The Hate Crime and Public Order (Scotland) Act came into force on Monday 1 April sparking immediate comment, criticism, and defence of the proposals. In this blog, Emma Currie provides a summary of the immediate reactions to the new legislation.
The Hate Crime and Public Order (Scotland) Bill was drafted in response to Lord Bracadale’s Independent Review of Hate Crime Legislation which reported in May 2018 that new specific offences relating to stirring up hatred were required. The legislation was introduced in April 2020 and, despite opposition from the Scottish Conservatives, passed in March 2021 with the support of Scottish Labour and the Scottish Liberal Democrats. In passing the Bill, new offences came into force for threatening or abusive behaviour intended to stir up hatred based on prejudice towards characteristics including age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics.
Opponents of the measures claim the Act will stifle free speech and stir up more hatred. Criticism from the Scottish Conservatives has largely come from Murdo Fraser, who has been challenging a ‘non-crime hate incident’ that Police Scotland recorded against him after he posted that “choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat” on X. Police Scotland have defended the recording of such instances as helping them monitor tensions within communities and build community confidence. In recent days, Murdo Fraser has threatened legal action if Police Scotland does not make changes to the criteria for recording non-crime hate incidents. Criticism has also come from within the SNP, with Joanna Cherry condemning the fact biological sex is not included as a protected characteristic in the Act. In response, the Scottish Government has stated it will introduce a separate Bill on misogyny law, based on the responses received during its misogyny law consultation. Similar concerns have been echoed by campaign group, For Women Scotland, and author, J.K. Rowling, who have criticised the fact the Act may open up to prosecution those in Scotland who believe biological sex is immutable and cannot be changed.
Criticism has been further exacerbated after Police Scotland received over 3,000 hate crime complaints in the first couple of days following the Act becoming law. Some complaints related to a speech Humza Yousaf gave in 2020, in which he highlighted the significant number of white people in public roles, and social media posts from J.K. Rowling – though neither have been treated as criminal and or recorded as ‘non-crime hate incidents’. Notably, Rishi Sunak has publicly sided with J.K. Rowling, arguing people should not be criminalised for stating simple facts on biology. In addition, concerns surrounding the ability of police to interpret and enforce the legislation have been raised after a letter sent from Police Scotland to the Criminal Justice Committee confirmed 10,000 police officers had participated in a module training package for the new Act, meaning that approximately 37.5% police officers have yet to receive training. Similar concerns have been echoed by Chief Superintendent Rob Hay, president of the Association of Scottish Police Superintendents, who has said public trust in Police Scotland could be damaged among those lodging hate crime complaints if the police conclude the legal threshold for prosecution had not been reached.
Despite the criticism, the Scottish Government has affirmed its support of the act. Siobhian Brown, Minister for Victims and Community Safety, has asserted the legislation is an essential element of the Scottish Government’s wider approach to tackling harm and has criticised the number of “fake and vexatious complaints” that have been lodged to Police Scotland. Humza Yousaf has stressed the need to stop the “disinformation and inaccuracy” surrounding the legislation. Additionally, while Anas Sarwar criticised the fact misogyny was not included in the act, he has confirmed that Scottish Labour would not repeal the Act.
With regards to equality and human rights groups, Scottish Trans expressed their support for the Act, stating it would rightly target crimes motivated by prejudice and that seek to stir up hatred in others, and that are serious enough to warrant a criminal justice response, but stressed the need for accompanying working in communities and workplaces. In addition, the Equality and Human Rights Commission welcomed the legislation at the consultation stage and supported the Scottish Government’s aim of ensuring Scotland’s hate crime legislation was fit for the 21st century. Furthermore, in its consultation submission, the anti-sexist organisation, Engender, expressed its wish for sex not to be included as a protected characteristic in the legislation and believed the introduction of stirring up offences could have positive outcomes for marginalised groups. Turning to legal commentators, the Law Society of Scotland, the professional body for over 12,000 Scottish solicitors, supported the bill on its attempt make a start on seeking to support and encourage an integrated, equal, and diverse Scottish society and welcomed the changes made to the legislation which reflected the issues they’d raised in relation to detail and policy justification.
With contrasting stances and passionate advocacy on both sides, the Act will likely remain contentious for some time to come. The Scottish Government will continue to remain committed to the legislation and will likely increasingly call on Scottish Labour and the Scottish Liberal Democrats to defend its principles. However, whether the act can fulfil its ambitions in how its interpreted and enforced, and how it will shape Scotland’s societal landscape in the years to come remains to be seen.
Emma Currie is Newsdirect’s Senior Researcher.
