Scotland’s Hate Crime Bill criminalises insulting language – even if nobody heard it outside your own living room
The Scottish government intends to decriminalise blasphemy. It is a reform that sadly comes too late for Thomas Paterson whose display of profane material in his Edinburgh shop window made him the last Scot to be prosecuted on the charge. That was in 1843.
But the law gives and the law takes away. For the same draft legislation that removes this long obsolete penalty on one aspect of freedom of thought seeks to punish those who offend a wide range of new shibboleths. Insulting the Almighty will be fine. But being abusive towards mortals because of their faith in that deity could land you up to seven years in jail.
Welcome to the Hate Crime and Public Order (Scotland) Bill, legislation that is being steered through the Scottish parliament by the SNP’s cabinet secretary for justice, Humza Yousaf. The bill is now in its committee stage at Holyrood – and quite a deliberative undertaking that is proving to be, given the 2,000 written submissions the bill has attracted.
On Tuesday, Humza Yousaf appeared before the justice committee. A confident and articulate politician, he gives the impression of being not remotely daunted by the scale of legal concern mounted against his measure, perhaps because ultimately he thinks that at Holyrood he has the numbers to get it through.
And in fairness, Yousaf is certainly entitled to defend his bill against some of the accusations levelled against it. For part of his Hate Crime and Public Order Bill ties together in one place a body of hate crime law that is already on the statute books across the UK. Free speech is not consequence free. It was Margaret Thatcher’s government that passed the Public Order Act 1986, clause 18 of which made it an offence to use language or display written material which involves “threatening, abusive or insulting words or behaviour” where it “intends thereby to stir up racial hatred” or which “is likely to be stirred up thereby.”
However, what the Scottish government’s bill proposes goes far beyond the 1986 Act both in terms of the range of groups to be protected and in removing critical safeguards that the 1986 legislation contained.
The groups, or “characteristics,” Yousaf’s bill seeks to protect from “threatening, abusive” or – in the case of race – “insulting” words, deeds, or materials are those of “age, disability, religion or, in the case of a social or cultural group, perceived religious affiliation, sexual orientation, transgender identity, [and] variations in sex characteristics”. Sex may yet be added, depending on the findings of the misogynistic harassment working group.
This is bold. Expanding the range of groups legally protected from insult or abuse in this way criminalises abuse not just in relation to protected characteristics that are immutable and relatively easy to perceive (like race) but also identities of choice and avowals of belief and opinion (like religion).
Transgender identity presents an obvious difficulty. Nicola Sturgeon has moved the SNP towards preparing to make gender both self-defining and easier to change. It will be a rapid and bold use of the law to criminalise those who may express themselves forcefully – and perhaps crudely – in questioning, for instance, men who continue to be biologically men whilst asserting no less forcefully that they are women.
What is more, the bill’s burden of proof is not high but its penal sanctions are tough: “Evidence from a single source is sufficient to prove that an offence is aggravated by prejudice” it states, and those found guilty are liable to a fine and/or prison of up to one year for summary convictions handled by a magistrate’s court and up to seven years for indictable convictions passed by a crown court.
The most compelling exchange in Tuesday’s justice committee hearing concerned a key respect in which the Scottish bill diverges from the existing UK-wide Public Order Act 1986. The 1986 Act specifically stated that “it is a defence for the accused to prove that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the written material displayed, would be heard or seen by a person outside that or any other dwelling.” By contrast, the Scottish bill seeks to apply public order within the family home.
In defending the position that there should be no difference between the public and private spheres, Yousaf stated that, “the effect that could have on other family members, children in particular, is pretty insidious. Are we saying that, as a society, we are comfortable with no criminal sanction being applied to people because [hate speech] is being done within the confines of their dwelling whereas if they stepped out into the street outside of their house then that would be an offence?”
In response, the justice committee’s convener, the Conservative MSP (and professor of public law at Glasgow university) Adam Tomkins, asked how “you can commit an offence against public order in private?” and pointed out that whist Yousaf was rightly worried about “acts of hatred which include violence,” such acts were already criminal offences. Yousaf however maintained that the culpability should be tracked back to conversations in the home.
We are in the realms of studied under-statement to say that there are practical, as well as broader, issues involved in the SNP government’s intent to police family conversations around the kitchen table or magnify into a criminal offence the unguarded reflexive response from the sofa to a news item on the television. The bill risks giving the angry adolescent a perfect revenge against his annoying uncle.
