In April, the Scottish Government introduced the Hate Crime and Public Order (Scotland) Bill at Holyrood. According to the government website, the bill aims to pull together the existing laws on hate crime, which is ‘behaviour which is both criminal and based on prejudice’.
These laws currently include offences based on disability, race (and related characteristics), religion, sexual orientation and transgender identity. The new bill adds age and the option to add sex later. The website adds: ‘Criminal courts can generally take into account any prejudice when sentencing a person. Also, people are protected from hate crime through specific laws that apply.’ The bill also abolishes the old offence of blasphemy, which has not been prosecuted for 175 years.
Most controversially, the bill adds a new offence of ‘stirring up hatred’ against any of the protected groups covered by the bill. The relevant section states that it is an offence if someone behaves in a threatening, abusive or insulting manner, or communicates threatening, abusive or insulting material to another person, and intends to stir up hatred against a protected group or that it is likely that hatred would be stirred up.
The section also adds: ‘It is a defence for a person charged with an offence under this section to show that the behaviour or the communication of the material was, in the particular circumstances, reasonable.’
Critics have already argued that the new offence will have a chilling effect on free speech. For example, who decides whether stirring up hatred is ‘likely’, whether the communication was ‘reasonable’ or if a particular form of words is ‘threatening, abusive or insulting’?
A notable example is the fact that author JK Rowling has made public statements defending the notion of biological sex. Many trans activists have reacted angrily to the claim that whether someone is or isn’t a woman cannot simply be a matter of self-identification and have tried to ‘cancel’ Rowling. Would Rowling be under threat of prosecution? Are matters of public debate and controversy sufficiently protected under the bill?
In response, the minister responsible for the bill, Hamza Yousaf, has rejected the idea that Rowling could face prosecution: ‘If you were to say a trans man is not a real man or trans woman is not a real woman, you would not be prosecuted under the bill that I am intending to bring forward, so long as you didn’t do it in a threatening or abusive way that is intended or likely stir up hatred.’
Is the Hate Crime Bill an important new protection for vulnerable groups? Does it go too far in attempting to do so? Could the bill’s critics be reassured by more precise language? Conversely, should the Scottish government be legislating at all to restrict free speech, even when it is offensive and designed to stir up hatred? Can we distinguish between words and actions? Should the very notion of a ‘hate crime’ be challenged?
Dr Carlton Brick
lecturer in Sociology, School of Education & Social Sciences, University of West Scotland
Kate ‘Cop’ Copstick
actress, television presenter, writer, critic and producer
Scottish politician, independence campaigner and former deputy leader of the SNP