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On the 1st April 2024 a new hate crime law came into force in Scotland. The new law, initially passed by the Scottish Parliament in 2021, builds on pre-existing hate crime legislation in Scotland and in the UK.[1] It establishes new rules and punishments for the ‘aggravation of offences by prejudice’ and ‘racially aggravated harassment’.[2] The law has three aims: (1) to update existing hate crime law; (2) to consolidate pre-existing hate crime law into one law; and (3) to add to the groups protected by current hate crime law.
The recent flurry of media attention and public outcry about the risks to the right of freedom of expression Scotland have spurred this article. We will discuss what the new law does and assess the claims that it will damage the right to freedom of expression in Scotland.
Concerns about violations of freedom of expression
Part of the new law states that a person who ‘communicates to another person material that a reasonable person would consider to be threatening or abusive’ with the intention to ‘stir up hatred’ against one of the groups it name has committed an offence.[3] This is the part of the legislation that has drawn concerns about harm to freedom of expression.
Fears about harm to freedom of expression are justified, as this is an essential freedom for ensuring democracy works. […] However, there is ample consideration of freedom of expression in the new law.
JK Rowling has been embroiled in controversies surrounding transgender issues for several year. Largely taking place on X, formerly Twitter, Rowling has been labelled a ‘TERF’ or ‘trans exclusionary radical feminist’ for her views. The author of Harry Potter has resumed centre stage as the new Scottish law has entered into force, with some concerned she could face legal consequences for her stance on trans issues.
Do we have a right to freedom of expression?
Absolute freedom of speech has never been a part of British law. Varying in significance over time, the right to freedom of speech or expression has been a high ideal to which this country has sometimes aspired. However, there have always been a number of ways that freedom of speech has been restricted.
Strict rules prohibit defamation, the spreading of disinformation or false information to harm someone’s reputation in writing (libel) or spoken aloud (slander) respectively.[4] While a clear necessity in the legal process, the fact that it is forbidden to lie in court prevents the existence of absolute freedom of expression.[5]
It is well known that inciting violence is prohibited, but this applies to other crimes to. This naturally limits what people can say, denying people the freedom to say things that might lead to criminal activity or harm to others. Previously a common law offence, ‘encouraging or assisting an offence’, was made a criminal offence in 2007.[6]
Perhaps most obviously a violation of freedom of expression, blasphemy is a common law offence. The new Scottish law has repealed the common law offence of blasphemy in Scotland,[7] which should be seen as a modernising step that removes a clearly outmoded restriction on freedom of expression. It technically remains a part of the common law elsewhere.
Ultimately, freedom of speech or expression has never been a hard and fast right in the United Kingdom. The new Scottish act does not change this, though it does handle these freedoms in interesting ways.
What does the new law say about freedom of expression?
Section 9 of the new law, titled ‘Protection of freedom of expression’, sets out the way it should be interpreted by lawyers and judges to prevent damaging freedom of expression. Both ‘discussion’ and ‘criticism’ of issues relating to age, disability, sexual orientation, transgender identity, and variations in sex characteristics are clearly protected by the law.[8] It is noteworthy that, in addition to discussion and criticism, ‘expressions of antipathy, dislike, ridicule, or insult towards’ religion and religious beliefs are protected by the new law.[9]
Without proper scrutiny, it is possible this new law would have ushered in changes harming freedom of expression. In its final form, the act does little to harm individual freedom.
In a separate section, the new law refers to ‘the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights.’[10] The best protection of freedom of expression in the UK is Article 10 of the European Convention on Human Rights (ECHR), incorporated into UK law in 1998.[11]
The ECHR states that all people have right to freedom of expression and that this includes ‘freedom to hold opinions and to receive and impart information and ideas without reference by public authority and regardless of frontiers.’[12] The new Scottish law makes careful note of the fact that Article 10 applies to ‘the expression of information or ideas that offend, shock or disturb.’[13] The UK Supreme Court has the power to disapply Scottish legislation that is incompatible with the ECHR. There is no indication it will disapply the new hate crime law.
