For those Scots who value the legacy of the Scottish Enlightenment, Holyrood’s Hate Crime Bill may be the most regressive piece of political kowtowing in recent memory. Lockdown has seen a sharp increase in celebrity cancellations, as old tweets resurface and their tweeters are virtually decimated. Now the Scottish government will give offenders something else to worry about, as an unlimited fine and a seven-year prison sentence is the maximum penalty faced by those dissenters considered to be “stirring up hatred”.
The term is sufficiently vague that, as a legal definition, one would expect some clarification as to what “stirring up hatred” means. Reading through the bill, I simply couldn’t find any. Naturally, I assumed I had missed this crucial piece of information, but I was wrong. As it turned out, the Scottish government has left the meaning of this most ominously vague phrase up to the public imagination. Who will have the right to interpret it?
The Free to Disagree campaign, which opposes the bill, took to the challenge on their website by proposing various scenarios which may be rendered illegal. One criminal act would be an unwitting academic writing a paper claiming that the Qur’an encourages the oppression of women. In a more topical example, the website proposes that it could become criminal for a feminist to say “trans women aren’t real women”. You don’t have to agree with either opinion to appreciate that the criminalisation of such statements is a dangerous infringement upon freedom of speech. Noam Chomsky reminds us that, “If we don’t believe in free expression for people we despise, we don’t believe in it at all”. In its latest act of political appeasement, the Scottish government does not appear in command of this fact.
Whether a statement is deemed to stir up hatred could, in fact, come down to the decisions of law enforcement and the criminal courts. This is a situation which the Scottish Police Federation is openly concerned about. The SPF, which represents 98 per cent of police officers in Scotland, said that the bill would expect police officers to determine free speech and is therefore “too vague to be implemented”. What is clear is that it will be a criminal offence to “stir up hatred” against people on the basis of age, disability, religion, sexual orientation, transgender identity or variations in sex characteristics. It is also clear that the intent of the offender will not be considered during prosecution. According to James Kelly, spokesperson for Scottish Labour, this is “a significant divergence” from similar laws in England and Wales, where intent is a key consideration.
It is important to appreciate that legislation already exists in Scotland to prosecute individuals who behave in a threatening or abusive manner. The Scottish government has made a conscious choice to introduce new legislation, rather than committing to the implementation of current legislation. This is because the Hate Crime Bill actively intends to expand the remit of the law over freedom of speech. The new legislation does contain two free speech clauses, although they do not apply to gender identity. They allow for “discussion and criticism” of certain ideas but as the Free to Disagree website points out, this language is too academic and may not protect “forthright speech and debate by ordinary people on contentious issues”.
According to Jamie Gillies of the Free to Disagree campaign “the proposals could curb free speech, frustrate academic inquiry and stifle artistic expression”. Unsurprisingly, polls carried out by the campaign show that only 29 per cent of respondents said the law should criminalise “offensive” words whilst 64 per cent agreed that people today are “too quick to shut down debate”. Jim Sillars, former Deputy Leader of the SNP, has suggested that provocative playwrights, satirists and independent thinkers will also be caught in the crossfire.
Ultimately, the Hate Crime Bill is a highly threatening piece of legislation which makes no real distinction between the public and private spheres. The Scottish government urgently needs to explain how this bill will protect the freedom of speech of its citizens, or it will risk undoing the progress of centuries.
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