Behind the lurid headlines: What the Scottish hate crime legislation actually says

An author got herself a tonne of publicity earlier this week by posting some very unpleasant, disrespectful and insulting comments on social media. She basically dared the Police to arrest her under Scotland’s new hate crime legislation.

There was never a chance of that happening. The threshold of what actually counts as a hate crime is pretty high and Police Scotland confirmed that no action would be taken against this person.

Perhaps an unintended consequence of this fuss is that it drives a coach and horses through the claims of many on the right that this new law is going to end up with anyone who says anything that isn’t “woke” being put on a list and carted off to jail. This is, to be clear, complete and utter bollocks.

Someone I know had been scared by her GB News addict dad that she could lose her job if she blurted out some of the stuff she comes out with after a few glasses of wine.  To be fair to her, it’s sometimes a bit gross but none of it constitutes either hate or a crime. She was worried nonetheless.

Thankfully, the Equality Network has published a very helpful guide to the new legislation which reassured her. Essentially, to face consequences, you have to commit a crime that is motivated by prejudice:

It is important though to know that many forms of prejudiced or offensive behaviour are NOT hate crimes. It is not a crime to be prejudiced, and the right to freedom of expression means that people may express their prejudice in offensive, shocking or disturbing ways, without crossing the line into criminal behaviour.

To be a hate crime, the behaviour must be serious enough to make it a crime. The majority of hate crimes in Scotland are prosecuted as the crime of threatening or abusive behaviour. This is where someone behaves in a threatening or abusive manner, and it is serious enough that it would be likely to cause a reasonable person to suffer fear or alarm, and the perpetrator intended to cause fear or alarm (or was reckless about causing fear or alarm).

For example, if someone shouts threats at you in the street, using transphobic language, and putting you in a state of fear or alarm, that is likely to be a transphobic hate crime. To take another example, if someone misgenders you on social media, that would not of itself be a crime. That’s because misgendering someone remotely would not of itself be provably both likely to, and intended to, put a reasonable person in a state of fear or alarm.

The Act consolidates existing hate crime legislation into one place and extends measures that used to apply to race alone to other things like gender identity, sexual orientation, age and disability. The threshold for committing a crime is actually quite high. GB News presenters and others will still be able to express their toxic and unpleasant views with impunity.

Much has been made of the new “stirring up hatred” offence. As the Equality Network says, stirring up hatred on racial grounds has been an offence since 1986. Now who was in power then? The Queen of Woke (not) herself, Margaret Thatcher.

Again, even the really nasty, toxic individuals who love to shock have little to fear. Back to the Equality Network:

It only applies where a reasonable person would consider behaviour to be threatening or abusive, and it can be proven that the perpetrator intended their behaviour to stir up hatred (and the behaviour was not otherwise reasonable). This means that the perpetrator deliberately seeks to cause others to feel hatred towards the targeted group. To use the same example, misgendering someone on social media would not of itself reach that threshold. The stirring up hatred law also specifically states that people have a right to express ideas that offend, shock or disturb.

I find it quite sad that the debate around this seems to focus on the rights of those who demand “free speech” with no sense of appreciation of the incredible freedom that we already have to say what we like, to criticise the hell out of our Government whether it deserves or likes it or not.

We don’t hear so much about the impact on those who have been victims of assault, vandalism or harassment just because they are gay, lesbian, black, Jewish, Muslim or disabled.  Surely it should be accepted in our society that crimes against people on the basis of who they are is intolerable and perpetrators should face consequences.

Just to emphasise again, this is not about the myriad racist, sexist, homophobic, transphobic, ableist micro-aggressions that too many people put up with on a daily basis. We’re used to that and while these things are unpleasant and often toxic, they are not crimes.

It’s about crimes aggravated by prejudice that pass a high threshold and are dealt with by due process.

But just because you can be a terrible person and not be caught by this legislation doesn’t mean that you should be.  Inequality and a toxic, polarising culture drive division and stoke hatred.  So politicians that try to bring people together rather than pick on marginalised groups for supposed electoral kicks are the ones who deserve our votes. Politicians who make sure that everyone has enough to eat, a decent place to live, a safe, clean environment and decent healthcare are the ones who deserve to be in power.

