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

What the Hate Crime Act does is to take that core idea (stirring up racial hatred) and apply it to a range of “protected characteristics”: not just race, but religion, sexual orientation, transgender identity, age and disability, too.

Even this idea is not new. In England it has been a crime to stir up hatred on religious grounds since 2006 and on grounds of sexual orientation since 2008. Not so in Scotland, however. The English extension of the stirring-up offences to cover religion and sexual orientation did not apply north of the border.

There are concerns about how the Hate Crime Act will be enforced (Image: PA)

One of the things the new Hate Crime Act does is to bring that anomaly to an end. In doing so, however, the new law extends Scots criminal law beyond the English offences. From April 1 it won’t just be race, religion and sexual orientation that are covered: it will be age, disability and transgender identity, too.

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.

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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.

Under the Hate Crime Act the threshold of criminal liability is not that a victim feels offended (a subjective test), but that a reasonable person would consider the perpetrator’s action or speech to be threatening or abusive (an objective test). Moreover, the Act specifies that “discussion or criticism” of matters relating to sexual orientation, transgender identity, age or disability, is not to be taken as threatening or abusive. For example, asserting that sex is a biological fact or that it is not changed just by virtue of the gender by which someone chooses to identify is not and never can be a hate crime under this legislation. As such, the new law is going to disappoint those transgender activists who think all acts of misgendering are instances of hateful transphobia, just as it is going to disappoint those culture warriors whose nightmarish vision is that the new law poses the greatest threat to free speech since the abolition of the Licensing Act.

Religion has the least protection under the new law (Image: Newsquest)

It is different for race. Race, for these purposes, has an expansive definition and includes nationality and citizenship as well as colour and ethnicity. The offence of stirring up racial hatred can be committed not only where behaviour or communication is threatening or abusive, but also where it is insulting.

Moreover, the offence of stirring up racial hatred can be committed not only where hatred is intended to be stirred up, but also where it is likely to be. This is not the case for sexual orientation, transgender identity, age or disability. In none of these contexts is an offence committed where actions or speech are merely insulting (rather than threatening or abusive) and in none of these contexts is an offence committed merely where it is likely that hatred will be stirred up - it is a requirement of the offence that the perpetrator intends to stir up hatred. But what the Act says about stirring up racial hatred is not new: insulting someone’s race has been an offence ever since Harold Wilson’s government first made it so in 1965.

It is different again for religion. It isn’t just “discussion or criticism” of religion which is permitted under the Act: it is also “expressions of antipathy, dislike, ridicule or insult”. It is an offence intentionally to stir up hatred on religious grounds, but the threats or abuse you would need to indulge in would have to be truly outrageous before the criminal law was interested. If all you were doing was ridiculing or even insulting someone’s religion, that might be unwelcome, but it would not be criminal, not under the Hate Crime Act at any rate.

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.

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.