Roger Kiska, Legal Counsel to the Christian Legal Centre, analyses how Scotland’s new hate crime law compares to the law in England and Wales
In 2021, the Scottish Parliament passed the Hate Crime and Public Order (Scotland) Act 2021 which, largely because of concerns relating to the bill and the introduction of new amendments, did not come into effect until 1 April 2024.
With its enactment, there has been a public and media furore as to how the law may interfere with the fundamental rights to freedom of expression and privacy.
How does this new law compare to England and Wales’s Public Order Act 1986?
The Public Order Act 1986, as amended by the Religious Hatred Act 2006, is far from being the gold standard for balancing so-called hate speech and freedom of expression. Christian Legal Centre has defended many street preachers arrested under the Act, with virtually all of them either being acquitted or having their charges dropped. The concern with the Act is that its liberally worded language and the discretion to arrest given to police have led to a significant number of unnecessary arrests. All of this has an obvious chilling effect of free speech and freedom of religious expression.
Yet, for all its faults, Scotland’s new hate speech law takes the existential threat to free speech to the next level.
Elements of the crime: “abusive”
There are many legitimate reasons for concern over the new Scottish act.
Perhaps the principal reason is the addition of the word “abusive” to the offense of stirring up hatred towards people because of the following characteristics: age, disability, religion, sexual orientation, transgender identity, or variations in sex characteristics.
Section 5 of the Public Order Act 1986 states in relevant part that: “A person is guilty of an offence if he— (a) uses threatening or abusive words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby” [emphasis added].
As noted above, this is the section of the Public Order Act which has resulted in the arrest (and subsequent acquittal) of countless Christian street preachers. The maximum penalty for a conviction under Section 5 is a fine not exceeding level 3 on the standard scale, that being £1000.
Part 3A of the Act, commonly known as the Religious Hatred Act 2006, criminalises incitement to hatred on the grounds of religion or sexual orientation. It adds to the already existing crime of incitement to hatred based on race. Section 29B(1) of the Act defines the crime as: “A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred or hatred on the grounds of sexual orientation.” Westminster jettisoned the elements of abusiveness and insult because of the threat it raised to free speech.
Turning to Section 4(2) of the Hate Crime and Public Order (Scotland) Act 2021, the offence of stirring up hatred may be committed against a much broader and more ill-defined group of minorities where: “the person—behaves in a manner that a reasonable person would consider to be threatening or abusive.” [emphasis added]
This inclusion of ‘abusive’ makes the Scottish law similar to a simple public order offense under England and Wales’s Section 5 and its maximum fine of £1000. Yet, rather than having a maximum fine of £1000 for abusive language, in Scotland you can serve up to 12 months in jail for a summary conviction and 7-years for a conviction on indictment.
There is a fine and very subjective line in determining whether language is permissibly offensive or insulting in a way which does not run afoul of the law, and language which is abusive and therefore criminal to the point of deserving imprisonment. The semantic issue is avoided in England and Wales by not using abusive language or behaviour as a criminal element for incitement to hate in any capacity.
Moreover, under Section 4(8), sending abusive material by email or text message, or posting something on social media, may amount to a crime punishable by jail time. Moreover, according to the law, a single act suffices to trigger the law. As the concept of ‘hate’ is so subjective, and often so personal; and as what may be abusive is so ill-defined, Section 4 literally threatens the liberty of millions of people who may want to weigh in on identity politics or share what they thought was a funny meme on their social media.
The defences
Sections 29J and 29JA of the Public Order Act 1986 create defences to incitement to hatred based on religion or sexual orientation.
The defence for protection for freedom of expression for criticism of other religions is not dissimilar to that found in Section 9(b)-(d) of the Scottish Act, apart from the very important defence in England and Wales that abusive language or behaviour cannot amount to incitement to hatred.
Where things go wildly astray in the Scottish Act are the defences to stirring up hatred in relation to age, disability, sexual orientation, transgender identity, and variations in sex characteristics found at Section 9(a) of the Scottish Act. In Scotland, the defence to incitement to hatred against these protected characteristics extends only to discussion or criticism, but remarkably, does not include expressions of antipathy, dislike, ridicule or insult. In fact, the way the text of the defences is laid out, it quite clear that the legislation is suggesting that all of these things, even the mere expression of dislike if it expressed vigorously enough, can amount to abusive language and result in jail time.
The wording of the statute could lead to very odd outcomes, since the defences for different characteristics (e.g. religion and sexual orientation) are different.
For example, imagine someone ridicules and insults an individual who identifies as a gay Christian. In this scenario, let’s say that the Christian beliefs of the person being ridiculed are much more the focus of the attack than is his identification as being gay. If a Section 4 charge were to be brought against the speaker of those insults, they would have a defence for making fun of someone because they are Christian, but would not have a defence for making fun of someone because they identify as gay.
