Scotland’s culture war: the Hate Crime Bill

By Abigail Tobias

Scotland’s new Hate Crime Bill has added fuel to the already raging culture wars fire, inflaming tensions in the run-up to the General Election. The controversial bill introduced by the Scottish National Party (SNP) on 1st April criminalises producing material or behaving in a way that a “reasonable person would consider to be threatening or abusive”, with the intention of stirring up hatred against those with a list of protected characteristics: age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics. The notable exception from this list – sex – the vagueness of the bill, and its possible effects on freedom of speech have led to criticisms from some women’s rights groups, lawyers, artists and performers.

Stirring up racial hatred has been an offence in Scotland since the 1986 Public Order Act. The bill’s supporters argue that it builds on this legislation by increasing the protected characteristics. The bill’s supporters argue that the new bill builds on this legislation by increasing the number of protected
characteristics. The Minister for Victims and Community Safety, Siobhian Brown, said, “Nobody in our society should live in fear and we are committed to
building safer communities that live free from hatred and prejudice. We know that the impact on those on the receiving end of physical, verbal or online attacks can be traumatic and life changing. This legislation is an essential element.” She stressed that there were protections for freedom of expression, saying, “these new offences have a higher threshold for criminality than the long-standing offence of stirring up racial hatred, which has been in place since 1986.”

Stirring up racial hatred has been an offence in Scotland since the 1986 Public Order Act.

However, there are differences that clearly distinguish the two pieces of legislation. The 1986 Act required proof of intention to “hate”, and that the offensive material was either “threatening, abusive or insulting”. In the current Act, any comments found hateful or offensive by a complainant can be reported. Individuals are actively encouraged to anonymously report things they have heard and deem hateful to reporting centres – a provision
some have deemed Orwellian. If no criminality is established upon police investigation, it is still recorded as a “hate incident” in police files open to potential employers.

Police Scotland have pledged to investigate every complaint received, garnering a large amount of criticism after their announcement in February that
they may stop investigating minor crimes such as theft due to a lack of time and resources. Already the police have been overwhelmed with 7000 complaints since the scheme. So far only 3% have been determined to be crimes.

The main objection levelled against the bill is its implication for freedom of speech. The wording “stirring up hatred” is considered by many to be too vague to be the basis of a law that has the potential to send people to prison for up to 7 years.

In a politically divided world, meaning and motivation are hard to pin down. To some the phrase “From the river to the sea, Palestine will be free” is a liberation cry to the Palestinian people, and to others, an incitement of violence against the Jewish people, supporting terrorist groups such as Hamas. The argument is that the Government and courts determining what can and cannot be said criminalises debate and shuts down opposition – which endangers
democracy.

In a politically divided world, meaning and motivation are hard to pin down.

Humza Yusaf, who brought the bill forward when Justice Secretary, commented “Free speech in itself is never an unfettered right. It must be balanced with the need to protect vulnerable communities from discrimination.” Yet after increased backlash he announced an amendment to the bill removing the provision covering theatre performances, allowing expressions of “antipathy, dislike and ridicule”. However, all critics can never be satisfied.

The freedom of speech objection particularly concerns the Arts sector. Whilst police have been instructed not to specifically target theatres, police training material says that a play or performance is a way abusive speech can be communicated, and actors and directors could be found liable if a member of the audience finds an act offensive.

In a comedy sketch as alter-ego “Jonathan Pie”, comedian Tom Walker claimed “technically an actor can be convicted of a hate crime for playing someone who incites hatred. Someone playing Hitler can now get done for being a Nazi, a straight actor playing a gay character could be deemed so offensive that they could conceivably get arrested and if a comedian tells a joke that heaven forbid punches down he could be facing seven years in prison.”

Another objection to the bill is its exclusion of misogyny from the list of protected groups. Whilst supporters of the bill point to separate legislation in the pipeline and the some women’s groups are dissatisfied with the exclusion of sex as a protected characteristic.

Supporters argue that the Act is necessary to protect vulnerable groups.

Joanna Cherry, one of Scotland’s first openly lesbian MPs, cites the example of the 29% of female MSPs who have received rape threats as the kind of hatred that would not be covered by the Act. This is echoed by Harry Potter author J.K. Rowling, whose comments on X (formerly known as Twitter) regarding her
gender critical beliefs and the transgender community have long garnered controversy and accusations of transphobia. “Women gain no additional protections, of course,” she posted on X about the Act, before daring Scottish Police to arrest her for referring to several trans women – including a mixture of prisoners and activists – as men.

The Police have said that Rowling’s comments did not meet the threshold for criminality, while supporters continue to argue that the Act is necessary to protect vulnerable groups. Robbie de Santos of Stonewall, told the Guardian it was needed to protect LGBTQ+ people from “rising hate and escalating violence” and to provide parity in Scottish law.

Some women’s groups are dissatisfied with the exclusion of sex as a protected characteristic

First Minister Humza Yousaf – who ironically found himself the target of numerous complaints once the bill became law – highlighted the racist graffiti targeting the area near his family home, stating it had become “increasingly difficult” to shield his two children from the racism and Islamophobia I face on a
regular basis”. While his critics argue the graffiti was already illegal under the 1986 law, his supporters respond that it has proved ineffective for cracking down on racism and that harsher penalties and more resources are needed so that everyone feels safe in their community.

One thing is for certain, the war of words is not going to abate any time soon. Enforcing legislation around hate speech will always attract criticism from free speech activists. In this case, the lack of clarity about its enforcement by Police Scotland has further fed the fire of the culture wars, both in Westminster and in
Holyrood.

In the run-up to the General Election, expected later this autumn, this kind of political point scoring may count. Ultimately, the Act aimed to modernise the nation’s hate crime legislation, and to “provide protections fit for the twenty-first century”. The considerable backlash demonstarates the extent to which the culture wars inflame underlying tensions over freedom of speech.

Image: Scottish Parliament via Flickr

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