The Christian Legal Centre’s Roger Kiska comments on how the proposed new Scottish hate crime bill endangers freedom of speech.
On 23 April 2020, the Hate Crime and Public Order (Scotland) Bill was introduced by the Scottish government. On the same day, the Government issued a call for evidence in relation to the bill, with a closing date for submissions being 24 July 2020. We encourage anyone interested in the protection of freedom of expression and religious exercise to make a submission. Each voice helps.
While the bill abolishes the common law offence of blasphemy, which the government notes has not been prosecuted in Scotland for over 175 years, it nonetheless creates a new type of blasphemy law in relation to the protected characteristics. Part 1 makes provision relating to the aggravation of offenses by prejudice. Part 2 of the bill creates a new offence for stirring up hatred in relation to the enumerated protected characteristics (age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics). While Sections 11 and 12 of the Bill create exceptions for speech which criticises or discusses religion or sexual orientation, those exceptions do not apply where the speech involved is deemed to be abusive or threatening. Section 14(7) of the proposed bill creates a protected characteristic for gender identity, thus going well beyond the protections afforded both by the Equality Act 2010 and Gender Recognition Act 2004.
The Christian Legal Centre’s submission addresses each of these areas in turn:
‘Hate’ speech laws do not work
‘Hate’ speech laws are often premised, as they are with the proposed Scottish bill, on the unsubstantiated assertion that there is a cause and effect relationship between speech and social harm. Such laws are further premised on a second faulty argument; that being that prejudice is so prevalent and insidious in that given jurisdiction that criminal sanction becomes a necessary encumbrance on free speech. Moving on from these premises, they seek to criminalise speech believing that this will act as a deterrent against prejudice. However, history has proven that ‘hate’ speech laws, in fact, have never had such an effect.
Truth be told, both the Weimar Republic and Former Yugoslavia had laws prohibiting ‘hate’ speech and incitement to hatred. Well known Nazi figures like Joseph Goebbels and Julius Striecher were successfully prosecuted under such laws. Nonetheless, in both countries, nefarious powers rose to power resulting in crimes against humanity and genocide of the scale the world will never forget.
More than this, hate is subjective. This is all the truer in relation to matters of personal identity or belief. Biggs J. stated it well in Smith v. Trafford Housing Trust:
“The frank but lawful expression of religious or political views may frequently cause a degree of upset, and even offence, to those with deeply held contrary views, even where none is intended by the speaker. This is a necessary price to be paid for freedom of speech.”
This is part of the problem. The proposed legislation makes ‘hate’ speech subjective; the intention of the speaker is initially judged by how the listener perceives the message being spoken. In other words, there is a rebuttable presumption of guilt based on the feelings of the ‘victim’, no matter how sensitive they are. More than this, merely showing the impugned material, or making it available is enough to attract criminal sanction. The proposal, at Section 6 of the Bill, even makes allowance for search warrants of premises to be issued by a sheriff or justice of the peace if they feel there are ‘reasonable grounds’ that an individual may be harbouring such materials or if they have committed or are in the process of committing acts within the meaning of Sections 3 (Offenses of stirring up hatred) or 5 (Offenses of possessing inflammatory material) of the Bill. To be clear, that threshold is too low, and the freedom interfered with too fundamental to justify such heavy-handed measures. This is a misuse of the criminal justice system and a weight on the public consciousness that no citizen of Scotland should have to bear.
This fact makes the extension of the definition of gender identity in the proposed bill even more troubling. What’s worse is that while some allowance is made in the draft bill for criticising sexual orientation and religion, none is made for gender identity. This is dangerous for several reasons.
First and foremost, respectable minds can disagree about gender theory. This leaves those who disagree with the assumption that one’s perceived gender identity, regardless of any other circumstances, dictates that person’s gender, at a risk of criminal prosecution if they unartfully express their beliefs. The suggestion that speech critical of the belief that someone may not change genders may attract criminal culpability, even where a significant portion of those who are gender confused exhibit the confusion as a result of an accompanying co-morbidity, is an offense to the rule of law. Second, it is a mainstream conservative Christian belief that God created humankind in his image, male and female; biologically and sexually different but with equal personal dignity. That belief also suggests that any repudiation of one’s biological sex and any attempt to physically change, alter or disavow one’s biological sex from conception as proscribed by God’s Word and creation order is sinful. Similar views are held by many other religions and philosophical traditions. The proposed definition of gender identity in the bill is both vexatious and poses a significant threat to freedom of religion or belief. Finally, the bill intimates that failure to use a person’s desired pronouns, may amount to incitement of hatred. This is nothing short of compelled speech by threat of criminal penalty. Speech compelled by law is poison to freedom of expression.