Points of Contention
There are three aspects of the new legislation that deserve scrutiny. Firstly, the law states that it is ‘immaterial’ whether or not the offender was motivated by ‘any other factor’.[14] While it is important to acknowledge the severity of a racially motivated offence, as this new law does, disregarding other motivations risks ignoring other important factors due to a harmful lack of nuance.
In many cases it is clear that a crime has only been committed due to prejudice, but in many others there is nuance. If a person utters a slur while committing a violent crime, this may indicate a prejudiced motivation behind the attack. However, it may also be the case that the utterance of the slur was a term of abuse selected arbitrarily in the heat of the moment. A person committing an offence against a member of a protected group who uses a slur that corresponds to the victim’s protected group may select that slur over or in combination with any other term of abuse in response to the context of the situation.
For example, person A commits battery against person B. Person B is a member of a protected group, person A is not. Person A uses a slur that corresponds to person B’s protected group while committing the offence. Person A has no history of prejudice and person A caught person B having sexual intercourse with person C, person A’s long-term romantic partner. Person C testifies in court that person A used the slur while committing the offence against person B.
The new Scottish hate crime law sends a vital message to the few in our society who still propagate prejudice that their hatred will not be tolerated while protecting freedom of expression.
Even if person A possessed well-concealed prejudices, the reason why the offence was committed was not prejudice, but anger, a sense of betrayal, and grief given the violation of their long-term romantic relationship. In this example scenario, the offence manifested in a racially prejudiced way, but was not motivated or caused by racial prejudice. On what basis, then, should this motivation be completely dispensed with in favour of prejudice?
By ignoring important motivations other than prejudice, the law according to the new act creates an order of preference in the motivations for crime. Prejudice is at the top of this hierarchy. This risks confusing heat-of -the-moment outbursts with genuine hatred.
This has two effects. Firstly, this risks applying undue severity to a person convicted of a crime who made a slip of the tongue during the act. Someone who is innocent of prejudice or hatred may serve longer in prison than is necessary or just because of a mistake.
Given that, in most cases, the use of hateful language is probably intentional, the second risk is more important. That risk is that it may become harder to defend the rights of protected groups. By indiscriminately meting out harsh punishments for the use of prejudicial language, incidents of real hatred will become indistinguishable from less severe outbursts.
When it comes to identifying threats to property, security, and life, it is important to know who actually poses a risk to protected groups and who is only ever going to carry their prejudice as far as the use of hurtful language. To ensure the safety of protected groups, the law must be able to differentiate the hateful from the careless.
This brings us to the second point that requires scrutiny, that evidence ‘from a single source’ is enough to prove ‘an offence is aggravated by prejudice.’ The new law sets a low threshold for proving that a person is motivated by prejudice. It is not necessary to prove a long-standing prejudice based on evidence accumulated over time, instead requiring only a single source. Given that it is possible that a slip of the tongue while committing another offense may result in a harsher sentence under the new hate crime law, why is the burden of evidence so low?
Finally, the third aspect requiring scrutiny is that committing an offence under the new law carries a sentence of up to seven years.[15] This is a substantial period of time that could alter the course of a person’s life. This means that an offender under the new hate crime law could spend more time in prison than some found guilty of domestic burglary or rape. Is this harsh sentence justified?
Outlawing Prejudice while Protecting Freedom of Expression
The response to the points of contention raised here is that prejudice, whether based on age, sexual orientation, gender identity, or race is completely beyond the realms of acceptability in Scottish society. The provisions of the new law set a low threshold of evidence for an offence to be held to have been motivated by prejudice. It also punishes such prejudice harshly. However, this severity is a faithful reflection of the wide resistance against prejudice and bigotry in modern Scotland.
The vast majority of people in Scotland, and the wider UK, agree that the prejudice this law aims to prevent is unacceptable.
Fears about harm to freedom of expression are justified, as this is an essential freedom for ensuring democracy works. It is absolutely legitimate to question the government in every action it undertakes. Without proper scrutiny, it is possible this new law would have ushered in changes harming freedom of expression.