There may be more to come. Yousaf told the justice committee that there was the possibility of amendments being introduced which he could support. But he seemed reluctant to support those that might better defend fair comment. He thought creating a list of exemptions might do more harm than good.
Yet, clarity is precisely what is required. He said that his bill was not seeking to criminalise people who had offensive views. Yet, he struggled to answer a question from Adam Tomkins on what was the difference between “offensive” and “insulting” language, the latter of which would be criminal in relation to race. Indeed, Yousaf is stubbornly refusing to listen to some of Scotland’s leading legal minds who think persisting with the criminalisation of insulting language is folly. “I find it difficult to envisage” Yousaf went on, a situation “where behaviour can be threatening or abusive, with the intent of stirring up hatred, and yet be justified as being ‘reasonable’.”
To this it cannot be restated enough that existing laws provide sanction against violent and threatening behaviour regardless of the victim’s real or presumed group identities. As well as policing language more broadly, what Yousaf’s legislation seeks to do is make that sanction more severe where the motivation that spurred injury or insult is an “aggravation of offence by prejudices” against the protected groups.
Yousaf’s motivation is understandable. He spoke of his own experience of being abused for his race and faith and expresses a wish that other races and faiths enjoy the same protection that he would himself seek. But he appears deaf to concerns that sending offenders to jail for making hurtful comments about someone because of their faith is merely shifting the blasphemy law from the faith to the follower. It is curious that liberal-minded commentators not just in Scotland but throughout Britain who are appalled at how blasphemy laws are applied in fundamentalist regions of Pakistan have not yet found their voice to ask whether mocking, hurtful language against the faithful should put transgressors behind bars in Scotland.
Of course the bill’s defenders point out that such censorship is not the aim. Importantly, they say, it will be the “intent” to stir-up hatred that defines the crime. So comedians, for instance, will probably get away with nothing worse than a groan for jokes involving stereotypes. Politicians and journalists however may not be so lucky. Yousaf gave as an example of why being a journalist is no defence the following scenario – “What we wouldn’t want to do is give the likes of Tommy Robinson a defence by saying that he’s a blogger who writes for ‘The Patriot Times’.”
How might those accused defend themselves? Yousaf told the committee that he expected judges to take account of “contextual factors.” He clearly assumes that courts will apply a high threshold to what constitutes the motivations of “intent” and “hate.” But the legislation makes no attempt at defining either “intent” or “hate”. His position is essentially that the courts will work it out, eventually.
However, getting to a proportionate verdict at the end of the process is not, by itself, a sufficient argument for creating a process that encourages reporting to the police opinions that someone, somewhere, finds distressing. Yousaf spoke of the need to listen to the victims. Has the Scottish government given any consideration to what the legislation will do to the accused during the months or years between accusation, charge and – if they are lucky – eventual acquittal, during which their lives are effectively put on hold?
The Scottish government has a lot on its plate and can be forgiven for being distracted. But has it noticed a trend in modern society where group identity is hardening and the sensitivity to perceived offence helps solidify the lines that divide us?
We have, after all, already reached the point where an amateur journalist can be investigated and required to attend a police station under caution for not immediately correcting the insensitively phrased claims of his interviewee, Professor David Starkey, that the slave trade was not genocide. Of course, the legal process may, after much time and expense, come to a sensible conclusion, but the framers of Scotland’s Hate Crime and Public Order Bill seem insouciantly untroubled by the tool their legislation hands certain groups to make vexatious claims against critics who don’t show them sufficient respect.
It is not necessarily the expectation of putting their critics behind bars so much as the ease of making their critics’ lives hell in the meantime that the Hate Crime and Public Order bill helps facilitate. The bill is a gagging order, letting certain groups and viewpoints silence those who supposedly insult or abuse them, even when the hostile view was expressed in the speaker’s own living room and directed at nobody in particular.
It is time for those who are outraged by what they depict as far distant medieval societies punishing non-believers to look at what is proposed on the mainland of Great Britain, where the SNP is engaged in reversing one of the greatest legacies of the Scottish Enlightenment. If Thomas Paterson was still alive he would escape the charge of blasphemy. Instead, this law would jail him for being abusive to believers.
Aye, that’s progress for you.