Hate Crime and Public Order (Scotland) Act: free speech in danger?
Those trying to give reassurance that the provisions of the act coming into force next month won't affect freedom of speech don't seem to understand how law works
Why is a piece of legislation passed by the Scottish Parliament more than three years ago and given Royal Assent on 23 April 2021 suddenly in the news? It’s a good question. The Hate Crime and Public Order (Scotland) Act is a statute of many parts: sections 17 (Ancillary provision) and 22 (Short title) came into force the day after Royal Assent, but most of its provisions were left for activation by Scottish ministers through regulation. It stemmed from a 2017-18 review of hate crime legislation in Scotland by Lord Bracadale, a former judge of the Court of Session, which recommended a consolidation of existing laws to create “a suite of stirring up of hatred offences extending to all protected characteristics”.
The distance between good intentions and practical law was, and is, considerable. There were long, impassioned and intricate debates in the Scottish Parliament as the cabinet secretary for justice, Humza Yousaf—now first minister of Scotland, of course—steered the eventual legislation through its various stages. There were serious concerns that the bill was too widely and vaguely drafted, and could, while well intentioned, have a deleterious effect on free speech. A key offence under the new law’s provisions is “stirring up hatred”, which critics felt was too open to interpretation. In particular, some suggested the terms of the legislation would criminalise some debate on trans rights and the assertion that sex was an immutable biological reality.
The example of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was often prayed in aid: this act had been brought in by the SNP government to tackle objectionable conduct, especially on sectarian grounds, at football matches, but it was widely regarded as hasty, poorly thought out and contrary to freedom of speech. Professor Sir Tom Devine called it “the most illiberal and counterproductive act passed by our young Parliament to date”, a “stain on the reputation of the Scottish legal system for fair dealing”, while in 2013, Sheriff Richard Davidson, sitting in the shrieval court at Dundee, more pithily said it had been “horribly drafted” and was “mince”. It was repealed in 2018.
The implementation of the Hate Crime and Public Order Act has, therefore, been sluggish. However, the Scottish Government eventually invoked its powers when it passed the Hate Crime and Public Order (Scotland) Act 2021 (Commencement and Transitional Provision) Regulations 2024 this week, which means that the full provisions of the act will come into force on 1 April 2024. This is why we are suddenly discussing the legislation.
The arguments over the act and its effect on free speech have been fierce and have sometimes generated heat rather than light. My purpose here is not to dissect the individual provisions of the act: I would direct readers to a relatively optimistic judgement by Adam Tomkins in The Herald, in which the John Millar Professor of Public Law at the University of Glasgow School of Law, and Conservative MSP from 2016 to 2021, argues that:
if we focus on what the Act actually means, rather than on what intemperate voices on both the left and the right are falsely claiming it means, we might yet make a success of it… Just because you feel offended by what someone has said does not make it a hate crime—at least, not if the subject of what you feel offended by relates to sexual orientation, transgender identity, age or disability.
What is deeply worrying, however, both in terms of this act in particular and the creation, scrutiny and implementation of law in general, is the way some of those who defend the act have sought to reassure critics. When questions have been raised about whether what many people would regard as legitimate beliefs—for example, about biological sex—would become criminal offences, the tendency has been not, like Professor Tomkins, to refer to the text of the act and explain how its provisions will work.
Instead, and the example which spurred me to write something was Fulton MacGregor MSP (Coatbridge and Chryston) on BBC2’s Newsnight, they have said that of course such reasonable expressions of belief were never the target of the act. There is no cause for alarm, they say, because even if honest but legitimate outspokenness were to stray technically into the compass of an offence under the act, Police Scotland would take a reasonable and temperate view and would not pursue a pedantic or extreme prosecution where there was no malign intent.
This is not good enough. More to the point, it is not how law works. Remember that this is a brand new statute, in relative terms. Indeed, its very genesis was a rationalisation and modernisation of the thicket of previous laws and offences: for example, section 16 of the act abolishes the common law offence of blasphemy, almost wholly an exercise in legal tidiness as the last prosecution for blasphemy took place in 1843. Therefore we should not have to make do and mend.
We simply cannot have a situation in which something is “technically” an offence, in the sense of being stated clearly on the face of the act, but subject to an informal understanding that it will not be prosecuted. This is unacceptable for two reasons. The first is that an informal understanding, by its very nature, is no safeguard at all, as it is unenforceable and absolutely subject to change at the whim of the prosecuting authorities, whether Police Scotland or the Crown Office and Procurator Fiscal Service, the public prosecution authority in Scotland under the supervision of the Lord Advocate. It is therefore an intolerable no-man’s-land for a serious matter of freedom of speech and protection of vulnerable people or protected characteristics.
There is a more important issue at stake. However serious or trifling, every unenforced law has a corrosive effect on the rule of law in general. If we cede the ground of principle—that something is an offence under public law and is therefore in general subject to prosecution and sanction—and rely instead on context, deciding that this or that infraction of the law is unimportant and lacking in harm, then we have crossed a line and made the rule of law much less certain and less clear. Why should we be law-abiding citizens, why should be we respect the authority of the police and the institutions of public prosecution, if they conspire tacitly with us to say x or y is not really a crime? Why should be feel obliged to agree with them that a or b are serious offences and therefore beyond the bounds of acceptability? How far can we be allowed to go before we decide that we should ourselves make a judgement on what is and is not licit?
This is part of a wider malaise still: a sense that things will do, that measures are “good enough” and that we will “manage”. This has been going on for 15 years, perhaps more, and I saw one facet of it as a clerk in the House of Commons, as governments of both persuasions would introduce draft legislation hastily prepared or sketchy in nature. It didn’t matter, the underlying feeling went, because it could be tightened up and made more precise during its legislative scrutiny, which is not ideal; or, worse, it was unimportant because the idea was there, the intent, the vague sense of what the government wanted to achieve.
Laws are written in black and white in precise words with direct and specific effect. For the United Kingdom, as opposed to the devolved jurisdictions, legislation is drafted by the Office of Parliamentary Counsel, a unit of the Cabinet Office, and its lawyers seek to use clear, straightforward language to write law which is “necessary, clear, coherent, effective and accessible”. If you follow these principles, then every word in a bill, which then becomes an act, must serve a purpose, and must be clear in terms of intention and interpretation. Clarity must be paramount.
To put it simply, if you find an unexpected consequence of a piece of legislation, and think “Oh, but we didn’t mean that”, then the law is already defective. It should be very clear what is and is not within the scope of a law and what effect that law will have. The Hate Crime and Public Order (Scotland) Act comes into force in 10 days’ time. It seems to me that one of two things will happen: either a broad swathe of performers, activists, intellectuals, academics and others will find that they have been worrying needlessly; or the new rules will became a quagmire of uneven enforcement, contradictory purpose and high-profile prosecutions, successful and failed. We might hope, slightly oddly, for the former, but the track record of the Scottish Government means we cannot rule out the latter. If chaos is the result, then Scottish ministers past and present will rightly be held to account, simply for being incompetent at the core of the job they are in place to do.
Ladies and gentlemen, place your bets now.