More than three years after receiving Royal Assent, Scotland’s “dangerous” and “authoritarian” new hate crime act will finally be activated on April Fool’s Day, despite fears that section three of the legislation – which expands the offence of ‘stirring up hatred’ – is fundamentally flawed and represents an attack on freedom of speech.
Among those to have expressed concerns is the Prime Minister, Rishi Sunak, who this week warned that the Act will chill free speech in the country, and pointedly remarked that his government “would never and are not introducing any similar kind of legislation here in England”.
Although the Hate Crime and Public Order (Scotland) Act was given Royal Assent in April 2021, it wasn’t activated immediately, partly because Police Scotland needed time to work out how it could implement the legislation on the ground without immediately being swamped by groundless or malicious complaints brought by every perpetually offended woke scold north of the border.
As part of the Scottish Government’s self-proclaimed attempt to “consolidate, modernise and extend” existing hate crime legislation, the Act 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 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 – geddit?!] who has a large social media following, thinks sex is binary, and bizarrely calls for transgender people to be sent to the gas chambers.
Another free speech concern is that unlike the Public Order Act, Scotland’s hate crime legislation removes what’s known as the ‘dwelling defence’ (i.e., that an offence cannot be committed if both the defendant and the person threatened are in a private dwelling). This means that people can be prosecuted for stirring up hatred in their own home, which raises the spectre of children testifying against their parents in court.
The Bill won the backing of a majority of MSPs in March 2021, despite concerns that the entire section on stirring up hatred (section three) was “fundamentally flawed” and represented an “attack” on freedom of speech.
Activation of the legislation was then delayed while Police Scotland began the process of “training, guidance and communications planning”.
Two-and-half years later, in September 2023, the national police force established a dedicated hate crime unit to help identify, record and prosecute the new crimes created by the Act. It also began training its 16,400 officers in preparation for the Act’s activation.
A series of ‘third party reporting centres’ have also been established 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 (no, really), 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 seven days a week to help you report a ‘hate crime’.
Needless to say, the FSU is concerned that the new law will give 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’.
We’re also concerned that any reported ‘hate crime’ that doesn’t meet Police Scotland’s criminality threshold will still be logged against the alleged perpetrator as a hate incident (non-crime incident), because the defining factor there is only ever the complainant’s perception of what happened. This information is sometimes subject to disclosure under an enhanced criminal records check.
Now, the Prime Minister has joined in the growing chorus of criticism of the law, and ruled out any similar legislation being adopted in England.
A No 10 spokesman said: “I wouldn’t want to comment or speculate about individual cases, but the Prime Minister himself believes in free speech. For example, he has been very clear on what the definition of a woman is, and that biological sex matters, and he doesn’t believe that that should be controversial.
“For the Government’s part, we would never and are not introducing any similar kind of legislation here in England. And we’d be very aware of the potential for chilling effects on free speech,” the spokesman added.
Numerous big names have also criticised the law, including billionaire Elon Musk who warned about the impact of it on social media platform X, which he owns. He wrote in response to a summary of the new rules: “An example of why it is so important to preserve freedom of speech.”
