THE Hate Crime and Public Order Bill has now been passed, though after significant alterations and with some MSPs voicing continuing concerns even as they agreed to support it.

There is no reason to doubt that they did so with the best intentions. No reasonable person would want to see anyone targeted simply for who they are; at a time when intolerant discourse and abuse – whether or not it has actually grown – has certainly been amplified by social media, protection for all vulnerable groups should be uncontroversial. Offences that spring from prejudice on the basis of age, disability, religion, sexual orientation or transgender identity should be as unacceptable as those driven by racial hatred, and it is welcome that legislation should aim to reflect that.

But sincerity of intent alone is an inadequate foundation for legislation and a flimsy defence against unintended and potentially perverse outcomes. The turbulent progress of the bill was due to serious objections raised by, among others, the Law Society, writers, artists, activists and religious and cultural groups. At least some of these have resulted in substantial amendments, but several issues remain controversial.

There is, at the most basic, one of principle: whether this legislation amounts to excessive government interference in people’s lives, or curtails freedom of speech. The fact that the Justice Secretary, Humza Yousaf, made a point of listing several positions that some might find offensive or contentious, and assuring MSPs that they would not meet the threshold for criminality, even if expressed “in a robust manner”, indicates an awareness of those dangers. It was right, too, that the bill’s wording should be altered to make it clear that intention is crucial to any charge alleging “stirring up hatred”.

Whether those assurances are safeguard enough against the wording of the law is a related matter of concern. There remains the risk of over-zealous policing, of perverse application, and of abuse – even if everyone professes their anxiety to avoid those outcomes.

Herald View

Herald View

Instances of failure in this area are not hard to find: the Twitter joke trial, the incoherent shambles of the short-lived Offensive Behaviour at Football Act, and the recent claim by Merseyside Police, on a giant hoarding, that “being offensive is an offence” are all chilling examples of excessive and illiberal assaults on freedom of expression by the authorities.

The fact that offences can now be committed in the home may have sparked fanciful notions of arrests being made at the dinner table. But it is a weakness of the legislation if the only thing preventing such absurdities is the common sense of the constabulary. It is a disservice to the police themselves not to be clear on these boundaries, since so many groups – either quite sincerely or cynically to advance their own agenda – now regard slights or challenges to their position as proof of malign intent.

When it comes to the debate on transgender issues, for example, there is a readiness, on both sides of the argument, to dismiss claims – which may well often be hurtful to those involved – as intrinsically bigoted or hate-fuelled. But protections under the law for the rights of transgender people – which should be as robust and uncontested as they are for any other group – do not cancel the right of others to take positions based on biological facts or to maintain that they clash with other women’s rights.

Whatever the stance taken in such disputes, both sides are entitled to maintain it, even if they do so vehemently; that should also apply in other areas that may cause offence or hurt, such as upholding – or conversely, denouncing – traditional religious beliefs. The working group under Lady Kennedy QC, which is due to report later this year, may lead to separate legislation, but the absence of specific provisions in this bill must not imply any reduction in women’s rights.

The passage of this bill demonstrated a desire to protect rights; but so too did the objections that were raised to it. A majority of MSPs think they have struck a balance: the effectiveness and application of its measures in practice will be the test.