By Dr Kath Murray

AIMED at consolidating and updating the existing hate crime legislation, the Hate Crime and Public Order Bill has had a difficult reception, prompting a broad range of critical responses, and a defensive counter-response from the Scottish Government. The controversy principally hinges on the introduction of new “stirring up hatred” offences for characteristics other than race and the implications for free speech.

The bill criminalises behaviour or communications that are “threatening” or “abusive” where either intends to stir up hatred against a protected group, or it is likely that hatred will be stirred up. Given how rarely the existing offence of stirring up racial hatred is used, it seems unlikely that the new offences will result in many successful prosecutions. What is much more likely is a chilling effect, where people refrain from debate for fear of being reported to the police.

Both the bill and arguments levelled against it are reminiscent of the Racial and Religious Hatred Bill, which sought to amend the Public Order Act 1986 and extend the offence of stirring up racial hatred to religious hatred. Introduced by the UK Labour Government in 2005, the proposed offence of stirring up religious hatred included “threatening, abusive or insulting” words, behaviour, or material, and included a likelihood test.

The Labour bill prompted widespread criticism, including public protests and a campaign spearheaded by actor Rowan Atkinson. Highlighting the potential chilling effect, Lord Hunt stated: “We have to face the fact that if we make it a criminal offence to stir up hatred against a group of people, then we create a climate within which people will think twice about even criticising it.” SNP MP Stuart Hosie raised concerns about the cross-border implications, whereby “the Scotsman could publish a report that was legal in Scotland but could be censored in England”.

In a move that significantly narrowed the proposed offence, the House of Lords passed amendments that introduced a saving for freedom of expression, removed the likelihood test, and narrowed the mode of incitement from abuse, insult or threat, to just threat. MPs voted twice to back the Lords amendments, defeating the government. In the final vote, all Conservative, Liberal Democrat, DUP, Plaid Cymru and SNP MPs, together with 21 Labour MPs supported the amendments.

The Scottish Government bill does not include “insulting” behaviour (except for race), although it does extend to “threatening or abusive” behaviour and communications, and has a likelihood test. The bill contains freedom of expression provisions, however these only cover religion and sexual orientation, while the provision for religion is weak. Whereas the amended 1986 Act allows for “discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse” of religions/beliefs, or other belief system, the Scottish bill only allows “discussion or criticism”.

Arriving at a point where the debate around gender identity and sex is contested and volatile, the omission of a freedom of expression provision for transgender identity in the Scottish bill is particularly significant. The Scottish Police Federation states that this omission “cannot be accidental” and that people “are already frightened to enter the trans debate”.

While the controversy around sex and gender identity may be recent, the parallels between the 2005 bill and the current bill are striking. Fifteen years on, it will be instructive to see how similar arguments and concerns about freedom of speech play out in the Scottish Parliament.

Dr Kath Murray writes on behalf of MurrayBlackburnMackenzie Policy Analysis