The differences between the defences for the Scottish and English statutes could not be any starker. So strong are the defences in the Public Order Act 1986, that as set out above, none of the many street preachers supported by Christian Legal Centre arrested for preaching about other religions or religious practices or homosexuality were ever charged with stirring up hatred.
By contrast, the defences in the Hate Crime and Public Order (Scotland) Act 2021 almost invite prosecution by enumerating expressions of antipathy, dislike, ridicule, or insult as not being defences. By implication, the defences are suggesting that these things may very well make up the crime of incitement.
Definitions: transgender identity
One of the more stunning aspects of the new Scottish law is not merely the scope of characteristics defined as protected classes, but the breadth of the definitions used. Nowhere is this clearer that in the law’s use of ‘transgender identity’ as a protected characteristic. Section 11(7) of the law defines transgender identity as including, among other things, non-binary persons and people who cross-dress. The Scottish Parliament’s definition is so gratuitous, that it has no parallel definition anywhere in UK law; not the Gender Recognition Act 2004 nor the Equality Act 2010.
Therefore, a very real issue arises where the Scottish authorities seek to prosecute for incitement to hatred relating to a protected characteristic that they have essentially just made up; a definition which is not anchored anywhere else in UK law or jurisprudence. Shockingly, the Scottish Parliament did not see fit to include a provision creating a protected characteristic for sex, but essentially created a definition for transgender identity which appears more of a campaigning term than a legal definition. Whereas a biological female is not protected under the Act from incitement to hatred, a biological male who dresses in female clothing is. If nothing else, this fact shows that the Scottish Parliament have taken a definitive side on the proverbial war on women.
Powers of entry and warrants
Another troubling element of the Hate Crime and Public Order (Scotland)Act 2021 is the powers of entry afforded to the police, specifically someone having the rank of constable, to enter and search a premises with a warrant pursuant to Section 5 of the Act. Comparably, Section 29H of the Public Order Act 1986 also allows for the search of premises with a warrant but such warrants are limited only to the possession of inflammatory material which is threatening in relation to religion or sexual orientation, and where there are reasonable grounds for suspecting that the material will be used publicly for the purpose of stirring up hate.
Section 5 of the Scottish Act grants far more liberal police powers. First, the extent of the material that can be searched for is far broader than is allowed by the English law. Warrants can be issued merely to search the premises of people suspected of holding abusive material with the intent of showing it to others. The police may search not just the premises, but also any person found on the property at the time of the search. The search warrant is also valid for 28 days. If the search warrant relates to, for example, an ‘abusive’ social media post about a protected category of people, the police may confiscate and do a full search of all mobile and computing devices on the premises. The police powers provision alone, if challenged by judicial review on free speech grounds and the chilling effect that the threat creates, would almost certainly fall under scrutiny.
Individual culpability where an organisation commits an offence
Section 8 of the Act creates criminal liability for any individual working on behalf of an organisation where a Section 4 offence has occurred. Section 29M of the Public Order Act 1986 likewise creates individual liability for acts undertaken on behalf of an organisation but is limited to threatening material relating to religion or sexual orientation, and only to ‘corporate bodies’.
By contrast, the Hate Crime and Public Order (Scotland) Act 2021 includes the broader definition of threatening and abusive material, also expanding the number of protected characteristics involved, including transgender identity and variations of sex characteristics, among other things. Whereas the English statute is limited to corporate bodies, the Scottish law includes companies, LLPs and other partnerships, and the larger catch-all ‘any other body or association’. In the case of a body or association, any individual who is concerned in the management or control of that body’s affairs can be held criminally liable for the act of that body. Under Section 10 of the Act, aiding, abetting, inciting, or counselling another to commit a Section 4 offence is also criminally punishable.
To express just how tyrannical this law could be, a simple example suffices. Under the Scottish Act, if someone from a Christian organisation based in London were to draft an opinion article or create a video being aggressively critical of drag queens reading story books to young children in public libraries, no offence would be committed in England. However, should a member of the leadership team of that organisation send that article or video to a partner ministry in Scotland, instructing them to send it on to their supporters, then multiple individuals could be criminally liable: the organisation and member of the leadership team in London, as well as the individual forwarding the article or video within Scotland. The Scottish organisation could be subject to a search warrant and have its computing devices seized and searched. The only threshold that would need to be met is whether it appears that the article or video was intended to incite hatred against a person or group because of their transgender identity (which includes cross dressing); and as noted above, that standard is notoriously subjective.
Aggravation of Offences by Prejudice
Sections 2 and 3 of the Hate Crime and Public Order (Scotland) Act 2021 also create the aggravating offense of prejudice towards anyone with the protected characteristics already listed in this article.