 

 

* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

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40 Comments

  • Jenny Barnes 3rd Apr '24 - 2:57pm

    One has to wonder why the bigot in question feels the need to air their bigotry at every opportunity.

  • Stephen Harte 3rd Apr '24 - 3:10pm

    As usual, what the legislation actually says and does is not what the baying press claims it says and does.

    As for the attention seeking millionaire author, surely we must all now see her for what she is?

  • Nonconformistradical 3rd Apr '24 - 5:08pm

    “As for the attention seeking millionaire author, surely we must all now see her for what she is?”
    I’ve never paid any attention to her anyway. I never got into her books and haven’t watched the films. If I want fantasy I’ll go back to Tolkien (books only).

    Seriously having seen the media reports of what she said I couldn’t see there was the slightest possibility of her falling foul of the legislation. I can’t see how expressing a belief that biological sex trumps everything else.

  • I agree there is nothing objectionable in the Act itself. I have no issue with how it clarifies crime, and the law and penalties that apply. I have no interest in the public pontifications of a certain Edinburgh based author.

    I do have a problem of principle with a nation-wide police service recording a database of “no crime hate incidents” against named individuals without their notification where there is no requirement to ascertain malice or ill-will, based solely on the perception of the offended party, and those records remaining in-place potentially indefinitely with no appeals process.

    This is exactly what is described in the official Police Scotland briefing paper for officers, that defines and guides policing practices, rather than prosecutions. We should not lose sight of this overreach, just because the intent of the Act is something we find agreeable and reasonable.

    The Act provides for a defence based on protecting rights under Article 10 ECHR (freedom of expression), but this is phrased in very general terms and only applies once a person has been assessed as potentially having committed the offence. It does not of itself provide overt protection from initial investigation and recording, based on a low threshold for defining ‘abusive’ and ‘hate’.

    Even though the Act by definition recognises a distinction between ‘reasonable’ persons, and those who are not, in their perception of ‘abusive’ behaviour, the existing policy in effect requires officers to regard all complainants as making valid complaints.

  • Describing someone as a ‘bigot’ is arguably itself abusive and hateful. (Anyone who thinks it isn’t – imagine how you’d feel if someone referred to you as a bigot on a public forum that anyone can read). I think if we’re (rightly) discussing and opposing hatred and abuse, then we need to be careful not to descend into using hate-filled language ourselves against those whom we disagree with. ‘Attention seeking millionaire author’ also seems a bit iffy to me. Why not simply use her name? She does after all have one!

  • I wonder whether the real problem here is the title of the law – the Hate Crime and Public Order Act? Had it just been a “Crime and Public Order Act” would it possibly have been less contentious, yet just as effective?

    One thing which does bother me is the ‘stirring up hatred’ offence. Yes, it may have been around since 1986, but the wording reminds me of the offence in China of “picking quarrels and stirring up trouble” which is frequently used against dissenters, because the wording – ‘stirring up’ – is vague enough to encapsulate anything.

    How do you define ‘stirring up trouble’? Can it be through one action, or repeated? Is it the person who joins in the sectarian chant at an Old Firm game, or is it the person who starts it (and yes, many of those do have the intention to cause fear or alarm – why else do those songs get sung? – but I doubt we’ll see Police Scotland storming the Ibrox stands to arrest people this weekend.)

  • Thelma Davies 4th Apr '24 - 8:37am

    Being a mother of four and a grandmother of six, every woman I know supports J.K. Rowling. From the Batley school grammar teacher to the Open University lecturer, the liberal left has failed to uphold those values of freedom of expression, the complete opposite of what being a liberal is about. In the latter case, it took a judge to reiterate what those freedoms entail.

  • @Thelma Davies – I am not clear what it is you are supporting. Are you supporting JK Rowling’s right to freedom of expression or are you supporting her views on trans people? It is vitally important to make that distinction.

