The Scottish Police Federation, which represents 98 per cent of officers, says the new law could lead to police officers “determining free speech and thereby devastate the legitimacy of the police service”.
In a submission to the government consultation on the Hate Crime & Public Order (Scotland) Bill, the SPF has said the proposed law is “too vague" to be implemented in practice.
The SPF is the latest body to warn of difficulties with the legislation being piloted through Holyrood by Justice Secretary Humza Yousaf. Opposition MSPs have raised concerns about the impact of the Bill on free speech, and the Law Society of Scotland has also expressed fears about a “significant threat to freedom of expressions" and said the law as currently drafted contains "major flaws”.
The Hate Crime Bill has been introduced after an independent review by retired judge Lord Bracadale recommended that age and gender should be added to hate crime legislation. People are currently protected on the basis of disability; race (and related characteristics); religion; sexual orientation and transgender identity.
The new Bill adds age to the list and the government has said sex, rather than gender, could be added at a later date. It is also investigating misogynistic harassment as a stand alone offence.
In its submission, the Scottish Police Federation says that elements of the legislation would mean “a significant increase in police workload and demand”, which would also impact Crown Prosecution Service and courts, and estimates the cost a single day’s training on the new law for every police officer in Scotland at between £3.5 to £4m.
It also says that it does not support the intended provision to grant police staff powers of search and entry – by force if necessary and raises concerns that the Bill “seeks to criminalise the mere likelihood of ‘stirring up hatred’ by creating an offence of threatening, abusive or insulting behaviour, such offence to include both speech and conduct.” It adds: “This complicates the law and is in our opinion, too vague to be implemented.”
Calum Steele, General Secretary of the Scottish Police Federation, said: “We are firmly of the view this proposed legislation would see officers policing speech and would devastate the legitimacy of the police in the eyes of the public. That can never be an acceptable outcome – and we should never forget that the police in Scotland police only with the consent of the people.
“Police officers are all too aware that there are individuals in society who believe that to feel insulted or offended is a police matter. The Bill would move even further from policing and criminalising of deeds and acts to the potential policing of what people think or feel, as well as the criminalisation of what is said in private.
“We support and adopt the comments of Fred Mackintosh QC and others in relation to the removal of available defences which exist for the current hate crime offences. If the Bill as presented is passed, those accused of the new offences of stirring up hatred will not have the opportunity to prove that they did not intend to stir up hatred or that they had no reason to suspect their conduct would do so.
“We do not for one second suggest that prejudice, racism or discrimination are desirable qualities in our society but the need to address those matters when they reach a criminal level is met by laws already in place and the cost to free speech of going further with this Bill is too high a price to pay for very little gain.”
The SPF submission also says it is concerned about Articles 6 and 7 of the Convention of Human Rights concerning the right to a fair trial, and states that the timing of publication of the Bill and the consultation period during a global pandemic “is unfortunate at best”.
It also adds that the Bill’s financial memorandum makes no provision for the costs of investigation of complaints against police officers and staff, or the financial costs associated with the “significant increase in police officers being called to court to give evidence”.
Mr Yousaf has denied that the Bill curtails free speech as it “is never an unfettered right”. He says it creates a protection for, minority and vulnerable groups in society, “against being targeted for hatred and being targets for hatred”.
He has said the Bill set the bar "very high" as anything deemed threatening or abusive and likely to stir up hatred must be proved beyond reasonable doubt.
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