Explainer: Why is Scotland’s New Hate Crime Legislation So Controversial? Features
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Explainer: Why is Scotland’s New Hate Crime Legislation So Controversial?

This week in Scotland, a hate crime law that ranks among the world’s strictest entered into force. The Hate Crime and Public Order Act 2021 (Hate Crime Act) aims to modernize and consolidate protections while broadening the scope of recognized hate crimes to encompass a wider range of individuals and circumstances. In other words, the legislation — first introduced in March 2021 and subsequently receiving Royal Assent in April 2021 — stands to have a profound impact on Scotland’s existing legislation.

What does the law entail and why has it proven so controversial? This explainer explores these questions and more.

  1. Are hate crimes a major issue in Scotland?

It would be difficult to state with confidence how Scottish hate crimes compare internationally; precise comparisons can be difficult to draw given the diversity among legislation, operative definitions, national reporting standards, and the reality that many hate crimes may go unreported. With that in mind, the US reported 11,288 hate-crime in 2022, affecting 13,278 victims. Spain reported 1,869 hate crimes during 2022, and Ireland reported 628.

In June 2023, Scotland reported that the last year had seen some 5,738 hate crimes charges. As noted above, hate crimes are not always reported. In a bid to bolster the impact of the new legislation, the Scottish Government, in cooperation with Police Scotland, initiated Hate Hurts, a public awareness campaign that aims to shed light on the effects of hate crimes and motivate both victims and witnesses to come forward.

  1. How were hate crimes treated in Scotland prior to the Hate Crimes Act’s passage?

Before the introduction of the Hate Crimes Act, Scottish law recognized hate crimes based on prejudice towards race, religion, disability, transgender identity, and sexual orientation. Hate crimes could be perpetrated against specific individuals or groups, with the law applicable even when the victim was mistakenly perceived to belong to a protected group.

  1. What led to the Hate Crimes Act’s enactment?

In 2017-2018, Alastair Peter Campbell, Lord Bracadale, a Scottish judge, spearheaded an independent review of the country’s hate crime legislation. The initiative’s final report, published in May 2018, contained 22 recommendations aimed at enhancing legal protections and addressing gaps in the existing framework. As a result, several months later the Scottish Government launched a consultation aimed at implementing Lord Bracadale’s recommendations and facilitating broad engagement with communities affected by hate crime and stakeholders representing various equality groups.

  1. What are the key provisions of the Hate Crimes Act?

The Hate Crime Act maintains existing legislative protections while expanding safeguards against hate crimes. It achieves this by broadening the spectrum of recognized offenses and updating definitions to align with evolving societal norms.

Age, transgender protections: It introduces protections against offenses aggravated by prejudice towards a person’s age and revises the definition of transgender identity to distinguish it from variations in sex characteristics. This expansion ensures appropriate addressing of crimes motivated by such biases.

Multiple protected categories: Recognizing that individuals may identify with multiple protected characteristics, the Act also provides mechanisms to address the intersectionality of hate crimes experienced by such individuals.

Stirring up hatred: A crucial aspect of the 2021 Act is the introduction of new offenses related to stirring up hatred based on disability, religion, sexual orientation, transgender identity, and age, in addition to existing racial hatred offenses. These provisions aim to criminalize threatening or abusive behavior intended to incite hatred against groups defined by these characteristics.

Misogyny: Although the current Act does not include sex as a protected characteristic, there is anticipation of separate legislation to address misogyny and related hate crimes.

Blasphemy: In line with modern legal standards and precedents set by other jurisdictions, the Act abolishes the outdated common law offense of blasphemy.

Enhanced data, reporting: The Act mandates the annual publication of detailed police-recorded hate crime statistics, enhancing efforts to prevent and address hate crimes effectively.

  1. What concerns have critics raised?

 The Hate Crimes Act, while aiming to enhance protections against hate crimes, has sparked controversy, particularly regarding its potential impact on free speech. Some of the more outspoken critics have included high-profile and often controversial advocates of free sppech such as Harry Potter author J.K. Rowling, tech billionaire and X owner Elon Musk, and Scottish National Party (SNP) MP and Barrister, Joanna Cherry KC.

Their concerns revolve around the fear that the Act could excessively restrict expressions of opinion, potentially stifling public discourse and creativity under the threat of legal sanction. Toby Young, Director of the Free Speech Union, has also raised concerns over the Act, citing worries about the suppression of free expression and the possibility of vexatious complaints.

Moreover, enforcement authorities, particularly the Scottish Police, have expressed apprehensions regarding the Act’s implementation. The Scottish Police Federation (SPF) has pointed out shortcomings in the training provided to police officers tasked with enforcing the new laws. Similarly, Rob Hay, Chief Superintendent and President of the Association of Scottish Police Superintendents (ASPS), has voiced anxieties over the potential misuse of the legislation, fearing it could be “weaponized” for political purposes, thus complicating police work and affecting their impartiality.

  1. How does the law balance protection against hate crimes with freedom of speech?

First Minister Humza Yousaf, who played a pivotal role in navigating the legislation through the Scottish Parliament in his preceding role as justice secretary, has staunchly defended the Hate Crimes Act. He asserts that it strikes a proper balance between offering protection against hate crimes and preserving freedom of speech. In statements last week he highlighted the Hate Crimes Act’s “triple lock” safeguard for freedom of expression.

This protective measure includes a specific clause within the legislation itself, a defense provision stating that the accused’s behavior was “reasonable,” and assurances of compatibility with the European Convention on Human Rights. These elements are intended to mitigate fears and criticisms by ensuring that the Act doesn’t encroach upon the fundamental right to free expression while aiming to protect individuals and communities from hate-induced harm.

Despite these assurances, the dialogue between the Act’s proponents and critics underscores a fundamental tension in legislative efforts to curtail hate crimes — balancing the imperative of safeguarding vulnerable groups with the inviolable right to free speech. The Act’s successful implementation, therefore, hinges not only on the effectiveness of its enforcement but also on its capacity to navigate these complex ethical and legal territories without compromising on either front.

  1. What impact is the Hate Crime Act expected to have on Scottish society?

The Hate Crime Act marks a pivotal stride towards crafting a more inclusive and egalitarian Scottish society. By expanding the legal framework surrounding hate crimes, it sends a powerful message against prejudice-motivated offenses while endeavoring to ensure a balanced approach that respects freedoms and individual rights.

As Scotland prepares for the Act’s implementation, its success will hinge on continuous community engagement, effective enforcement, and judicial interpretation of the new provisions, setting a precedent for progressive legal reforms in hate crime legislation.