Over-regulation of speech
The result of ‘hate’ speech provisions is a reduction in the fundamental right to freedom of speech and freedom of expression. Instead of being free to disagree with one another, have robust debate, and freely exchange ideas, ‘hate’ speech laws have shut down debate and created a heckler’s veto. In the end, a chilling effect is created that leads to self-censorship and an overly sensitive society.
This further results in over-regulation of speech in every other area of society, including employment and higher education. Christian Concern recently alerted its supporters to the troubling trend of prohibiting free speech about abortion both on university campuses and in the public square.
More than this, overly sensitive speech codes have had an incredibly detrimental impact on Christians. Increasingly, because of social media posts motivated by Christian faith or professional speech regulation, more and more people have lost their jobs or suffered other forms of detriments. Just ask Felix Ngole, Seyi Omooba, Kieth Waters, Kristie Higgs, David Mackereth, Richard Page or Barry Trayhorn. Among the 895 enquiries Christian Legal Centre received just last year, apart from RSE concerns, the greatest increase in requests for support came as a result of freedom of Christian expression issues.
As the tolerance agenda has evolved within the United Kingdom, there has grown with it a trend of intolerance and discrimination against Christian expression. Arrests of street preachers in Great Britain, for example, have increased at a disquieting rate. The Christian Legal Centre has witnessed first-hand how incitement laws are being abused, or at the very least misinterpreted, in relation to Christian street preachers.
Despite the exemptions written into the Public Order Act 1986, specifically Sections 29J and 29JA, which are similar to those proposed in the Scottish Bill, street preachers have consistently been arrested for preaching on the issue of homosexual behaviour. Michael Jones, Andrew Geuter, Rob Hughes, and Tony Miano are all examples of Christian Legal Centre cases which involved Christians being arrested for so-called homophobic remarks. While the Christian Legal Centre has a 100% success rate in street preacher cases, it cannot be denied that such arrests have a strong chilling effect on freedom of Christian expression. Similarly, Mike Overd has been arrested seven times in recent years for publicly preaching on issues related to Islam and sexual purity. In his one conviction (before being over-turned on appeal), the prosecutor in the Bristol magistrate’s court suggested that preaching certain verses from the Bible in today’s England can amount to a Public Order offence.
Speech critical of Islam, despite being lawful, has also been punished with impunity by police. Ian Sleeper was arrested for preaching a message of love for Muslims, but criticising Islam as a religion. He was arrested in Southwark Borough, detained for 13 hours and had strict bail conditions imposed on him from entering the Borough. The Crown Prosecution Service eventually dropped the charges. And of course there was the arrest of Pastor Oluwole, which went viral, after the Pastor was arrested for peacefully preaching about Islam despite being aggressively harassed by one of the onlookers. Records show that police then drove him more than 5 miles away to a remote area and de-arrested him, leaving him without any means of getting back to his place of residence. Police then denied that the event happened until evidence was produced to substantiate it. The end result was that Pastor Oluwole was awarded a damages settlement for the misconduct he suffered.
New measures are not needed
The reality is that in Scotland, there is currently no issue with ‘hate’ speech. Speech is sufficiently regulated by public opinion. If someone makes a statement which evidences prejudice of almost any kind, the result for the individual will almost always be loss of reputation, public shaming, and even loss of business income or employment. The Scottish government put forth no compelling evidence to suggest these new measures are needed or more importantly, that they are warranted. At its heart, this bill poses an existential threat to freedom of expression. The fallacious premise that underpins ‘hate’ speech laws has also eroded free speech in any number of other areas within the public square and has had a particularly deleterious effect on Christian speech. What is equally evident is that no matter what exemptions are put in the bill to protect religious speech, overly sensitive local authorities and law enforcement will nonetheless continue to arrest otherwise innocent civilians for exercising their lawful right to speech. The cost of this bill to our democracy is far too high a toll to pay. For the sake of our fundamental freedoms, Scotland deserves better.