Scotland’s new hate crime law risks having a “chilling effect” on freedom of speech, the head of complaints at the country’s police watchdog has warned.
The Hate Crime and Public Order (Scotland) Act, which comes into effect on April Fool’s Day, broadens the offence of ‘stirring up racial hatred’, extending it to the protected characteristics of disability, religion, sexual orientation, age, transgender identity and ‘variations in sex characteristics’.
Putting aside race (which is handled slightly differently to the other protected characteristics) committing the ‘stirring up’ offence requires:
1) Behaviour or communication to another person of material that a “reasonable person” would consider threatening or abusive; and
2) Intention to stir up hatred against a group of persons defined by a protected characteristic.
As per the legislation’s protections for freedom of expression, it will not be deemed “abusive and threatening” to engage “solely” in “discussion or criticism” about age or any of the other protected characteristics.
Scots are also expressly permitted to voice “antipathy, dislike, ridicule or insult” for religion.
However, that carve-out does not apply to the legislation’s other protected characteristics, raising serious free speech concerns, not least for those who hold and manifest the gender critical belief that the category of biological sex must take precedence over a person’s ‘gender identity’ in policy and law.
Those concerns are unlikely to have been assuaged by news that attendees at a recent Police Scotland hate crime training session were asked to consider the case of a fictional gender critical feminist called “Jo” (as in, Joanne Kathleen Rowling) who has a large social media following, thinks sex is binary, and bizarrely calls for transgender people to be sent to the gas chambers.
Speaking at a Scottish Police Authority meeting, Katharina Kasper, the chairwoman of the Scottish Police Authority’s complaints and conduct committee, told Jo Farrell, the chief constable, that “credible voices across the judicial sector and human rights organisations” do not believe the legislation’s freedom of speech safeguards are sufficient.
“The concerns that have been expressed,” Kasper said, “are that by the time an allegation is made and an investigation starts, the process itself can become a punishment which may have a chilling effect on freedom of expression.”
Farrell replied that freedom of expression remained a human right “that we uphold”, and “that is something that runs through our cultural norms and our application of legislation currently and in the future”. She added that her officers would keep a “very, very close eye on ensuring that we find the balance between alleged criminality and freedom of expression”.
But that response doesn’t really address the point about the process potentially becoming the punishment, particularly in a context where hundreds of ‘third party reporting centres’ have now been established across the country by Police Scotland, on the basis that victims or witnesses “sometimes… don’t feel comfortable reporting the incident to the police” and “might be more comfortable reporting it to someone they know”.
The nationwide network of walk-in snitching parlours are located everywhere from charities, council offices, mushroom farms, caravan sites and housing associations – Glasgow’s easily offended can even drop-in to ‘Luke and Jake’, an LGBT+ sex-shop where specially trained staff are available to help you report a ‘hate crime’, the details of which can then be relayed to the police. It’s a way of working that risks elongating investigation timeframes.
Is the threat this legislation poses to free speech being exaggerated by the media? Adam Tomkins, a professor of public law at Glasgow University and a former Conservative MSP, certainly thinks so. In an excellent article for the Herald he says that the Act “is going to disappoint those transgender activists who think all acts of misgendering are instances of hateful transphobia, just as it is going to disappoint those culture warriors whose nightmarish vision is that the new law poses the greatest threat to free speech since the abolition of the Licensing Act.”
It’s certainly true that, as Tomkins points out, the threshold of criminal liability will not be that a victim feels offended (a subjective test), but that a reasonable person would consider the perpetrator’s action or speech to be threatening or abusive (an objective test).
But the law does still grant officers carte blanche to question people for expressing lawful but dissenting, offensive or contentious views that those with particular protected characteristics – as well as the many activists who purport to speak on their behalf – happen to perceive as ‘hateful’.
That’s a concern for us at the FSU, not least because any reported ‘hate crime’ that is investigated, but that doesn’t ultimately meet Police Scotland’s criminality threshold, may still be logged against the alleged perpetrator as a hate incident (non-crime incident). Why? Because the defining factor there is only ever the complainant’s perception of what happened (i.e., a subjective test). Troublingly, this information is sometimes subject to disclosure under an enhanced criminal records check.
