Scottish gov’t expands definition of ‘hate crime’ with controversial law ‘policing what people think or feel’
EDINBURGH, Scotland, March 16, 2021 (LifeSiteNews) – By a vote of 82 to 32, Members of the Scottish Parliament (MSPs) have passed into law the highly divisive so-called Hate Crime Bill, which introduced a new crime of “stirring up hatred.” At the same time, the bill rescinds an ancient law criminalizing blasphemy, which hadn’t been used in a prosecution for over 175 years.
The Hate Crime and Public Order (Scotland) Bill was passed on Thursday at Holyrood after a five-hour debate over the legislation, including amendments, was held the previous day. Under the new legislation, current “hate crime” laws will be extended to include new social categories of people identified as “vulnerable groups.” Until now, hate crime laws, defined as “behaviour which is both criminal and based on prejudice” in Scottish law, have covered individuals on the basis of “disability, race (and related characteristics), religion, sexual orientation, transgender identity.” The update in law extends this cover to “age … and allows sex to be added at a later date” as well as introducing the offense of “stirring up hatred.”
The Hate Crime Bill was first proposed following an independent review by senior judge Lord Bracadale into the country’s hate crime laws. Bracadale’s review prompted the Scottish government to consolidate existing legislation into one law, but soon received fierce backlash over the vagueness of the language, especially with the addition of “stirring up hatred.” Writers, journalists, religious leaders, and official bodies like the Police Federation of Scotland (SPF) and the Law Society of Scotland criticized the bill for its low threshold for prosecution and perceived contravention of freedom of speech.
The SPF said the bill will drastically affect the relationship between the public and officers, who will essentially be “policing what people think or feel.”
The Scottish Conservatives, accompanied by a few others, were the only MSPs to vote down the bill in parliament, citing freedom of expression concerns. Justice spokesman for the party, Liam Kerr, said: “We agree that hate crime should be rooted out but the SNP [Scottish National Party, currently in power] should not have allowed a fundamental right to be trampled on in the process.” Kerr later criticized the bill as being filled with “inherent ambiguity” and “riddled with glaring flaws,” including a lack of exemption for the freedom to express beliefs considered hateful in private conversations within the home.
Last year, the Scottish Catholic Bishops’ Conference released a statement on the impact that could be wrought by enshrining the new hate crime bill. They raised concerns about the interpretation of “stirring up hatred” and how it might be applied in real terms.
The provisions of the “stirring up hatred” offense are twofold yet imprecise. First, the behavior or communication must be threatening, abusive or, in the case of race, insulting.
Second, either the actor must “intend” to stir up “hatred” against a protected group, or there is a “likelihood” that his or her behavior or communication will stir up “hatred” against a protected group. The bishops objected that the definition of “hatred” is so unclear it is open to “a wide interpretation,” thus the “proposed threshold for an offence under the stirring-up provisions might be considered disproportionately low.”
The bill was amended such that “likelihood” of stirring up hatred was removed.
At the time there was a second arm of the proposed legislation that troubled the bishops, “possession of inflammatory material,” which the bishops noted could have rendered such literature as “the Bible, the Catechism of the Catholic Church and other texts such as Bishops’ Conference of Scotland submissions to government consultations as being inflammatory under the new provision.” Following complaints of stifling religious freedom from the Catholic bishops and other faith leaders, “possession of inflammatory material” was dropped from the bill.
Despite amendments to attenuate the effect on freedom of expression and religion, Anthony Horan, director of the Catholic Parliamentary Office, who criticized the bill for criminalizing disagreeeent with transgender ideology, said that his “concerns remain.”
Horan explained: “There is no assurance that stating there are only two sexes, or that sex is immutable will not be criminalised. Nor is there an assurance that discussing or criticising marriage in relation to the parties to the marriage will not be criminalised. At the very least what has been created is a chilling effect; an environment where nobody will talk openly about these things for fear of prosecution, irrespective of how well founded those fears may be.”
Noting the contentious nature of transgenderism, Horan raised further concern over the possibility of “compelled speech by potentially criminalising people who ‘misgender’ i.e. use a third person pronoun based on biological sex,” which he said, “the Bill tolerates.”
“Of course, these are delicate and sensitive issues and there is a need for compassion, respect and understanding. However, this should not automatically exclude the right to free expression nor attract the attention of the criminal law,” he said.
Humza Yousaf, the Justice Secretary who led the bill through parliament, assured critics that people who believe “sex is immutable … or those that proselytise that same-sex relationships are sinful, none of these people would fall foul of the stirring up of hatred offence for solely stating their belief – even if they did so in a robust manner.”
He continued, adding that “solely stating any belief, which I accept may be offensive to some, is not breaching the criminal threshold.”
Such behavior will only become a criminal offense if it is “threatening or abusive by a reasonable person and it was intended to stir up hatred” against an individual in one of the groups protected by the law.
Whilst admitting the bill is in “much better shape” following the petitions and protestations of the bishops and private citizens, Horan said that “concerns do, however, remain. The freedom of expression provision is weak and risks chilling debate on important cultural and social issues, and concerns have also been expressed regarding the lack of a dwelling defence and the failure to adequately address the concerns of women’s groups.”