Sovereignty Backs the Full and Immediate Repeal of the Hate Crime Act

In a democratic society, protecting freedom of expression, which includes speech you or I may adjudge to be hateful, is a cornerstone of individual liberty. In the attempt to address harms caused by so-called hate speech, the Hate Crimes and Public Order Act fundamentally undermines the longstanding presumption in Scots Law in favour of free speech, and puts in place draconian penalties for those adjudged to have fallen foul of its endlessly elastic provisions.

We believe that the subjective nature of determining what constitutes “reasonable” behaviour or communication leaves room for arbitrary enforcement and undermines the predictability of legal standards. Moreover, the burden of proof placed on the accused to demonstrate the reasonableness of their actions may have a chilling effect on legitimate discourse, as individuals may self-censor out of fear of legal repercussions.

This Act will suppress legitimate discourse and debate on critical social issues by criminalizing behaviour or communication deemed insulting or offensive, even if is not intended by the speaker or transmitter to stir up hatred.

The defence the legislation provides based on the “reasonableness” of behaviour or communication is also open to criticism for its highly subjective nature. What may be considered reasonable to one person or group may be deemed offensive or threatening by another, and judging by the passage of this legislation, there appear to be precious few reasonable people in parliament at least. This ambiguity could lead to arbitrary enforcement and chilling effects on speech, as individuals may self-censor out of fear of legal repercussions.

We argue that such laws are susceptible to selective application by law enforcement and prosecution authorities, potentially targeting individuals or groups with dissenting or unpopular views. This selective enforcement could disproportionately impact minority or marginalized views, further exacerbating inequalities in access to justice and freedom of expression.

The burden of proving the reasonableness of behaviour or communication rests on the accused, which could place undue pressure on individuals to justify their expression, even if it falls within the bounds of protected speech.

Enacting such legislation will have a chilling effect on public discourse and democratic participation. Individuals may hesitate to engage in controversial or dissenting speech for fear of being prosecuted under the law’s vague provisions, ultimately stifling the exchange of ideas and hindering societal progress. When examining this Act, it becomes apparent that any content, whether news articles or personal memoirs, depicting individuals, ethnicities, nations, or races in a negative light could fall within its purview. Are we to whitewash the pages of history to avoid insulting and risk hatred being stirred up against particular peoples? Should we remain silent from now on on the Highlands Clearances or Holocaust, or Berber slave raids or Armenian Genocide?

Part of the reason the Hate Crime Act has outraged international public opinion is that it allows the jailing of anyone who commits an offense under it for a jail term of up to seven years. By way of comparison, here are other crimes that guilty parties have been sentenced to for seven years in Scottish courts recently: “running a massive drugs-trafficking operation”, “a series of sex attacks…..against vulnerable women”, “culpable homicide”, “sexual offences against children”, “human trafficking”. Is it genuinely equitable to equate the act of communicating material deemed insulting and likely to incite hatred against certain groups with the abhorrent crimes mentioned above?

The SNP argues that such measures are necessary to promote social cohesion and protect vulnerable groups from prejudice and discrimination, yet their own language and contribution to the national debate, as for example with Humza Yousaf’s notorious ‘whitey’ speech, arguably come under the scope of the bill’s provisions, with the latter speech already having received thousands of complaints.

The legislation’s vague language could empower authorities to target individuals or groups with divergent opinions, thereby stifling diversity of thought and impeding democratic participation. Rather than resorting to broad and restrictive laws, efforts should be focused on promoting education, dialogue, and tolerance within society.

We therefore back the full and immediate repeal of the Hate Crime Act, and would encourage you to join with us in seeking to bin the bill.