Oliver Rhodes' recent article for Reaction, the commentary and analysis website, draws heavily on Brent Haywood's concerns about Scotland’s new hate crime bill.
Lawyers on Scotland’s hate speech bill: “An astonishing attack on freedom of expression”
Senior lawyers have expressed dismay about the threat to free speech posed by Scotland’s proposed new hate crime law.
“This is an astonishing attack on freedom of expression which, read as I read it, threatens the publication of nearly all books published before the twentieth century”, says Francis Hoar, a barrister practising in public law and human rights, based in London.
Hoar cites Shakespeare’s The Merchant of Venice and Penguin’s publication of Mein Kampf – designed for educational and historical use – as examples of texts which could fall under the Bill’s provisions.
Public consultation closed last week on the new Hate Crime Public Order (Scotland) bill. Legal and religious groups have said the proposed law could represent an unprecedented government incursion into private life and basic freedoms.
Scotland’s Justice Minister, Humza Yusaf, told the BBC: “Free speech in itself is never an unfettered right.” It must be balanced, he argued, with the need to protect vulnerable communities from discrimination.
The Scottish government says it is designed to make hate crime law “fit for the 21st century”. Scottish, English and European lawyers speaking to Reaction believe the bill provides for an alarming expansion of state power, however.
Crucially, the bill removes the need for the perpetrator to have shown an intention to “hate” in order to be indicted. “The only exception is if there is a ‘reasonable excuse’ – but no one can know how a court would interpret that”, Hoar said.
The proposed changes go well beyond works of literature. They threaten to criminalise speech which is now considered part of public debate. The bill makes two major modifications to the provisions of the Public Order Act of 1986: expanding the number of protected characteristics to include age and “variations in sexual characteristics”; and changing the test of a crime against these groups from “where there is an intention to stir up hatred” to “where it is likely that hatred would be stirred up.”
This change places an unprecedented power, and burden, in the hands of the police and courts to determine the criteria of a hate crime.
“Law should be certain and the citizen should know what conduct is or is not criminal” says Brent Haywood, a partner at Scottish law firm Lindsays. Haywood has prepared submission statements on the Bill for review.
“As framed this proposed new law has the potential to be used politically in a climate of increasing virtue signalling”, he notes. “It goes beyond the recommendations of Lord Bracadale, because it seems to be based not on what you do or believe, but on how you are perceived.”
Lord Bracadale’s Independent Review into Scottish hate crime law closed in 2018. It was supposed to form the basis of the SNP’s new legislation. Its intentions were laudable: the creation of “clearly-defined” laws and “well-developed” criminal procedures which would not only give victims more confidence in pursuing action, but “contribute to attitudinal change.”
It is not at all clear how the new bill satisfies the intentions of the review. It uses ambiguous wording and vague criteria, and “is almost certainly incompatible with Article 10 of the European Convention”, argues Hoar. The Convention protects freedom of speech from unjustified restrictions.
More alarmingly still, it undermines the distinction between public and private settings, meaning statements made in private conversations could be criminalised.
Lorcán Price, a barrister specialising in European and human rights law, explained the problem: “Say your friend made a joke in private that you found offensive. The possibility would be there to prosecute.” This may seem an unlikely outcome, but only one source is required to verify a hate crime – the supposed victim.
The powers this offers to the state – and potentially to individuals who may seek to weaponise the law to settle personal grievances – is clear.
Haywood explains that all criminal complaints must be followed up, creating an unprecedented new case load for the police founded on nothing more than the subjective feeling of offended individuals. The reach of such complaints would now extend into the household – a change without precedent in Bracadale’s report.
This isn’t the first time the Scottish government has tried to change hate crime laws. In 2012 the SNP pushed through the Offensive Behaviour at Football and Threatening Communications Act (Scotland) without any cross-party support. After campaigning by football fans, MSPs and lawyers it was repealed in 2018.
“What we’re talking about is the problem of legislation that’s arbitrary, difficult to enforce, or has unintended consequences”, argued Haywood, writing in The Scotsman in the year of its repeal.
The wording of the Football Act may have been sloppy, but at least its intentions were specific and historically focused. Sectarian violence at football grounds is a real problem in Scotland. The legislation this time is much more wide-ranging, encompassing various situations and identities, including works of art and speech-acts in person and online. It certainly updates the law for the 21st century, but could have a counter-productive effect for social harmony.
Price agrees that it goes “much further” than the law in England and Wales. He emphasises, however, that “who gets to protect the rights of others is always determined by the country in question”, and that “maximising social cohesion according to historical contexts of discrimination is a perfectly legitimate legal argument”.
The use of laws to reform behaviour is certainly a defining strand of Scottish political culture – consider, for example, Scotland’s leading role on laws to ban smoking indoors and, of course, its stricter response to the Covid-19 pandemic.
This time it seems unlikely that Scotland’s proposals will be imitated in the rest of the UK. For Haywood, the invasion on private space reveals “a much greater willingness to engage in social engineering” on behalf of the SNP. “How on earth the state come inside my house not even to look into my heart, but to simply judge my words, is beyond me. What sort of evidence would they even need?”.
The proposed law goes much further than the Football Act, clearly intervening in the “culture war” dividing the country. JK Rowling’s recent comments on social media, in which she said that “people who menstruate” are “women”, would easily fall under the terms of the proposed bill, on account of the offence they have caused to some, said Price.
The point requires serious consideration for future reformers. In the age of Black Lives Matter, the bill gives no indication of how discrimination based on ethnicity or sexuality would be interpreted, leaving the police and judiciary to decide based on their own impressions. Those could be subject to social and political pressure.
For some characteristics, such as “age”, not even the postmodernist definition of “prejudice plus power” – already a hugely subjective concept – provides clear answers about how the law would be used in practice. These ambiguities do not bode well for social cohesion or institutional trust.
The consequences of current ambiguities in the law are already making themselves felt. The International Covenant on Civil and Political Rights, ratified by the UK in 1976, was given clarification by the UN Special Rapporteur in 2001. It recommends that any law prohibiting “hate speech” must ensure that “no one is penalised for true statements” and that “no one should be subject to prior censorship.”
How current efforts to mediate debate on controversial issues sits with these recommendations is itself an area of fundamental contention. Recent cases where humorous or satirical acts have been prosecuted and, at times, convicted, such as that of Mark Meechan for posting offensive content on Twitter in 2018, indicate that something needs to be done.
In the opinion of many lawyers, however, that change can’t come from this bill. “It sets a very dangerous precedent”, says Hoar, “and I would be very surprised if it made it through.”
While the law may be kicked into touch for now, the politics of discrimination – and the politicians tasked with managing it – are still very much in play.
This article was originally published on Reaction on 31 July 2020.
