What has happened?
In April, the new Hate Crime Bill was introduced into the Scottish Parliament. It seeks to ‘modernise, consolidate and extend the existing hate crime law ensuring it is fit for the 21st Century.’[1] Since its introduction, the Hate Crime Bill has split opinion. On the one hand, many believe it will positively enhance much needed protection for underrepresented or marginalised groups. On the other, many are concerned that the new Bill could have serious, albeit unintended, implications on the fundamental right of freedom of expression.[2]
What does this mean?
The current laws in place protect individuals on the basis of race, religion, disability, sexual orientation or their transgender identity.[3] The new legislation adds age to this list and allows sex to be added at a later date.[4] Furthermore, under the new legislation, the “stirring up” of hatred against anyone based on their age, disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics will be considered a criminal offence.[5]
The Law Society of Scotland has stated that the Bill presents a positive move to consolidate the various hate crime laws, this will provide a modern code of offences fit for the 21st century. However, it has also raised serious concerns ‘regarding a number of the Bill’s provisions and the lack of clarity, which could in effect lead to restrictions in freedom of expression, one of the foundations of a democratic society’.[6] As it is currently drafted, many are legitimately concerned that the Bill could criminalise actors and comedians for performances that are deemed offensive or bookshops and libraries, for stocking controversial books that could spark healthy debate.
Indeed, Scottish Labour MP James Kelly has highlighted the significant disparity with the law in England and Wales, which requires intent for an individual to be criminalised. The intent would not be required under the proposed laws, which Kelly argues “sets an alarming legal precedent and could result in the criminalisation of expressions of religious views”.[7] This concern has also been raised by the Law Society of Scotland, which believes that the Bill’s provisions for the new offence of ‘stirring up hatred’, sets too low of a standard. This is because, under the proposed legislation, an offence can be committed if it is “likely” to stir up hatred; this is not the threshold required for criminal law which depends on guilty intention.[8] As it stands, I agree with Kelly and the Law Society of Scotland; the lack of clarity surrounding the phrase “likely” to stir up hate has the potential to lead to public confusion as to what constitutes criminal behaviour.
Following the growing controversy surrounding the introduction of the new legislation, Justice Secretary Humza Yousaf has told MSP’s he will ‘reflect’ on whether changes need to be made to the proposed new laws on hate crime. However, hate crime is on the rise in Scotland, according to official figures released by the Crown Office. Racial crimes are most commonly reported accounting for 3,038 charges in 2019-20 an increase of 4% on the previous year.[9] Second, is sexual orientation aggravated crime, at 1,486 charges.[10]
As it stands, many may fall on both sides of this debate, believing in the fundamental right of freedom of expression and that it is wrong to stir up hatred against individuals based on their race, age, religion, sexual orientation, disability or transgender identity. As the debate continues to unfold, and opposition to the Bill increases, it will be interesting to see if Scottish Parliament can strike a balance that protects both sides. In principle, the new Hate Crime Bill could present a positive step to modernising hate crime laws in Scotland and, hopefully, scrutiny of the legislation will lead to its intended effectiveness without infringing on other fundamental rights.
Written by Tatiana Hepher
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References:
[1] SP Bill 67 Hate Crime and Public Order (Scotland) Bill [as introduced] Session 5 (2020).
[2] ‘Free speech row over new hate crime bill in Scotland’ (BBC News, 25 July 2020).
[3] SP Bill 67 Hate Crime and Public Order (Scotland) Bill [as introduced] Session 5 (2020).
[4] ibid
[5] Ibid
[6] ‘Lack of clarity in Hate Crime Bill could threaten freedom of expression’ (Law Society of Scotland, 27th July 2020).
[7] ‘Scottish Labour expresses ‘serious reservations’ over hate crime bill’ (Scottish Legal News, 24th July 2020).
[8] ‘Lack of clarity in Hate Crime Bill could threaten freedom of expression’ (Law Society of Scotland, 27th July 2020).
[9] ‘More hate crimes being reported in Scotland’ (BBC News, 12nd June 2020)
[10] Ibid
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.