    For me, her comments were deeply nasty and, most of all, unkind. I hope that every woman you know recognises that and wouldn’t themselves dream of being so hurtful to real people. If not, then perhaps you should reconsider who you keep as friends. I certainly wouldn’t want anyone as a friend who thought it acceptable to speak like that.

    On the other hand the police (not a judge as you assert) have properly judged that the kind of hate crime identified by this legislation has a much higher threshold than JK Rowling’s grubby insults.

  • If libdems think JK Rowling is a bigot then perhaps they’re no longer the party for me. I suspect Libdems are hemorrhaging votes partly because of their stance on this issue. Let’s face it, given how badly the govt has done this parliament why do you think libdem support has fallen so much? One nation tories are not looking to the liberal democrats.

  • Ruth Bright 4th Apr '24 - 9:46am

    What position is the party taking on the bill?

  • Thelma Davies 4th Apr '24 - 10:23am

    Mary; No woman I know would recognise those comments as ‘unkind or nasty’. And therein lies the problem. Some might find them insensitive, & many others would find them perfectly acceptable held beliefs. JKR with14 million plus followers on twitter, I’m sure they’d be in the latter category. The Batley school grammar teacher is still in hiding after 3 years , & the Open University lecturer was subjected to an awful campaign of bullying. Being a liberal that’s what I find offensive.

  • @Thelma Davies – I allowed your comment through in order to respond to it. I just wonder what world we are in where people think it acceptable to deny identity to another person, to disparage them and tell them they are liars, or to be totally oblivious to how their comments land. That is what I find offensive. I really do believe that people should be kind to each other.

    That is a quite separate from whatever views people may take on sex and gender. Being liberal means respecting the personhood of everyone, whoever they are, and working to reduce barriers to equality. Being liberal does not mean deliberately saying things that are hurtful to others. JS Mill’s Harm Principle applies here.

  • Nonconformistradical 4th Apr '24 - 11:12am

    @Simon R
    ” ‘Attention seeking millionaire author’ also seems a bit iffy to me. Why not simply use her name? She does after all have one!”
    Perhaps because it would provide her with the oxygen of more publicity?

  • Paul Barker 4th Apr '24 - 11:46am

    I don’t usually comment on other comments but can we have some evidence that We are in fact ” hemoraging votes”. Our Polling average has been steady at 10% for the last 3 Months. Culture War stuff like this is of no interest to most voters.

    On Rowling herself, she has 13 million followers because she wrote a phenomenally popular series of books not because of her nasty little crusade against a vulnerable minority. She has changed, her views becoming more extreme over the last few Years & her tone getting nastier. She has stated to enjoy bullying people who can’t fight back while also posing as a heroic martyr – its a downward slope.

  • @Nonconformistradical

    And? We are all grown ups here, supposedly. We all know it is a reference to JK Rowling. Avoiding saying someone’s name because you don’t like them, like we are 8 year olds on a school playground, is not a great look.

  • Matt (Bristol) 4th Apr '24 - 3:11pm

    Irrespective of JK Rowling, this SNP seems to be bad law. It’s damned hard to define what clear powers it gives the police in Scotland they didn’t have before, and the decision to defer mysogyny and hate-incitement around the protected characteristic of sex to another piece of legislation that is ‘in consultation’ doesn’t even make it comprehensive within its own stated aims, dividing protected characteristics from one another – a daft hostage to fortune.

    In common with the ‘named person’ child protection measure that died an embarrassing slow death, this is symbolic legislation based on a naieve view of infallibly benign state power, falling for the politicians’ sin of making more offences rather than supplying resources and training to effectively prosecute the crimes on the statute book. Worse, its driving misperceptions of law, the police and the state in other parts of the UK and will be used by the racist Right as a recruiting tool.

    As on other issues the SNP have over-reached, weakening devolution without strengthening causes they have in common with other parties.

