to protect them from hate.”
Instead they argue for a single freedom of speech clause that covers all groups but doesn’t provide a “laundry list” of legally defensible speech, such as criticism of sexual conduct.
But “gender critical” feminists insist such a list is necessary to clarify what does not count as a hate crime. They argue anything more generic would have a chilling effect on critics of trans rights activists—and while the courts might eventually throw out cases, that doesn’t mean people won’t be dragged through police investigations and criminal trials first.
With his proposals in disarray, Yousaf promptly withdrew the free speech amendments, and instead rushed through a farcical 96-hour public consultation on four options for a freedom of expression clause. The options are similar and largely generic, varying in whether and how they cover race and religion, with no bespoke clauses regarding transphobia in the text of the Bill.
It’s hardly a textbook case of good legislating. But it does get to the nub of what lies at the heart of this and other hate crimes rows: what constitutes criticism, what constitutes offence, and what constitutes abuse.
“The act of, for example, discussing on social media and offering criticism towards, say, policies associated with transgender identity or stating the fact that one believes sex to be immutable, could not be regarded, of itself, as behaviour which is threatening or abusive towards trans people,” Yousaf wrote tentatively in an overview of the four options.
“However, if, for example, the criticism included comments a reasonable person would consider abusive about trans people, or threatened them with violence, it could still amount to behaviour that is threatening or abusive.”
At some point the courts may have to decide how the “reasonable person” would classify deliberate misgendering.
What happens now?
As ministers and MSPs race to get the Bill into law before parliament shuts for this May’s Scottish elections, it is worth remembering the context. All categories of hate crime are rising in Scotland, according to official figures. Race hate offences are most common, while sexual orientation-aggravated crime jumped by a quarter in 2019/20. The independent advisory group’s 2016 report said that hate crimes in Scotland were notably underreported by trans people, based on comparing statistics in Scotland and England.
The Hate Crime Bill may be amended in future to included misogyny—a working group is looking into the issue—and the exploitation of vulnerability, such as when scammers target older people without ageist hate. But beyond “sending a message,” it will not—nor could it—change people’s own bigotry.
“It was always going to be an emotive bill,” says Gillian Mawdsley, policy executive at the Law Society of Scotland. “It was obviously going to be a difficult bill, just because of the sheer volume of subject matter and because there are very strong views, polarised views, on either side.”
