Hate Crime and Public Order (Scotland) Bill

New crimes that are too easy to commitThe stirring up hatred offences cover threatening or abusive behaviour that is intended or likely to stir up hatred against a group. The lowest threshold is therefore abusive behaviour likely to stir up hatred. No hatred needs to result.

A similar offence in England and Wales covering religion and sexual orientation only covers threatening behaviour intended to stir up hatred. This is a much more appropriate threshold.

Crucially, there is nothing in the Bill that requires the person even to realise that their behaviour is abusive or likely to stir up hatred.

This means the offences can be committed unwittingly.

Crimes not requiring a significant mental element are called ‘strict liability’ offences. They are usually used for matter-of-fact breaches where there can be no

doubt a crime occurred, such as speeding. It is extraordinary to have strict liability offences that are so subjective and carry such a serious sentence. Similar offences in the UK always require at least some awareness of how

the behaviour might be understood.1

Existing provisions also include a defence of showing you had no reason to believe your behaviour would be witnessed by someone outside a dwelling.2 But the new offences can even be committed in the privacy of your own home.

The Hate Crime and Public Order (Scotland) Bill is a major extension of hate crime law. As drafted, it poses a serious threat to free speech, including gospel freedom.

Most significantly, the Bill criminalises ‘stirring up hatred’ against people because of characteristics including religion, sexual orientation and transgender identity. These contested issues should not be covered by stirring up hatred offences, which currently only apply to race. Religion and morality can be debated in a way that race cannot.

Unless key changes are made, statements about the uniqueness of Christ or the sinfulness of certain behaviours could be covered. The new laws, which carry a maximum seven-year prison sentence, would be used by politically-motivated complainants to try to silence those who disagree with them.

INSIDE

Inadequate free speech protection

What is “threatening or abusive” behaviour?

Warnings about the Bill

Inadequate free speech protectionReligion, sexual ethics and transgender issues are often highly contested in public debate. In a free society we should be able to challenge, criticise and otherwise robustly disagree with the beliefs and actions of others, even in ways that might offend them. We would be better off without any stirring up hatred offences in these areas. However, if they are introduced, strong protections for free speech must be included. Police Scotland has warned that it could be “burdened with vexatious reports” if free speech provisions are not included.3

THERE IS NO FREE SPEECH CLAUSE INCLUDED ON TRANSGENDER IDENTITY

No free speech protection covers transgender identity, despite it being a high-profile, contentious issue. Prominent public figures are already labelled ‘transphobic’ simply for expressing their belief in the reality of biological sex. Disagreeing with the activist catchphrase “trans women are women” is interpreted as hatred. So it is dangerous to introduce a stirring up hatred

offence covering transgender identity at all, and especially with such a low threshold. Not including explicit

free speech protection is completely reckless.

Any stirring up hatred offence on transgender identity must include a robust free speech clause protecting the freedom to disagree with transgender ideology. This must protect the right to say that someone born a woman is not a man, and vice versa, and using a person’s birth names and pronouns.

FREE SPEECH CLAUSES THAT ARE INCLUDED DON’T GO FAR ENOUGHThe Bill does include two clauses to protect freedom of expression on religion (clause 11) and sexual orientation (clause 12). They must be strengthened.

On religion, the free speech clause protects discussion, criticism, proselytising and urging people to “cease practising their religions”. But a previous offence of stirring

up religious hatred had a noticeably stronger safeguard. It specifically protected “expressions of antipathy, dislike, ridicule, insult or abuse” towards religious beliefs or practices.4 This closely followed the free speech safeguard in the similar law for England and Wales. The Scottish Government has given no justification for watering down this protection.

The sexual orientation free speech clause protects discussion, criticism and urging people “to refrain from or modify” sexual conduct or practices. But the equivalent in England and Wales specifically protects beliefs about same-sex marriage: “any discussion or criticism of marriage which concerns the sex of the parties to marriage”.5

The term “abusive”is too vagueWhen this kind of language is used in legislation, it takes its ordinary meaning. Dictionary definitions of ‘threatening’ generally include connotations of violence, menace or intimidation. But ‘abusive’ tends to be defined as “offensive”, “rude” or “insulting”, making it highly subjective.

THREATENING AND ABUSIVE BEHAVIOUR IS ALREADY COVERED BY THE CRIMINAL LAWGenuinely criminal behaviour in this area can already be prosecuted under the ‘threatening and abusive behaviour’ offence in Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.

To commit an offence under this section, the

behaviour must “be likely to cause a reasonable person to suffer fear or alarm”. The offender must also either intend to cause fear or alarm or be reckless as to whether they did.

Not only does this section make further offences unnecessary, it establishes a

clearer threshold for a criminal offence. The vagueness of ‘abusive’ is still a concern, but the section is less likely to result in someone being

unjustly accused because of the reasonable person

test and requirement for a perpetrator to be reckless.

Is it “abusive” to say...“Jesus is the only way to God and all other religions are false and lead to hell”

“Christians are dangerous bigots who brainwash their children to oppose same-sex marriage”

“he” when referring to a trans woman (biological man)

“Why are schools teaching the utter nonsense that boys can become girls?”