    There are strong chances that soon, a Starmer government looking for prestige in the face of public bankruptcy, with various think tanks ramming ill-thought-out proposals into its hands, will make some of the same mistakes on any of several policy areas, unless the Lords exerts itself (not that I support the Lords as a principle).

  • Catherine Crosland 4th Apr '24 - 3:55pm

    Thelma Davies, I’m also a mother and grandmother, and I just want to let you know that I find JK Rowling’s recent tweets disgusting and offensive. If your friends seriously agree with bullying a vulnerable and marginalised group of people, then I would agree with Mary that you should re-think your choice of friends

  • Matt (Bristol) 5th Apr '24 - 10:30am

    Fascinating how few people are seriously engaging with the content of the article, which is about the content of the law, and the ‘we’re not talking about X [person who is obviously JK Rowling]’ opening line has torpedoed the article’s ostensible avowed intention.

    Is anyone going to answer Ruth Bright’s question?

  • Ruth/Matt I believe the bill passed back in 2021, and it had the backing of every Lib Dem MSP if I’m counting correctly.

    I really recommend the most recent episode of Private Eye’s Page 94 podcast where they discuss this bill. They have an interesting perspective as journalists who are used to dealing with the law…

    It’s very telling to me that I’m seeing articles like this one where we’re basically saying “look the bill we supported isn’t as terrible as they’re saying.” Let’s just be honest: the bill is crap and we were wrong to support it. It’s sad that the Liberal party isn’t standing up for free speech, and of course this makes me wonder what the point is of our party if we can’t even get this right.

  • Like all legislation youvgot to ask what problem it’s aimed at solving, is it likely to help and what are the costs/downsides. For me, there would also need to a very good reason to do something different than the rest of the UK (ie No. 10 sign off). Why does the SNP think this legislation is necessary.

  • Gwyn Williams 5th Apr '24 - 11:35am

    The bill was passed by the Scottish Parliament in April 2021. If I recall correctly the Lib Dems supported the Bill.
    https://www.parliament.scot/bills-and-laws/bills/hate-crime-and-public-order-scotland-bill .
    This week the law came into force.
    It is a common theme in popular culture not to use the name of individuals that one fears. Indeed in the Harry Potter books the villain is not known as Lord Voldemort but “He who must not be named”. I disagree with JK Rowling’s gender critical views but I do not fear her. If I were a member of one of the marginalised groups that Ms Rowling criticises I might possibly have a different view.

  • George Cooper 5th Apr '24 - 11:38am

    It is encouraging to see LibDem Voice beginning to allow an occasional opposing view to be voiced. The other side of the trans rights argument is the women’s rights argument, yet there seem to be few women in the party who are allowed to defend their spaces in the way JKR does elsewhere.

  • Going back to the content of the article, I find it hard to give any opinions on the new law because, I’m afraid, having re-read Caron’s article, I still don’t feel that I understand precisely what the legislation actually says, or what it does or doesn’t outlaw. It would be nice to see an article that focuses more on simply explaining exactly what the content of the new law is. I’m also not clear in what way the previous legislation was inadequate. Does the new law actually do something substantially new or is it mainly political posturing by the SNP?

    In general terms, I do feel uneasy about stuff that singles out particular groups and outlaws some vaguely defined hatred against those groups, while ignoring other groups. that are possibly less in political vogue I think I’d be much more comfortable with legislation that defines more tightly what things are considered abusive/threatening/hateful behaviour, restricting the definition only to stuff that is obviously wrong in any free society, and outlaws those behaviours no matter whom they are directed against.

  • Simon McGrath 5th Apr '24 - 2:47pm

    Would it not have solved a lot of the problem if the Scottish Police had made it clear earlier that they would not regard misgendering someone as a crime under this Act?

  • David Barnsdale 5th Apr '24 - 3:27pm

    Other people tend not to have the same view of us as we do of ourselves. That’s part of the human condition. This is especially true when your identity is in conflict with other people’s belief about reality. There is a majority that is willing to grant the most important rights that trans people need to live their lives and arguing for the ones that are more contested will not be helped by attempting to foreclose options on the basis of identity. This stress on identity just alienates those who might otherwise be sympathetic. J K Rowling posted that thread because she feared the chilling effect of the law on this debate. It may be that the law was never intended to have that reach but clearly quite a few thought that it should. All liberals should be glad that it is now clear that the law does not have such a reach.

