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Free to disagree

The Scottish Government drastically needs to rethink its approach to hate crime

The Scottish Government’s hate crime plans have encountered strong opposition from police officers, lawyers, academics, authors, actors and many others, concerned about a potential impact on civil liberties.

Stirring up of hatred offences in part two of the Hate Crime and Public Order (Scotland) Bill are massively controversial. These vague provisions cover “abusive” (rude and insulting) language and “inflammatory material” thought “likely” to stir up hatred against different groups. No “intent” is required for an offence to be committed and free speech protections are severely lacking.

In the current febrile political climate, mild forms of speech and writing on many issues are readily branded “hatred”. Critics worry that if these “stirring up” offences reach the statute book, expressing views on hot button issues like religion or trans rights could conceivably see people reported, and even prosecuted. Free speech would thereby be eroded, and citizens would self-censor for fear of committing an offence.

Scotland has a proud free speech tradition, paved by leading figures of the Enlightenment era. This dictates that citizens can express, discuss, criticise, ridicule and refute different ideas in strong terms, without fear of recrimination.

Former High Court Judge Lord Justice Sedley articulates the point well:

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having.

Freedom of speech and expression underpins our free press, our democratic institutions, the arts, music and academia, enabling society to grow and flourish. Eroding these vital rights would be hugely detrimental.

An emphasis on the right to speak “irritatingly, offensively and heretically” has led to concern from some quarters that victims of hate crime are being overlooked. People on all sides of the debate condemn crimes motivated by hatred and prejudice. These odious actions have no place in Scottish society. However, proponents of the bill must demonstrate how new “stirring up” offences would reduce hate-related crimes or lend greater protection to citizens.

The Scottish Government can engender an atmosphere of tolerance without undermining other important rights

A perusal of evidence submitted on the Hate Crime Bill suggests that the new proposals are not widely supported. Existing laws already catch violence, harassment and abuse. The Criminal Justice and Licensing Act criminalises those who intentionally or recklessly cause fear or alarm. And there are aggravated offences for crimes motivated by hatred and prejudice. Summarising its views on the need for new legislation, policy analysis collective Murray Blackburn MacKenzie argued that Ministers have failed to demonstrate how “expanding stirring up offences will fill a legislative gap on paper, or reduce in practice the number of hate-related attacks on individuals in particular groups”.

The Scottish Police Federation, which represents frontline officers in Scotland, described the proposals as “unnecessary” and “confusing”. And Community Justice Scotland, which lobbies for improvements to the criminal justice system, questioned “whether creating additional legislation is proportionate or the most appropriate route to follow”.

The Government has offered no answer to these arguments. In fact, a Financial Memorandum accompanying the bill states that the conduct covered by the new “stirring up” provisions “would already constitute existing criminal offences such as breach of the peace or threatening or abusive behaviour”.

Given these statements, it’s worth asking why the government is pursuing this route at all – especially when you consider concerns that other vital rights of freedom of speech and expression could be undermined.

In setting out his hate crime proposals, Justice Secretary Humza Yousaf said extending hate crime laws is about “sending a message” that hatred and prejudice will not be tolerated. Whilst this message is welcome, the proposed “stirring up” offences clearly are not. Even if they are amended to mitigate the threat to free speech, they would at best be a blunt instrument which fails to deal with the root causes of hatred and prejudice in Scottish society.

Understanding and tackling hate and prejudice can be achieved through other means – good education and support for families and communities, training for public bodies and reformative rather than punitive measures. In championing these things instead, the Scottish Government can help to engender an atmosphere of kindness, tolerance and respect in Scotland, without undermining other important rights.

There are clearly good motives behind the Hate Crime Bill. All of us agree that tackling hatred and prejudice is vitally important. But the government is applying the wrong method. Ministers should withdraw the “stirring up” proposals and reconsider their approach.

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