The Hate Crime and Public Order (Scotland) Bill became law on 23 April 2021.
Scotland’s Justice Minister, Humza Yousaf, said: “Free speech in itself is not an unfettered right and must be balanced, with a need to protect vulnerable communities from discrimination.”
The SNP government said it made hate crime law in Scotland “fit for the 21st century”. But lawyers in Scotland, England, Wales, Northern Ireland and in Europe strongly believed the bill to be a draconian expansion of state power fostering as it does the removal of any need for a perpetrator to have shown an intention to “hate” in order to be indicted for a “hate crime” with the only exception being a “reasonable excuse” which is difficult to argue in a court of law.
Even more alarming is it undermines the distinction between public and private settings, meaning statements made in private conversations are vulnerable to being judged to be criminal.
The changes provide unprecedented power, to the police and courts to determine the criteria of a hate crime and threaten to criminalise speech which is now considered part of public debate and includes two significant modifications to the provisions of the Public Order Act of 1986:
a. Expanding the number of protected characteristics to include age and “variations in sexual characteristics”.
b. Changing the test of a crime against these groups from “where there is an intention to stir up hatred” to “where it is likely that hatred would be stirred up.”
The use of laws to reform behaviour is a defining factor of Scottish political culture, highlighted by the unprecedented invasion of its citizens private space and the on-going interference of the SNP in social engineering witnessed by the intervention of the First Minister in the “culture wars” now besetting the nation.
The new bill does not satisfy the recommendations of the review that preceded it.
It is incompatible with Article 10 of the European Convention which protects freedom of speech from unjustified restrictions and provides to the state and individuals the facility to weaponize the law to settle personal grievances. eg “a casual acquaintance cracking a joke, at a private function which you find offensive generates the opportunity for you to prosecute”. Unlikely but only one source is needed to verify a hate crime.
The possibility would be there for you to prosecute.” This may seem an unlikely outcome, but only one source is required to verify a hate crime – the supposedly offended victim.
All criminal complaints must be investigated, adding an as yet unquantified new case load for the police based only on the hurt feelings of easily offended individuals.
And the complaints extend into the household, a change without precedent.
And it provides no indication of how discrimination based on ethnicity or sexuality is to be interpreted, leaving the police and judiciary to decide based on their own impressions.
Those could be subject to social and political pressure. Indeed, feminists comments on social media, in which they say that “people who menstruate” are “women”, would easily fall under the terms of the proposed bill, on account that they must have have caused offence to some.
But there is a fall-back position to be used in the event of ambiguity which is the “International Covenant on Civil and Political Rights”, ratified by the UK in 1976 and given further clarification by the UN Special Rapporteur in 2001 recommending that any law prohibiting “hate speech” must ensure that “no one is penalised for true statements” and that “no one should be subject to prior censorship.”
Impact on Scottish society following the introduction of the hate crime bill
Reports of hate crimes against trans people in Scotland tripled between 2014-2022, (53-185) and SNP, LBGTQ politicians warned that a “cynical campaign” against their community was the cause.
But the police did not support their allegations preferring to attribute the rise to an increased confidence in the reporting of instances of hate crime.
White young male perpetrators, represented around (98%) of all trans-related reported crime.
Race-related hate crime reports are still the most prevalent. The majority of victims were female (56%) while (43%) were male.
The majority of hate crimes were reported to Police Scotland by the victim (92%), and were perpetrated by young men under the age of 26.
(Thanks to Brent Haywood’s who wrote about his concerns and Scotland’s new hate crime bill).