  • Mary Fulton 5th Apr '24 - 3:44pm

    @Simon McGrath
    I don’t believe the legislation ever intended misgendering to be a crime unless the intent of the misgendering was to be abusive or threatening with the intent of stirring up hatred against trans people. Obviously a defence against being accused of such an intent is that of merely exercising the right to freedom of speech about a matter on which they have sincerely held beliefs – and religion/sincerely held philosophical beliefs are also protected characteristics.

  • Matt (Bristol) 5th Apr '24 - 4:03pm

    The discussion is becoming more interesting now and I hope I won’t be considered too boring if I respond to some interesting points later.
    However – Russell — as I understand Caron above, Scottish law and police practice around hate crime is already different (and you need to remember Scottish statute law and process predates the existence of the UK in the 18th century, (and in some cases the personal union under James I in the 17th century) and in some ways has always been different in detail and also in process, even though Scottish and English law have been shepherded into broad consistency on many points over the centuries. It was different and effectively juridically devolved – if that’s a word – (in terms of the courts) before legislative devolution happened in the late 90s. There’s no necessary reason to go full-totalitarian Unionist and totally remove independent Scottish law, and no one has ever proposed that and survived, afaik.
    Similarly any final veto on laws passed by the Scottish parliament should be within the justice system, not in the gift of the PM, in my view. But that is an interesting point and we’re starting to unpick the Labour devolution settlement. It may be that in passing various distinctive and challenging laws that extend Holyrood powers, it is the aim of the SNP to force devolution to a crisis, but I tend towards the ‘cockup’ theory, not the ‘conspiracy’ theory here.

  • Ruth Bright 5th Apr '24 - 7:46pm

    Thanks Bryn. As someone who has had the “intent” of a Holocaust memorial day “display” queried by a complainant I feel really concerned. It is Mill’s harm principle not Mill’s hurt feelings or tasteless remarks’ principle.

  • Robin AG Bennett 5th Apr '24 - 7:52pm

    JK Rowling should have taken legal advice before spouting. It would have been readily available.

  • Matt (Bristol) 6th Apr '24 - 10:45am

    I think we need to be honest here, that if this act settles down and performs a useful role, it won’t be to do with the legislators, it will be because of police operational choices / reinterpretation of it. The SNP leadership have not helped how they have presented the act since it passed 2-3 years ago, refusing to answer direct questions about what would or wouldn’t constitute hate speech and often saying ‘its for the police’. It’s clear the police do not particularly welcome the new powers and the delay in implementation is due to police concerns about their ability to operate it and allocate staffing. (It has that in common with some of the ambiguously phrased lockdown laws passed by Patel and Johnson).

    If people think Scottish law needed consolidating in this area, fair enough, but this has given the police potential latitude for the arbitrary exercise of power, and the ‘reasonable person’ test is vague and situational. Bad or vague law does not clarify or improve bad or vague law, and there are far too many instances of laws in all parts of the UK being passed but passing into a zombie / limbo state where regulations are not brought forward to enact them (the effectively dead Liberty Protection Safeguards that were supposed to reduce illegal detention of adults with loss of mental capacity in care homes, is a weeeping sore here). If this Act has been misportrayed, those who drafted it have to share some of the blame.

  • Where is the evidence of a problem with the existing legislation. The police need resources to enforce existing laws rather than having to deal with more legislation. This legislation is nothing more than a smokescreen for wider failings on health, drugs, suicide, crime and education. I find it very depressing that libdems considered this legislation worty of support.

