New hate laws could see JK Rowling ‘in the dock’

Critics, media chiefs and opposition MSPs warn SNP’s proposed Hate Crime Bill poses serious threat to free speech

Harry Potter author JK Rowling could fall foul of Scotland’s proposed new hate crime legislation for expressing her views on trans issues, critics have warned.

Opponents of a broad extension of “stirring-up” offences claim it is an assault on free speech and should be ditched.

The proposed revamp of the law widens the offence from race matters to include age, religion, disability, sexual orientation and transgender issues.

Conviction carries a maximum sentence of up to seven years in jail.

Conservative MSP Murdo Fraser, a former lawyer, said his party will oppose the otherwise “uncontroversial” Hate Crime Bill “very vigorously” unless the Scottish Government drops that controversial element.

Mr Fraser, who represents Mid Scotland and Fife, said the provision could impact on an individual’s ability to voice what might be “controversial or unpopular opinions” and said recent examples, including JK Rowling and her expressed views on trans issues, could “conceivably” face prosecution under the legislation.

The view is shared by the director of the Scottish Newspaper Society, John McLellan, who said although it was not the intended purpose of the legislation, it could as a consequence “put someone like JK Rowling in the dock”.

Mr Fraser said: “You could create an offence by inadvertently stirring up hatred against a minority group.

“To me the easiest way to understand this is to look at practical examples.

“Probably the most obvious one recently has been the JK Rowling situation where she expresses a view around trans women and biological sex that causes a lot of upset to some trans rights activists who accuse her of promoting hatred.

“I don’t think her critics ever suggested that was her intention but under the Bill as proposed there would be no need to prove intent, it would simply be sufficient to say that the consequence of somebody’s actions was that they could be likely to stir up hatred against a protected group and, of course, trans people are a protected group.

“Conceivably under this legislation, JK Rowling could face prosecution for expressing her views, which are in line with biological fact and science.”

The bestselling writer has been at the centre of a row about trans rights and has been accused of being transphobic, an allegation Rowling strongly denies.

In December last year, she voiced her support for a researcher who was sacked after tweeting that transgender people cannot change their biological sex.

Last month, Rowling also wrote a lengthy blog post on her reasons for talking about the issue, citing concerns around single-sex spaces.

Mr Fraser said: “If the government were prepared to remove part two of the Bill and the introduction of these new stirring-up offences, I think the rest of the Bill is largely uncontroversial, unobjectionable and I think that would allow the Bill to go through pretty much as it is with pretty widespread support.

“But if the government is determined to keep the stirring-up provisions in then certainly the Conservatives’ view is we will opposite it very vigorously and I know there are many other parliamentarians in other parties who have similar concerns and many of our external groups from the National Secular Society to the Christian Institute and a whole range of others, have expressed the view that they regard this as unacceptable and an attack on free speech.”

The new powers would make it an offence for someone to behave in a threatening or abusive manner, or to communicate threatening or abusive material to another person where there is an intention or likelihood to stir up hatred in respect of the seven protected groups.

Mr McLellan said while the abolition of blasphemy is “long overdue”, the rest of the legislation poses “considerable threats” to freedom of expression.

“In these times of increasingly bitter division over Brexit, Scottish independence and the environment, as well as gender politics, it is not too far-fetched to see the possibility of the police being drawn into political disputes because they would have to investigate complaints and be used as a tool to attack media organisations and close down debate,” he added.

Current legislation has evolved over time in a fragmented manner.

The new Bill will bring Scotland’s hate crime legislation into one statute, making the law easier to understand and more user-friendly.

Crucially, the Bill also offers greater protection for victims of and groups affected by hate crime.

Hate crime has real life consequences – to be attacked or targeted simply because of who you are is a frightening experience.

I have been on the sharp end of bigoted abuse and know too well the hugely damaging impact it can have, not just on the individual but on families and wider community.

Abuse and prejudice have long-lasting effects on victims and many will live with their scars, emotional or physical, for the rest of their lives.

Since the introduction of the Bill there has been much debate around freedom of speech. While there is legitimate debate to be had, some criticism has misrepresented what the Bill does.

I firmly believe the Bill strikes the right balance between respecting freedom of speech and tackling hate speech.

Let me be clear – the Bill will not prevent people expressing controversial, challenging or even offensive views, as long as this is not done in a threatening or abusive way that is intended to stir up hatred or likely to stir up hatred.

The Bill operates within a context that the ‘stirring up of hatred’ offences cannot unduly inhibit freedom of expression protections set out in the European Convention of Human Rights.

Stirring up hatred can incite people to commit offences against individuals in the targeted group and contribute to an atmosphere in which prejudice is accepted as normal. That is not the Scotland I want.

This approach is not new – the existing offences of stirring up racial hatred have been in force in Scotland since 1986. Similar offences have existed since the Race Relations Act 1965.

Existing stirring up racial hatred offences were in fact introduced across the UK, including Scotland, by the then UK Government in the mid1980s.

As we move ever closer to stage one of the parliamentary process, the Bill has received support from a number of organisations – including the Equality Network, Victim Support Scotland, Engender, the Humanist Society of Scotland and the Scottish Council of Jewish Communities.

We are determined to do everything it takes to ensure Scotland is a place where there is zero tolerance of hate crime.

This Bill will play an important part in realising this.