Cart before horse

The biggest problem with the Scottish Government’s new hate crime law isn’t that it is wrong, but that it isn’t balanced by parallel legal measures to define, defend and enforce the right of freedom of expression, and provide proper meaningful protection to those engaging in fair debate and comment from unfair retribution. In this regard, the Scottish Government has allowed the cart to go before the horse.

The role of hate crime legislation (as with the existing laws on privacy, libel and slander) should be to temper and moderate the right of free expression, by placing reasonable and sensible legal limits, without stifling fair and open public debate. But it is hard for it to do this when there isn’t a proper legal right to freedom of expression in the first place!

All this matters because the implications on all of this go well beyond the current fracas on gender identity and extends to more general political debate, press freedom and disclosure of wrongdoing (“whistleblowing”!) and so it is vitally important for our country to get this right.

Although the Human Rights Act 1998 gave us (UK citizens) plenty of “rights”, it failed to enact any real criminal law provisions to enforce them. The result is that, while paying lip-service to the right of freedom of expression, it is only really enforceable against government bodies (not private organisations/companies and individuals), and then only through lengthy civil/private prosecution whose costs (and financial risks) lie well beyond the means and appetite of most members of the public.

Ultimately, protection of freedom of expression is not solely a Scottish issue, but one that affects the whole of the UK, and it is shameful that successive Westminster governments have skirted around and failed to address this issue (due, one suspects, to the broken system of political patronage that appears to be totally compromised and “in hock” to wealthy benefactors keen to avoid increased public scrutiny).

Dr Mark Campbell-roddis

Dunblane, Stirling