However, there is ample consideration of freedom of expression in the new law. Without the guidance in Section 9 setting out that the law should be interpreted with freedom of expression in mind and the separate dedication to Article 10 of the ECHR, there would be cause for concern. As it stands, the new Scottish hate crime law is careful to take freedom of expression into account.
The controversy surrounding this new law is largely a product of the inflammatory nature of current debates about transgender issues and race. Most people who object to certain aspects of the new law are as against prejudice as anyone else.
If the discourse surrounding key social issues was even slightly less intense, this new law would not be viewed as remotely controversial. It is not a terribly original law and is generally faithful to its aim to merely simplify and update long-standing anti-prejudice legislation.
The new Scottish hate crime law sends a vital message to the few in our society who still propagate prejudice that their hatred will not be tolerated while protecting freedom of expression.
Having read the new law, it is clear that it is actually a fairly boring update to long-standing laws preventing homophobia, transphobia, and racism. It is careful to set out exactly how the law should be interpreted and applied to ensure it protects freedom of expression. The vast majority of people in Scotland, and the wider UK, agree that the prejudice this law aims to prevent is unacceptable. The new Scottish hate crime law sends a vital message to the few in our society who still propagate prejudice that their hatred will not be tolerated while protecting freedom of expression.
[1] See in particular the Public Order Act 1968 Part III and Equality Act 2010 ch.2.
[2] Hate Crime and Public Order (Scotland) Act 2021.
[3] Hate Crime and Public Order (Scotland) Act 2021, §4 (a (ii)).
[4] Defamation Act 2013.
[5] Perjury Act 1911.
[6] Serious Crime Act 2007, §44-6.
[7] Hate Crime and Public Order (Scotland) Act 2021, §16.
[8] Hate Crime and Public Order (Scotland) Act 2021, §9 (a).
[9] Hate Crime and Public Order (Scotland) Act 2021, §9 (b).
[10] Hate Crime and Public Order (Scotland) Act 2021, §4 (5).
[11] Human Rights Act 1998.
[12] ECHR Art.10.1.
[13] Hate Crime and Public Order (Scotland) Act 2021, §4 (5).
[14] Hate Crime and Public Order (Scotland) Act 2021, §1 (3).
[15] Hate Crime and Public Order (Scotland) Act 2021, §§3 (6 (b)) and 4 (9 (b))
Sources
Scottish Legislation:
- Hate Crime and Public Order (Scotland) Act 2021, asp.14.
Treaties & International Agreements:
- Council of Europe, European Convention on Human Rights, (Strasbourg, 1950).
UK Legislation:
- Defamation Act 2013c.26.
- Equality Act 2010c.15.
- Human Rights Act 1998c.42.
- Perjury Act 1911c.6.
- Public Order Act 1986c.64.
- Serious Crime Act 2007c.27.
Publications:
- Ennis, Dawn, ‘J.K. Rowling Comes Out as a TERF’, Forbes, (19 December 2019), <https://www.forbes.com/sites/dawnstaceyennis/2019/12/19/jk-rowling-comes-out-as-a-terf/?sh=77a1e8615d70> [accessed: 03/04/2024].
- ‘Domestic burglary’, Sentencing Council, (1 July 2022), <https://www.sentencingcouncil.org.uk/offences/crown-court/item/domestic-burglary/> [accessed: 03/04/2024].
- Gardner, Abby, ‘A Complete Breakdown of the J.K. Rowling Transgender-Comments Controversy’, Glamour, (2 April 2024), <https://www.glamour.com/story/a-complete-breakdown-of-the-jk-rowling-transgender-comments-controversy> [accessed: 03/04/2024].
- ‘Hate Crime and Public Order (Scotland) Bill’, The Scottish Parliament, <https://www.parliament.scot/bills-and-laws/bills/hate-crime-and-public-order-scotland-bill> [accessed: 03/04/2024].
- ‘Rape’, Sentencing Council, (1 April 2014), <https://www.sentencingcouncil.org.uk/offences/crown-court/item/rape/> [accessed: 03/04/2024].