27.08.20


With political debate being pulled to the extremes; social media and the internet empowering individuals and groups to reach ever wider audiences with whatever hateful views they may hold; and reports of all forms of hate crime on the increase, now seems a good time to check our laws in this area are up to scratch.

Here, however, legislators must tread with care. After all, without freedom of speech – what philosopher, John Milton described as the ‘liberty to know, to utter, and to argue freely according to conscience’ – our other fundamental freedoms are devalued and diminished.

Denying a ‘platform’ to speakers deemed ‘too controversial’ is already a feature of life on many college and university campuses. Twitter ‘pile ons’ and instant petitions are used to shout down those whose views cause offence, though for some eliciting such a response is clearly the intention.

All of which perhaps helps explain both the rationale for and reaction to the SNP government’s proposed Hate Crime Bill, which has sparked a fierce backlash since its introduction to parliament. Anything that manages to unite in common cause the Humanist Society, Catholic Church, Police Scotland as well as the great and good of Scotland’s arts and cultural community boasts impressive powers of cohesion. Such though is the inauspicious claim that Justice Secretary, Humza Yousaf and his Hate Crime Bill can now make.

In fairness, few in Scottish politics know better than Humza the ugly reality of racism and hate crime in our country. Indeed, recent days have seen appalling threats made against him and his family, allegedly triggered by extreme opposition to this bill. That is an obscenity for which there can be no excuse nor justification.

So what does the bill propose that has antagonised so many so profoundly?

At present, people are protected by specific laws on the basis of disability, race, religion, sexual orientation and transgender identity. Following a review by a judge, Lord Bracadale, adding age and gender was recommended as part of a process of updating and consolidation existing hate crime legislation.

So far, so relatively consensual. It was even accepted that after 350 years lying unused on the statute book, Scotland’s redundant blasphemy law should be ditched.

Yet what has been presented to parliament is a bill whose combination of vagueness and extensive reach make it the most dangerous of propositions. With uncomfortable echoes of the now repealed Offensive Behaviour at Football Act, the SNP government appears to have blundered into a sensitive and complex area of law with good intentions but an apparent lack of either care or understanding about the pitfalls and consequences.

The Law Society expressed alarm at the creation of “unduly wide” new offences, which will “restrict freedom of expression” and lack clarity or “policy justification”. Meanwhile, the Scottish Police Federation has made clear its deep concern at the prospect of officers being left to ‘police’ speech.

Critics have focused largely on the proposed “stirring up hatred” offence. Without any requirement to prove intent, unlike similar laws elsewhere in the UK, this moves risks creating a catch-all offence with the potential actually to catch all.

That absence of a need to prove intent provoked a coalition of artists, authors and journalists, including Chris Brookmyre, Val McDermid and Rowan Atkinson to warn that the bill risks “stifling freedom of expression”. They add that “the right to critique ideas must be protected to allow an artistic and democratic society to flourish”.

The Justice Secretary insists he hears the concerns. I hope so. As a member of the Justice Committee that will shortly begin scrutinising the bill, I’m clear that without major changes, including more clarity of language and purpose, this is not a bill I can support. In the words of one commentator recently, in an attempt to make bad people nicer, we should not risk making good people villains.

During a case in 1999, Lord Justice Sedley declared, “free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative. Freedom only to speak inoffensively is not worth having”. As a liberal, I find myself in complete agreement with those sentiments, however committed I am to tackling hate crime.


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