If someone at the time of committing a criminal offence, or immediately before or after doing so, demonstrates malice or ill-will towards the victim because of a protected characteristic they have, then the statute allows for stricter sentencing of the perpetrator.
The statute is clear that it is immaterial whether or not the offender’s malice or ill-will is also based on any other factors. The problem with such sentencing provisions is that it requires the court to read ‘hatred’, or merely ill-will, into the mind of the offender. The sensitivity of the judge to cultural pressures may influence their findings to the detriment of the alleged perpetrator.
Moreover, the fact that other factors are not calculated into the determination of guilt is equally problematic. Take the extreme example of the parent of a child sexually exploited by a grooming gang consisting of people from an ethnic minority. Should that parent assault one of the perpetrators and express ill-will, a judge may infer that because all the perpetrators were of the same ethnicity, that the parent must be guilty of assault with the aggravating sentencing element of prejudice.
Also, in a society which so prizes equality, it is odd that crimes committed against some people because of a protected characteristic are treated more harshly than those treated against others because of their specific characteristics. Examples of characteristics not protected under Sections 2 and 3 are sex, weight, and social class. Precisely stated, a crime against someone because they are a woman, overweight, or homeless would be treated more leniently than if it was committed against someone because they were elderly, non-binary, or intersex. Such circumstances make the law appear to suggest that some people are more equal than others.
The Importance of Freedom of Expression
While the Hate Crime and Public Order (Scotland) Act 2021 references the importance of free speech and the right to offend, it is worth highlighting what the legal protections afforded to free speech are.
Article 10 of the European Convention of Human, as applied to Scotland by the Human Rights Act 1998, as well as the common law, guarantees freedom of expression throughout the United Kingdom.
Both the European Court of Human Rights [ECHR] and the domestic courts have underscored the importance of this fundamental freedom to human thriving and the principles of democracy. The ECHR has, for example, repeatedly held that “freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self fulfillment.”
It has also been explicit and consistent that freedom of expression protects not only “‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also [protects] those that offend, shock or disturb . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’” While freedom of expression is subject to exceptions in Paragraph 2 of Article 10, these exceptions “must, however, be construed strictly, and the need for any restrictions must be established convincingly.”
In the seminal case of Abdul v Director of Public Prosecutions, the High Court held that for any prosecution dealing with a public order offence, the “starting point is the importance of the right to freedom of expression.”
It went on to hold that “the right to freedom of expression would be unacceptably devalued if it did no more than protect those holding popular, mainstream views; it must plainly extend beyond that so that minority views can be freely expressed, even if distasteful.” And particularly pertinent to the new Scottish legislation, the High Court held that “the focus on minority rights should not result in overlooking the rights of the majority.”
A law which is implemented as a blunt force measure to enforce political correctness, as appears to be the purpose of the new Scottish law, will also likely fail to pass Article 10 muster:
“In the Court’s view, the containment of a mere speculative danger, as a preventive measure for the protection of democracy, cannot be seen as a “pressing social need”.” The Court added that: “In the Court’s view, a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgement. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto.”
The dissenting opinion in Vejdeland v Sweden of Judge András Sajó, joined by Judges Vladimiro Zagrebelsky and Nona Tsotsoria, correctly warned that:
Content regulation and content-based restrictions on speech are based on the assumption that certain expressions go ‘against the spirit’ of the Convention. But ‘spirits’ do not offer clear standards and are open to abuse. Humans, including judges, are inclined to label positions with which they disagree as palpably unacceptable and therefore beyond the realm of protected expression. However, it is precisely where we face ideas that we abhor or despise that we have to be most careful in our judgment, as our personal convictions can influence our ideas about what is actually dangerous.
The people of Scotland deserve better
Free speech is the bedrock of any free society.
The Hate Crime and Public Order (Scotland) Act 2021 poses a genuine threat to that freedom. Its sentencing recommendations are overly draconian. The police powers afforded under the Act are too broad. The crimes involved, and the threshold for being sent to prison, are far too liberally defined.
This law will affect anyone who posts on social media or sends text messages. It will create a chilling effect for genuine disagreements about controversial social topics such as whether a transgender woman is a real woman or whether critical race theory should be taught in our schools. At its core, the Act is Orwellian and dangerous.
The cultural thermometer on political correctness has drastically shifted over the past 20 or 30 years. The culture of the 1990s and earlier generations is long gone. While the Scottish government may defend the statute by suggesting that the courts are reasonable enough only to prosecute genuine cases of hate, who is to say that culture will not continue to go down the road of defining everything it disagrees with as hate and making this law a tool to weed out dissent?
The people of Scotland deserve better than this law; they deserve their freedoms.