“Scientology is a dangerous cult that wrecks families and indoctrinates vulnerable people”

“homosexual behaviour is sinful”

“teaching kids about Christianity is a form of child abuse”

“same-sex marriages are a distortion and people in them are deluded if they think they’re married”

“wearing the burka makes women look like letter boxes”

“terms like ‘cis’ and ‘misgendering’ and pronouns like ‘ze’ and ‘zim’ are only used by people who can't think”

“trans women can never be real women”

How we got here

Warnings about the Bill

LORD BRACADALE’S INDEPENDENT REVIEW

In 2017-18, retired High Court judge Lord Bracadale carried out an Independent Review of Hate Crime in Scotland. Over 90 per cent of respondents to the review’s public consultation were opposed to new hate crimes.

The final report recommended a ‘stirring up hatred’ offence covering a series of protected characteristics, including religion, sexual orientation and transgender identity. Lord Bracadale recommended a free speech clause, acknowledging “well recognised” concerns about the “potential risk to freedom

of expression”. These concerns included that “genuine and legitimate criticism could be construed as stirring up hatred” and any legislation could have a “chilling effect on freedom of speech”.6

Lord Bracadale said that any legislation should make a clear distinction between “rational argument” and “rabble-rousing”.7 He also accepted that the right to free speech “protects expression which shocks, offends and disturbs other people”.8

The Bill does not give the protection to free speech that Lord Bracadale appeared to recommend.

1965 – Race Relations Act created incitement to racial hatred offence covering the whole of Great Britain.

1986 – Racial hatred offence incorporated into the Public Order Act, applying to the whole of Great Britain. Still in force.

2006 – Westminster Government created incitement to religious hatred offence applying to England and Wales. SNP MPs backed safeguards to protect free speech due to implications for Scotland. These ensured the offence only covered threatening behaviour intended to stir up hatred and included a strong free speech clause.

January 2017 – Lord Bracadale asked by Scottish Government to conduct a review of hate crime in Scotland.

August to November 2017 – Public consultation as part of the Bracadale Review. Over 90% opposed new hate crimes.

April 2018 – Offensive Behaviour at Football and Threatening Communications Act repealed.

May 2018 – Bracadale review report.

November 2018 to February 2019 – Scottish Government consultation on proposals to implement Bracadale recommendations.

April 2020 – Hate Crime and Public Order (Scotland) Bill published.

A BRIEF HISTORY OF

2012 – Scottish Government created offence of stirring up hatred against religion, as part of the Offensive Behaviour at Football and Threatening Communications Act. Strong free speech clause included.

INCITEMENT TO HATRED LAWS IN BRITAIN

2008 – Westminster Government created incitement to hatred on the grounds of sexual orientation for England and Wales. Safeguards paralleled the religious hatred offence.

“ This vague law will undermine open debate, along with citizens’ confidence that they'll be treated equally under the law… likely to be weaponised to restrict debate” Chris Sloggett, National Secular Society

“ The effect… will be to make everyone feel unsafe – unsafe to think, to speak, to discuss, to share ideas.”

Emma Webb, Director of the Forum on Integration, Democracy and Extremism

“ Today Scotland is leading the way in the criminalisation of wrong ideas… we face another fight for the most basic of freedoms expected in a democracy”

Dr Stuart Waiton, Lecturer in Criminology at Abertay University

“ If the Bill is passed, Scotland would become the most aggressive regulator of citizens’ speech in the United Kingdom and one of the most aggressive in democratic Europe.”Stephen Daisley, The Spectator

“ Drawing ragged lines between permissible and impermissible speech is a tricky business at the best of times… I can see it now. I’m braced for the deluge. ‘Is this tweet a hate crime?’ Report, report, report.”

Dr Andrew Tickell, law lecturer, Glasgow Caledonian University

“ designed to silence debate ”

Ian Murray, Executive Director of the Society of Editors

“ a golden opportunity for political activists to use its terms to close down opponents”

John McLellan, Director of the Scottish Newspaper Society

“ Scots are now locked in a woke chamber: virtue signalling, pandering to perceived victimhood, punishing any who assert biological fact, placing a halter of criminality on free thought when articulated by speech, abandoning common sense.”

Jim Sillars, former Deputy Leader of the SNP

Justice SecretaryHumza Yousaf MSP

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Hate speech laws in practice

THE UK POLICE ALREADY APPLY THE LAW OVERZEALOUSLY

In 2019, street preacher Oluwole Ilesanmi (pictured)was arrested and had his Bible confiscated for preaching that Islam was an “aberration”. Met police officers considered it was a potential hate crime and accused him of being “racist”. The Met were found guilty of wrongful arrest and ordered

to pay the preacher £2,500 compensation.9

Scottish evangelist Gordon Larmour spent a night in police cells in 2016, and was taken to court, after publicly sharing the Bible’s teaching on God’s design for sex. He was found ‘not guilty’ of threatening and abusive behaviour.10

FREE SPEECH RESTRICTED INTERNATIONALLY

A pastor in Sweden was given

a prison sentence as a result of preaching against homosexual activity in one of his sermons. His conviction was overturned on appeal.11

In Canada, Mark Steyn faced

legal action for exposing Muslims to “hatred and contempt” because of comments he made about Islam. He was cleared after two years.13

In Australia, Daniel Scot was

found guilty of ‘religious vilification’ after he criticised fundamentalist Islam in a

church seminar for Christians. It took

him five years to clear his

name.14

In France, pro-Palestinian activists

were fined for wearing T-shirts and handing out tracts that called for a boycott of products from Israel.12

Finnish MP Päivi Räsänen is under

police investigation for hate speech after using Twitter to criticise her church denomination’s support for an LGBT event.

A leaflet she wrote 16 years ago outlining her church’s official teaching on sexuality is also being investigated, along with other comments she has made in the media.15

References available at the.ci/hatecrimescot-ref