SCOTLAND’S new Hate Crime Act comes into force on Monday – three years after it was passed by Parliament.
It is the subject of much controversy, with opponents claiming it could have a chilling effect on free speech.
The legislation was introduced with the aim of strengthening people’s protection from hate crimes.
So what’s new in the Hate Crime Act?
It maintains the previous list of characteristics that can be targeted in hate crimes: race, religion, sexuality, disability or transgender identity. To this is added the new characteristic of age.
These are known aggravated offences. For instance, an assault by a white person against a black person may be considered a hate crime if it can be proven the attacker was motivated by racism against the victim.
The new law removes “intersexuality” from the definition of transgender and creates a new category of hate crime based on “variations in sex characteristics” with the aim of protecting people who are intersex (have both male and female sexual characteristics).
As it stands, current hate crime legislation means that a hate crime can be committed against someone who is thought by the perpetrator to belong to a certain group – for instance, an attack could be prosecuted as being homophobic if the victim was perceived to be gay, even if they were straight.
READ MORE: Former Tory MSP defends Scottish Hate Crime Act against 'propagandists'
The new law broadens this to mean that if someone were attacked for being around gay people, but were not thought by the perpetrator to be gay, this would still count as a hate crime.
A large amount of the controversy surrounding the new law focuses on the expanded grounds for prosecution on the grounds of “stirring up hatred” against a group.
Since 1986, it has been illegal in the UK to stir up racial hatred and homophobic hate crimes have been on the statute books since 2008 in England and Wales.
The new law creates new offences for stirring up hatred against people because of their disability, religion, transgender identity, sexuality, age or variation in sex characteristics.
What about free speech?
The Scottish Government says there are protections for free speech included in the legislation.
The law specifies that prosecutors are not to consider “discussion or criticism of matters relating to” any of the new list of characteristics as being inherently “threatening or abusive”.
It also specifically provides for the right for people to express “antipathy” or “dislike” and to “ridicule” or “insult” people based on their religion.
Anything else?
The law also requires that the police publish information on recorded hate crime and convictions annually.
READ MORE: Hate Crime Act 'likely to enhance, not limit freedoms', barrister argues
It also belatedly abolishes the common law crime of blasphemy – sacrilegious statements about God – which has not been prosecuted in Scotland since 1843, according to the Scottish Government.
The law has not made someone’s sex an aggravating factor in hate crimes. The Scottish Government said that while “we know that women’s experiences of hate crime can be amplified by misogyny” this law would have been the wrong vehicle for a new criminal offence.
A separate bill on that topic is expected to be introduced to the Scottish Parliament later this year.
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