Scotland's new 'stirring up hatred' offences.
A summary of the offences and how they might impact on freedom of speech
Welcome to my new substack. This first article engages with one of the topics I am interested in, namely freedom of speech and the impact of laws that may restrict it. I take a look at one of the most controversial pieces of legislation ever enacted by the Scottish Parliament, namel The Hate Crime and Public Order (Scotland) Act which was enacted and received Royal Assent in 2021.
Many of its provisions required an explicit order from the Scottish government to come into force and it’s only recently that such an order was produced. All the provisions of the Act will thus officially become the law of the land in Scotland from the 1st April 2024 onwards.
In this post, I summarise the controversial offences of ‘stirring up hatred’ that the Act has created and discuss the implications as I see them for freedom of speech.
NB: I’m not a lawyer and this post should be as considered commentary/opinion, not as legal advice.
The offences
Part 3 of the Act, section 4 sets out the offences, though they need to be read in conjunction with section 9 of the Act to be fully understood (see below).
The core of these offences is set out in subsections 1 to 3. The key points are:
2 offences are defined in relation to ‘stirring up hatred’:
(subsection 1) a person commits an offence if:
they behave in a manner that a reasonable person would consider to be “threatening, abusive or insulting” or if they communicate material to another person that a reasonable person would consider to be “threatening, abusive or insulting”, and
either, in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality, or ethnic or national origins or a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.
(subsection 2) a person also commits an offence if:
the person:
behaves in a manner that a reasonable person would consider to be threatening or abusive, or
if they communicate material that a reasonable person would consider to be threatening or abusive and
in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to any of the following characteristics (from section 4, subsection 3):
age; disability; religion or, in the case of a social or cultural group, perceived religious affiliation; sexual orientation; transgender identity; variations in sex characteristics.
Note that the list of characteristics differs from the protected characteristics listed in the Equality Act 2010 (EA 2010), e.g. sex is missed out (but see Section 12), the EA 2010 specifies ‘gender reassignment’ where the new Act specifies ‘transgender identity’ and where the EA 2010 specifies ‘religion or belief’ the above specifies only religion.
The remaining subsections of section 4 set out various matters including:
specifying that someone charged with either offence can raise a defence that their behaviour or communication was, in the particular circumstances, reasonable (subsection 4).
for the purposes of subsection 4, adducing enough evidence to raise an issue as to whether the behaviour or communication was reasonable is sufficient to show that it is the case that it was reasonable unless the prosecution prove beyond reasonable doubt that it is not the case (subsection 6).
specifying that, when determining if behaviour or communication is reasonable “particular regard must be had to the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb.” (subsection 5)
clarifying that a person’s behaviour includes behaviour of any kind
specifying that the ways in which a person may communicate material to another person includes by giving, sending, showing or playing the material to another person or by making it available to another person in any other way.
specifying that the punishments the offences can carry, i.e. up-to 7 years in prison and/or a fine (subsection 9).
Finally, in section 9 of the Act, entitled “Protection of freedom of expression”, it is stated that for the purposes of section 4(2), i.e. the second of the 2 offences above, behaviour or communication is not to be taken to be threatening or abusive solely on the basis that it includes or involves:
discussion or criticism of matters relating to age; disability; sexual orientation; transgender identity; or variations in sexual characteristics
discussion or criticism relating to, or expressions of antipathy, dislike, ridicule or insult towards religion; religious beliefs or practices; or not holding any religion position
proselytising
urging of persons to cease practicing their religions.
Note that discourse around religion is thus explicitly allowed to include not only discussion or criticism but expressions of antipathy, dislike, ridicule or insults, whilst for the other characteristics expressions of antipathy, dislike, ridicule or insults are left out of this protection clause.
The impact on freedom of expression
The main points to understand when trying to assess the impact of this law on freedom of expression are that:
previous law in this area, namely the UK-wide Public Order Act 19861 defined offences of stirring up hatred that were limited to hatred based on race, religion or sexual orientation where the new law extends the offences to cover disability, age, transgender identity and variations of sexual characteristics.
the previous law specifically exempted behaviour occurring within a dwelling whereas you could be committing an offence for something you said or material you displayed in your own home under the new law.
previous law relating to stirring up hatred on grounds of religion or sexual orientation specifically specified ‘threatening’ words or behaviour but the new law, as well as extending to the other characteristics mentioned above, also includes ‘abusive’ behaviour or communication.
under previous law the Attorney General had to agree before any prosecutions could be brought for these offences, a restriction which is dispensed with entirely under the new law.
there’s no need to demonstrate that any hatred has actually been ‘stirred up’ or any harm done to prove these offences. Also, for the offence related to stirring up racial hatred you don’t need to prove that someone intended to stir up hatred, only that their behaviour was likely to stir up hatred, in the view of a ‘reasonable’ person.
Whilst ostensibly, there are protections of freedom of expression in this legislation, namely subsection 5 requiring “particular regard” to be paid to Article 10 of the ECHR and the provisions of section 9, these all relate to the defendant having to raise a defence that their behaviour was reasonable under the circumstances. As I understand it, these protections would thus only come into play if a case makes it to court — as that’s when the defence would be raised.
Points 1 - 3 show that the new stirring up offences are more vaguely defined and much wider in scope than the older offences were, thus covering a much broader range of behaviour and speech. Point 4 means prosecutions will be brought much more easily than under previous legislation whilst point 5 means you could be prosecuted for behaviour that did not actually cause any hatred to be ‘stirred up’.
Point 6 relates to the danger of a ‘chilling effect’ as people self-censor or back down from something they said due to the threat of being arrested and prosecuted, even for speech that would be successfully defended in court. Such cases will likely involve, e.g. arrest, detention, interrogation, confiscation of devices, maybe some bail conditions being placed on you and, of course, the need to find and for a lawyer to defend you.
Given the length of time between arrest/charge and a court case actually playing out, people could find themselves spending months to years plus large amounts of money on legal fees, dealing with an accusation even though they have a good chance of defending themselves successfully. The threshold for investigation would simply be ‘reasonable suspicion’ you may have committed one of these offences, and someone, or multiple people claiming you made comments that were hateful of any of the protected groups would likely reach that threshold. The police may be keen to show that they take such accusations seriously, especially if they’re brought by a well known or vocal campaigning group, and thus conduct an investigation, including arrest, interrogation and confiscation of your devices. If in doubt, they may press charges so that the decision of whether or not to drop a case is no longer a hot potato in their hands.
It thus seems to me that there’s a real danger here of people facing prosecution simply for making comments, publicly or privately, on matters that are being hotly debated, comments which the more militant or zealous activists dislike (or made by someone they dislike) and thus claim are abusive & hateful towards one of the relevant groups.
Further reading
Murray, Blackburn & Mackenzie2’s informative discussion of the extension of the stirring up hate offence from hatred based on race, religion or sexual orientation to the other characteristics.
Comedian Andrew Doyle’s article for Unherd on the impact the bill may have on the comedy scene and the possibility that JK Rowling may be prosecuted for stating that trans women are men.
the Public Order Act 1986 has been amended several times by more recent legislation
Murray, Blackburn & Mackenzie describe themselves as “an independent policy analysis collective”.