Hate Crime and Public Order Act is an attack on free speech that's wide open to abuse – Euan McColm

New law may see people trying to criminalise those with whom they disagree

Here’s an easy one for you: do you think it should be illegal to assault, harass, or intimidate someone on the grounds of their race, religion, or sexuality? If you’re not a sociopath and believe the answer is yes, I’ve excellent news for you – it already is.

Not only do all of us – regardless of identity – qualify for the protection of police, but judges are guided by sentencing guidelines that declare the motivations of hatred and prejudice to be aggravating factors in violent crimes. Why, then, is the SNP government so determined to push ahead with its controversial Hate Crime and Public Order (Scotland) Act, a piece of legislation that replicates existing law and adds a worrying threat to freedom of speech?

The new legislation – passed by MSPs three years ago – comes into effect next month and, I’m afraid, it’s not fit for purpose. The first clue that all is not well with this law is the fact that, despite it gaining Royal Assent in April 2021, the legislation has not yet come into force because Police Scotland needed time for “training, guidance and communications planning”. A law whose enactment must be delayed for three years until police can get their heads round it doesn’t sound all that efficient to me.

Police recently stated there was nothing illegal about views expressed by novelist JK Rowling about transgender people (Picture: Stuart C Wilson/Getty Images)

Comedians at risk for mocking religion?

The key change that will take place when the Act comes to life on April 1 will be the addition of the offence of stirring up hatred against people with a range of characteristics, from sexual orientation to gender identity. Surely this is a good thing? We should all be free to live our lives free from the prospect of anyone stirring up hatred against us. The problem is that what constitutes stirring up hatred isn’t always clear.

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Let’s take the matter of religious faith, for example. If a comedian rouses an audience to lots of laughter by mocking, for example, a set of religious beliefs, is a devout person of faith in the stalls entitled to think some stirring up has gone on?

There are two obvious – and surely fatal – problems with the new law. The first is that leaving police across the country to judge whether a controversial opinion expressed passes the threshold for prosecution is not at all good for the health of freedom of speech. The second is that it is wide open to abuse.

JK Rowling’s views not illegal

It is commonplace, today, for some campaign groups to regularly involve the police whenever dissenters speak up. Over recent years, for example, we’ve seen frequent accusations of criminal behaviour by trans rights activists against gender critical feminists who hold that sex is immutable.

Just last week, police in Northumberland were forced to clarify – after a number of allegations of criminality against her – that there was nothing illegal about views expressed by the novelist and philanthropist JK Rowling. Can we expect the new legislation to lead to an increase in the number of people trying to criminalise those with whom they disagree? What do you think?

We’ve been here, before, with the SNP. Its Offensive Behaviour at Football Act had to be scrapped after its clear infringement on free speech became indefensible. Don’t be surprised if the Hate Crime Act meets the same fate.