On April 1, almost three years after the legislation received Royal Assent, the Hate Crime and Public Order (Scotland) Act 2021 will come into force. It was devised under Nicola Sturgeon and introduced to the Scottish Parliament by her second Cabinet Secretary for Justice, one Humza Yousaf MSP, in response to a 2018 report on hate crime legislation by the distinguished judge Lord Bracadale. The intention was to consolidate disparate offences scattered across the Scottish criminal code and create a single body of legislation to prosecute hate crimes.
As the aforementioned date approaches, when the Act’s provisions will finally come into force, there have been widespread criticisms and fears that it could be used as a weapon against freedom of speech, especially in the debate over gender identity and trans rights. Essentially, the law extends the offence of ‘stirring up hatred’, expressed in the Public Order Act 1986 in relation to race, to other ‘protected characteristics’ like age, sexual orientation, religious belief and gender identity.
When the proposals first appeared four years ago, there were serious reservations from organisations with a substantial interest in the issue. The Scottish Police Federation, the representative body for 98% of the country’s force, warned that it ‘could lead to police officers determining free speech and thereby devastate the legitimacy of the police service’, and called it ‘too vague to be implemented’. The Law Society of Scotland, the collective professional voice of more than 13,000 solicitors, argued that the legislation’s ‘lack of clarity… could threaten freedom of expression’.
The Scottish Government has consistently rejected these claims. Last week, Yousaf, now First Minister, but very much the father (or parent, to avoid a sex identifier) of the Act, ridiculed the idea that free speech would be affected, and reiterated the case that it merely extends existing protections enjoyed on grounds of racial identity to other characteristics.
‘If I have the protection against somebody stirring up hatred because of my race – and that has been the case since 1986 – why on earth should these protections not exist for someone because of their sexuality, or disability, or their religion?”
Because, First Minister, religion is not in the same category as race, or sexuality, or disability. Religion, like any kind of ideological belief, is a matter of choice, and should absolutely not be given blanket protection from criticism under the law. To attack someone for immutable characteristics such as the colour of their skin is obviously odious, and one reason is that it is a feature of their being over which they have no control. But to attack someone because of an idea they have decided to support and espouse is completely different. It is so different, it is almost staggering that the case has to be made.
Yousaf is a messy, muddy thinker, and his instinctive response to criticism is aggression. At First Minister’s Questions, he angrily spoke of ‘a lot of disinformation that has been spread on social media and some inaccurate media reporting, and indeed by our political opponents’. He cannot or will not accept that the incoming laws will have any adverse effects, nor does he see that he is crudely yoking together disparate characteristics.
Worse, he says he has ‘full confidence’ that Police Scotland will look beyond ‘vexatious’ complaints, essentially shifting responsibility for any shortcomings in the legal framework from the Scottish Government, where they properly rest, to those required to enforce the law. His full confidence was apparently not engaged when he was Justice Secretary and the Police Federation argued the legislation would be damaging and unworkable.
The law means what it says it means. Although the courts have been allowed since 1992 to have some limited regard to what is called ‘legislative intent’ when interpreting statute, what is on the face of an act should be regarded as its provisions. It is lazy and cowardly to shrug and pretend that those on the front line of law enforcement will ‘know what you mean’. And unenforced law is corrosive to the legal system as a whole. How long will it be before there is a protracted and expensive cause célèbre, for example if a famous person is prosecuted for misgendering a trans woman? Will that benefit or damage the standing of the law?
Police Scotland is under severe financial pressure. It may need to close up to 30 police stations across the country and is facing the loss of as many as 1,500 police officers. Now this hard-pressed organisation, working with the Crown Office and Prosecutor Fiscal Service, Scotland’s public prosecution body, will have to make windows into men’s souls on some of the most sensitive issues of public debate, in some cases going where the law ought not to go.
While it will come into effect on April Fool’s Day, this Act is no joke. Beliefs should never be sacrosanct. Distinguishing between robust but legitimate debate, even if angry and bad-tempered, and a hate crime punishable under the full force of the criminal law, is a task which may well prove too hard. The police should not have been put here. But the worst thing is that the First Minister doesn’t even understand the problem.
Click here to subscribe to our daily briefing – the best pieces from CapX and across the web.
CapX depends on the generosity of its readers. If you value what we do, please consider making a donation.
