A new law to tackle hate crime in Scotland will be implemented on 1 April, and in the past few weeks there have been escalating concerns about how it will be policed and how it might affect freedom of speech. Scotland’s first minister, Humza Yousaf, has hit back at “disinformation and inaccuracy” being spread about its implementation.
What are the aims of the new hate crime law?
The Scottish government says that Hate Crime and Public Order (Scotland) Act will provide greater protection for victims and communities. It is intended to consolidate existing hate crime laws, but also creates a new offence of “threatening or abusive behaviour which is intended to stir up hatred” on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics. These additional provisions add to longstanding offences relating to stirring up racial hatred, which have been in place across the UK since 1986.
The law, which was passed in 2021 and has taken an unusually long time to come into force, had a rocky passage though Holyrood, with MSPs voting to strengthen freedom of speech provisions after earlier iterations provoked an outcry from religious and arts groups.
Yousaf, who was justice secretary at the time and helped bring the bill through parliament, assured MSPs that it balanced protections for victims of hate crime with safeguarding freedom of expression.
Why does the new law not include misogyny?
There was anger at the time that the bill excluded hatred of women. Even before it was passed, an independent working group, led by Helena Kennedy KC, was established to consider whether adding sex to the list of other protected characteristics or creating a standalone offence would better tackle misogynist abuse.
The group later recommended that the Scottish government introduce a misogyny act to crack down on street harassment and organised online hate. It was included in Yousaf’s programme for government last September but has yet to be published and there is no further information available about its timetabling.
What are the concerns about the new laws and who is raising them?
There is concern that the new measures could be used maliciously against certain groups for expressing their opinions, in particular gender-critical feminists.
The SNP MP Joanna Cherry has said she has no doubt that the new law “will be weaponised by trans rights activists to try to silence, and worse still criminalise, women who do not share their beliefs”.
Some people who disagree with the gender-critical stance of the author and activist JK Rowling have already threatened to lodge complaints about her with Police Scotland from 1 April.
Whether these threats come to pass or not, gender-critical women also raise the prospect of the wider – and hard to quantify – effect of the legislation.
There are worries that allegations of hate crime can be made anonymously – although third-party reporting centres where this can be done have existed for 10 years and are a legacy of the Macpherson report.
The Association of Scottish Police Superintendents has raised serious concerns about the pressure it will put on an already overstretched force, warning that there is “enough anger and hateful bile online to occupy every police officer in Scotland”, given that current guidelines state that all hate crime complaints should be investigated.
The Scottish Police Federation says officers have not received sufficient training in how to mediate such complex territory, citing a “inadequate” two-hour online module.
What assurances have been made?
Yousaf has insisted there is a “very high threshold” for prosecution and a “triple lock” on freedom of expression in the act, including an explicit clause, a “reasonableness” defence, and compatibility with the European convention on human rights.
Adam Tomkins, a former Tory MSP and convener of Holyrood’s justice committee who was closely involved with the passage of the bill in 2021, said: “Asserting that sex is a biological fact or that it is not changed just by virtue of the gender by which someone chooses to identify is not and never can be a hate crime under this legislation.”
Tomkins and others have warned that social media postings and some reporting on the act has wrongly suggested that it is criminalising comments that are merely offensive to others.
While many groups covered by the new act welcome the extension and streamlining of the law, some worrythat the focuson the row about transphobia will deter other communities from reporting hate crimes.
What is a ‘non-crime hate incident’ and how does that fit into the picture?
While supporters of the act insist that the bar for prosecution is set high, this sits uncomfortably with the police policy of recording “hate incidents” that do not meet the criminal threshold and are based on the perception of the victim or a bystander.
Last year, freedom of information requests made by the Guardian revealed a gradual increase in the numbers of these non-crime hate incidents being recorded. The Scottish Conservative MSP Murdo Fraser last week threatened the police with legal action after he was logged for a complaint about a social media post in which he stated: “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat.”
Although this method of recording has been in place for many years as a means of monitoring community tensions (for example to track the levels of race hate in an area), Police Scotland is now reviewing its procedures after a court of appeal ruling stated that a similar policy in England could have a chilling effect on freedom of expression.
