The bestselling author Val McDermid has expressed concern that Scotland’s new hate crime legislation will threaten freedom of speech and have a chilling effect on satire.
McDermid, 68, a close friend of Nicola Sturgeon and supporter of independence, warned the law could be used as a “stick to beat people with”.
“I’m obviously concerned about freedom of speech,” she said in an interview with the Courier. “Satire can be a very powerful weapon if all else fails. And I frequently have characters in my books who say things that are not my view.
“It’s essential to allow them to express their views, otherwise you end up with a completely anodyne story. And while I don’t think Police Scotland will make it a priority to investigate a sick joke told by a comedian at the Edinburgh Festival, they are obliged to investigate complaints,” she continued.
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.
According to leaked documents seen by the Herald, officers from Police Scotland are being instructed that actors and comedians whose performances are likely to “stir up hatred” could be breaking the law.
McDermid, from Kirkcaldy in Fife, who has sold more than 20 million copies of her books, fears people will attempt to misuse the legislation.
“It seems to me that people are, of course, looking at the ultimate ridiculous conclusion and will push it to see what happens,” she said. “It’s going to be used as a stick to beat people with. It will be a huge waste of time for the police as they look into vexatious complaints. I’m sure one or two people have complained about me from time to time.”
Is the threat this legislation poses to free speech being exaggerated by the media?
Speaking during First Minister’s Questions earlier this week, Humza Yousaf warned MSPs that a lot of “disinformation” is being spread about the Act. He argued that contrary to some claims being made on social media, “and by our political opponents”, a “very high threshold” will need to be met for someone to be prosecuted for ‘stirring up’ hatred.
It’s certainly true that 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 Police Scotland has already made clear that it will investigate every single complaint made under the new law, which means that officers will have 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 the FSU, not least because any reported ‘hate crime’ that is investigated, but 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.
