Good intentions often make bad laws and the Scottish Government’s Hate Crime Bill is chockfull of good intentions.
Introduced by Justice Secretary Humza Yousaf on Thursday, the Bill seeks to drive out hatreds in our midst, whether long-understood prejudices such as racism or more modern and contested concepts like ‘transphobia’.
Yousaf says his legislation is ‘an important milestone’ and argues that its passage ‘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’. He is trying, in essence, to make Scotland a hostile environment for hatred.
Many will have sympathy for this ambition. Hatred is atavistic and innate to the human character but so too are empathy and the yearning for justice. Even the flintiest sceptic of state power feels a righteous urge to unleash the thumping might of the law onto a bully or a bigot.
The Hate Crime Bill is born of decent instincts but it is a flawed instrument for their translation into law. For one, it is a kitchen sink law: everything has been thrown into it.
There are provisions for prosecuting those who possess ‘inflammatory material’, and even for hauling actors and directors before a judge if a play they put on is deemed to contain a hate crime.
If passed as is, this would be the most sweeping and authoritarian law of the devolution era. It’s the Offensive Behaviour at Football Act, only the entire country has been designated a football match.
The dangers of the Bill lie in Part 2, which proposes a new offence of ‘stirring up hatred’. There are two ways to commit this offence. The first is behaving in ‘a threatening, abusive or insulting manner’ either with the intent to stir up racial hatred or where that is the likely outcome. The second route to prosecution drops the term ‘insulting’ but adds age, disability, religion, sexual orientation, transgender identity and ‘variations in sex characteristics’ as characteristics.
If all this legalese leaves you feeling daunted, you are not alone. My legal education extends no further than repeats of Petrocelli on ITV2 and I am indebted to a learned scholar in helping talk me through this legislation. In simple terms, the Hate Crime Bill builds on the Public Order Act which makes it an offence to ‘stir up racial hatred’ but goes radically beyond the 1986 law’s provisions.
The most immediate problem is the Bill’s use of the phrase ‘threatening, abusive or insulting’. We already have an idea of what constitutes threatening or abusive behaviour thanks to Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 — but what does ‘insulting’ mean in law? Is it what Americans call ‘fighting words’ – language that is more than just offensive and threatens to ‘incite an immediate breach of the peace’ – or would it cover plain offensiveness?
Imagine, by way of example, that someone pens a disobliging tract about the Welsh. This could be a no-holds-barred polemic or simply a ribald satire that casts the sons of the valleys as workshy, ignorant, inbred and overly fond of certain livestock. Would that fall foul of the Bill as ‘insulting’ to an entire nationality? It certainly reads that way.
Now, you might say insulting the Welsh isn’t nice, and it certainly isn’t, but, absent a probable threat to public order, is it a matter for the police and courts?
There may be a case for adding ‘insulting’ to proscribed behaviour but it would have to be defined with the utmost precision and made clear how it differs from existing prohibitions on threatening and abusive conduct. Alternatively, MSPs could adopt a narrower understanding of race than is currently reflected in law.
This might allow the prosecution of ‘insulting’ speech against racial and ethnic minorities, which can be shown to lead more immediately to violence, without capturing obnoxious but not necessarily harmful rhetoric about nationality.
The next problem with the Bill is its expansion of protected characteristics, including ‘transgender identity’. Safeguarding transgender people against offences motivated by hatred is reasonable but this Bill comes in the middle of a debate about the law on gender identity.
That debate is characterised by robust, often belligerent, rhetoric, especially on social media. In this context, we have to question how ‘abusive’ speech about transgender identity would be treated.
Many radical feminists believe sex is a biological fact of life and cannot be changed either by self-identification or surgical intervention. They contend that men who believe themselves to be women are not in fact women, even if they live their lives as such. Some contend, moreover, that transgender ideology is harmful and rooted in misogyny.
The expression of these views, not least on the instant aggression generator that is Twitter, may well strike some trans people as abusive, and a police officer or procurator fiscal surveying the evidence might agree. There is a reasonable likelihood this legislation, unless more clearly defined, could criminalise one side in an ongoing public discussion about the law.
The Bill throws up more hostages to fortune the more you read it. It contains a section on culpability when an offence is ‘committed during a public performance of a play’ (the director and performer would both be prosecuted), implying a reversion to the bad old days of censorship, with the Crown Office taking on the role of Lord Chamberlain.
There would also be a new offence of ‘possessing inflammatory material’, with or without intent to communicate it. There might be sound reasons for police to intervene where, for example, white nationalists within an area with a large ethnic minority community produced racist leaflets likely to breach the peace.
But what about the atheist artist who sketches an iconoclastic cartoon of a revered religious figure? The Bill purports to shield ‘criticism of religion’ but the most effective criticism is typically profane and insulting in the extreme. Is there a line and, if so, where is it?
The proposed law also refers to culpability when organisations ‘stir up hatred’, defining organisations in the widest possible terms. Could the law be used to prosecute a political party or movement? Could it be used to bring a newspaper editor or proprietor to court? If you think that latter example is far-fetched, the possibility has already been raised by Dr Andrew Tickell, a respected law lecturer and intergenerational Scottish nationalist.
It should be clear by now that this is not a defence of bigotry or a partisan broadside against an SNP piece of legislation. Part I of the Bill, covering offences aggravated by prejudice, is eminently reasonable. Aggravators are not a novel concept and do not create a new offence. Libertarians sometimes argue that they punish what is in an offender’s head but when what is in his head has already escaped via his fists, it is not his viewpoints that are being censured but his actions.
Furthermore, it might be argued that the Bill does not go far enough in places. If we are to head down the path of proscribing the stirring-up of hatred against certain groups, why not include political opinion or cultural identity?
For some Scots, their unionism or nationalism is as intrinsic to their identity as religion is to others. Like faith, political opinion is a choice, but for those who construct their identity around their stance on the constitution, abusing or insulting their national or cultural ideology may be experienced as no less assaultive than speech that demeans evangelical Christians or Roman Catholics.
I am a passionate partisan of free expression and I make no attempt to conceal that. But while I might envision a wider sphere of expressive liberty than many, you need not be a free-speech absolutist to be troubled by the Hate Crime Bill. There may well be a good and reasonable law here but it is currently buried under thickets of unintended consequences and threats to personal freedom.
The Justice Secretary should reconsider his proposals – or MSPs should make him.