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Does the SNP's new Hate Crime Bill pose a threat to free speech?

Auriol Reddaway

“Free speech in itself is never an unfettered right.” This was Justice Secretary Humza Yousaf’s reaction to criticisms that the SNP’s new hate crime legislation, which he has spearheaded, curtails freedom of speech.

The difficulty is that in many ways he’s right. Freedom of speech would seem to be sacrosanct, enshrined within our legal system. Yet what should be prioritised, freedom of speech or incitement to violence? ‘Freedom of speech’ must not justify hate speech. Every time a government tries to bring in protective measures for at-risk groups, people claim that their freedom of speech is threatened. Whether the right to freedom of speech should be held above others’ safety is at the core of this debate. Equally, so is the extent to which the government should legislate on the opinions and thoughts of groups and individuals. These are fundamental questions which provoke extreme emotions. These age-old conflicts, never far from the surface, have re-emerged with ferocity in the debate surrounding this bill.

But what is the new Hate Crime Bill really about? It follows an independent review by Lord Bracadale, set up due to the alarming rise in reported hate crimes across Scotland in recent years. For example, during 2019-2020 racially aggravated crime increased by 4%, aggravated crime based on sexual orientation and religiously aggravated crime both increased 24% and disability aggravated charges increased 29% (BBC, 2020). Based on Bracadale’s recommendations the bill seeks to update, consolidate and add to existing hate crime legislation. It also abolishes the offence of blasphemy. But the divisive part is the wording of the bill, which some have argued is too broad and leaves it too open to interpretation or manipulation.

The focus of the concern surrounds two controversial phrases in the bill. The first is “abusive or insulting [behaviour]” and the second is the “likely to” in “likely to stir up hatred”. Critics, including The Scottish Police Federation, The Bishops’ Conference of Scotland, The National Secular Society and others, point to the low level of criminality introduced by these phrases, as well as the difficulty in policing them. Many critics question the bill’s effect on comedians, writers and directors; the country does after all host the largest theatre festival in the world. Will creators face the 7 year sentence this bill carries if they make a controversial joke?

Mr Yousaf says they won’t. He emphasises that the bill “will not prevent people expressing controversial, challenging or even offensive views” and is only seeking to “bring greater clarity, transparency and consistency to Scotland’s hate crime legislation.”

But many are still uncertain. The Law Society of Scotland stated that the bill presents a “significant threat to freedom of expression” by criminalising “abusive or insulting behaviour”. Iain Macwhirter writing for The Herald goes even further, claiming “these woolly terms should have no place in the criminal law. If people feel insulted or abused they can sue for defamation in the civil courts.” It might be worth noting here the great financial, emotional and temporal toll that suing for defamation takes on an individual. Also, that the bill seeks to protect minorities, who are statistically more likely to be from low income backgrounds.

A further criticism levelled at the SNP over their bill is that six SNP MPs in Westminster, including Alex Salmond, Angus Robertson and Pete Wishart, voted to remove similar phrases from the English and Welsh equivalent bill in 2006. The bill in England and Wales essentially differs due to its focus on the intent of an act, rather than an act being “likely to stir up hatred”.

The issue of intent in this bill is a key problem that people raise. The Bishops’ Conference of Scotland expressed concern that their “understanding of the human person, including the belief that sex and gender are not fluid and changeable” could be criminalised under this legislation and that “material such as the Bible” could be dubbed inflammatory and criminal.

Mr Yousaf has strongly denied this and has said he is "actively looking at areas of compromise" as the bill progresses through Parliament. The Government has also held a series of consultations with the public and with activist groups to discuss the legislation.

Mr Yousaf feels that this new bill will “send a strong message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated.” The bill itself includes the phrase, “Scotland’s diversity is its strength; and all communities are valued and their contribution welcomed.”

This is a bill which seeks to implement progressive moves to protect minority groups. The debate surrounding it has become increasingly heated and could delay the legislation. My worry is that without significant legislative steps, hate crime in Scotland will continue to rise, and these vocal critics, worrying about controversial jokes, will have caused that. Are their worries worth lives being lost?

Image: Tom Donald via Flickr

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