A lawyer and former politician has hit back at claims that Scotland's new Hate Crime Bill will criminalise offensive speech and mean hate crimes are judged purely on feelings.

Hate Crime and Public Order (Scotland) Act 2021 comes into effect on April 1 this year, widening offences of "stirring up hate" to go beyond race, as well as repealing laws against blasphemy.

It has been criticised in some quarters for being potentially stifling of freedom of speech, including on issues like religion and gender identity.

Adam Tomkins, a former Conservative MSP, has written seven books in the areas of constitutional, administrative and European Union law, with a new one to follow later this year on the issue of free speech.

Mr Tomkins feels "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".

It has been claimed that the new law will criminalise any kind of offensive speech, based solely on whether someone hearing it was offended.

The John Millar Professor of Public Law at the University of Glasgow was convener of the Scottish Parliament’s Justice Committee when the Hate Crime Bill was enacted, and has pointed to a number of what sees as misconceptions.

Read More: Hate Crime Act might yet be a success if we focus on what it means

Writing in The Herald Mr Tomkins explained: "Under the new law, not all of these characteristics are protected in the same way. Indeed, the Hate Crime Act puts them into three different categories. Race enjoys the fullest protection. Religion enjoys the least protection. And all the other characteristics are in the middle category.

"To explain, it makes sense to start with that middle category. From April 1 it will be an offence to behave or communicate in a manner that a reasonable person would consider to be threatening or abusive if, in doing so, you intend to stir up hatred on grounds of sexual orientation, transgender identity, age or disability. It is a defence to a charge under this provision to show that your behaviour or communication was reasonable in the circumstances.

"The law provides that, when considering the question of reasonableness, 'particular regard' must be had to the importance of the right to free speech, including the principle that that right protects communications which others may find offensive, shocking or disturbing.

"This is really important. Offensive speech is not criminalised by this legislation: the only speech relating to sexual orientation, transgender identity, age or disability outlawed here is speech which (1) a reasonable person (2) would consider to be threatening or abusive and which (3) was intended to stir up hatred and (4) was not reasonable in the circumstances.

"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."

Read the full article here

Adam Tomkins is the John Millar Professor of Public Law at the University of Glasgow. He was convener of the Scottish Parliament’s Justice Committee when the Hate Crime Bill was enacted. His new book, “On the Law of Speaking Freely”, will be published next year.