“You do not examine legislation in the light of the benefits it will convey if properly administered but in the light of the wrongs it would do and the harms it would cause if improperly administered.” (LBJ)

Wise advice. A great pity it was not heeded by Scotland’s Justice Minister in 2021 when The Hate Crime and Public Order Act was passed. It is one of the SNP’s most badly drafted, illiberal and dangerous laws, despite stiff competition from the Named Persons scheme (scrapped in 2019 after defeat in the Supreme Court), the Offensive Behaviour at Football and Threatening Communications (Scotland) Act (scrapped in 2018) and the GRR Act, scrapped after a S.35 Order and, again, defeat in the courts.

It is fundamentally naive (at best) and a serious dereliction of duty (at worst) to propose a law creating new criminal offences without ensuring that it uses clear precise language, complies with other relevant legislation, does not create loopholes and can be effectively and fairly enforced. Worse is to airily dismiss any concerns about its misuse, on the basis that no-one will ever do the thing that the law permits or abuse the loophole created or use the law to achieve an end its proponents never intended. Yet worse is to bring the law into force after a three year delay without consultation with a wide range of stakeholders, including those you have publicly named in Holyrood you will consult, without having ensured proper training for the police and while also making misleading statements about what the law says. Kudos to Yousaf Humza: he’s achieved all this. All by himself. He must be so proud. 

What the law says

(1) It adds a number of characteristics which will aggravate existing offences committed because of prejudice either to a specific victim or a group with that characteristic, regardless of whether there is a victim. In addition to race, the characteristics are age, disability, sexual orientation, transgender identity and variations in sex characteristics (DSDs). Note what is not included: sex. If women are attacked because of their sex, this will not aggravate the crime and affect the sentence. This was contrary to the recommendation of Lord Bracadale whose proposals to consolidate and clarify hate crime laws started this process. Apparently, this will all be looked at from 2026 onwards. Women and men will have to wait until the 2030’s for crimes against them because of their sex to be taken seriously by the criminal law. The SNP deemed cross-dressers ( within the definition of “transgender identity”) a priority over women. Put that in context: In 2021-2022 there were 86 crimes with transgender aggravation, falling to 55 in 2022-2023, out of 289,352 recorded crimes. Scotland’s population is 5.4 million, of which 2.7 million are women.

(2) It creates a new offence of stirring up hatred against anyone within the above categories plus religion or perceived religious affiliation for a social or cultural group. Again, note what is not included: belief as well as sex. So stirring up hatred against people for having or expressing a legally protected belief under the Equality Act (that sex is immutable, say, or veganism or independence for Scotland) is fine. The offence includes behaviour or communicating material. It applies to activity within the privacy of your own home. It applies to communications which, even if created and communicated outside Scotland, can be read in Scotland. 

(3) There are some defences: a person charged with stirring up hatred is not guilty if the behaviour or communication was “reasonable” (Article 10 of the ECHR is referenced, though whether the law is compatible with the ECHR is open to doubt). Discussion or criticism of matters relating to all the categories other than religion do not necessarily make behaviour/material “threatening or abusive”. Well, that’s bloody nice of them. But note: for religion, the defence is wider and includes “antipathy, dislike, ridicule or insult”, proselytising and telling people not to be religious. So you can express dislike of religion and not commit an offence. But if you express a dislike of one of the other categories it might well be an offence.

(4) Reports can be made anonymously. Police Scotland have stated they will investigate every single one made. They have the power to enter people’s homes to seize any material which might be evidence e.g. computers, phones etc.,.

The problems 

1. Extremists / activists / those with malign intent will always exploit badly drafted laws and loopholes for their own ends, if given the opportunity to do so. The worst case will happen at some point. 

The fact that those ends were not intended by those enacting the legislation is irrelevant. Activists have already threatened women over material relating to the debate on women’s rights / trans rights. The fact that the government has explicitly chosen to protect people on only one side of that debate is particularly pernicious. A law which protected the other side of the debate only would be equally offensive and dangerous. The likely misuse of this law has been made more likely by the fact that those groups which lobbied hard to exclude women from the law and to narrow the free speech defences have, apparently, been providing training material to the police. The police now risk appearing to be the enforcement arm of activists. Police Scotland has yet to share its training with Holyrood’s Criminal Justice Committee and its most senior officer organisation has expressed very serious concerns about the law and its effect on trust in the police.

2. The process of investigation is itself the punishment.

Investigation can often taken an inordinate length of time, be costly and upsetting for the person under investigation and their family. This is so even if no prosecution or other action occurs. It is made worse here because, even if no criminal charge is brought, the police will record all such reports, regardless of how unjustified, malicious or vexatious they might be, as a Non-Crime Hate Incident against a person’s name. Remember the reports are entirely subjective; the police will have made a decision that objectively no crime has been committed. But you will still be put on a database of non-crimes. Such a database is statistically meaningless, of no investigative use and wide open to manipulation.

A person has no right to know that this has happened though they can make a SAR to find out. Such records will be revealed by the police when certain types of checks for jobs are made, with potentially serious consequences but with no opportunity for the individual to defend themselves.

Bluntly, the law permits anonymous malice and nonsensical allegations based on the reporter’s perception only without any supporting evidence and their recording as black marks against an individual, without any recourse to the courts or any sort of “reasonable person” or Art. 10 free expression test. It will have a chilling self-censorship effect, even if no prosecution is ever brought.

3. Injustice takes a long time to be reversed.

Police Scotland have been aware since mid-June 2022 that this NCHI recording policy is unlawful following the Miller case. They have had 18 months to change their policy and have publicly said they know they must do so. Nonetheless, only last week Humza was defending this unlawful policy. So yet another court case looms.

To those who say no-one would do awful things with this law, the response is: “How can you be certain?” If they wouldn’t do them, the powers are not needed. If they exist, they will be used. If they can be used, they will be abused.

Cyclefree