Proposed Hate Crime Bill fails tests of being clear, certain and enforceable
I read with interest the Justice Secretary’s defence of his proposed Hate Crime Bill. In it Humza Yousaf reassured Scotland that we shouldn’t worry because despite this Bill, we’ll still be allowed to criticise Scottish Government policy.
Some might feel it revealing that he felt this was necessary, or even our most pressing concern, but let’s not miss the invitation. We all stand united in a desire to eliminate racism and bigotry in Scotland.
However, the Justice Secretary states that he wants to create “robust laws (which) will ensure action can be taken against perpetrators and send a strong message … that offences motivated by prejudice are not tolerated”.
Yet this Bill is not “robust”; indeed it is vague in the extreme. Definitions fail. What does “hatred” mean? Or “threatening or abusive”? What is “likely” to stir up hatred? And the key question raised by these ambiguities: who decides?
Whilst the English legislation already contains a concept of “threatening” it did not include the subjective and ambiguous “abusive”, and why go beyond the English “intent” to stir up hatred (which is itself a challenging judgment call) and add in the ambiguous, subjective “likelihood” of hatred being stirred up?
The confusion the Bill creates may well have the opposite effect to its intended purpose. Acquittals, not convictions.
Mr Yousaf further claims this Bill is about “sending a message” that offences motivated by prejudice will not be tolerated. I’d argue that that’s covered by the aggravators in part 1.
Using criminal law to “send a message” is a low threshold indeed of criminality. Some may wonder if that should be the purpose of the criminal law, and this Bill could arguably criminalise individuals who unwittingly step on the wrong side of the line, with no previous instances of similar activity or any criminality.
One wonders whether this places a potentially enormous burden on the police, on top of everything else, to dedicate great amounts of time scrolling through Twitter investigating potential culprits. And there’s no telling how many complaints they may have to deal with as a result of the vague wording of the Bill.
The great Scottish law lord Lord Reid in the 1960s insisted that laws be clear, certain and capable of enforcement. The SNP’S new Hate Crimes Bill fails all three simple tests. Hopefully, post-consultation the Justice Secretary will be open-minded enough to think twice before proceeding.
LIAM KERR, MSP The Scottish Parliament,