  • Mick Taylor 6th Apr '24 - 8:50pm

    TTrans rights and women’s rights are not in opposition to each other.
    This issue is focussed on denying that trans women are women denying them women’s rights or women’s spaces.
    (As an aside, little or nothing has been said about trans men not being men or enjoying men’s spaces)
    JKR and others have pursued a fallacious argument that some men are pretending to be trans to gain access to women’s spaces. and therefore all trans women must be suspect and not allowed in women’s spaces. Where is the evidence? How many cases have been before the courts? How many times have the police removed such a transgressing trans woman from say a women’s refuge? I think you will find it is vanishingly small. (not to mention that the sort of men who want to harm women would not be seen dead in women’s clothes)
    JKR and others are offensive in the extreme to a vulnerable group of people who have enough problems dealing with transition and certainly don’t need the sort of bile being heaped on them by people who should know better. If men used the sort of language in attacking women on social media they would be the first to cry misogyny.
    Mill’s principle of harm applies, because it is causing mental illness/distress and in some cases suicide.
    To put no finer point on it, it is hate speech and should not be protected in the name of free speech.

  • Peter Hirst 7th Apr '24 - 10:29am

    At least the Scottish bill acknowledges that words can cause significant distress and thus constitute a crime. Those in power or influence should take more responsibility as their words might mean more. Free expression must have limits in the public realm though fines or remedial work seem more appropriate than a prison sentence as a punishment.

  • Peter Hirst 7th Apr '24 - 11:29am

    English law as I understand it relies on what a reasonable person would do in certain circumstances. This can be debated but people who are affected by speech in public should have redress. It is for the courts to decide whether what is said has broken any law under the specific circumstances.

  • Jenny Barnes 7th Apr '24 - 4:02pm

    “little or nothing has been said about trans men not being men”
    Well. I wonder how JKR and the other transphobes like people with big muscles, balding heads, beards, wearing say jeans and singlets to show their hairy arms and chests, entering “women’s spaces”. Not a lot, would be my guess. And how would they tell whether they were trans or cis men?
    Because if they insist that trans women are really men, and should use male designated facilities, the converse surely applies.

  • I made a point of looking and although am not a lawyer I do understand regulation. I can’t see anything in the legislation that would have occasioned attention seeking persons be in no arrested. I do see people frothing at the mouth because they think their children will be targets of abuse in Scotland now, or because they want to protect their ‘right’ to spread hatred about others. Bizarre – have to assume that this is more about bashing the snp than it is about providing useful comment.

  • @simonr

    Hello from Scotland.

    Here is a short blog post by James Chalmers, Professor of Law at Glasgow University which explains the Act:

    https://jameschalmers.substack.com/p/the-hate-crime-and-public-order-scotland

    Essentially it consolidates and updates existing law and extends the long-standing offence of stirring up hatred on racial, religious and sexual orientation grounds to age, disability, and transgender identity. It followed a review in 2017 by the Rt Hon Lord Bracadale, one of Scotland’s most senior and respected judges.

    The Law Commission for England and Wales has undertaken a similar review and made recommendations not dissimilar to those of Lord Bracadale:

    https://lawcom.gov.uk/project/hate-crime/

    Dame Helena Kennedy KC is reviewing the position of misogyny. The Act was intended to cover that but a number of women organisations pressed for a stand alone act. The SG has committed to introducing legislation after the report is received but has also included provisions in the Act to include misogyny by regulations if that is recommended.

    Far from being some dastardly SNP plot the Act is part of the ongoing government business of consolidating and updating law.

  • @Toby James – thanks for providing a link with some real insight into the why of this Act. It is a shame that such plain English commentaries aren’t a requirement for all legislation.
    @Matt (Bristol) = thanks for your efforts lift rise above the mindless commenting and trolling regularly seen on social media, from people who clearly haven’t taken the time to understand what the person they are commenting on is actually saying.

    @Caron – the Equaity Network piece you linked to is also useful, as is the link it contains to the briefing made by Engender; which chimes with where “the author who shall not be named” is coming from.

  • I think the point is that whatever the hate crime act says, the fact that you have to wait for the police to confirm whether or not, based on the correct interpretation of the act, you will or will not be arrested for your opinions on this occasion, means that the act has done the job of stifling freedom of expression.

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