Scottish Daily Mail
DEVIL IS IN THE DETAIL... AS THE SNP WILL SOON FIND OUT
FIRST there was the Offensive Behaviour at Football Act (repealed), then there was the Named Persons Act (scrapped). Now yet another piece of SNP Government legislation is falling apart – the new Hate Crime Bill.
Almost as soon as the SNP Government published the draft Bill there was a collective outcry from a wide range of respected and reasonable organisations and individuals.
This is because Part 2 of this draft Bill, in particular, represents a fundamental threat to our freedom of speech, which, as the Law Society of Scotland puts it is, ‘one of the foundations of a democratic society’.
The society is certainly not alone. In addition to its critical assessment, the Scottish Police Federation (SPF) has stated that the Bill ‘would devastate the legitimacy of the police in the eyes of the public’.
The SPF also notes the Bill would place extreme burdens on the police force at a time when they are already over-extended.
In addition, the LGB Alliance believes the Bill ‘poses a serious threat to free speech’ while forwomen.scot is similarly robust – the Bill would ‘seriously compromise the work of our group and everyone’s freedom to speak about women’s rights’.
The National Secular Society has said it is ‘excessive, vague and seriously risks chilling free speech’. Christian organisation Scottish Care has warned that ‘to compel speech goes right against the whole principle of freedom of expression’.
This is a remarkably diverse group of organisations which are all publicly critical of Part 2 of this Bill.
The problem is that while we are all opposed to racism, hate crimes and prejudice, this legislation goes far beyond punishing those who actually are practising racism and hate crime to unacceptable curtailment of argument and discussion.
If we look specifically at Part 2, it extends the current crime of ‘stirring up hatred’ to new protected groups.
The protected characteristics listed within the Bill are age, disability, race, colour, nationality (including citizenship), ethnic or national origins, religion, sexual orientation, transgender identity and variations in sex characteristics.
According to the new legislation a person will commit an offence if they ‘behave in a threatening or abusive manner’, or ‘communicates threatening or abusive material to another person’, either intending to stir up hatred against a group of persons, or it is likely that hatred will be stirred up against such a group.
But who decides what is ‘likely’ to stir up hatred? What could be discussion to one person could be deeply threatening to another. The Bill the SNP Government has introduced means a person doesn’t even have to intend to ‘stir up hatred’, therefore making this offence a relatively and remarkably low threshold of criminality.
In effect, this Bill extends the offence of hate speech to such an extent that wellmeaning or otherwise unwitting individuals could be caught in its net. Perhaps the easiest way to explain the direct result of this draft legislation is a practical example. The recent online skirmish between JK
Rowling and trans rights activists could very well have landed Miss Rowling in jail.
Regardless of her intention, simply stating her opinion as part of a debate could be construed as likely to stir up hatred against a protected group – trans people. And if indeed Miss Rowling was prosecuted, she could face up to seven years in jail.
What is perhaps even more insidious is the inevitable self-censorship that will occur because of the very threat of prosecution for expressing such views.
Justice Secretary Humza Yousaf waves this concern away by stating that the courts are the best arbiter of the law. Yet for that to be the case, people will have to be taken through prosecution, with all the heartache and financial disruption that entails.
This brings with it a worrying chain reaction – people will start self-policing to avoid the threat of prison and criminal proceedings; institutions will protect themselves by avoiding associations with anyone who has said anything even vaguely controversial. Cancel culture and self-censorship then becomes the norm and with that we all lose our freedom of speech.
So this Bill doesn’t just threaten lawabiding, well-intentioned citizens with jail, it fundamentally curbs our society.
My final point is based on what I consider to be a revealing insight into the approach and attitude of the Justice Secretary and, by extension, the SNP Government.
When I started my legal career, nearly 20 years ago, the first lesson drilled into me was absolute attention to detail. The law cannot be practised from the surface.
That is important because in the last few months on two occasions that we are aware of the Justice Secretary has, no doubt inadvertently, misrepresented the controversial section of this Bill.
LAST month he was asked by a Conservative MSP, in the Scottish parliamentary chamber, about the concerns of a number of groups regarding this potential attack on free speech. Mr Yousaf was dismissive in his response: he denied that there was a low threshold for criminality and concluded that therefore there was no attack on free speech. Indeed, he stated this Bill has a high criminal threshold because its provisions mean that ‘behaviour would have to be not only abusive and threatening but likely to stir up, or having the intention of stirring up, hatred’.
It’s easy to miss but Mr Yousaf replaced the word ‘or’ with ‘and’, which would raise the threshold of criminality. The test is ‘threatening OR abusive’, not both.
This mistake is incredibly important because it fundamentally misrepresents the criminal threshold. Perhaps Mr Yousaf doesn’t understand his own Bill and the practical consequences of its drafting.
Perhaps he made a mistake. But that tiny word makes the world of difference – this is serious legislation with serious consequences and a casual or ill-informed approach to its content is unforgivable.
The SNP has, over the years, got itself into hot water misunderstanding the full ramifications of its Bills – the Named Persons Bill and the Offensive Behaviour at Football Act immediately come to mind.
Given the opposition from a very broad cross-section of civic Scotland, it seems Mr Yousaf would do well to remember the lessons of those past mistakes. The SNP Government must think again in order that it does not compromise the freedom of speech a democratic society rightly holds dear.