Coalition of 20 warns Scotland's hate crime bill threatens free speech

Ministers argue the bill offers great protection for victims at a time when the number of cases is on the rise.

But the group, that includes Nicola Sturgeon's bestselling crime writer Val McDermid say that the “well-meaning bill” could “have unintended consequences” that result in “stifling free expression”.

The signatories also included acclaimed comedians Rowan Atkinson and Elaine C Smith alongside novelist Chris Brookmyre, the Humanist Society Scotland, the freedom-of-expression champion Scottish PEN and Index on Censorship.

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The bill could see people convicted of an offence if their behaviour is "threatening or abusive" and either intended to stir up hatred against a religious group or "likely" to do so.

Fraser Sutherland, chief executive of Humanist Society Scotland said: “The bill as proposed has behind it some sound intentions, however it is clear from the broad support to our joint letter that concerns remain about poorly drafted provisions. The failure of the bill to require intent to be proven in court on some offences risks a significant chilling effect on free expression.

“This is why the UN Rabat Plan has six tests on controlling hate speech including that any laws must ensure intent is proven. This strikes a sensible balance between protecting individuals from hate crime and protecting freedom of expression and the Bill needs amending to properly achieve this.”

The Scottish Bishops conference last week raised concerns over the bill claiming it could have serious implications for religious freedom.

In a submission to the Holyrood committee responsible for scrutinising the reforms, the Bishop’s Conference stated that the “low threshold” for hate crimes, as defined in the bill, could threaten freedoms of speech, religion and conscience”.

The Bishops specifically name the Bible and the Catechism as materials that could be defined “as being inflammatory under the new provision”. Given that the definition of hatred in the Bill is unclear, the Bishops said, it could even render the submissions of the Bishop’s conference to the government on issues like gender identity “inflammatory”.

Last month, in a joint letter to justice secretary Humza Yousaf, the National Secular Society and the Edinburgh Secular Society (ESS) also said the introduction of a new offence in the Scottish government's hate crime bill posed a threat to free speech on religion.

A clause designed to protect free expression in the bill would prevent people from being convicted "solely on the basis" that behaviour or material "involves or includes discussion or criticism of religion or religious practices".

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But critics say this provision was "substantially weaker" than its equivalent in England and Wales's Racial and Religious Hatred Act. A clause in that act says the law won't be given "effect" in a way that restricts criticism of religion.

Mr Yousaf has always refuted that the bill curtails free speech, saying it set the bar "very high" as anything deemed threatening or abusive and likely to stir up hatred must be proved beyond reasonable doubt.

The new coalition letter states: "We represent a diverse group of individuals and organisations concerned about the impact on freedom of expression of the proposed Hate Crime and Public Order Bill as currently drafted.

"We welcome the provisions to consolidate existing aggravated hate crimes and the repeal of the blasphemy law.

"However, the bill creates stirring up offences without any intent being examined; merely that the words, action, or artwork might do so. This offence could even be applied to being in possession of materials produced by someone else, where sharing the material could stir up hatred.

"The unintended consequences of this well meaning bill risk stifling freedom of expression, and the ability to articulate or criticise religious and other beliefs.

"As currently worded, the bill could frustrate rational debate and discussion which has a fundamental role in society including in artistic endeavour. The arts play a key part in shaping Scotland’s identity in addition to being a significant economic contributor.

"The right to critique ideas, philosophical, religious and other must be protected to allow an artistic and democratic society to flourish."

The letter co-ordinated by Humanist Society Scotland also has support from arts administrators Dame Seona Reid and the artistic director of Dundee Rep, Andrew Paton. They join Cartoonists Rights International and academics such as Prof Anthony Grayling and Prof Timothy Garden Ash alongside many others.

Last week the consultation on the hate crime laws was branded a “sham” after all contributors were emailed a “myth-busting” blog designed to bolster support for the controversial policy.

Contributors who reflected on the proposals were sent a link to a blog that was set up “with a view to alleviating any possible concerns or misunderstandings about the bill”.

The blog highlights 15 “myths” about the proposed legislation, which has been also been criticised by the Law Society of Scotland and the Scottish Police Federation.

The proposals have received support from organisations including the Equality Network, the ethnic minorities-led umbrella body BEMIS, Victim Support Scotland and the Scottish Council of Jewish Communities.

A Scottish Government spokesman said: “As the Justice Secretary has made clear, we will continue to work with stakeholders and opposition where there are genuine concerns raised about the implications of the Hate Crime Bill.

"But the bill does not seek to stifle criticism or rigorous debate in any way, people can express controversial, challenging or offensive views as long as this is not done in a threatening or abusive way that is intended or likely to stir up hatred. The bill includes explicit provisions on protection of freedom of expression. 

“The law should protect vulnerable groups and minorities and this bill – which follows an independent, judge-led review and is backed by a number of organisations – will increase confidence in policing to those communities affected by hate crime.

“We will fully consider the views collected in the consultation and continue to engage with Police Scotland, the Crown Office and Procurator Fiscal Service, stakeholders and the opposition as the Bill progresses through Parliamentary scrutiny.”