Scotland’s controversial new hate crime law comes into effect News
Kim Traynor
Scotland’s controversial new hate crime law comes into effect

Scotland’s controversial Hate Crime and Public Order (Scotland) Act 2021 came into force on Monday. The law intends to unite existing hate crime laws, along with creating several new offenses, most notably criminalizing “threatening or abusive behaviour which is intended to stir up hatred.” Stirring up racial hatred has been an offense since 1986. However, this will apply to all protected characteristics, including disability, race, religion, sexual orientation, gender identity and varying sexual characteristics. This follows many concerns about its effects on freedom of speech and how it will be policed.

The act consolidates existing law on crimes “aggravated by prejudice” and racially aggravated harassment. It also abolishes the common law offense of blasphemy, which no one has been prosecuted in over 175 years. The maximum penalty is seven years imprisonment. First Minister Humza Yousaf has insisted that there is a “very high threshold” for prosecution, noting the act’s “triple lock” on freedom of expression: the Part 3(4) defence of reasonableness, compatibility with the ECHR and the requirement for explicitness.

Much initial criticism surrounded the act’s failure to criminalize hatred of women, with gender identities protected but sexual identities not. The Misogyny and Criminal Justice in Scotland Working Group fronted this, which recommended the introduction of a new act to combat misogyny. An amendment was proposed to add sex to the list of protected characteristics, but it was voted down. Former Scottish Labour leader Johann Lamont argued that “the case for including women is indisputable,” as they “understand hate crime more than any other group does.”

Further criticism has surrounded the effect the act may have on the debate surrounding transgender issues. SNP MP Joanna Cherry has been a major critic, certain the act “will be weaponised by trans rights activists to try to silence, and worse still criminalise, women who do not share their beliefs.”

Victims and Community Safety Minister Siobhan Brown blamed a lot of “misinformation” about the legislation for the criticism before falsely claiming that it was “passed unanimously” in 2021. It was approved 82-32 with four abstentions. Scotland’s first minister, Humza Yousaf, also defended the act, saying “a lot of disinformation” about the act’s reach had been “spread on social media, through some inaccurate media reporting, and by political opponents.” He was justice secretary at the time and had supported the bill through parliament. He argued that including “an aggravation for ‘sex’ rather than ‘gender’ could exclude trans women i.e. if a trans woman was attacked because they were perceived to be a biological woman rather than because they were trans”.

There has been an emphasis on defenses, with an amendment from Scottish Conservative MP Adam Tomkins that restated ECHR Article 10, protecting freedom of expression and its protections for offending, shocking or disturbing. It appears that what constitutes a criminal offense will be left to Police Scotland to decide, as Siobhan Brown explained in reference to whether misgendering a person would be an offense. There have also been concerns about police training to deal with the rise of criminal activity on social media that is expected to follow this law.