We must be clear on what the new Hate Crime Bill seeks to do

I welcome scrutiny of the bill’s provisions as it proceeds through Parliament and I read with interest Andrew Tickell’s article published on April 26, he is an individual I greatly respect.

Of course, we must be clear what the new bill seeks to do. A key element of the bill, which Tickell highlights in his article, are offences relating to stirring up hatred.

Unfortunately in some key areas, the article doesn’t reflect the actual content of the bill, specifically in the commentary about the legal thresholds for the new stirring up hatred offences.

At the moment such offences only apply to stirring up racial hatred.

Stirring up of racial hatred offences have been part of Scots criminal law for a long time. For decades in fact.

UK Government legislation passed in 1986 included “insulting” as part of the behaviour that can constitute a criminal offence where there is an intention to stir up racial hatred or where the behaviour was likely to stir up racial hatred. So the bill does not introduce “insulting” as a new legal threshold in Scots law.

The bill does create new offences of stirring up hatred to cover the other characteristics listed in the bill, which are religion, sexual orientation, age, transgender identity and variations in sexual characteristics (sometimes referred to as “intersex”).

Tickell’s article did not distinguish the different legal thresholds for offences relating to stirring up racial hatred, and offences relating to stirring up hatred in respect of the other characteristics.

This is important as there is a key difference in the legal thresholds.

If passed by parliament, the bill will make it an offence for someone to behave in a threatening or abusive manner, or communicate threatening or abusive material to another person, in respect of the listed characteristics, where there is an intention or likelihood to stir up hatred.

For the offences relating to all characteristics except race, “insulting” is not included as part of the conduct that may constitute a criminal offence.

It is important to understand why a distinct approach has been adopted within the Bill in respect of racial hate crime. Retaining “insulting” as a legal threshold for offences of stirring up racial hatred recognises racial hate crime accounts for the majority of hate crime offending in Scotland.

Due to the historical and structural nature of racism, the prevalence and seriousness of race hate crime in Scotland and the impact that this has on community cohesion, I consider this separate approach is justified.

I do not wish to create any perception that existing racial hate crime protections that have been in place for decades would be weakened through the removal of a long-standing legal threshold.

Clearly I recognise concerns that some, including Tickell, have expressed about freedom of expression, particularly in relation to discussion of religion and sexual orientation.

The Scottish Government has approached the bill so that the stirring up of hatred offences do not unduly inhibit freedom of expression protections set out in the ECHR.

Tickell poses a number of scenarios of what might constitute criminal conduct under the bill.

Of course, this will be a matter for the courts.

However, in each of these scenarios it is important to highlight that expressing disapproval is not, of itself, an offence of stirring up hatred providing it is not done in a way that is threatening or abusive.

The bill’s provisions on freedom of expression provide reassurance that stirring up offence(s) will not restrict people’s right to express their faith, or to criticise religious beliefs or practices or sexual practices.

I believe the bill strikes the right balance between respecting freedom of speech and tackling hate speech and the bill’s provisions are appropriately framed so as to ensure that only sufficiently serious conduct is criminalised.

Humza Yousaf

Cabinet Secretary for Justice