There is mounting concern these days about the erosion of free speech, a fundamental right in democratic societies. In the UK and abroad, we’ve witnessed the advent of so-called ‘cancel culture’, a chilling spectacle where individuals who express opinions outside of a narrow political orthodoxy are savagely attacked online and rendered cultural outcasts. Habitually we notice these stories when celebrities fall victim. But in Scotland, the SNP government has proposals which will criminalise the most ordinary free speech by the most ordinary people.

Cancel culture chills free speech and creates serious problems for individuals

An obvious example of what has been happening to the famous is the recent episode involving J.K. Rowling, author of the Harry Potter series, who raised concerns over the demands of transgender activists. Rowling’s concerns are shared by many but she was immediately labelled transphobic and subjected to vile abuse.

Rowling’s treatment shows that it’s no longer realistically possible for anyone but the most socially and financially secure to express certain opinions without risking targeted denunciations aimed at harming them. Earlier this month, Rowling joined a collection of writers, artists and academics in co-signing a letter criticising increasing “censoriousness”, “an intolerance of opposing views”, and “a vogue for public shaming and ostracism”. The signatories, from across the political spectrum, are right to raise these concerns.

Cancel culture chills free speech and creates serious problems for individuals but at least dissenters like Rowling aren’t criminalised for what they say. In the UK, the state still upholds the right of individuals to speak forthrightly on different issues, whether controversial or not. This is why people like Rowling feel able to speak out and can.

Of course, free speech in democracies has its limits. Speech that is threatening or encourages violence towards others has long been unlawful. There are also laws around libel and defamation. But criminalising speech that is merely offensive or politically incorrect is not the mark of a democratic society.

Regrettably, ‘cancel culture’ for celebrities and shrill episodes on twitter are not be the most sinister threats to free speech in the UK today. The Scottish Government is currently taking forward a Hate Crime bill, designed to challenge hatred and prejudice in Scotland. The bill comes after a review of Scottish hate crime laws by retired High Court judge Lord Bracadale, who provided a series of recommendations.

Some parts of the bill merely consolidate existing laws on hate crime. It also repeals a centuries-old offence of blasphemy – against Christians – which is still on the statue book. However, the bill would also extend hate crime laws significantly. Part 2 of the legislation creates new offences on the ‘stirring up of hatred’ against people on the grounds of ‘age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics’. These would criminalise “abusive” speech deemed “likely to stir up hatred” against these groups, with a maximum sentence of seven years in prison.

An offence of ‘stirring up hatred’ is already in Scots law but it relates only to race and national identity. Proponents argue that the offence should be extended to cover other groups. Whilst the logic of this may seem sound, the content of the proposed new offences raises serious questions. Attacking a person’s race or national identity is roundly condemned. However, legitimate debate does take place in regard to other characteristics in the new offences, such as religion and transgender identity. Could attacking or ridiculing ideas relating to these things constitute an offence? Many believe it could.

In the past three months, a diverse range of groups and individuals have issued strong criticisms of the plans. Critics of the legislation include Jim Sillars, former Deputy leader of the SNP, the National Secular Society, the LGB Alliance, the Scottish Newspaper Society and The Christian Institute. They warn that the new provisions are “vague and subjective” and could undermine freedom of expression.

Mr Sillars, whose political ties to the current administration run deep, doesn’t mince his words: “If we live in fear of saying what we think, lest the law punish us, we are into self-censorship and its deadening effect upon our intellectual life. Self-censorship or freedom of speech? This Bill will bring the former. We must oppose it to maintain the latter.”

Critics of the proposals have identified some specific problems with the draft offences. They note that the term ‘hatred’ is subjective and difficult to define, especially when it relates to hatred being ‘stirred up’ in other people. How are the police and the courts to understand this? In the current, fevered political climate ‘hatred’ is often alleged by those who want to close down debate. The law could conceivably be exploited by those who wish to crush opposition to their political ideals.

There is a risk that this wording would not protect forthright speech and debate by ordinary people on contentious issues like religious belief and morality

People could commit a stirring up hatred offence without intending to do so, and without actually having done so, if the court feels their actions were merely ‘likely’ to stir up hatred. This lack of mens rea – mental culpability – drastically widens the reach of the offence, and is out-of-step with other criminal legislation in the UK.

The proposed stirring up hatred offences would criminalise ‘threatening or abusive’ behaviour deemed ‘likely’ to stir up hatred. Whilst threatening behaviour is wrong and clearly understood in case law, the term ‘abusive’ is vague and open to interpretation – especially in the absence of mens rea, or any objective definition of hatred.

Critics pointedly note that the free speech provisions in the Bill only protect the ‘discussion or criticism’ of religion and sexual orientation. There is a risk that this wording would not protect forthright speech and debate by ordinary people on contentious issues like religious belief and morality.

There’s great uncertainty about what the new offences would catch. Would it be ‘abusive’ and ‘likely to stir up hatred’ if someone ridiculed religious people for their beliefs – or atheists for their lack of belief? What if a feminist robustly defended woman-only spaces? These scenarios are a common part of our current public discourse. The idea that they could land people in the dock is deeply troubling.

Free speech is a vital right. It underpins our free press, our artistic and cultural institutions, and our politics. If there is any risk that it could be undermined by these new offences, MSPs must not stand idly by.