Scotland’s Hate Crime Law is not fit for purpose

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With the recent passing of Scotland’s new Hate Crime legislation, there are fears that freedom of speech in Scotland is under threat, at a time when poll after poll indicate that people are feeling less safe in expressing their views in public.

The Hate Crime and Public Order Bill aims to consolidate and extend hate crime protections in Scotland, whilst abolishing the common law offence of blasphemy, and creating the new offence of “stirring up hatred”.

Rightly, some of the most contentious issues have been removed or amended, and much of the consolidation under part 1 of the Bill is unproblematic, but many find problems with the Bill in general. For instance, some have taken issue with the fact that ‘sex’ is not an included characteristic, meaning that women are an unprotected group under the Bill. Additionally, religious groups fear that the legislation places restrictions on their ability to express their religious beliefs, whilst women’s rights groups now fear discussing the transgender issue.

The Bill has opened up a plethora of free speech issues, despite its apparent goodwill

Perhaps most pernicious of all is the notion that offences can be committed within the confines of the home, in private conversation, as reported by The Times.

The most significant dilemma is the new “stirring up hatred” offence and the linguistic vagueness that it brings. The Bill protects the characteristics of age, disability, sexual orientation and transgender identity, amongst others, but leaves much undefined. This leaves the terms of the legislation open to exploitation, with some suggesting that many terms are too ‘academic’, leaving laypeople to define terms as they see fit.

As the ‘Free to Disagree’ campaign in Scotland suggests, terms like ‘hatred’ and ‘abusive’ are subjective and open to varying interpretation. When the Bill’s Policy Memorandum even acknowledges that there is “no single accepted definition of a hate crime”, this leaves unnecessary definitional breadth, and given the subjectivity of many of the Bill’s concepts, ambiguity has the potential to criminalise mere unpleasantness, offence, and disagreeable comments, opening the floodgates to ill-natured reporting.

The Bill has opened up a plethora of free speech issues, despite its apparent goodwill. This is no defence of the minority of those who hold racist, homophobic, transphobic, or otherwise discriminatory views, but we should nonetheless defend the right of people to think and speak as they wish, or as Abe Lincoln suggested, we do not deserve such freedoms for ourselves.

It is legislation at its most flawed, that threatens debate around today’s most controversial issues

The Scottish Tories have vowed to repeal the Bill if power were to pass from SNP hands in the May elections. However, how far this promise will go in ensuring the continuing softening of SNP support is uncertain.

Much of the free speech issue today centres around where we draw the lines and boundaries – some would say incitement to violence, others might believe that offence and views expressing hate should not be allowed to be uttered at all. Regardless, this Bill offers no such boundary, with the pitfalls of unclear language leaving it open to significant state overreach.

This Bill is not the be-all-and-end-all of free speech in Scotland. But it is a step in the wrong direction. It abolishes the common law blasphemy offences, and in its absence, creates its own, newer, modernised and extended blasphemy laws, more pernicious and excessive than the last. It is legislation at its most flawed, that threatens debate around today’s most controversial issues, when such debate is now more necessary than ever and is simply not fit for purpose, for all its good intentions.

Photograph: Stewart M via Unsplash.

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