New hate crime laws that came into force in Scotland on Monday are some of the most controversial legislation enacted by the Scottish Parliament in recent years.
MSPs approved the legislation in March 2021. The Bill was introduced by the Scottish Government to consolidate hate crime powers and to extend protections against stirring up hatred – which were already in place in terms of racial hatred – to other minority groups.
What is the Hate Crime and Public Order (Scotland) Act?
Although an offence of stirring up racial hatred has been in place since 1986, the legislation extended similar protections to people on grounds including age, disability, religion, sexual orientation and transgender identity.
However, it does not extend these protections to women and the Scottish Government has promised separate laws will be brought in to tackle misogyny.
The legislation was introduced by ministers after an independent review of existing hate crime laws, carried out by senior judge Lord Bracadale, recommended a Bill be introduced to revise and consolidate these.
What is hate crime?
Hate crimes are regarded as being motivated by a hatred of part of someone’s identity – whether it be the colour of their skin, their religion, sexual identity or disabilty.
When he carried out his review Lord Bracadale said those offences which are “motivated by hatred or prejudice towards particular features of the victim’s identity should be treated differently from ‘ordinary’ crimes”.
In particular, the legislation would introduce protection against “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.
Who voted for the Bill when it passed through Holyrood?
The Bill was passed by 82 votes to 32 when it was approved by MSPs. SNP and Green MSPs supported it, along with Labour and the Liberal Democrats – with the latter two parties backing it only after changes were made to the legislation.
However, the Scottish Conservatives made clear at the time they still believed it was “fundamentally flawed”, voting against the legislation.
What are the concerns that exist about the Hate Crime Act?
Concerns have been raised about the impact the Act could have on free speech – with high-profile critics including author JK Rowling, Elon Musk, the owner of X – formerly known as Twitter – and prominent SNP MP Joanna Cherry KC.
In particular, gender-critical women like Rowling have raised concerns that the act could be used against women through anonymous allegations of hate crime. However, it’s worth noting that institutions to report such issues anonymously have been in place for the last 10 years.
Indeed, Adam Tomkins, a former Tory MSP and convener of Holyrood’s justice committee who was closely involved with the progress of the bill in 2021, told the Guardian: “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 working closely on the bill have warned that disinformation on social media and in some media reports about the act have wrongly suggested that it is criminalising comments that are merely offensive to others, when this is in fact not the aim of the Act.
Very interesting to hear Peter Tatchell interviewed on @BBCr4today expressing concerns about the chilling effect of Scotland’s new Hate Crime etc. Act on #FreedomOfSpeech & deploring the fact that women are not protected from hate under the Act.
— Joanna Cherry KC (@joannaccherry) April 1, 2024
Some police officers in Scotland – who will be responsible for enforcing the legislation – have voiced concerns, with the Scottish Police Federation (SPF) claiming that the training provided is not enough while the Association of Scottish Police Superintendents (ASPS) has raised fears about the legislation being weaponised for political purposes.
In answer, First Minister Humza Yousaf – who in a previous role as justice secretary spearheaded the legislation through the Scottish Parliament – insisted that the Act has “got the right balance” between protections against hate crime and freedom of speech.
Mr Yousaf urged people not to use the new legislation to make vexatious complaints, saying these will not be taken seriously by the police.
He has also claimed disinformation is being spread about the Bill and what it entails, claiming there is a “triple lock” on protection for freedom of speech.
This includes an explicit clause on this in the legislation, a defence for the accused’s behaviour being “reasonable” and that the Act is compatible with the European Convention on Human Rights.
