THE new Scottish Hate Crime Act has aroused much controversy – but isn’t it really just the same as what has been the law in England for more than a decade?

Some on social media would have you believe it’s as simple as that.

But regius professor of law at Glasgow University James Chalmers says the real story is more complicated.

In short, he says, it is wrong to say the law is now the same both sides of the Border.

While it is correct to say that this week marks Scotland catching up with England in making stirring up hatred against people because of their religion or sexual orientation – it is wrong to say that the two systems are now exactly the same, he says.

Much of what is included in Scotland’s Hate Crime Act was already illegal anywhere in Britain, argues Professor Chalmers.

This is because of the Communications Act 2003, which imposed restrictions on social media posts which were “grossly offensive or of an indecent, obscene or menacing character”.

He explains: “It doesn’t really change the boundary between what is legal and what is illegal – it does change the category into which the really serious cases would be placed by criminal law.”

Professor Chalmers goes on: “It’s very difficult to see how you could do anything that would meet the requirements of the ‘stirring up’ offences that wasn’t already another criminal offence.  

“What the act does is it labels that as a more accurate description of the wrongdoing involved.

“But it’s not the case that [in England] you can stir up hatred against trans people – or old people or disabled people – with impunity, but you don’t have a direct equivalent of these offences.”

READ MORE: Police taking no action on JK Rowling 'hate crime' post

The difference is the severity of the offence, he says. Similar offences under the Communications Act carry a maximum prison sentence of six months. The Hate Crime Act allows people to be jailed for up to seven years.

But criminal law, argues Professor Chalmers, is not simply “a long list of things you can’t do”.

“It’s also about describing and classifying and appropriately punishing different sorts of wrongs depending on their severity,” he says.

“We distinguish between murder and culpable homicide, for example.”

The National:

If these things were already illegal, then why create a new offence?

Professor Chalmers (above) – who worked on the review which shaped the Hate Crime Act – says part of the motivation was “symbolic”.

The Scottish Government, he says, wanted to “recognise the severity of stirring up hatred against a group”.

“This is more than a breach of the peace, for example, this is more than a minor public order offence,” he adds.

Other than the penalties for offences there is another slight difference between the Scottish and English law, Professor Chalmers says.

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While the English hate crime rules specify that conduct must be “threatening and intended to stir up hatred”, Scotland’s definition is broader, proscribing conduct that is “threatening or abusive and intended to stir up hatred”.

But this will matter little in its practical application even though the addition of the word “abusive” makes the Scottish definition “more malleable”, says Professor Chalmers.

“I don’t think, ultimately, the Scottish formulation is going to capture more cases but it may make it more difficult for people to reassure themselves is definitely off limits to criminal law.”

But could it have a “chilling effect” on freedom of speech, as opponents have warned?

There is a potentially “greater chilling effect” of the Hate Crime Act versus the Communications Act, says Professor Chalmers, because its penalties are more severe.

“The reality is that people are not making decisions about what they post on social media after reading and parsing statutes of offences,” he says.

“It’s the public perception of just how far this offence goes that is going to affect what people do and say on social media.”

The National: JK Rowling

And should people be worried? Harry Potter author JK Rowling (above) has already attempted to goad the police into arresting her for a thread in which she misgendered a number of trans activists and criminals.

Football pundit and former Rangers striker Ally McCoist said he can “guarantee” he and 48,000 other Gers fans will breach the law on the stands of Ibrox during the Old Firm game at the weekend.

Professor Chalmers is unconvinced. The law was drawn up in full knowledge, he says, that very few offences would actually be prosecuted.

READ MORE: Ally McCoist 'guarantees' he will breach Hate Crime Act at Rangers vs Celtic game

Even under the lower threshold of the old offence of stirring up racial hatred – on the statue books since 1986 and which does not require prosecutors to prove someone’s intent – only around “one case a year” is heard on those grounds in Scottish courts, says Professor Chalmers.

“It’s just not used very often,” he says.

In the cases where a prosecution is successful, he goes on, those found guilty “have typically been people calling for people to be killed or injured”.

“That’s not the legal definition but that gives you an idea of just how high a threshold ‘hate’ is regarded as being,” he adds.

In Rowling’s case, Professor Chalmers doubts her comments reach the threshold of a hate crime.

“I don’t think that would be an offence under the Act because the threshold for committing an offence is so high, you’ve got to prove that it’s threatening or abusive,” he says.

“And you’ve got to show that there’s the intention to stir up hatred.”

The National: Ally McCoist

And for McCoist (above) and other supporters watching the Old Firm on Sunday?

“Nothing here in terms of the practical policing of [football matches] is likely to change,” he says.

“The real effect on policing is going to be what happens when people […] are reporting lots of social media posts to the police.

"In an environment where the police are already there in numbers and are already used to applying the criminal law, I wouldn’t expect to see much change there, if anything.”