Laws on hate crime matter, but reform could blow up in our face

By way of example, it is a crime to stir up racial hatred in Scotland – but stirring up hatred based on things like religion or sexual orientation aren’t covered. If I assault you because of your perceived disability or sexuality? Then the law says that’s a crime aggravated by prejudice. If I assault you because of your age or sex? Well, that’s just a common assault. This bill seeks to change that, setting out a comprehensive list of protected characteristics, aggravators and new hate crime offences. The tidy-minded lawyer in me approves – but Humza Yousaf should brace himself.

Some elements of these proposals are likely to prove hugely controversial once the viral mist surrounding us begins to clear – and rightly so. Holyrood hasn’t always demonstrated good judgement when it comes to the right of free expression. It is all very well to honk away about the criminal law “sending a message”. It certainly does.

But in reality, in practice, when big, bold principles come to be applied to real people in the sheriff court – they have the real potential to do serious injustice and social harm. Our politicians have often been too reluctant to own the consequences of their press releases. Drawing ragged lines between permissible and impermissible speech is a tricky business at the best of times. We can’t afford to be vague about it when criminal consequences follow. Who the law brands a bigot isn’t the last word on the subject – but it matters.

If Bracadale and the Scottish Government had left it at aggravators – there’d be no bother. Aggravators are a restrained way of putting the brand on crimes of bigotry and prejudice. They don’t create new criminal offences. They don’t criminalise any before which was hitherto permissible. Instead, aggravators can be attached to crimes where there is evidence the offence was either motivated by “malice and ill-will” towards the victim, or more commonly, where the accused “evinces” this malice shortly before, during or after the commission of the offence. Hate crime aggravators are generally proven by what the accused said before he spat on you, as he tried to pull of your hijab, after he pushed you to the ground. This element of the bill ought to be uncontroversial, with few serious implications for free expression.

I’m afraid the same can’t be said for the second key set of proposals. Following Bracadale, the Scottish Government want to create a wave of new “stirring up hatred” offences, attaching to each and every one of the protected characteristics, including age, transgender identity and “variation in sex characteristics”.

Under these proposals, you’ll commit a crime if you behave in a “threatening, abusive or insulting manner”, or communicate “threatening, abusive or insulting material” to other people which either (a) intends to stir up hatred against a protected group or, or where the court concludes it is (b) “likely” such hatred would be stirred up, irrespective of what you intended. Yes, you’d have a defence of “reasonableness” in context – but incorporating that mild word “insulting” in a criminal statute brings me out in cold sweats.

I can see it now. I’m braced for the deluge. “Is this tweet a hate crime?” Report, report, report. This isn’t pettifogging. Take a quick tour through other social contexts where this rough test might apply, and consider the implications. What about manic street preachers who – in ordinary times – haunt the centres of some of our towns, trying to save Scotland from sodomy by shouting Leviticus into their crackling sound systems to the general indifference of the lunch crowd?

What about the bad Gandalf who used to walk around university campuses with a “sex before marriage, hell after death” placard? Should he be huckled? Should they?

Take another cleric, in another church. This one calmly and lucidly explains to their congregation why they believe, for example, the outbreak of coronavirus is God’s vengeance for allowing gay marriages to be consecrated, or because of the toleration of Islam, or of Catholicism, or because of a global Jewish conspiracy. Take your pick about what this walloper believes the Almighty is furious about.

Should Police Scotland be chapping on his parish door? If feminist campaigners go marching under a banner denouncing the Pope’s attitude to contraception and family planning in salty and provocative terms – do you want them taken into custody? What about the same cries emerging from the Uruk-hai in crimplene, as one of this country’s Orange marches goes waddling up the high street?

AT Glasgow Pride in 2017, the police arrested a number of protesters for – amongst other things – brandishing banners bearing the legend: “these faggots fight fascists”. This, according to the cops, represented a breach of the peace at common law aggravated by homophobic prejudice. Faggot, plod noted, is an anti-gay slur, therefore any placard bearing it must amount to a hate crime, notwithstanding what should have been the painfully obvious fact that many persecuted minorities reclaim the language once used to abuse them, transforming the stigma into a mark of – well – pride. I never did hear if they were actually prosecuted.

Change the setting. Step into Twitter. Step, in particular, into those parts of Twitter who spend their days arguing about the Gender Recognition Act, and the pros and cons of reforming it. I’ve summarised that pretty delicately. As anyone who has seen this “debate” in action will know – the scope of transgender rights and their relationship to legal understandings of sex has turned into a compulsive online blood sport. Scotland’s corner of the Twittersphere is just one outpost in a raging international controversy, everywhere stewed in bile, everywhere boiling with recrimination.

Twist the context again. Imagine we’re in a busy newspaper office, and the editor is setting the seal on tomorrow’s front page. This one blames the shortfall of personal protective equipment in the NHS on Romanians, or the Greeks, or the Chinese – or whichever minority community this sober organ has taken against this week. Inside, its star columnists pump out dehumanising copy arguing that maybe, you know, those Libyans deserved to drown in the Mediterranean; it wasn’t Freddie Starr who ate your hamster but workshy immigrants, and the real victims of racism in our society are middle-aged, middle-class white men, thank you very much. Exclusive here: why snowflake millennials are awful, with exclusive pullout about ways to disinherit your children. This could be some of Britain’s papers, virtually any day, any month, any year you pick.

The bill contains some saving provisions for free expression in respect of religion and on sexual orientation – anticipating the inevitable objections from Scotland’s vigorous atheists and its conservative theologies, but this only scratches the surface of the implications of these proposals for free – yes, even bigoted, even ugly – forms of self-expression.

I don’t mean to imply any sympathy with all of the examples I’ve given. Sympathy isn’t the point. The criminal law isn’t ethics. What is legal doesn’t – shouldn’t – exhaust an analysis of what’s right and wrong to do and say and encourage others to think.

Criminal law is about individual responsibility. Trials strip away the context, the setting, the culture underpinning what happened, what the accused person did, why they did it.

Our courts don’t care where the accused person acquired their bigotry, merely that they expressed it in a criminal way. Our courts don’t ask what the true engines of hatred are in our society. They don’t hold the principal peddlers of prejudice to account for the muck they spread.

Hate crime matters. It is important, and justified, to consider the legislation surrounding it, and the government are right to reform it. We know the social damage done by crimes of hatred is profound. It is right for our democratic institutions to stand behind those who are victims of violence and abuse because of the colour of their skin, their perceived religion, their sexualities.

But defining what you mean by “stirring up hatred” is a painfully intricate task, surrounded by political live wires. Keeping everyone onside isn’t an option. Time will tell if Humza Yousaf has the dexterity to defuse the controversies this bill is sure to generate.